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Campaigns Pressure Station Over '527' Ads
Wall Street Journal article on campaign advertising issues.

Adams County Residents and Property Owners File Suit against Forced Annexation and Taxation without their Consent in Adams County District Court

February 15, 2008 – Brighton, Colorado.

On Friday morning, February 15, a lawsuit was filed on behalf of a group of residents, property owners, business owners, and electors in newly-annexed areas of Commerce City. The lawsuit seeks court review of the unilateral annexation by the City of Commerce City of approximately 1,260 acres of unincorporated Adams County. The City Council adopted the two annexation ordinances on December 17, and the annexations became effective December 31, 2007.

To read the entire press release and to view a copy of the complaint click on the appropriate link.

 

denver and the west
Drop ethics complaint, counsel says
By The Denver Post
Article Last Updated: 12/05/2007 12:58:24 AM MST


GOLDEN — A special counsel hired to investigate an ethics complaint lodged by Golden officials against Councilwoman Mary Weaver has recommended that it be dismissed.

The recommendation will be considered Thursday night by the City Council.

If the counsel's report is rejected, the council could decide to pursue other action.

"We agree and are very happy that the special counsel drew this conclusion. We think it's the right one," said Weaver's attorney, John Zakhem.

Weaver was accused in September by City Attorney Jim Windholz of receiving an $8,500 loan from longtime city critic Marian Olson.

The city's ethics code prohibits a council member from accepting a gift, loan or service valued at more than $100 in one year.

Windholz also alleged Weaver may have provided Olson with confidential information related to council executive sessions.

By Ann Schrader, The Denver Post

COLORADO'S FORCLOSURE LAWS CHANGES... AGAIN

By Ryan Call

FORECLOSURES IN COLORADO AND HISTORICALLY

The number of foreclosures taking place in Colorado has increased steadily throughout 2005, 2006 and 2007.  Colorado led the nation with the highest per capita foreclosure rate for much of 2006, and counties reported a total of 16,435 foreclosures in the first quarter of 2007.  With an average of 1 out of every 314 households currently in foreclosure proceedings, Colorado currently ranks second in the overall rate of foreclosures behind the state of Nevada.1

Changes to Colorado's Foreclosure System

Significant changes have been made to Colorado’s foreclosure process that will affect the rights a property owner has to retain title as well as changing significantly the cure periods, redemption periods, lien recording provisions, and procedures under which a Public Trustee foreclosure sale is conducted.

Under the current law, following a default in the terms of the promissory note, a foreclosure sale is scheduled within 45 to 60 days from the time the Notice of Election and Demand (NED) and intent to foreclose is filed by the lender with the Public Trustee’s office.  The property owner has up until the day before the foreclosure sale to cure the default and stop the foreclosure by payment of all past due payments, late charges, foreclosure expenses, and other amounts permitted by the promissory note or other evidence of indebtedness if proper notice of the intent to cure is filed within 15 days of the sale date.  

Following the foreclosure sale, under current law, the property owner has up to 75 days in which to redeem the property by paying the full amount the property sold for at the foreclosure sale, plus fees and interest, to the holder of the certificate of sale.  For agricultural property, the redemption period runs for 6 months. 

If the property owner’s redemption right are not exercised, then junior lien holders may redeem. If no one redeems within all applicable redemption periods, then title vests in the current holder of the certificate of purchase, and the Public Trustee provides and records a trustee’s deed conveying the property. During the initial redemption period, the owner is still entitled to possession of the property, and can sell or transfer his or her redemption right to someone else, who may then exercise it, and become the owner.

Under the new law, this post-foreclosure redemption period is effectively eliminated, while the cure period prior to the foreclosure sale is extended to between 110 to 125 days for non-agricultural property, and to 215 to 230 days for agricultural land.  Post-foreclosure sale redemption periods of junior lienholders run quickly, with the most senior lienholder who has filed his proper notices of intent to redeem allowed to redeem between 15 and 19 days after the sale, and each subsequent junior lienholder allowed a period of 5 days each thereafter. 

After all the redemption periods expire, title vests in the holder of the certificate of purchase, and the Public Trustee will issue a “Confirmation Deed” no later than 15 days after the foreclosure sale, or 15 days after all redemption periods run.

Under the new law, various notice and publication requirements have also changed.  For example, instead of receiving a separate Notice of Election and Demand (NED) in the event of a default under the terms of the promissory note, a lender or the lender’s attorney will send a Combined Notices which includes both a Notice of Sale and Intent to Cure and Redeem.

Implementation Date Changed from July 1, 2007 to January 1, 2008

Due principally to the substantial backlog of foreclosure actions currently pending in many Colorado counties, and because the newly-elected Democratic Governor Bill Ritter recently appointed a host of new Public Trustees to replace those in office from the prior Republican gubernatorial administration, the Colorado Legislature elected to grant the Public Trustee’s offices a bit of a reprieve in implementing the new law.

