01 Aug Colorado Legislative and Hawaii Regulatory Update
The Colorado legislature recently amended its foreclosure laws effective September 1, 2012. The Hawaii Department of Commerce & Consumer Affairs Division of Financial Institutions – Banking (“DFI”) issued a notice on July 1 addressing registered operating subsidiary mortgage loan originator companies and mortgage loan originators licensing transition period under the Hawaii SAFE Act (the “Act”).
Colorado Senate Bill 30
“Overbid” means the amount a property is sold for at foreclosure sale that is in excess of the written or amended bid amount executed by the holder of the evidence of debt secured by the deed of trust or other lien being foreclosed.
Whenever a holder of an evidence of debt declares a violation of a covenant of a deed of trust and elects to publish all or a portion of the property described for sale, the holder or the attorney for the holder must file certain information with the public trustee of the county where the property is located. In addition to the prior information that must be filed, if there is a loan servicer of the evidence of debt described in the notice of election and demand and the loan servicer is not the holder, a statement executed by the holder of the evidence of debt or the attorney for the holder, identifying, to the best of the person’s knowledge, the name of the loan servicer must be included.
The combined notices that must be mailed by the public trustee no more than twenty calendar days after the recording of the notice of election and demand must now include the following statement in bold print: If the sale date is continued to a later date, the deadline to file a notice of intent to cure by those parties entitled to cure may also be extended.
If a cure statement is required, the holder of the evidence of debt must submit a signed and acknowledged cure statement in a specific form, or the office of attorney for the holder must submit a signed cure statement, specifying the following amounts, itemized in substantially the following categories, and in substantially the follow form:
Public Trustee (or Sheriff) of the County (or City and County) of ____________, State of Colorado (Hereinafter the “Officer”)
Foreclosure Sale Number: ____________
The Date through which the Cure Statement is Effective: _______________________
The following is an itemization of all sums necessary to cure the default (any amount that is based on a good faith estimate is indicated with an asterisk):
Payments Due under the Evidence of Debt: ____________ Payments of $__________ each
Accrued Late Charges $______________
Other Amounts Due under the Evidence of Debt $________________
Property Inspections $__________________
Property, General Liability, and Casualty Insurance $_________________
Certificate of Taxes Due $___________________
Property Taxes Paid by the Holder $__________________
Owner Association Assessment Paid by the Holder $________________
Permitted Amounts Paid on Prior Liens $______________________
Less Impound/Escrow Account Credit $______________________
Plus Impound/Escrow Account Deficiency $___________________
Title Costs $___________________
Rule 120 Docket Fee $__________________
Rule 120 Posting Costs $__________________
Court Costs $__________________________
Postage/Delivery Costs $_________________
Service/Posting Costs $__________________
Attorney Fees $________________________
Other Fees and Costs (Specify) $_______________________
Reinstatement Total (Does not include Officer’s Fees and Costs) $_________
Officer’s Fees and Costs $__________________ (to be added by officer)
Total to Cure $_________________ (to be added by officer)
IT MAY TAKE SEVERAL DAYS BEFORE THE CURE IS PROCESSED AND ENTERED INTO THE HOLDER’S RECORDS.
Name of the Holder of the Evidence of Debt and the Attorney for the Holder:
Printed Name: _________________________
Attorney Address: _______________________
Attorney Business Telephone: ______________
A cure statement must be received by 12:00 p.m. on the day it is due to meet the required deadline.
Not less than 14 days (previously 15) before the date set for the hearing, the holder or the attorney for the holder seeking an order authorizing sale for a residential property must cause a notice of hearing to be posted in a conspicuous place on the property that is the subject of the sale. If possible, the notice must be posted on the front door of the residence, but if access to the door is not possible or is restricted, the notice must be posted at an alternative conspicuous location, such as a gate or similar impediment. If a person at the residence is impeding posting at the residence at the time of the attempted posting, the notice may be handed to that person to satisfy this posting requirement. The notice is sufficient if it complies with the hearing notice requirements without regard to any requirements for service of process in a civil action required by court rule.
“Residential property” means any real property upon which a dwelling is constructed and occupied.
If a public trustee maintains a website for his or her office, the public trustee must include the following statement on the website:
NOTICE TO AN OWNER IN FORECLOSURE: If your property goes to foreclosure auction sale and is purchased for more than the total owed to the lender and to all other lien holders, please contact the public trustee’s office after the sale because you may have funds due to you.
In order to pay the owner of the property in overbids after the redemptive period has expired, a public trustee must send a notice to the owner. If the amount of remaining overbid is equal to or greater than $25, the public trustee must make reasonable efforts to identify the owner’s current address. The public trustee must mail the owner a notice regarding the remaining overbid to the best available address no later than 30 days after the expiration of all redemption periods.
No earlier than 10 business days nor later than 15 business days after both the title vests and the officer has received all statutory fees and costs, the officer must execute and record a confirmation deed to the holder of the certificate of purchase or, in the case of redemption, to the holder of the certificate of redemption confirming the transfer of title to the property; except that the officer must execute and record a confirmation deed prior to the 10thbusiness day after title vests, if the officer has received all statutory fees and costs and notice from the appropriate holder that the certificate will not be assigned.
An officer may not include an assignee as a grantee in a confirmation deed, unless:
- The officer has received a copy of the assignment within 10 business days after title vests; and
- The assignment was dated, signed, and notarized or recorded prior to the time title vests.
If a deed of trust is improperly recorded in the office of the clerk and recorder of a county other than the county in which the real property is located, the deed of trust must be recorded in the correct county before the public trustee may release the deed of trust. The public trustee of a county other than the county where the real property is located will not release the deed of trust.
Hawaii Department of Commerce & Consumer Affairs Division of Financial Institutions – Banking Notice
In order to comply with the provisions of the Act requiring all exempt registered mortgage loan originators and mortgage loan originator companies of a subsidiary of an insured depository institution regulated by a federal banking agency to be licensed as of July 1, 2012, the DFI has implemented a licensing transition period. Affected registered mortgage loan originators will have until September 30, 2012 to achieve full compliance. However, by July 1, 2012, a mortgage loan originator must have:
- Created a record in the Nationwide Mortgage Licensing System and Registry (“NMLSR”);
- Obtained a unique identifying number in the NMLSR; and
- Created a sponsorship with an exempt registered mortgage loan originator company.
Provided that the above requirements have been met, all exempt registered mortgage loan originators of a subsidiary of an insured depository institution may continue to engage in mortgage loan origination activity, and will have until September 30, 2012 to complete licensure.