Colorado Foreclosure Defense, Rule 120 Response, and Loss Mitigation Package

COLORADO FORECLOSURE DEFENSE, RULE 120 RESPONSE, AND LOSS MITIGATION PACKAGE

PART 1 — PRE-DEFENSE INTAKE CHECKLIST

Borrower Intake (complete before drafting):

☐ Date Notice of Election and Demand (NED) recorded: [__/__/____]
☐ County Public Trustee: [________________________________]
☐ Scheduled sale date: [__/__/____]
☐ Cure date (deadline to deposit cure amount with Public Trustee): [__/__/____]
☐ Rule 120 motion filed in district court: ☐ Yes ☐ No — Case No.: [____________]
☐ Response deadline stated in Notice of Response Deadline: [__/__/____]
☐ Property is owner-occupied principal residence: ☐ Yes ☐ No
☐ Loan is federally related mortgage (Fannie/Freddie/FHA/VA/USDA): ☐ Yes ☐ No
☐ First complete loss mitigation application submitted: ☐ Yes ☐ No — Date: [__/__/____]
☐ Servicer's written confirmation of the complete application or accepted loss mitigation option received: ☐ Yes ☐ No
☐ If seeking to stop the sale under C.R.S. § 38-38-103.2(3), deliver that written confirmation to the foreclosure officer no later than 14 calendar days before sale: deadline [__/__/____]; delivered [__/__/____]. For an application, the confirmation must show receipt at least 37 days before sale. Confirm the servicer is subject to this section's exemptions and deemed-compliance rules.
☐ Single Point of Contact assigned by servicer: ☐ Yes ☐ No
☐ Borrower previously cured an NED on this loan: ☐ Yes ☐ No (cure right limited to four per loan)
☐ Bankruptcy filed: ☐ Yes ☐ No — Chapter: ☐ 7 ☐ 13
☐ Property type: ☐ Residential ☐ Agricultural (public-trustee sale generally scheduled 215–230 calendar days after NED recording; cure payment remains due by noon the day before sale) ☐ Commercial
☐ Servicemember on active duty (SCRA): ☐ Yes ☐ No
☐ Servicer or lender has agreed in writing to postpone the sale: ☐ Yes ☐ No — Date: [__/__/____]

Document Collection:

☐ Promissory Note (all pages, all endorsements/allonges)
☐ Recorded Deed of Trust
☐ All recorded assignments of the deed of trust
☐ Notice of Election and Demand (recorded)
☐ Combined Notice of Foreclosure mailed by Public Trustee
☐ Pre-foreclosure letter (30-day breach notice)
☐ All loan modification denials, RESPA responses, and servicer correspondence
☐ Payment history / loan transaction history
☐ Most recent escrow analysis
☐ Pay stubs, tax returns, hardship documentation

PART 2 — VERIFIED RESPONSE TO MOTION FOR ORDER AUTHORIZING SALE (C.R.C.P. 120)

RESPONSE TO MOTION FOR ORDER AUTHORIZING SALE UNDER C.R.C.P. 120 AND OBJECTION TO ISSUANCE OF ORDER

Respondent(s) [BORROWER NAME(S)], by and through undersigned counsel (or pro se), respond to Petitioner's Motion for Order Authorizing Sale and object to the issuance of any order authorizing the Public Trustee to sell the subject property, stating:

I. PROPERTY AND PARTIES

1. Respondent is the record owner and occupies as a principal residence the real property commonly known as [PROPERTY ADDRESS], [CITY], [COUNTY] County, Colorado, with the legal description set forth in the recorded Deed of Trust.

2. Petitioner asserts it is the holder of the Evidence of Debt secured by a Deed of Trust dated [__/__/____] and recorded at Reception No. [____________] in the records of [COUNTY] County, Colorado.

II. SCOPE OF HEARING (C.R.C.P. 120(d))

3. Respondent acknowledges that the scope of the Rule 120 hearing is limited to (i) the existence of a default justifying invocation of the power of sale, (ii) whether Petitioner is the real party in interest entitled to enforce the Evidence of Debt, (iii) compliance with the Servicemembers Civil Relief Act, and (iv) such other matters as the Court permits within the scope of Rule 120.

III. SPECIFIC OBJECTIONS

4. Petitioner is not the qualified holder. Petitioner has failed to attach the original Evidence of Debt or an attorney certification compliant with C.R.S. § 38-38-101(1)(b)(II), or the certification is defective because: [DESCRIBE — e.g., chain of indorsements is broken; allonge is not affixed; assignment of record is incomplete].