On March 26, 2007, the Colorado Senate changed the implementation date for the major provisions of the new law from July 1, 2007 to January 1, 2008, by amending House Bill 07-1157 on a (somewhat unusual) Third Reading vote.  The Third Reading floor amendment, and House Bill 07-1157 was adopted unanimously by the Senate (with one Senator excused), the State House concurred with the Senate’s amendments the following day, and the changes were signed into law by Governor Ritter on June 1, 2007.  House Bill 07-1157 also implemented certain changes to the statutory definitions of key terms, changed the permissible periods under which non-consensual lien holders (such as judgments or mechanic’s liens) versus other consensual liens or deeds could be filed for redemption purposes, as well as defined the right of the foreclosing lender to rescind the sale up to 8 business days following the foreclosure sale to allow a “short sale” to close.

If the Notice of Election and Demand (NED) is recorded prior to January 1, 2008, the foreclosure will be conducted and completed under the terms of the current law.  If the NED is recorded on or after January 1, 2008, the foreclosure will be conducted under the terms and timelines of the new law.

As discussed above, the procedures governing a Public Trustee foreclosure are set by statute, and must be followed precisely.  If the foreclosure procedures are not followed correctly, the foreclosure sale can be invalidated. 

If you have specific questions regarding how these recent changes to Colorado’s foreclosure system might affect you, contact Ryan Call at the law firm of Zakhem Law, LLC at 303-228-1200 or at rcall@zakhematherton.com.

The history of foreclosure and mortgage redemption laws in the United States, in the words of one commentator, “bears the scars of the never-ending struggle between debtor and creditor.”2  This struggle is not a new one.  The Old Testament, in Leviticus chapter 25, granted the right for a homeowner or his family in ancient Israel to redeem his property a full year after its sale, and drew a contrast in redemption rights between “a house in a walled city” and property outside the walled city.  The law today still treats residential real property and agricultural property differently with respect to redemption rights and periods.  As an interesting aside, Leviticus also granted property owners of the tribe of Levi special redemption rights, not available to gentiles or to the other descendants of Jacob.3 

The old English common law, upon which most of our legal system is based, recognized the “equitable right” for a property owner to redeem their property up to a foreclosure date set by the court in the early 16th century.  State legislatures, beginning in 1820, began to pass laws extending the rights of redemption beyond foreclosure.4  However, according to a recent research paper, “the trend over the past sixty years or so…has been for states to shorten their redemption periods or to eliminate them entirely.”5

Colorado’s foreclosure system is somewhat unique, being the only state in the country to permit foreclosures to be conducted by a Public Trustee, appointed by the Governor in each county.  Colorado’s Public Trustee foreclosure system was first enacted in 1894, and was designed principally to safeguard the rights of property owners, while imposing uniformity to the process, and minimizing the costs for foreclosing creditor.

Under the terms of a properly executed and recorded deed of trust, the Public Trustee is granted the right to sell the property to the benefit of the secured lender in the event of default of the terms of the promissory note or other instrument executed between the lender and the property owner.  Certain states still interpret a mortgage as giving the mortgagee the legal title.  Colorado, however, follows the “lien theory” of mortgages, which says that the mortgage (typically, a promissory note, secured by the property through a deed of trust) only creates a lien on the property, with the mortgagor (i.e. the property owner) retaining all rights of title, possession, rights to collect rents, and so forth, regardless of the specific terms or language of the promissory note and deed of trust.6  The procedures governing a Public Trustee foreclosure are set by statute, and must be followed precisely.  If the foreclosure procedures are not followed correctly, the foreclosure sale can be invalidated.

An alternative to the Public Trustee foreclosure is referred to as a “judicial foreclosure.” A judicial foreclosure is governed principally under Rule 105 of the Colorado Rules of Civil Procedure, and is conducted through the civil courts system allowing the holder of a mortgage, deed of trust, assessment lien, mechanic’s lien, or civil judgment to require a Sheriff’s Sale to satisfy the terms of the promissory note, lien, or judgment.  In addition, real property can be sold at a tax sale for failure to pay property and federal taxes, in procedures that are governed by state statute and federal law.

(This brief article does not constitute a comprehensive or complete analysis of Colorado’s foreclosure procedures, nor does it cover all of the changes to Colorado’s foreclosure laws.  This article is intended as educational information only, and does not constitute legal advice.)

John Zakhem Recognized in the Colorado Statesman's inaugural Class of '50 for the Future.'

Congratulations to John Zakhem for being recognized as one of Colorado's emerging leaders. John joins the likes of state legislators, campaign operatives, congressional staffers, governmental affairs reps, and policy wonks as one of the up-and-coming "Movers & Shakers" in the state of Colorado.

The attorneys at Zakhem Law know campaign contributions law in Denver. Call or email our team today for strategic guidance in the election law arena. Our initial consultations are always free-of-charge.