JUDGES, LAWYERS AND LENDERS ARE BREAKING THE LAW AND OUR MISSION IS TO BRING THESE PRACTICES, ABUSES AND PERPETRATORS TO THE SURFACE FOR EVERYONE TO SEE!

DO NOT LEAVE YOUR HOME BEFORE TALKING TO US!!

2. IT IS IMPORTANT to keep in the forefront of your mind that although being delinquent on your house payment is most often what triggers an action in foreclosure on your home, there are numerous other issues regarding your homeownership related rights that must not be overlooked, i.e. predatory loan issues, Federal Truth in Lending Act violations, steps in the foreclosure process or even if the correct lender is foreclosing on your home.  Consequently and because we have no real watchdog, Colorado and its homeowners provide the most fertile environment for almost any kind of mortgage lending abuse imaginable, AND DON’T THINK FOR A MOMENT THAT THE LENDING INDUSTRY AND THEIR LOCAL ATTORNEYS DON’T KNOW THIS.  This is precisely why so many loans in Colorado are structured in a manner that makes it almost impossible to keep up with the payments; such loans are designed for failure.  This creates the ideal situation for some lenders.  They can sit back and “suck you dry” and after they’ve done that, they can still take your home for less than the loan amount owed and resale it to someone else, who will most likely be victimized in the same manner. 

THE FORECLOSURE RATE IN COLORADO HAS BEEN AMONG THE WORST SINCE 911! 

4. In 1894 a statute was passed in Colorado creating the office of the Public Trustee in each county in the state. This provided a method of the foreclosure by “advertisement and sale by the Public Trustee” of instruments use to secure payment to the lender called “deeds of trust”. These deeds of trust are executed to the Public Trustee and provide the time and manner of a Public Trustee foreclosure once you have defaulted on the terms of the promissory note (referred to as the “evidence of debt”).  In other words, beginning in 1894, if you took out a loan in Colorado to purchase a home, in order for the Public Trustee, who is presumed to be an “unbiased” public official, is made a party to the deed of trust, along with the lender and the borrower.  The other purposed served by a deed of trust is it secures the money owed on your promissory note, which gives the lender a right to take your home and resell it if you can’t make your monthly payments.  The Public Trustee’s “powers” are derived from specific provisions outlined in the deed of trust.  A Public Trustee has no power to sell your home until you have defaulted on the terms of your promissory note. When a default occurs, the Public Trustee then must follow the mandatory foreclosure process, step by step, according to Colorado Revised Statutes (C.R.S.) §38-38-101 et.seq.  Let’s say you and I bet on the Denver Nuggets and you didn’t trust me and I didn’t trust you.  We agree to let an unbiased third person hold the money.  We also agree and give him the authority to simply pay the person that wins the bet.  The Public Trustee is the third party to your deed of trust (which is governed under contractual law in Colorado; keep this in mind) that has the legal authority and duty to sale your home at a public auction and give the money to the lender if you don’t pay your loan as agreed.  This power and legal authority is given to the trustee by provisions in the deed of trust, and no other instrument.   See Colorado Revised Statute (C.R.S.)  §38-37-104(b) Duties of public trustees. 

  
Ladies and gentlemen, this is where your fight starts.

5. First things first.  The legal profession; it’s not a legal profession any more.  The oaths taken by every attorney and judge; is a formality, nothing more.  Just because an attorney says it’s so, doesn’t make it so.  Just because a judge, federal or state, rules against you and in favor of the lender and the lender’s attorney, does not mean the ruling is correct or based in law.  You must come to terms with this first!!  If you think we have a complete disdain for lawyers and most judges, you’re correct.  If you are presently facing the prospect of foreclosure, you’re about to find out why!

6. Our Country has been considerably “dumbed down” in recent years.  Sadly, the most recent generation has produced the highest percentage of high school drop-outs, which can be attributed to a number of reasons we won’t get into.  But what needs to be pointed out here is, the legal community could not ask for a more ideal situation because the more dumbed down we are, the more the “legal ease” starts to look like “Chinese”.  You never know if an attorney is telling the truth about what a particular law states, and trying to decipher a judge’s ruling is next to impossible.  This is intentional and is precisely where they want you and they’ll go to great lengths to maintain this status quo.  The less you know about the law and how to read and understand it.....the better for them.