5. No default exists, or the default has been cured. [DESCRIBE — e.g., payments were made and misapplied; servicer accepted partial payments inconsistent with default; escrow shortage caused by servicer error; force-placed insurance improperly charged].

6. Dual tracking in violation of C.R.S. § 38-38-103.2 and 12 C.F.R. § 1024.41(g). Respondent submitted a complete loss mitigation application on [__/__/____], more than 37 days before the scheduled sale, and Petitioner / its servicer has moved for an Order Authorizing Sale while the application remains pending or while an approved loss mitigation option has not been completed.

7. Single point of contact violation under C.R.S. § 38-38-103.1. Petitioner's servicer failed to provide a continuous single point of contact reasonably accessible to Respondent and with authority to coordinate review of loss mitigation options.

8. Defective notices. The Notice of Election and Demand, mailings or combined notice under C.R.S. § 38-38-103, a notice of default required by the deed of trust, or any applicable early-intervention written notice under 12 C.F.R. § 1024.39(b) is defective because: [IDENTIFY NOTICE AND DEFECT].

9. SCRA protection. Respondent (or a co-borrower) is/was a servicemember on active duty entitled to protections of 50 U.S.C. § 3953.

IV. RELIEF REQUESTED

WHEREFORE, Respondent requests that the Court (a) deny the Motion for Order Authorizing Sale; (b) set the matter for evidentiary hearing under C.R.C.P. 120(d); (c) require Petitioner to produce the original wet-ink Note with all endorsements and allonges for in-court inspection; and (d) award such other relief as is just.

V. VERIFICATION

I, [BORROWER NAME], declare under penalty of perjury under the laws of Colorado that the factual statements in this Response are true and correct to the best of my knowledge.

Executed on: [__/__/____], at [CITY OR OTHER LOCATION, STATE OR COUNTRY]

Signature: [________________________________]
Printed Name: [________________________________]

PART 3 — VERIFIED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES (Companion Civil Action)

VERIFIED COMPLAINT FOR INJUNCTIVE RELIEF, DECLARATORY JUDGMENT, AND DAMAGES

Jurisdiction and Venue

1. The Court has subject-matter jurisdiction under Colo. Const. art. VI, § 9(1). Venue is proper under C.R.C.P. 98(a) because the subject real property is located in [COUNTY] County.

Parties and Property

2. Plaintiff is the record owner of [PROPERTY ADDRESS].
3. Defendant [LENDER] claims to be the holder of the Note; Defendant [SERVICER] is the loan servicer.

COUNT I — Violation of RESPA / Regulation X (12 C.F.R. § 1024.41)

4. Plaintiff submitted a [COMPLETE / INCOMPLETE] loss mitigation application on [__/__/____], [NUMBER] days before the scheduled sale. Where the application was received at least 45 days before sale, Defendant Servicer failed to acknowledge receipt and identify completeness within five days excluding legal public holidays, Saturdays, and Sundays, as required by 12 C.F.R. § 1024.41(b)(2). Where a complete application was received more than 37 days before sale, Defendant failed to evaluate it and provide the written determination within 30 calendar days under § 1024.41(c)(1) and/or to preserve applicable appeal rights. Defendant also [DESCRIBE CONDUCT, IF APPLICABLE] in violation of the foreclosure restrictions in § 1024.41(f) or (g).

COUNT II — Violation of FDCPA (15 U.S.C. § 1692 et seq.)

5. Defendant [IDENTIFY PERSON OR ENTITY] qualifies as a debt collector under 15 U.S.C. § 1692a(6) because [FACTS SHOWING DEBT-COLLECTION ACTIVITY BEYOND NONJUDICIAL FORECLOSURE; FOR A SERVICER, STATE WHEN THE LOAN WAS OBTAINED AND WHETHER IT WAS THEN IN DEFAULT]. By [SPECIFIC FALSE DEBT-COLLECTION COMMUNICATION OR UNAUTHORIZED CHARGE], Defendant violated 15 U.S.C. § [1692e / 1692f]. If the conduct consisted solely of nonjudicial foreclosure, allege a claim under § 1692f(6) only if [FACTS SHOWING ONE OF ITS SPECIFIC CONDITIONS]; see Obduskey v. McCarthy & Holthus LLP, 586 U.S. 466 (2019).

