Colorado and Nevada Legislative Update

Colorado and Nevada Legislative Update

The Colorado legislature recently amended the Mortgage Loan Originator Licensing and Mortgage Company Registration Act (the “Act”), effective July 1, 2013, and the Nevada legislature amended its foreclosure laws effective June 1, 2013.

COLORADO SENATE BILL 156

 

 

The Act has been extended until September 1, 2018 (previously was to expire on July 1, 2013).

 

 

The following prohibition has been deleted from the Act: A mortgage loan originator, including a mortgage loan originator exempt from licensure, must not fail to comply with any provision of the Act or any rule adopted pursuant to the Act.

 

NEVADA ASSEMBLY BILL 300

 

 

The power of sale must not be exercised until the beneficiary (lender), the successor in interest of the beneficiary, or the trustee first executes and causes to be recorded in the office of the recorder of the county in which the trust property, or some part of it, is situated a notice of the breach and of the election to sell or cause to be sold the property to satisfy the obligation which, except as otherwise provided, includes a notarized affidavit of authority to exercise the power of sale.  Except as otherwise provided below, the affidavit must state under penalty of perjury, the following information, which must be based on the direct, personal knowledge of the affiant or the personal knowledge which the affiant acquired by a review of the business records of the beneficiary, the successor in interest of the beneficiary, or the servicer of the obligation or debt secured by the deed of trust, which business records must meet the standards under Nevada evidence law:

  • The full name and business address of the current trustee or the current trustee’s personal representative or assignee, the beneficiary of record, and the current servicer of the obligation or debt secured by the deed of trust.
  • That the beneficiary under the deed of trust, the successor in interest of the beneficiary, or the trustee is in actual or constructive possession of the note secured by the deed of trust or that the beneficiary or its successor in interest or the trustee is entitled to enforce the obligation or debt secured by the deed of trust.  If the obligation is an instrument, a beneficiary or its successor in interest or the trustee is entitled to enforce the instrument if the beneficiary or its successor in interest or the trustee is:
    • The holder of the instrument;
    • A nonholder in possession of the instrument who has the rights of a holder; or
    • A person not in possession of the instrument who is entitled to enforce the instrument pursuant to a court order.
  • That the beneficiary or its successor in interest, the servicer of the obligation or debt secured by the deed of trust, or the trustee, or an attorney representing any of those persons, has sent to the borrower of the obligation or debt secured by the deed of trust a written statement of:
    • The amount of payment required to make good the deficiency in performance or payment, avoid the exercise of the power of sale and reinstate the terms and conditions of the underlying obligation or debt existing before the deficiency in performance or payment, as of the date of the statement;
    • The amount in default;
    • The principal amount of the obligation or debt secured by the deed of trust;
    • The amount of accrued interest and late charges;
    • A good faith estimate of all fees imposed in connection with the exercise of the power of sale; and
    • Contact information for obtaining the most current amounts due and the local or toll-free telephone number described below.
  • A local or toll-free telephone number that the borrower of the obligation or debt may call to receive the most current amounts due and a recitation of the information contained in the affidavit.
  • The date and the recordation number or other unique designation of, and the name of each assignee under, each recorded assignment of the deed of trust.  The information required to be stated in the affidavit may be based on:
    • The direct, personal knowledge of the affiant;
    • The personal knowledge which the affiant acquired by a review of the business records of the beneficiary or the servicer of the obligation or debt secured by the deed of trust, which business records must meet the standards under Nevada evidence law;
    • Information contained in the records of the recorder of the county in which the property is located; or
    • The title guaranty or title insurance issued by a title insurer or title agent authorized to do business in Nevada.

 

Additionally, in order to exercise the power of sale, the beneficiary or its successor in interest or the servicer of the obligation or debt secured by the deed of trust has instructed the trustee to the exercise the power of sale with respect to the property.

 

 

The above provisions apply only to a notice of default and election to sell, which is recorded, on or after June 1, 2013.