“Foreclosure of a deed of trust by public trustee's sale under the applicable statutes is activated by a power of sale in the deed of trust.  See § §  38-38-101 to -701, 10 C.R.S. (1997)” Plymouth Capital Co., Inc. v. Dist. Ct. of Elbert County, 955 P.2d 1014, 1017 (Colo. 1998)(en banc)

9. To foreclose on a promissory note however, a different legal process must be used.  The promissory note is the document you sign at closing that, among other things, outlines the terms of your loan, monthly payment schedule, interest rate, so forth and so on. 

“When a debtor defaults on a promissory note, a creditor may elect which remedy the creditor wishes to pursue, as a creditor may enforce payment of the debt by: (1) foreclosing on the lien of the deed of trust; (2) pursuing a suit for judgment upon default and filing the transcript of the judgment to obtain a judgment lien that allows for execution upon the judgment of the debtor's property; or (3) both.”  Mortgage Investments Corporation v. Battle Mountain Corporation, 70 P.3d 1176 (2003)

10. In other words, if you default on your home loan, the lender can do a public trustee foreclosure of the deed of trust OR the lender can chose to take you to court on the promissory note, get a judgment, file a transcript of judgment, THEN commence a foreclosure through the sheriff’s department on your home.  The second method is a much more lengthy, expensive and tedious process.

DO NOT LEAVE YOUR HOME BEFORE TALKING TO US!!

11.  C.R.S. §38-38-101 et. seq., the process for the foreclosure of a deed of trust which is used 99% of the time, prescribes various steps that must be done in succession in a foreclosure by the Public Trustee.  These steps involve, verifications of proper documentation, setting the sale date, advertisement of the sale date in certain types of publications, fulfilling notice requirements of various steps in the process, notifying you of certain rights and time frames regarding your right to bring your loan current, so forth and so on.  There is a series of steps that must be taken from the time such proceedings are commenced until the very last step, which is the execution and delivery of the Public Trustee’s Deed. The Public Trustee’s Deed is the deed that transfers title to your home over to the lender and can only be legally executed and issued if the process is followed completely and correctly.

C.R.S. §38-38-504 states very clearly in “black and white”:  Any deed executed by the public trustee or sheriff, or other official under this article, shall be prima facie evidence of compliance with all statutory requirements for the sale and execution of the deed and evidence of the truth of the recitals contained in such deed.”

12.  Notice the operative word “all”.  It doesn’t say compliance with “some”, it says “all”.  All statutory requirements must be complied with.  “Prima facie” simply means that the deed will hold up in court unless you can prove that some of the statutory requirements were not complied with by the public trustee; even if the public trustee just left out one step in the mandatory process.  Prima facie does not mean absolute.  It will, however, become absolute if no one contests it. 

STEP 1 FORECLOSURE REFERRAL LETTER

14.  Article 38 of Title 38 of the Colorado Revised Statutes (C.R.S.) is the section of law that guides the lawful public trustee foreclosure in the state of Colorado through a series of steps that must be followed in order.  This section of law (referred to as C.R.S. 38-38-101 et. seq) takes effect after communication and attempts to bring your loan current have already occurred between you and your lender and the decision is made by your lender to start a foreclosure. The lender must submit a “foreclosure referral letter” with documentation and information to the public trustee along with a fee to commence the foreclosure.  The “foreclosure referral letter” must be date stamped (this does not mean a date pre-printed in by the attorney) by the public trustee because compliance with the very next step depends on the date when this referral letter is submitted.  So if it is not date stamped, it leaves it open for the date to be modified later if they screwed this one up, which they very often do.

