Colorado’s “Rule 120’, has absolutely nothing to do with ‘private residential real property” You will notice under Venue, the proceedings are limited to “personal, family, or household purpose”, thus eliminating “private residential real property”. You can file an estoppel, stated as; 1. The ‘procedure is to enforce a consumer obligation , you are not a consumer! (see definition of consumer, Title 17 CFR §248.1) 2..The federal Fair Debt Collection Practices Act definition of Residential mortgage loan, is administered through the Secretary of Housing and Urban Development, for Public Housing , through the Community Reinvestment Act. 3. You are not a borrower/ debtor. 4. Your ‘private residential real property is not a lease, and not public housing, or a mobile home. ______________________________________________ Title 17:CFR Commodity and Securities Exchanges. 17 CFR 248.3 - Definitions. law.cornell.edu/cfr/text/17/248.3 §248.1 Purpose and scope. Defines ‘consumer’ (g)(1) Consumer means an individual who obtains or has obtained a financial product or service from you that is to be used primarily for personal, family, or household purposes, or that individuals legal representative. (o)(1) Financial product or service means any product or service that a financial holding company could offer by engaging in an activity that is financial in nature or incidental to such a financial activity under section 4(k) of the Bank Holding Company Act of 1956 (12 U.S.C. 1843(k)) Definition of “activity that is financial in nature” 12 U.S. Code § 1843 - Interests in nonbanking organizations 12 U.S. Code § 1843 - Interests in nonbanking organizations (4) Activities that are financial in nature For purposes of this subsection, the following activities shall be considered to be financial in nature: (A) Lending, exchanging, transferring, investing for others, or safeguarding money or securities. (B) Insuring, guaranteeing, or indemnifying against loss, harm, damage, illness, disability, or death, or providing and issuing annuities, and acting as principal, agent, or broker for purposes of the foregoing, in any State. (C) Providing financial, investment, or economic advisory services, including advising an investment company (as defined in section 3 of the Investment Company Act of 1940 [15 U.S.C. 80a–3]). (D) Issuing or selling instruments representing interests in pools of assets permissible for a bank to hold directly. (E) Underwriting, dealing in, or making a market in securities. (F) Engaging in any activity that the Board has determined, by order or regulation that is in effect on November 12, 1999, to be so closely related to banking or managing or controlling banks as to be a proper incident thereto (subject to the same terms and conditions contained in such order or regulation, unless modified by the Board). (G) Engaging, in the United States, in any activity that— (i) a bank holding company may engage in outside of the United States; and (ii) the Board has determined, under regulations prescribed or interpretations issued pursuant to subsection (c)(13) of this section (as in effect on the day before November 12, 1999) to be usual in connection with the transaction of banking or other financial operations abroad. 2..The federal Fair Debt Collection Practices Act definition of Residential mortgage loan, is administered through the Secretary of Housing and Urban Development, for Public Housing , through the Community Reinvestment Act. 15 U.S. Code § 1602 - Definitions and rules of construction law.cornell.edu/uscode/text/15/1602 (5) Residential mortgage loan.— The term “residential mortgage loan” means any consumer credit transaction that is secured by a mortgage, deed of trust, or other equivalent *consensual security interest on a dwelling or on residential real property that includes a dwelling, other than a consumer credit transaction under an open end credit plan or, for purposes of sections 1639b and 1639c of this title and section 1638 (a) (16), (17), (18), and (19) of this title, and sections 1638 (f) and 1640 (k) of this title, and any regulations promulgated thereunder, an extension of credit relating to a plan described in section 101(53D) of title 11. 12 CFR 203.2 - Definitions. (d) Dwelling means a residential structure (whether or not attached to real property) located in a state of the United States of America, the District of Columbia, or the Commonwealth of Puerto Rico. (6) Secretary.— The term “Secretary”, when used in connection with any transaction or person involved with a residential mortgage loan, means the Secretary of Housing and Urban Development. CHAPTER 17 COURT PROCEEDINGS: SALES UNDER POWERS Analysis Rule 120. Orders Authorizing Sales Under Powers Rule 120. Orders Authorizing Sales Under Powers https://law.resource.org/pub/us/code/co/colorado.xml.older/corule03.html (f) Venue. For the purposes of this section, a *consumer obligation is any obligation (i) as to which the obligor is a natural person, and (ii) is incurred primarily for a personal, family, or household purpose. Any proceeding under this Rule involving a consumer obligation shall be brought in and heard in the county in which such consumer signed the obligation or in which the property or a substantial part thereof is located. Any proceeding under this Rule which does not involve a consumer obligation or an instrument securing a consumer obligation may