Colorado § 38-35-125 - Closing and settlement services - disbursement of funds - deceptive trade practice - definitions.

§ 38-35-125. Closing and settlement services - disbursement of funds - deceptive trade practice - definitions.

(1) As used in this section, unless the context otherwise requires:

(a) "Available for immediate withdrawal as a matter of right" includes funds transferred by any of the following means:

(I) A wire transfer made through a funds-transfer service operated by the federal reserve or the Clearing House Payments Company;

(II) A certified check, cashier's check, teller's check, or any other instrument as defined by federal regulation CC, 12 CFR 229.10 (c); and

(III) A real-time or an instant payment made through a funds-transfer service operated by the federal reserve or the Clearing House Payments Company's real-time payments system.

(a.5) "Closing and settlement services" means those services which benefit the parties to the sale, lease, encumbrance, mortgage, or creation of a secured interest in and to real property and the receipt and disbursement of money in connection with any sale, lease, encumbrance, mortgage, or deed of trust.

(b) "Financial institution" means an entity that is authorized under the laws of this state, another state, or the United States to make loans and receive deposits and has its deposits insured by the federal deposit insurance corporation or its successor or the national credit union share insurance fund.

(c) (Deleted by amendment, L. 2004, p. 1206, § 83, effective August 4, 2004.)

(2) No person or entity that provides closing and settlement services for a real estate transaction shall disburse funds as a part of such services until those funds have been received and are either: Available for immediate withdrawal as a matter of right from the financial institution in which the funds have been deposited; or available for immediate withdrawal as a consequence of an agreement of a financial institution in which the funds are to be deposited or a financial institution upon which the funds are to be drawn. Any such agreement shall be made with or for the benefit of the person or entity providing closing and settlement services for a real estate transaction. Notwithstanding the provisions of this subsection (2), the person or entity providing closing and settlement services may advance funds, not to exceed five hundred dollars, on behalf of interested parties for the transaction to pay incidental fees for such items as tax certificates and recording costs or to cover minor changes in the closing adjustments.

(3) The requirements of subsection (2) of this section may be waived by the seller in the real estate transaction if:

(a) It is specified as part of written closing instructions in advance of closing that the seller waives the requirements set forth in subsection (2) of this section and that the person or entity conducting the closing, unless such person or entity is the seller, is not to handle the receipt and disbursement of funds as part of the closing; and

(b) Any holder of a lien encumbering the property up to the time of closing agrees, in writing, to such waiver and further agrees, in writing, to release such lien immediately upon receipt of a check from the closing drawn in the amount of the outstanding indebtedness secured by such lien. Such an agreement shall obligate the lienholder to release such lien regardless of whether the payoff check received has been or will be honored.

(4) Any seller who so requests as part of written closing instructions in advance of closing shall be entitled to receive the proceeds of closing in a cashier's check or in funds electronically transferred to an account specified by the seller.

(5) Failure to comply with the provisions of this section shall be deemed a deceptive trade practice, as provided in section 6-1-105 (1)(v), C.R.S., and the attorney general or a district attorney may apply to the appropriate district court of this state for an order to effect the purposes of this section.

Source: L. 88: Entire section added, p. 1259, § 1, effective July 1. L. 89: (1)(c) added, p. 1445, § 1, effective April 6. L. 2004: (1)(b) amended, p. 156, § 73, effective July 1; (1) amended, p. 1206, § 83, effective August 4. L. 2025: (1)(a) amended, (SB 25-016), ch. 26, p. 153, § 1, effective August 6.

Editor's note: Amendments to subsection (1) by Senate Bill 04-239 and House Bill 04-1126 were harmonized.

ANNOTATION

Law reviews. For article, "'Good Funds' Law and New Title Insurance Regulations", see 18 Colo. Law. 233 (1989).

By failing to require "good funds" to complete a real estate closing in violation of § 10-11-108 and this section, title insurance agency injected an "illegal purpose" into the situation and the bargain became illegal. Guardian Title Agency, LLC v. Matrix Capital Bank, 141 F. Supp. 2d 1277 (D. Colo. 2001).