15. Included in the initial documents is a copy of your deed of trust, your promissory note and the “Notice of Election and Demand” which we will discuss in the next step.  The purpose of the requirement to furnish a copy of the deed of trust is simple.  The public trustee needs to know who the proper lender is to invoke the assistance of the public trustee in the sale of your home.  The public trustee cannot simply foreclose and sale your home for just anyone.  The public trustee is only legally authorized to act on behalf of the “lender” that is named in the deed of trust. Remember, the public trustee gets his/her powers to act ONLY from the “power of sale provisions” in the deed of trust. (¶ # 8 above)  Furthermore, a deed of trust is governed under “contractual law” in the state of Colorado.  This is important to know as you will see later.

  
“To resolve the issue presented here, we must interpret the note and deed of t rust. The primary goal of contract interpretation is to determine and give effect to the intention of the parties. The intent of the parties to a contract is to be determined primarily from the language of the instrument itself. Written contracts that are complete and free from ambiguity will be found to express the intention of the parties and will be enforced according to the plain language. USI Properties East, Inc. v. Simpson, 938 P.2d 168 (Colo.1997). The Colorado Court of Appeals reiterated this again in Kirk v. Kitchens in 2002.

16.  The promissory note is a contract and the deed of trust is a contract.  These contracts are between you (the mortgagor or borrower), the lender (the mortgagee) and the public trustee.  If the lender designated in the deed of trust/contract is Countrywide Home Loans, then the contract specifically allows Countrywide to invoke the public trustee to foreclose on your home; no one else (Later, we’ll talk about what happens when your loan is sold).  This is the purpose of submitting a copy of your deed of trust to the public trustee at the beginning.   This information should prevent the public trustee from foreclosing on your home for just any ol’ Robby, Bobby or Little Billy that comes in and wants to foreclose on a home!     CAPISH??

STEP 2 NOTICE OF ELECTION AND DEMAND (NED or E & D)

17.  Next, the Notice of Election and Demand (NED), a copy of which is already prepared by the attorney for the foreclosing lender, must be filed with the Clerk and Recorder’s Office in the county where the property is located.  C.R.S. §38-38-101 allows for the “holder of the evidence of debt” (the note holder, not necessarily the owner) to commence the action in the Public Trustee’s office by filing this notice. Allowing the “holder” to commence the foreclosure action in the Public Trustee’s office takes into account that the loan may have been sold or transferred and that someone other than the lender designated on the loan documents is commencing the foreclosure.  This is precisely why and endorsement or assignment of the promissory note and deed of trust, after it is sold, must be recorded in the public records in the county where the property is located, which we will talk more about later.

18.  The filing of the NED in the public record gives “public notice” that a foreclosure proceeding has begun on your property. This must be done no later than 10 working days from when the Public Trustee receives it (remember ¶ #14 above).  This is one of those statutory requirements that must be met for public trustee’s deed to be valid as explained above in ¶ #11.  This is not a loophole, whatever that is, it’s a statutory requirement inserted by the legislature.  Notice below, §38-38-102(1) uses the word “shall”.  This is mandatory language as used in law, distinguishable from discretionary language such as “may”.  The Public Trustee shall record the NED no later than 10 working days from receiving it. 

C.R.S. §38-38-102(1) seems to be pretty clear folks: No later than ten business days following the receipt of the notice of election and demand, the public trustee shall cause the notice to be recorded in the office of the county clerk and recorder of the county where the property described in the notice is located.

19.  If the trustee fails to meet this requirement, the public trustee’s deed talked about earlier in ¶ #11 is invalid, void and cannot legally transfer title to your property to the lender.  In Colorado, as in any state, a void deed cannot be used to convey legal title.   The Colorado Supreme Court made this absolutely clear in 1960.  That’s right; the home still belongs to you......this is the law!!

“Void deeds do not convey title, and are wholly ineffective to interrupt one's right to possession of property therein described.” Concord Corporation v. Huff   144 Colo. 72, 355 P.2d 73 (1960).