COUNT III — Violation of FCRA (15 U.S.C. § 1681s-2)

6. Defendant Servicer furnished inaccurate information about the loan to [NAME OF CONSUMER REPORTING AGENCY]. Plaintiff disputed that information with that agency on [DATE], and the agency notified Defendant Servicer of the dispute under 15 U.S.C. § 1681i(a)(2) on [DATE / FACTS SHOWING NOTICE]. After receiving the agency notice, Defendant Servicer failed to investigate the disputed information as required by 15 U.S.C. § 1681s-2(b)(1). [STATE THE DEFECT IN ITS INVESTIGATION AND RESULTING HARM.]

COUNT IV — Violation of the Colorado Consumer Protection Act (C.R.S. § 6-1-101 et seq.)

7. Defendants engaged in deceptive trade practices in connection with the servicing of the loan, including [misrepresentation of fees / failure to apply payments / improper force-placed insurance], in violation of C.R.S. § 6-1-105. These practices significantly impact the public.

COUNT V — Violation of Colorado Single Point of Contact and Anti-Dual-Tracking Statutes (C.R.S. §§ 38-38-103.1, 38-38-103.2)

8. Defendant Servicer failed to provide a qualified single point of contact and engaged in dual tracking by moving the foreclosure forward while loss mitigation review was pending.

COUNT VI — Lack of Standing / Wrongful Foreclosure

9. Defendant is not the holder of the Note entitled to enforce it because [chain of endorsements is broken / assignment is void / Note was paid or discharged].

COUNT VII — Breach of Contract and Breach of the Implied Covenant of Good Faith and Fair Dealing

10. Defendants breached the Note and Deed of Trust by [misapplication of payments / failure to honor modification / charging unauthorized fees].

Prayer for Relief

Colorado exemplary damages: Do not include a claim under C.R.S. § 13-21-102 in this initial pleading. Subsection (1.5)(a) allows a later amendment only after initial disclosures and prima facie proof of a triable issue.

WHEREFORE, Plaintiff prays for:

• (a) A temporary restraining order and preliminary injunction enjoining the Public Trustee sale scheduled for [__/__/____];
• (b) Declaratory judgment that Defendant is not entitled to enforce the Note;
• (c) Actual and statutory damages available under the pleaded claims;
• (d) Attorneys' fees and costs under 15 U.S.C. § 1692k, 15 U.S.C. § 1681n/o, 12 U.S.C. § 2605(f), and C.R.S. § 6-1-113; and
• (e) Such other relief as is just and proper.

Verification

I declare under penalty of perjury under the laws of Colorado that the foregoing is true and correct.

Executed on: [__/__/____], at [CITY OR OTHER LOCATION, STATE OR COUNTRY]
Printed Name: [________________________________]
Signature: [________________________________]

PART 4 — MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Plaintiff moves under C.R.C.P. 65 for a TRO and preliminary injunction enjoining the Public Trustee sale scheduled for [__/__/____], on the grounds that:

1. Likelihood of success on the merits: [SUMMARIZE STRONGEST COUNTS].
2. Irreparable harm: Loss of the unique homestead is per se irreparable injury.
3. Balance of equities: Defendants' interest in foreclosure is purely monetary and can be made whole by bond and continued payments; Plaintiff loses the family home permanently.
4. Public interest: Public interest favors enforcement of RESPA, Colorado anti-dual-tracking law, and good-faith loss mitigation review.

Plaintiff is prepared to deposit reasonable bond and to remit ongoing tender of payments into the registry of the Court pending resolution.

PART 5 — DISCOVERY DEMAND TO LENDER / SERVICER

Requests for Production (selected):

☐ The original wet-ink promissory Note and all allonges and endorsements
☐ The complete loan transaction / payment history from origination
☐ All loan modification applications, denials, NPV worksheets, and investor guidelines
☐ All communications between servicer and investor regarding loss mitigation
☐ Servicer's policies and procedures for compliance with 12 C.F.R. § 1024.41
☐ All single point of contact assignments and communications logs under C.R.S. § 38-38-103.1
☐ The Pooling and Servicing Agreement governing the trust (if securitized)
☐ Evidence of the Note's delivery to the trust within the closing date specified by the PSA
☐ Records of all force-placed insurance charges and refunds
☐ All correspondence with credit reporting agencies regarding this account

