Colorado § 38-38-107 - Fees and costs - definitions.

§ 38-38-107. Fees and costs - definitions.

(1) All fees and costs of every kind and nature incurred under the provisions of articles 37 to 39 of this title shall be fees and costs of the sale chargeable as additional amounts owing under the deed of trust or other lien being foreclosed. The amounts shall be deducted from the proceeds of any sale, or, if there are not cash proceeds from a sale adequate to pay such amounts, to the extent of the inadequacy, the amounts shall be paid by the holder of the evidence of debt. The officer may decline to issue the confirmation deed pursuant to section 38-38-501 until all sums due to the officer have been paid.

(2) (Deleted by amendment, L. 2006, p. 1455, § 13; L. 2007, p. 1849, § 27, effective January 1, 2008.)

(3) Fees and costs include but are not limited to the following amounts that have been paid or incurred:

(a) Costs and expenses allowable under the evidence of debt, deed of trust, or other lien being foreclosed; and

(b) Reasonable attorney fees and the costs incurred by the holder or the attorney for the holder in enforcing the evidence of debt, the deed of trust, or other lien being foreclosed or in defending, protecting, and insuring the holder's interest in the foreclosed property or any improvements on the property, including but not limited to:

(I) All expenses actually incurred by the officer conducting the sale, publication costs, statutory notice costs and postage, and appraisal fees;

(II) Any general or special taxes or ditch or water assessments levied or accruing against the property and any governmental or quasi-governmental lien, fine, penalty, or assessment against the property;

(III) The premiums on any property, casualty, general liability, or title insurance acquired to protect the holder's interest in the property or improvements on the property;

(IV) Sums due on any prior lien or encumbrance on the property, including the portion of an assessment by a homeowners' association that constitutes a lien prior to the lien being foreclosed; except that any principal that would not have been due in the absence of acceleration shall not be included in the sum due unless paid after the expiration of the time to cure the indebtedness pursuant to this article;

(V) If the property is subject to a lease, all sums due under the lease;

(VI) The reasonable costs and expenses of defending, protecting, securing, and maintaining and repairing the property and the holder's interest in the property or the improvements on the property, receiver's fees and expenses, inspection fees, court costs, attorney fees, and fees and costs of the attorney in the employment of the owner of the evidence of debt;

(VII) Costs and expenses made pursuant to a valid order from a court of competent jurisdiction to bring the property and the improvements on the property into compliance with the federal, state, county, and local laws, ordinances, and regulations affecting the property, the improvements on the property, or the use of the property; and

(VIII) Other costs and expenses that may be permitted by the deed of trust, mortgage, or other lien securing the debt or that may be authorized by a court of competent jurisdiction.

(c) As used in this subsection (3), "holder" means the holder of the certificate of purchase, the holder of the certificate of redemption, or the holder of the evidence of debt.

(4) In the case of a redemption, the fees and costs listed in subsection (3) of this section that the holder of the certificate of purchase or certificate of redemption has paid or incurred as of the time of filing of the statement for redemption are allowable and shall be included in the statement of redemption if such amounts have not been included in a prior bid or statement of redemption.

(5) Notwithstanding the provisions of subsections (1), (3), and (4) of this section, a holder of an evidence of debt, certificate of purchase, or certificate of redemption shall not accept from a provider of services or products related to property inspection, broker's price opinion, title report, appraisal, insurance, repair, or maintenance or from an agent or affiliate of the provider any payment, benefit, or remuneration of any kind, whether in the form of cash, employee, advertising, computer program or service, bank deposit, or other good or service in connection with a foreclosure in which a property inspection, broker's price opinion, title report, appraisal, insurance, repair, or maintenance service or product of the provider or an agent or affiliate of the provider was used, unless the total value of all payment, benefit, or remuneration received by the holder from the provider of the service or product is shown and credited against amounts owed to the holder in each bid, cure statement, or redemption statement.

Source: L. 90: Entire article R&RE, p. 1659, § 2, effective October 1. L. 2001: (2) amended, p. 1068, § 4, effective September 1. L. 2005: (2) amended, p. 398, § 4, effective August 8. L. 2006: Entire section amended, p. 1455, § 13, effective January 1, 2008.

Editor's note: (1) This section is similar to former § 38-37-119, 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, "Statutory Redemption in Colorado", see 30 Dicta 79 (1953). For article, "An Analysis of the Effect of S.B. 123 on Foreclosures", see 17 Colo. Law. 845 (1988).

Annotator's note. Since § 38-38-107 is similar to § 38-37-119 as it existed prior to the 1990 repeal and reenactment of article 37 and this article, a relevant case construing that provision has been included in the annotations to this section.

Expenses of sale, but not appraisal costs, are to be included in the sum for which a property is foreclosed. San Miguel Basin State Bank v. Oliver, 748 P.2d 1342 (Colo. App. 1987).