STEP 3 ADVERTISING AND SETTING THE THE SALE

20.  Shortly after the NED is filed, the Public Trustee must set a date to sell your home at public auction.  (notice the mandatory language “shall”)

C.R.S. §38-38-108 Date of Sale. (1) Whenever property is to be sold following the foreclosure of any deed of trust or other lien by the officer, the initial date of sale shall be:
(a) In the case of a sale of property by the public trustee that is not agricultural property, no less than one hundred ten calendar days nor more than one hundred twenty-five calendar days after the date of recording of the notice of election and demand;
  
  
21.  Advertising Your Home.  By the way, your foreclosure file is set up at the Public Trustee’s office in whatever county the property is located and you can view this file, or any foreclosure file for that matter, at anytime during business hours, with no limitation and no need to explain or justify your reason for viewing the file; simply request to see the foreclosure file because it’s a public record. The Public Trustee must adhere to a set schedule of advertising your home for sale in a publication of general circulation in the County which the property is located.  The Public Trustee must mail you a copy of the advertisement for your records and as proof of compliance. You may also request a copy from your foreclosure file at the Public Trustee’s office. The advertising shall be for at least four consecutive weeks or the time period specified in the deed of trust if the period in the deed of trust is longer (remember, it’s the deed of trust that allows this process through the public trustee). Understand, even though the holder of the promissory note may start the process, if the holder is not the same lender on the deed of trust, they must have an endorsement or assignment of the promissory note to them and recorded in the public record BEFORE the foreclosure is initiated.  This is the law and if not complied with, will render the deed transferring your property to the lender, void!  Here again, the LESS you know, the better for them!

C.R.S. §38-38-101(6) Indorsement or assignment The original evidence of debt or a copy thereof without proper indorsement or assignment shall be deemed to be properly indorsed or assigned if a qualified holder presents the original evidence of debt or a copy thereof to the officer together with a statement in the certification of the qualified holder or in the statement of the attorney for the qualified holder pursuant to subparagraph (II) of paragraph (b) of subsection (1) of this section that the party on whose behalf the foreclosure was commenced is the holder of the evidence of debt. Proper indorsement or assignment of an evidence of debt shall also include, in addition to the original indorsement or assignment, a certified copy of an indorsement or assignment recorded in the county where the property being foreclosed is located.

22.  Remember, the “evidence of debt” is just another name for the “promissory note”.  Notice also the mandatory language “shall” set forth in §38-38-101(6).  There must also be a recorded assignment or endorsement of the promissory note in the public records of the county where the property is located.  The public trustee is required to verify that there is a recorded assignment to the lender foreclosing on your home BEFORE the public trustee moves forward with the foreclosure.  This is the purpose of the “10 business days” time period required in C.R.S. §38-38-102(1) that we talked about in ¶ #18 above.

23.  You think you can rely on the Public Trustee to verify this information before they file the NED?  Not only no, but HELL NO!!  Most of the people you will deal with at the Public Trustee’s office don’t even know and will almost accept anything from an attorney as being correct and lawful.  It is very important to understand this second step because if the wrong lender is initiating the foreclosure on your home, then your foreclosure is ILLEGAL from the start.  This folks, is what the attorneys that represent the lenders DO NOT WANT YOU TO KNOW, SO SIT UP AND PAY ATTENTION!!!

Think of it this way.  Attorneys get paid a commission when they complete a foreclosure and deliver your home back to the lender.  TAKING YOUR HOME IS HOW THEY KEEP THEIRS!!!!

DO NOT LEAVE YOUR HOME BEFORE TALKING TO US!!

24.  BEFORE WE GO ANY FURTHER, WE NEED YOU TO BE AWARE OF SOME OF THE MORE COMMON TACTICS OF THE LENDERS AND THEIR ATTORNEYS.  THE ATTORNEYS WORK FOR THE LENDERS AND EVEN AT THE BEGINNING STAGE OF THE PROCESS THEIR SOLE OBJECTIVE IS TO GET YOU OUT OF YOUR HOME AS QUICKLY AS POSSIBLE.  THEY WILL START SENDING PEOPLE BY TO HARASS YOU.  THEY WILL START SENDING THREATINING LETTERS URGING YOU TO LEAVE.  WE HAVE HAD NUMEROUS INSTANCES WHERE OFF DUTY SHERIFF OFFICERS HAVE BEEN SENT TO UNSUSPECTING HOMEOWNERS INSTRUCTING THEM TO VACATE.  ALL OF THESE TACTICS ARE ILLEGAL, UNETHICAL, A VIOLATION OF YOUR CIVIL AND DUE PROCESS RIGHTS, AND WE NEED TO KNOW OF ANYONE WHO IS BEING HARASSED IN THIS MANNER!!!  YOU HAVE EVERY RIGHT TO REMAIN IN YOUR HOME FOR AS LONG AS IT TAKES FOR THEM TO DO A COMPLETE AND LAWFUL FORECLOSURE!