Interrogatories:

☐ Identify by name and date every person assigned as Plaintiff's single point of contact
☐ Identify the date Plaintiff's most recent complete loss mitigation application was deemed complete
☐ Identify all loss mitigation options for which Plaintiff was evaluated and the reason(s) for denial
☐ State the legal and factual basis for Defendant's claim to be the holder of the Note

Requests for Admission:

☐ Admit that Defendant did not have physical possession of the original Note on the date the NED was recorded
☐ Admit that Defendant accepted payments after the date of the alleged default

PART 6 — LOSS MITIGATION APPLICATION COVER LETTER AND CHECKLIST

[__/__/____]

To: [SERVICER LOSS MITIGATION DEPT.]
Loan Number: [____________]
Property Address: [PROPERTY ADDRESS]
Borrower(s): [BORROWER NAME(S)]

Re: Complete Loss Mitigation Application — Request for Single Point of Contact and Suspension of Foreclosure Activity

Dear Loss Mitigation Department:

Enclosed please find a complete loss mitigation application under 12 C.F.R. § 1024.41. Because this application is submitted more than 37 days before the scheduled foreclosure sale, § 1024.41(c) requires evaluation within 30 days and § 1024.41(g), together with applicable Colorado law, restricts moving for or conducting the sale while the specified review and appeal conditions remain unresolved. If the servicer receives this application at least 45 days before sale, § 1024.41(b)(2) also requires written acknowledgment within five days, excluding legal public holidays, Saturdays, and Sundays, stating whether the application is complete and identifying any missing information.

Please confirm in writing the identity of my single point of contact under C.R.S. § 38-38-103.1.

Enclosed Documents:

☐ Uniform Borrower Assistance Form (Form 710 / equivalent)
☐ IRS Form 4506-C
☐ Most recent two months of pay stubs for all borrowers
☐ Two most recent federal tax returns with all schedules
☐ Two most recent bank statements (all pages)
☐ Profit & loss statement (if self-employed)
☐ Hardship letter describing cause and duration of hardship
☐ Utility bill or other proof of occupancy
☐ Dodd-Frank certification

Sincerely,
[BORROWER NAME]

PART 7 — LOAN MODIFICATION / WORKOUT REQUEST

Borrower respectfully requests evaluation for, in order of preference:

1. ☐ Permanent loan modification (rate reduction, term extension, principal forbearance/forgiveness)
2. ☐ Flex Modification / Fannie Mae / Freddie Mac standard modification
3. ☐ FHA Loan Modification / Partial Claim (select an option for which the loan is eligible)
4. ☐ VA Affordable Modification (VAAM)
5. ☐ Repayment plan
6. ☐ Forbearance agreement
7. ☐ Short sale
8. ☐ Deed in lieu of foreclosure with cash-for-keys
9. ☐ Colorado Housing and Finance Authority (CHFA) and HOPE program referral
10. ☐ Reverse mortgage refinance (if eligible)

Hardship Type: ☐ Unemployment ☐ Reduced income ☐ Medical ☐ Death of borrower ☐ Divorce ☐ Disability ☐ Disaster ☐ Other: [________________]

Target Modified Payment (PITI): $[__________] per month
Documented Gross Monthly Income: $[__________]

PART 8 — NOTICE OF INTENT TO CURE (C.R.S. § 38-38-104)

File this written notice and evidence of the filer's right to cure with the foreclosing officer at least 15 calendar days before the scheduled sale. Sending this package only to the loan servicer does not file the notice with the officer. Check the actual sale date and obtain a filing receipt.

To: [PUBLIC TRUSTEE OR SHERIFF; COUNTY AND FILING ADDRESS] Foreclosure sale number: [__________]

Property: [PROPERTY ADDRESS AND LEGAL DESCRIPTION REFERENCE] Scheduled sale date: [__/__/____]

I, [NAME], give written notice of intent to cure the default under C.R.S. § 38-38-104. I am entitled to cure as [PROPERTY OWNER / PERSON LIABLE ON THE DEBT / GUARANTOR OR SURETY / JUNIOR LIENOR / OTHER QUALIFYING PERSON: DESCRIBE]. Evidence of that right is attached: [DEED / NOTE / GUARANTY / RECORDED LIEN / OTHER]. Please request the cure statement from the holder or servicer and transmit it to me at [MAILING ADDRESS AND OPTIONAL ELECTRONIC ADDRESS].

