Colorado § 38-38-106 - Bid required - form of bid.

§ 38-38-106. Bid required - form of bid.

(1) (a) The holder of the evidence of debt or the attorney for the holder shall submit a bid setting forth the holder's initial bid for the property that is received by the officer no later than 12 noon on the second business day prior to the date of sale as provided in this section. In addition, if the sale will be conducted electronically, the holder may also include a maximum bid for the property. The holder or the attorney for the holder need not personally attend the sale. If the sale will be conducted electronically and the holder has elected to include a maximum bid, the bid shall be increased electronically in increments incorporated in the electronic program used by the officer to conduct the electronic sale up to such maximum bid if one or more third parties submit competing bids for the property.

(b) If the bid is not received by the officer by the deadline, the officer shall continue the sale for one week and shall announce or post a notice of the continuance at the time and place designated for the sale.

(2) The holder of the evidence of debt shall submit a signed and acknowledged bid, or the attorney for the holder shall submit a signed bid, which must specify the following amounts, itemized in substantially the following categories and in substantially the following form:

BID

To: _____________________________________________________________

Public Trustee (or Sheriff) of the County (or City and County)

of __________, State of Colorado (hereinafter the "officer").

Date: _______________

_______________, whose mailing address is ________________, bids the sum of $__________ in your Sale No. ______ to be held on the __________ day of __________, 20______.

The following is an itemization of all amounts due the holder of the evidence of debt secured by the deed of trust or other lien being foreclosed.

​​ ​​ Street address of property being foreclosed, if known: ____________________

​​ ​​ Regular [ ] / default [ ] rate of interest as of the date of sale: _______________

​​ (Inapplicable items may be omitted):

​​ ​​ Amounts due under the evidence of debt:

​​ ​​ Principal​ $ __________

​​ ​​ Interest​ __________

​​ ​​ Late charges __________

​​ ​​ Allowable prepayment penalties or premiums __________

​​ ​​ Other amounts due under the evidence of debt

​​ ​​ (specify)​

​​ ​​ ​​ ​​ __________​ __________

​​ ​​ ​​ ​​ __________​ __________

​​ ​​ Category subtotal:​ $ __________

​​ ​​ Other fees and costs advanced by the holder of evidence of debt:

​​ ​​ Property, general liability, and casualty insurance __________

​​ ​​ Property inspections​ __________

​​ ​​ Appraisals​ __________

​​ ​​ Taxes and assessments​ __________

​​ ​​ Utility charges owed or incurred __________

​​ ​​ Owner association assessment paid __________

​​ ​​ Permitted amounts paid on prior liens __________

​​ ​​ Permitted lease payments __________

​​ ​​ Less impound/escrow account credit __________

​​ ​​ Plus impound/escrow account deficiency __________

​​ ​​ Other (describe) __________

​​ ​​ Category subtotal: $ __________

​​ ​​ Attorney fees and advances:

​​ ​​ Attorney fees​ __________

​​ ​​ Title commitments and insurances or abstractor charges __________

​​ ​​ Court docketing​ __________

​​ ​​ Statutory notice __________

​​ ​​ Postage __________

​​ ​​ Electronic transmissions​ __________

​​ ​​ Photocopies​ __________

​​ ​​ Telephone __________

​​ ​​ Other (describe) __________

​​ ​​ Category subtotal:​ $ __________

​​ ​​ Officer fees and costs:

​​ ​​ Officer statutory fee​ __________

​​ ​​ Publication charges​ __________

​​ ​​ Certificate of purchase recording fee __________

​​ ​​ Confirmation deed fee​ __________

​​ ​​ Confirmation deed recording fee __________

​​ ​​ Other (describe) __________

​​ ​​ Category subtotal:​ $ __________

​​ ​​ Total due holder of the evidence of debt __________

​​ ​​ ​​ ​​ ​​ ​​ ​​ ​​ ​​ ​​ ​​ ​​ ​​ ​​ Initial Bid​ $ __________

​​ ​​ ​​ ​​ ​​ ​​ ​​ ​​ ​​ ​​ ​​ ​​ ​​ ​​ Deficiency​ $ __________

I enclose herewith the following:

1. Order authorizing sale.

2. Check (if applicable) to your order in the sum of $__________ covering the balance of your fees and costs.

3. Other: ________________.

Please send us the following:

1. Promissory note with the deficiency, if any, noted thereon

2. Refund for overpayment of officer's fees and costs, if any

3. Other: ________________.

Name of the holder of the evidence of debt and the attorney for the holder:

Holder: ____________________________

Attorney: __________________________

By: _______________________________

Attorney registration number: __________

Attorney address: ____________________

Attorney business telephone: ___________

(3) Upon receipt of the initial bid from the holder of the evidence of debt or the attorney for the holder, the officer shall make such information available to the general public.

(4) The officer shall enter the bid by reading the bid amount set forth on the bid and the name of the person that submitted the bid or by posting or providing such bid information at the time and place designated for sale.

(5) Bids submitted pursuant to this section may be amended by the holder of the evidence of debt or the attorney for the holder in writing or electronically, as determined by the officer pursuant to section 38-38-112, no later than 12 noon the day prior to the sale, or orally at the time of sale if the person amending the bid is physically present at the sale or electronically during the sale if the sale is conducted by means of the internet or another electronic medium. A bid submitted pursuant to this section may be modified orally at the time of sale if the person making the modification modifies and reexecutes the bid at the sale.