STEP 4 NOTICE OF YOUR RIGHTS TO CURE YOUR LOAN

25.  C.R.S. §38-38-103 also uses mandatory language in its requirement that the Public Trustee, shall mail the “combined notice” explaining your right to cure your loan.  The notice shall contain a statement that you, the homeowner or grantor, shall file with the public trustee or officer at least 15 calendar days prior to the first scheduled sale date, a notice of your intent to cure your loan (bring your loan current).  If the sale is postponed or rescheduled to a later date, 15 calendar days before the new sale date.  The combined notice shall also contain a statement that a party having a right to redeem shall file the notice of his intent to redeem no later than 8 business days after the sale. This “combined notice” of your rights shall be mailed out by the public trustee no more than 20 calendar days after the recording of the notice of election and demand.

26.  It is customary with the mortgage lending industry for loans to be sold back and forth to different lenders after you close on your home purchase or refinance your home.  This is normal and ordinarily of no concern because the terms of your loan remain unchanged (ie. if the interest rate on your loan is 8% and it’s a 30 year loan, those terms cannot be changed if your loan is sold).  However, when your loan is sold to another lender, Colorado law requires the lender that purchases the loan to comply with a law that gives public notice of the transfer of the deed of trust. As we discussed earlier, the deed of trust is the lien against your property and to legally foreclose based on such lien, it must be recorded in the public record (county clerk and recorder’s office in the county where the property is located). 

27.  Every state has a recording statute.  Every state’s recording statute is almost identical.  The fact is, the only method that makes sense to keep track of who owns what, is to have a centralized registry where everyone in a particular county records their real property interests. Anything less would be pure chaos.  C.R.S. §38-35-109(1) is Colorado’s recording statute which allows all documents and instruments that affect the title to real property to be recorded in the public record.

C.R.S. §38-35-109(1) states as follows:  All deeds, powers of attorney, agreements, or other instruments in writing conveying, encumbering, or affecting the title to real property, certificates, and certified copies of orders, judgments, and decrees of courts of record may be recorded in the office of the county clerk and recorder of the county where such real property is situated; except that all instruments conveying the title of real property to the state or a political subdivision shall be recorded pursuant to section 38-35-109.5.  No such unrecorded instrument or document shall be valid against any person with any kind of rights in or to such real property who first records and those holding rights under such person, except between the parties thereto and against those having notice thereof prior to acquisition of such rights.  This is a race-notice recording statute.  In all cases where by law an instrument may be filed in the office of a county clerk and recorder, the filing thereof in such office shall be equivalent to the recording thereof, and the recording thereof in the office of such county clerk and recorder shall be equivalent to the filing thereof.

C.R.S. §38-35-106(1) provides further clarification: Any written instrument required or permitted to be acknowledged affecting title to real property, whether acknowledged, unacknowledged, or defectively acknowledged, after being recorded in the office of the county clerk and recorder of the county where the real property is situate, shall be notice to all persons or classes of persons claiming any interest in said property.

28.     Section 106(1) basically states that even if the document is not properly notarized, your rights can still be protected if you record the document with the county clerk and recorder.
 
