Colorado § 38-39-207 - Lien extinguished when action barred.

§ 38-39-207. Lien extinguished when action barred.

The lien created by any instrument shall be extinguished, regardless of any other provision in this article to the contrary, at the same time that the right to commence a suit to enforce payment of the indebtedness or performance of the obligation secured by the lien is barred by any statute of limitation of this state.

Source: L. 90: Entire article R&RE, p. 1678, § 3, effective October 1.

Editor's note: This section is similar to former § 38-40-112, as it existed prior to 1990.

ANNOTATION

Law reviews. For article, "Curative Statutes of Colorado Respecting Titles to Real Estate", see 16 Dicta 71 (1940). For article, "Foreclosure by Sale by Public Trustee of Deeds of Trust in Colorado", see 28 Dicta 437 (1951). For article, "Discharge of Security Transactions", see 26 Rocky Mt. L. Rev. 115 (1954). For article, "When do Deeds of Trust Bite the Dust?", see 27 Colo. Law. 61 (Dec. 1998).

Annotator's note. Since § 38-39-207 is similar to § 38-40-112 as it existed prior to the 1990 repeal and reenactment of this article and article 40, relevant cases construing that provision have been included in the annotations to this section.

The statute of limitations applies to each installment due on a note separately and does not begin to run on any one installment until that installment is due. Right to foreclose on note is not extinguished because certain payments are more than six years overdue and foreclosure proceedings are just begun. Application of Church, 833 P.2d 813 (Colo. App. 1992).

A lender may abandon the acceleration of a promissory note by a clear affirmative act. Such abandonment restores the note's original maturity date for purposes of accrual of the statute of limitations. Bank of N.Y. Mellon v. Peterson, 2018 COA 174M, 442 P.3d 1006.

Section is of limited applicability and does not apply to nonclaim statutes. Willis v. Neilson, 32 Colo. App. 129, 507 P.2d 1106 (1973).

Section does not apply to the United States or its assignees. The United States is not bound by state statutes of limitations in enforcing its rights. LPP Mortg. Ltd. v. Hotaling, 497 F. Supp. 2d 1217 (D. Colo. 2007).

Construction of section. It would appear reasonable to construe this section as meaning that, unless a mortgagee keeps his lien alive and also keeps his indebtedness alive, his lien is extinguished under this section when "the right to commence a suit to enforce payment of the indebtedness secured by the lien is barred by any statute of limitation of this state". Birkby v. Wilson, 92 Colo. 281, 19 P.2d 490 (1933).

Note and deed of trust securing the note are not extinguished where statute of limitations has not run on all installments under a money obligation payable in installments. Application of Church, 833 P.2d 813 (Colo. App. 1992).

A lien, once extinguished by this section, cannot be revived. Rossi v. Osage Highland Dev., LLC, 219 P.3d 319 (Colo. App. 2009).

Applied in Martinez v. Cont'l Enters., 697 P.2d 789 (Colo. App. 1984), aff'd in part, rev'd in part on other grounds, 730 P.2d 308 (Colo. 1986).