(6) The holder of the evidence of debt or the attorney for the holder shall bid at least the holder's good faith estimate of the fair market value of the property being sold, less the amount of unpaid real property taxes and all amounts secured by liens against the property being sold that are senior to the deed of trust or other lien being foreclosed and less the estimated reasonable costs and expenses of holding, marketing, and selling the property, net of income received; except that the holder or the attorney for the holder need not bid more than the total amount due to the holder as specified in the bid pursuant to subsection (2) of this section. The failure of the holder to bid the amount required by this subsection (6) shall not affect the validity of the sale but may be raised as a defense by any person sued on a deficiency.

(7) (a) (I) Other than a bid by the holder of the evidence of debt not exceeding the total amount due shown on the bid pursuant to subsection (2) of this section, the payment of any bid amount at sale must be received by the officer no later than the date and time of the sale, or at an alternative time after the sale and on the day of the sale, as specified in writing by the officer. The payment must be in the form specified in section 38-37-108. If the officer has not received full payment of the bid amount from the highest bidder at the sale pursuant to this subsection (7), the next highest bidder who has timely tendered the full amount of the bid under this subsection (7) is deemed the successful bidder at the sale.

(II) If the holder of the evidence of debt is the highest bidder with a bid that exceeds the total amount due shown on the bid pursuant to subsection (2) of this section, the holder of the evidence of debt is only required to pay the excess of the amount bid over the amount due the holder of the evidence of debt, as shown on the bid submitted pursuant to subsection (2) of this section. The holder shall pay the excess of the amount bid to the office within three business days after the sale.

(b) The officer may establish written policies relating to all aspects of the foreclosure sale that are consistent with the provisions of this article. The written policies shall be made available to the general public.

Source: L. 90: Entire article R&RE, p. 1658, § 2, effective October 1. L. 91: (1) and (2) amended, p. 1922, § 54, effective June 1. L. 2002: (2) amended, p. 1339, § 9, effective July 1. L. 2006: Entire section R&RE, p. 1452, § 12, effective January 1, 2008. L. 2007: (5) amended, p. 1834, § 10, effective January 1, 2008. L. 2009: (2) and (7) amended, (HB 09-1207), ch. 164, p. 712, § 9, effective September 1. L. 2012: (1) and (2) amended, (SB 12-030), ch. 96, p. 318, § 8, effective September 1. L. 2015: (1), (2), and (5) amended, (HB 15-1142), ch. 113, p. 339, § 4, effective September 1. L. 2018: (2) and (7)(a) amended, (HB 18-1254), ch. 138, p. 903, § 4, effective August 8. L. 2026: (7)(a)(II) amended, (HB 26-1098), ch. 90, p. 363, § 6, effective July 1.

Editor's note: (1) This section is similar to former § 38-37-142, as it existed prior to 1990.

(2) The effective date for amendments made to this section by chapter 305, Session Laws of Colorado 2006, was changed from July 1, 2007, to January 1, 2008, by section 27 of chapter 404, Session Laws of Colorado 2007. (See L. 2007, p. 1849.)

ANNOTATION

Law reviews. For article, "Recent Statutory Amendments to the Public Trustee and Sheriff Foreclosure Process", see 15 Colo. Law. 794 (1986). For article, "1987 Statutory Amendments Concerning Foreclosures of Deeds of Trust and Mortgages", see 16 Colo. Law. 1386 (1987). For article, "An Analysis of the Effect of S.B. 123 on Foreclosures", see 17 Colo. Law. 845 (1988). For article, "Recent Developments in Foreclosure Law", see 23 Colo. Law. 599 (1994). For article, "Strategic Options for Overly Encumbered Real Property (Friendly Foreclosures)", see 46 Colo. Law. 31 (July 2017).

Annotator's note. The following annotations include cases decided under this section as it existed prior to its 2006 repeal and reenactment.

A deficiency bid that is not a good faith estimate of the fair market value of the property does not invalidate the foreclosure sale; instead, the debtor's deficiency liability is adjusted to reflect what the deficiency should have been had a good faith bid been made at the time of the sale. First Nat. Bank v. Blanding, 885 P.2d 324 (Colo. App. 1994).

Inadequate foreclosure bid, or bid not in "good faith", does not bar recovery of a deficiency judgment rather inadequacy should be considered only to adjust amount of deficiency claim. Bank of Am. v. Kosovich, 878 P.2d 65 (Colo. App. 1994).

The plain meaning of subsection (6) is to provide debtors with a defense that they may assert but that they may also waive. The general assembly could have included an express prohibition against waiver of subsection (6) as it has done in other statutes, but presumably it chose not to. In addition, the ability to waive the provisions of subsection (6) does not violate public policy. Armed Forces Bank v. Hicks, 2014 COA 74, 365 P.3d 378.

Trial court properly concluded that no formal notice of acceleration was required under the terms of the note, and commencement of a foreclosure action was sufficient to accelerate the obligation secured by the deed of trust. Kirk v. Kitchens, 49 P.3d 1189 (Colo. App. 2002).

Trial court erred in allowing defendants to include in their foreclosure bids as "amounts due" future interest amounts. Upon defendants' acceleration of the entire loan obligation, defendants had waived or were no longer entitled to recover the contested amounts, which would constitute an impermissible prepayment penalty not authorized by the note and deed of trust in the event of foreclosure. Kirk v. Kitchens, 49 P.3d 1189 (Colo. App. 2002).