   
29.  Simply put, if you purchased a home from Little Billy, who we spoke of earlier, you would then record a “warranty deed” in the office of the county clerk and recorder. That way everyone knows that you now own the home and Little Billy no longer owns it.  The same thing applies with your mortgage.  When you close the deal on your mortgage with Countrywide Home Loans, the title company that conducts your closing, records the deed of trust in the office of the clerk and recorder so anyone can check and see that Countrywide has the lien on your home.  When Countrywide sells the loan to Wells Fargo, Wells Fargo must then record an “assignment of deed of trust” in the office of the county clerk and recorder.  Now everyone can check and see that the lien has been officially transferred from Countrywide to Wells Fargo and Countrywide has no further rights of any kind against your home.  Compliance with the recording statute is especially necessary when dealing with a “public entity” such as the “County Public Trustee” or the “County Treasurer”.

“Treasurer properly gave notice of purchase of real property by tax deed to assignee of promissory note and deed of trust regarding property, because assignee recorded assignment….....…Norwest recorded the assignment under section 38-35-109(1), and the county treasurer did not err in relying on the interests of record at the time of her inquiry in not giving notice to the McClellands.....…...The treasurer properly gave Norwest notice because it had recorded the McClellands' assignment to it of the note and deed of trust.”  Columbus v. Lewis, 48 P. 3d 1222 (2002)

Once again, the Colorado Supreme Court is making things very clear.   GET THE IDEA?

STEP 5 THE SALE OF YOUR HOME AT PUBLIC AUCTION

30.  FIRST, under no circumstances can the Public Trustee sell your home without an order from the District Court.  Any sale held without an order from the court authorizing the sale, is VOID.

32.  “Interested person” doesn’t simply mean that you’re interested in taking someone’s home.  It means that you must have a “recorded interest” in the public record, hence, the deed of trust/lien/contract.  Remember ¶ #16?  If the lender that wishes to foreclose is not the lender named in the recorded deed of trust, then the foreclosing lender must have a recorded assignment to them of the original deed of trust, as we talked about earlier in ¶ #29.  This is the law!!

33.  Just as the statutory process under C.R.S. 38-38-101 must be follow step-by-step, so must the C.R.C.P. Rule 120 proceeding.  Because the Public Trustee cannot, under any circumstances, sell your home without an order from the court, the foreclosing lender must start the Rule 120 as early in the process as possible.  This way, when the public trustee’s office reaches the step where the home is to be sold at auction, hopefully they have already received the order authorizing the public trustee to sell.  Otherwise the Public Trustee must keep postponing the sale until the order from the court is received.

34.  Rule 120 proceeding, entitled “Orders Authorizing Sales Under Powers” was adopted by the Colorado Supreme Court in 1941 and should be regarded as the most important part of the process.  This is very, very important folks and this is where you will witness the most egregious conduct from attorneys representing the lenders as well as the judges. The lender or lender’s attorney must file a motion with the court requesting an "Order Authorizing Sale" which if granted, will direct the Public Trustee to sell your home. 

35.  Understand that an attorney representing the lender in the foreclosure of your home is considered, in legal terms, “a debt collector”.

United States Supreme Court held that the FDCPA's (Federal Debt Collection Practices Act) definition of "debt collector," Section 803(6), 15 U.S.C. § 1692a(6), "applies to attorneys who 'regularly' engage in consumer-debt-collection activity, even when that activity consists of litigation." Heintz v. Jenkins, 514 U.S. 291, 299 (1995)

“If attorneys regularly engaged in debt collection activities, including foreclosures, they were “debt collectors” under Fair Debt Collection Practices Act and were subject to its provisions.”  Zartman v.Shapiro and Meinhold, 811 P.2d 409 (Colorado Court of Appeals 1990)

36.  This is important because the attorneys themselves are subject to civil and criminal penalties, both state and federal, for their conduct as “debt collectors” in foreclosing on your home.  Keep this in mind as you read further.