be brought and heard in any county. However, in any proceeding under this Rule, if a response is filed, and if in the response or in any other writing filed with the court, the responding party requests a change of venue to the county in which the encumbered property or a substantial part thereof is situated, the court shall order transfer of the proceeding to such county. The defenses of waiver and estoppel are valid defenses that should be considered by the trial court in a proceeding under this rule if properly raised by the debtor. Goodwin v. District Court, 779 P.2d 837 (Colo. 1989). Proceedings under this rule are a judicial proceeding and, therefore, legal action for the purposes of the federal Fair Debt Collection Practices Act. Thus, former section (f) of this rule, which permitted an action to be filed in any county, was preempted by federal law. But acceptance by district court clerks of improperly filed actions was not state action for the purposes of 42 U.S.C. sec. 1983. Zartman v. Shapiro and Meinhold, 811 P.2d 409 (Colo. App. 1990) (decided under rule in effect prior to 1989 amendment), affd, 823 P.2d 120 (Colo. 1992). The federal Fair Debt Collection Practices Act requires that an action to enforce an interest in real property securing a consumers obligation, brought by a debt collector, must be brought only in a judicial district in which the real property is located. For purposes of the federal act an attorney who qualifies under the first sentence of the definition in 15 U.S.C. § 1692a(6) is a debt collector. Shapiro and Meinhold v. Zartman, 823 P.2d 120 (Colo. 1992) (decided under rule in effect prior to 1989 amendment). Rule 120. Orders Authorizing Sales Under Powers, implements the following; COLORADO REVISED STATUTES TITLE 38. PROPERTY - REAL AND PERSONAL REAL PROPERTY ARTICLE 38. FORECLOSURE SALES PART 1. FORECLOSURE SALE C.R.S. 38-38-100.3 (2014) lexisnexis/hottopics/colorado/ Colorado Revised Statutes (open) TITLE 38. PROPERTY - REAL AND PERSONAL (expand +) ARTICLE 38. FORECLOSURE SALES (expand +) (2.5) Borrower means a person liable under an evidence of debt constituting a *residential mortgage loan.(note, see, *(21.3) Residential mortgage loan) public housing! (14) Mailing list means the mailing list in accordance with section 38-38-101 (1) (e) provided to the officer by the holder of the evidence of debt or the attorney for the holder containing the names and addresses of the following persons: d) With respect to a public trustee sale, a lessee with an unrecorded possessory interest in the property at the address of the premises of the lessee and, if different, the address of the property, to the extent that the holder of the evidence of debt desires to terminate the possessory interest with the foreclosure. (note, the “foreclosure is limited to a lease!) (16) Notice of election and demand means a notice of election and demand for sale related to a public trustee foreclosure under this article. (20) Qualified holder means a holder of an evidence of debt, certificate of purchase, certificate of redemption, or confirmation deed that is also one of the following: *(f) A federal housing administration approved mortgagee; *(j) Any community development financial institution that has been certified and maintains such current status from the community development financial institutions fund administered by the United States department of the treasury, referred to in this section as the fund. In order to be a qualified holder under this article, the community development financial institution must: (I) Be a legal entity; (II) Have a primary mission of promoting community development; (III) Be a financing entity; (IV) Primarily serve one or more target markets as defined by the fund; (V) Promote development services in conjunction with its financing activities; (VI) Maintain accountability to its defined target market; and (VII) Be a nongovernmental entity and not be under the control of any governmental entity; except that a tribal government is exempt from the requirements of this subparagraph (VII). (k) Any entity with active certification under the fund that originates, insures, guarantees, or purchases loans or a person acting on behalf of such an entity to enforce an evidence of debt or the deed of trust securing an evidence of debt; or (l) Any entity listed in paragraphs (a) to (k) of this subsection (20) acting in the capacity of agent, nominee except as otherwise specified in subsection (10) of this section, or trustee for another person. *(21.3) Residential mortgage loan means a loan that is primarily for personal, family, or household use and that is secured by a mortgage, deed of trust, or other equivalent, *consensual security interest on a dwelling or residential real estate upon which is constructed or intended to be constructed a single-family dwelling or multiple-family dwelling of four or fewer units that is or will be used by the borrower as the borrowers primary residence. [note[ the Definition of “Residential Mortgage” loan, listed in section (21.3) is the same definition listed in the Consumer Credit Protection Act, Fair Debt Collection Act, and is limited to a “consensual security interest”, limited to personal property, “stocks or bonds included”. See UCC, article 9. 15 U.S. Code § 1602 - Definitions and rules of construction law.cornell.edu/uscode/text/15/1602 (5) Residential mortgage loan.