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: [__/__/____]
☐ 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 (215-day cure) ☐ Commercial
☐ Servicemember on active duty (SCRA): ☐ Yes ☐ No
☐ Borrower received foreclosure deferment notice under C.R.S. § 38-38-802: ☐ Yes ☐ No

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 under C.R.S. § 38-38-103, the combined notice under C.R.S. § 38-38-103, or the pre-foreclosure notice required by 12 C.F.R. § 1024.39–.40 are defective because: [DESCRIBE].

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.

Dated: [__/__/____]

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 jurisdiction under C.R.S. § 13-1-124 and venue 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 loss mitigation application on [__/__/____]. Defendant Servicer failed to (a) acknowledge receipt within five days; (b) evaluate the application within 30 days; (c) provide a written notice of all loss mitigation options for which Plaintiff was eligible; and/or (d) preserve appeal rights. Defendant also moved for foreclosure sale in violation of the anti-dual-tracking provisions of § 1024.41(f) and (g).

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

5. Defendant Servicer (or its foreclosure law firm) is a "debt collector" under the FDCPA. By [misrepresenting the amount owed / sending false debt collection communications / attempting to collect amounts not permitted by contract], Defendant violated 15 U.S.C. §§ 1692e and 1692f.

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

6. Defendant Servicer furnished inaccurate information about the loan to consumer reporting agencies and, after Plaintiff disputed the information, failed to conduct a reasonable reinvestigation under 15 U.S.C. § 1681s-2(b).

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

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, statutory, and punitive damages;
• (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.

Dated: [__/__/____]
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, the dual-tracking prohibitions of 12 C.F.R. § 1024.41(g) and C.R.S. § 38-38-103.2 require that you (i) suspend any motion for order authorizing sale and any scheduling of sale; (ii) acknowledge receipt within 5 business days; (iii) notify me within 5 business days whether the application is complete; and (iv) evaluate the application within 30 days.

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 Home Affordable Modification Program (HAMP) / Partial Claim
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 — STATUTORY CURE NOTICE AND DEMAND (C.R.S. § 38-38-104)

Borrower hereby gives notice of intent to cure the default under C.R.S. § 38-38-104. The Public Trustee must furnish the cure statement within the statutory timeframe. The cure amount must be deposited with the Public Trustee no later than 12:00 noon of the day before the scheduled sale.

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

PART 9 — HB 23-1120 / MEDIATION REQUEST

Borrower hereby requests participation in foreclosure mediation under HB 23-1120 and any successor program rules. Borrower agrees to mediate in good faith and to submit required documentation on a timely basis. Borrower requests that the scheduled sale be stayed pending the outcome of mediation as authorized by the program.

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. Any post-petition continuation of the foreclosure is a stay violation under 11 U.S.C. § 362(k).

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

Servicer must acknowledge within 5 days and respond within 30 days. Failure exposes Servicer to actual damages, statutory damages up to $2,000, costs, and attorneys' fees under 12 U.S.C. § 2605(f).

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
• HB 23-1120 — Foreclosure Mediation Program
• 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.