Filer signature: [________________________________] Date: [__/__/____] Filed with officer on: [__/__/____] Receipt/reference: [__________]

After receiving the cure statement, confirm the amount with the officer. The cure amount must be paid to the officer no later than 12 noon on the day before the sale under § 38-38-104(2)(b). The following worksheet records the statement and payment; it does not replace the filed notice or the officer's cure statement.

☐ Cure tendered on [__/__/____] in the amount of $[__________].

PART 9 — REQUEST FOR VOLUNTARY LOSS MITIGATION DISCUSSION

Borrower requests that [SERVICER / LENDER] discuss available loss mitigation options, including a voluntary meeting or mediation if the parties agree. Borrower will provide the following documents by [__/__/____]: [DOCUMENTS]. Borrower also requests written confirmation if the scheduled sale is postponed to permit those discussions.

PART 10 — BANKRUPTCY REFERRAL AND AUTOMATIC STAY NOTICE

If foreclosure cannot be averted through cure, modification, or injunction, a bankruptcy filing imposes the automatic stay under 11 U.S.C. § 362 and may halt the Public Trustee sale.

Chapter Selection Guide:

☐ Borrower has been referred to bankruptcy counsel: [________________________________]
☐ Pre-bankruptcy credit counseling completed: ☐ Yes ☐ No
☐ Filing planned for: [__/__/____]

Notice to Foreclosure Counsel: Upon filing, immediate notice of automatic stay shall be served on Petitioner's counsel, the Public Trustee, and the district court. A post-petition continuation of the foreclosure may violate the stay imposed by 11 U.S.C. § 362(a), subject to its exceptions or relief from stay; § 362(k) provides damages for a willful violation against an individual.

PART 11 — QUALIFIED WRITTEN REQUEST AND NOTICE OF ERROR (12 C.F.R. § 1024.35, .36)

[__/__/____]

To: [SERVICER] — Designated Address for Notices of Error
Loan Number: [____________]

This communication is a Notice of Error under 12 C.F.R. § 1024.35 and a Request for Information under 12 C.F.R. § 1024.36.

Errors Asserted:

☐ Improper application of payments
☐ Imposition of fees or charges not authorized by the loan documents
☐ Failure to provide accurate payoff balance
☐ Failure to credit a payment timely received
☐ Failure to provide single point of contact
☐ Initiation or continuation of foreclosure during pendency of loss mitigation application
☐ Other: [________________________________]

Information Requested:

☐ Identity of owner/assignee of mortgage loan
☐ Complete payment history
☐ Itemized payoff statement
☐ Loss mitigation files and notes

For a qualifying written information request sent to the servicer's designated address, 12 C.F.R. § 1024.36 generally requires acknowledgment within five days and a response within 30 days, each excluding legal public holidays, Saturdays, and Sundays. A request for the owner or assignee's identity has a 10-business-day response deadline; the general response deadline may be extended by 15 business days with timely written notice. A payoff-balance request follows a separate rule, not § 1024.36. Under 12 U.S.C. § 2605(f), a violation may support proven actual damages, costs, and reasonable attorney fees; additional damages up to $2,000 for an individual require a pattern or practice of noncompliance.

PART 12 — SOURCES AND REFERENCES

• C.R.S. § 38-38-101 et seq. — Foreclosure by Public Trustee
• C.R.C.P. 120 — Motion for Order Authorizing Sale
• Colorado General Assembly, HB 23-1120 — tenant eviction protections; does not establish foreclosure mediation
• 2026 Colorado Revised Statutes, Title 38 — former foreclosure deferment Part 8 repealed in 2015
• 12 C.F.R. § 1024.30–.41 — Regulation X Mortgage Servicing
• 15 U.S.C. § 1692 et seq. — Fair Debt Collection Practices Act
• 15 U.S.C. § 1681 et seq. — Fair Credit Reporting Act
• Colorado Foreclosure Hotline: 1-877-601-HOPE (4673)
• Colorado Housing and Finance Authority (CHFA): www.chfainfo.com

ATTORNEY DISCLAIMER: This template is intended as a drafting starting point. Colorado foreclosure law is highly time-sensitive and turns on facts including loan investor, securitization status, military status, and prior cure history. Borrowers should engage Colorado-licensed counsel immediately upon receiving any pre-foreclosure or NED notice.