— The term “residential mortgage loan” means any consumer credit transaction that is secured by a mortgage, deed of trust, or other equivalent *consensual security interest on a dwelling or on residential real property that includes a dwelling, other than a consumer credit transaction under an open end credit plan or, for purposes of sections 1639b and 1639c of this title and section 1638 (a) (16), (17), (18), and (19) of this title, and sections 1638 (f) and 1640 (k) of this title, and any regulations promulgated thereunder, an extension of credit relating to a plan described in section 101(53D) of title 11. 12 CFR 203.2 - Definitions. (d) Dwelling means a residential structure (whether or not attached to real property) located in a state of the United States of America, the District of Columbia, or the Commonwealth of Puerto Rico. (6) Secretary.— The term “Secretary”, when used in connection with any transaction or person involved with a residential mortgage loan, means the Secretary of Housing and Urban Development. The definition of “consensual security interest” Article 9 of the Uniform Commercial Code monitordaily/article-posts/defines-security-interest/ However, Article 9 is not the be all and end all of security interests. It is, therefore, prudent to remind ourselves from time to time of what is and is not covered by its broad scope. Article 9 generally deals with consensual security interests in personal property. A security interest is defined by the UCC to mean “an interest in personal property or fixtures, which secures payment or performance of an obligation.” See UCC §1-201(37). RESIDENTIAL MORTGAGE LOANS, are administered through HUD, HUD only deals with Public Housing, and since 1974, only in Puerto Rico, see Title 42 U.S.C. section 1437 etc. The definition of lender. Regulations for 15 U.S. Code § 1602 - Definitions and rules of construction law.cornell.edu/uscode/text/15/1602 12 CFR - Banks and Banking 12 CFR Part 303 - FILING PROCEDURES 12 CFR PART 303 - FILING PROCEDURES law.cornell.edu/cfr/text/12/part-303 (3) 12 CFR part 345—Community Reinvestment (CRA strategic plans and requests for designation as a wholesale or limited purpose institution); 12 CFR 345.12 - Definitions. law.cornell.edu/cfr/text/12/345.12 (g) Community development means: (1) Affordable housing (including multifamily rental housing) for low- or moderate-income individuals; (2) Community services targeted to low- or moderate-income individuals; (5) Loans, investments, and services that— (i) Support, enable or facilitate projects or activities that meet the “eligible uses” criteria described in Section 2301(c) of the Housing and Economic Recovery Act of 2008 (HERA), Public Law 110-289, 122 Stat. 2654, as amended, and are conducted in designated target areas identified in plans approved by the United States Department of Housing and Urban Development in accordance with the Neighborhood Stabilization Program (NSP); ARTICLE 38. FORECLOSURE SALES continued.. (23) Secured indebtedness means the amount owed pursuant to the evidence of debt without regard to the value of the *collateral. (note) collateral security is the same as a Pledge”, the creditor has to have actual possession, i.e. “stocks or bonds’ pledged for a loan of credit. (24) Statement of redemption means the signed and acknowledged statement of the holder of the evidence of debt or the signed statement of the attorney for the holder as required by section 38-38-302 (3) or the signed and acknowledged statement of the lienor or the signed statement of the attorney for the lienor as required by section 38-38-302 (1) (f). (note) The junior lien holder has to pay the full amount of the sale to redeem! TITLE 38. PROPERTY - REAL AND PERSONAL REAL PROPERTY ARTICLE 38. FORECLOSURE SALES PART 3. REDEMPTION web.lexisnexis/research/retrieve?_m=93f2434a8fa18936cf1eb19e3b00d3ae&csvc=lt&cform=&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzB-zSkAl&_md5=03bd044f5bba22b2dd2ead8f5577cb63 (4) Redemption period. (a) No sooner than fifteen business days nor later than nineteen business days after a sale under this article, the junior lienor having the most senior recorded lien on the sold property or any portion thereof, according to the records, having first complied with the requirements of subsection (1) of this section, may redeem the property sold by paying to the officer, no later than 12 noon on the last day of the lienors redemption period, in the form specified in section 38-37-108, the amount for which the property was sold with interest from the date of sale, together with all sums allowed under section 38-38-301. Interest on the amount for which the property was sold shall be charged at the default rate specified in the evidence of debt, deed of trust, or other lien being foreclosed or, if not so specified, at the regular rate specified in the evidence of debt, deed of trust, or other lien being foreclosed. If different interest rates are specified in the evidence of debt, deed of trust, or other lien being foreclosed, the interest rate specified in the evidence of debt shall prevail. If the evidence of debt does not specify an interest rate, including a default interest rate, applicable interest rate as specified in the deed of trust or other lien being foreclosed shall apply.
Posted on: Sun, 12 Oct 2014 13:05:36 +0000
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