County District Court No. 14CV31889 Honorable Mark D. Warner,
Siler & Accomazzo, P.C., Joseph A. Murr, Maris S. Davies,
Denver, Colorado, for Plaintiff-Appellant.
Sweetbaum Sands Anderson PC, Geoffrey P. Anderson, Reagan
Larkin, Denver, Colorado; Navaro & Associates LLC, Steven
Navaro, Castle Rock, Colorado for Defendant-Appellee.
1 Plaintiff, Mortgage Investments Enterprises LLC (Mortgage
Investments), appeals the district court's order granting
defendant's, Oakwood Holdings, LLC (Oakwood), motion for
summary judgment. We reverse the district court's
judgment and remand the case with directions.
2 This case involves a dispute regarding the foreclosure and
redemption processes in Colorado. Thus, to better understand
the facts of this case, it is helpful to first provide a
brief overview of the foreclosure and redemption procedures.
Foreclosure and Redemption
3 The foreclosure process protects a creditor's right to
repayment of debts, including homeowners' association
liens and monetary judgments. Specifically, section
38-38-101, C.R.S. 2015, enables a creditor to obtain a
judgment and decree of foreclosure against a debtor and have
the subject property auctioned at a foreclosure sale. The
creditor can then use the proceeds of the sale to satisfy the
4 Foreclosure is not without consequences, however,
particularly for creditors whose liens are subordinate to -
i.e., junior to - a lien being foreclosed (junior lienors).
Indeed, where multiple liens are filed against the foreclosed
property, foreclosure of a senior lien generally extinguishes
all junior liens. § 38-38-501, C.R.S. 2015; see also
Ferguson Enters., Inc. v. Keybuild Sols., Inc., 275 P.3d
741, 745 (Colo.App. 2011).
5 Accordingly, to protect creditors' entitlement to
payment, the General Assembly has provided them with the
right to redeem foreclosed property on which they have a
junior lien. See § 38-38-302, C.R.S. 2015. This
right to redeem refers to a process by which title to the
previously foreclosed property vests with the redeeming
junior lienor, rather than with the purchaser at the
foreclosure sale (the certificate of purchase holder), if (1)
the junior lienor follows the required statutory procedures,
including filing a notice of intent to redeem; (2) the junior
lienor pays, within its statutory period for redemption, the
required redemption amount; and (3) no other, more junior
lienors exercise their subsequent right of redemption.
See id.; see also WYSE Fin. Servs., Inc. v.
Nat'l Real Estate Inv., LLC, 92 P.3d 918, 921-22
6 With respect to the timing for redemption, the "junior
lienor having the most senior recorded lien" has the
first opportunity to redeem, which begins "[n]o sooner
than fifteen business days" and ends "nineteen
business days" after the foreclosure sale. §
38-38-302(4)(a). Each subsequent junior lienor then has five
business days to redeem from the previous lienor's
redemption. § 38-38-302(4)(b)(I).
7 Prior to 2008, owners of foreclosed property also had the
right to redeem from a foreclosure sale. Ch. 275, sec. 2,
§ 38-38-302, 1990 Colo. Sess. Laws 1664-65. Effective in
2008, however, the General Assembly eliminated that right.
See Ch. 305, sec. 21, § 38-38-302, 2006 Colo.
Sess. Laws 1467. Under the current scheme, only junior
lienors have the right to redeem. See §
8 Turning, now, to the facts of this case, the debtors
purchased a home in Adams County (the property) in 2006. That
same year, they defaulted on their obligation to pay monthly
fees to the Kimblewyck Village Owners Association
(Kimblewyck). Kimblewyck filed a lien against the property in
9 In addition to the Kimblewyck lien, the property was also
encumbered by (1) a lien filed by the Fox Run Owners
Association and (2) two judgments entered in favor of
Community Management Association, Inc. (CMA).
10 In May 2014, Kimblewyck obtained a judgment and decree of
foreclosure, and the property was auctioned at a
sheriff's sale on September 25, 2014. Mortgage
Investments was the successful bidder at the foreclosure
sale, so the Adams County Sheriff issued Mortgage Investments
a certificate of purchase.
11 On the day before the foreclosure sale, Oakwood purchased
the Fox Run lien and the two CMA judgments.
12 And, on the day after the foreclosure sale, Mortgage
Investments obtained a valid power of attorney from the
debtor, which authorized Mortgage Investments to pay the Fox
Run lien and the CMA judgments.
13 On October 1, 2014, within eight business days after the
sale, pursuant to section 38-38-302(1)(d), Oakwood filed a
notice of intent to redeem the Fox Run lien so that it could
acquire title to the property. On October 7, 2014, Mortgage
Investments tendered, on behalf of the debtor, pursuant to
the power of attorney, payment to Oakwood in satisfaction of