“Rule 120 governs the very specialized civil proceeding in which an interested person may file a verified motion in court seeking the order authorizing sale under the power of sale contained in the recorded instrument.” Plymouth Capital Co., Inc. v. Dist. Ct. of Elbert County, 955 P.2d 1014, 1017 (Colo. 1998)(en banc)

39.  The Rule 120 is a “narrowly-scoped” proceeding.  Such proceeding only allows the adjudication of certain issues (ie. whether you are in default, whether the correct lender is foreclosing on your home or if there is some modification to your loan agreement the court is unaware of that shows that you are technically not in default).  Be that as it may, a Rule 120 is still a judicial proceeding just like any other judicial proceeding where you have a right to be notified, a right to be heard and above all, a right to a fair and impartial proceeding mandated under the Constitutional due process clause.

A judicial proceeding is “[a]ny proceeding wherein judicial action is invoked and taken.” Black's Law Dictionary 986 (rev. 4th ed.1968).

“In a C.R.C.P. Rule 120 proceeding judicial action is invoked by filing a verified motion. Then judicial action is taken when the court makes its determination with respect to the issue of default. The entire proceeding must accord the debtor due process of law. This requires that the debtor be provided with both notice and an opportunity for a full evidentiary hearing. Therefore we hold that a C.R.C.P. Rule 120 proceeding is a judicial proceeding.”  Zartman v.Shapiro and Meinhold, 811 P.2d 409 (Colorado Court of Appeals 1990)

40.  Having said that, the one essential requirement for a judicial action to be commenced, is the person or entity filing the action must be the “real party in interest”.  To understand the corrupt conduct of the judges and attorneys that are acting in concert in this climate of “home theft”, you must understand “real party in interest”.

41.  All this means is that the person or entity bringing the lawsuit, whether it be to foreclose on your home or to collect for damages you did to their car, must be the person or entity that has a right to bring the lawsuit.  In other words, if your friend is harmed in some way and has grounds to sue, he must bring the lawsuit himself.  You cannot bring the suit on his behalf, neither can you bring the lawsuit because he owes you money and intends to pay you when he wins the suit. Your friend must bring this action himself or through his attorney.  This is also true when a lender files a motion in court for an “Order Authorizing the Sale” of your home.  It must be the correct lender or the foreclosure action is illegal from the start.  If the lender attempting to foreclose is not the lender on the deed of trust or has not been legally assigned the rights of the original lender on the deed of trust, then this lender cannot legally foreclose based on the authority in the deed of trust because the foreclosing lender is not yet the "real party in interest."  Let me make this one very clear!! If the lender that is attempting to foreclose is not the lender on your deed of trust and does not have a recorded assignment on file at the Clerk and Recorder’s office, assigning the rights of the original lender to the foreclosing lender, the foreclosing lender has no legal authority to foreclose using the Public Trustee!!!  The attorneys, and the judges will act as if they don’t understand this, but they do, they just think that you don’t.  Keep in mind ¶ #1.

42.  ¶ #37 above makes the interpretation of Rule 17(a) fairly simple in its application to a Rule 120. The Supreme Court, in Plymouth Capital,  was very clear, regardless of who tells you and different, in that “an interested person may file a verified motion in court seeking the order authorizing sale under the power of sale contained in the recorded instrument”.  The power and authority of the Public Trustee and the judge in a Rule 120 are contained in and derive solely from the recorded instrument (the recorded deed of trust).

43.  Once the motion is filed by the real party in interest, the true lender, a hearing must be set to which you must be given notice.  The hearing must be set at least 20 and not more than 30 days from the date the motion is filed.  Again, mandatory language.

47.  Although the Public Trustee sets the sale date, as stated earlier, the Public Trustee cannot proceed with the sale of your home without an order from the court first.  Additionally, the actual sale must occur at least seven days after your foreclosure hearing. The attorneys, the lenders, the Public Trustee and the courts will often ignore this seven day provision, as well as other laws, even though the Colorado Supreme Court has made this requirement and other requirements crystal clear.

“When creditor is seeking to foreclose deed of trust or mortgage, foreclosure sale must be scheduled not less than seven days after Rule 120 hearing, in order that debtor can exercise his right to cure after hearing on creditor's claim of default, notwithstanding that foreclosure statutes do not expressly require seven-day waiting period between Rule 120 hearing and date of foreclosure sale.” Kirchner v. Sanchez, 661 P.2d 1161 (Colo. 1983).