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TC Agenda 02-04-1983DISTRICT COURT, CITY AND COUNTY OF DENVER, STATE OF COLORADO Civil Action No. , Courtroom 15 NOTICE OF HEARING °87 c V 9408 IN THE MATTER OF THE APPLICATION OF THIRD U.S. AKAR INC., A DELAWARE CORPORATION, FOR AN ORDER AUTHORIZING THE TRUSTEE OF THE COUNTY OF EAGLE, STATE OF COLORADO, TO SELL CERTAIN REAL PROPERTY UNDER A POWER OF SALE CONTAINED IN A DEED OF TRUST. TAKE NOTICE THAT YOU MAY BE AFFECTED BY THE FORECLOSURE OF A DEED OF TRUST ON THE REAL PROPERTY DESCRIBED BELOW. THIRD U.S. AKAR INC., a Delaware corporation, has filed a motion with this Court, claiming to be the owner of a promissory note in the principal amount of $650,000.00 (Phase I Note) dated February 2, 1983, signed by AVON RANCH COMPANY, A COLORADO GENERAL PARTNERSHIP, and a promissory note in the principal amount of $850,000.00 (Phase II and III Note) dated February 2, 1983, signed by AVON RANCH COMPANY, A COLORADO GENERAL PARTNERSHIP, and a deed of trust to the Public Trustee of the County of Eagle, Colorado; dated February 2, 1983, signed by AVON RANCH COMPANY, A COLORADO GENERAL PARTNERSHIP and recorded February 4, 1983, in Book 353 at Page 100 of the records of the County of Eagle, Colorado. The motion claims that THIRD U.S. AKAR INC., a Delaware corporation, has the right to foreclose the deed of trust because the Grantors of the deed of trust have failed to make payment of said notes according to the tenor and effect of said notes and the entire unpaid principal balance of $1,500,000.00, together with interest and other charges, is now due and owing and remains unpaid, which is a default of this deed of trust. The motion requests a Court Order authorizing the Public Trustee to sell the following real property in the County of Eagle, Colorado, which legal description is intended to be of all the property that is affected or covered by the deed of trust, to wit: • U See Legal Description described on Exhibit A attached hereto and incorporated herein by this reference. If you dispute the default or other facts claimed by THIRD U.S. AKAR INC., a Delaware corporation, to justify this foreclosure, or if you are entitled to protection against this foreclosure under the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, you must make a typewritten response to the Motion, stating under oath the facts upon which you rely and attaching copies of all documents which support your position. This response must be filed with the Clerk of this Court at the City and County Building, City and County of Denver, Colorado not later than June 4 , 1987, and a copy of the response must also be mailed or delivered by the same date to Douglas M. Tisdale, Esq., Brownstein Hyatt Farber & Madden, 410 - 17th Street, Suite 2222, Denver, Colorado 80202. If you file a response, you are required to pay a docket fee of $20.00 at the time of filing. A hearing on the motion is scheduled for 8:30 o'clock A.M., on Juste 11 1987, in Courtroom '15 of this Court at the City and County Building, City and" County of Denver, Colorado. You may attend this hearing, with or without an attorney. IF NO RESPONSE IS FILED BY nM 4 , 1987 , THE' COURT MAY WITHOUT ANY HEARING AUTHORIZE FORECLOSURE SALE WITHOUT FURTHER NOTICE. MAY 21 198 DATED at Denver, Colorado this day of 1987. JANET M. ADAMS Clerk of the District Court By: Deputy (SEAL) Exhibit A to Deed of Trust The "Phase I Premises" and the "Phase II and III Premises" hereinafter described • • Phase II and III Premises Description of MortQaQed Pro erty All those certain parcel or parcels of property and all buildings and all other improvements now thereon or hereafter constricted thereon, situated in the County of Eagle, State of Colorado, bounded and described-as follows: PARCEL A A part of the NE 4 NW h Section 11, Township 5 South, Range 82 West of the Sixth Principal, Meridian, Eagle County, Colorado, - described as follows : Beginning at a point on curve on the northerly right-of-way line of U.S. Highway- 6 and 24, whence the southwesterly corner of Lot 1, Block 3, Official Plat - Town of Avon, Eagle. County, Colorado & Final Subdivision Plat - Amendment No. 4, Benchmark at Beaver Creek, as recorded in the. office of the Eagle County, Colorado, Clerk and Recorder, bears S 83013107" E 867.21 feet; thence the following three courses along said northerly right-of-way line: (1) 195.00 feet along the arc of a 2815.00 foot radius curve to the right, said curve having a central angle of 3°58108" and a chord that bears N 76°12140" W 194.96 feet; (2) N 7401313611 W 603.50 feet; (3) 48.74 feet along the arc of a 1005.00 foot radius non-tangent curve to the left, said curve having a central angle of 2046144" and a chord that bears N 70°23106" W 48.74 feet; thence, departing said northerly right-of-way line N 00016126" E 260.92 Feet, to, the southerly right-of-way line of the Denver and Rio Grande Western Railroad; thence the following two courses along said southerly right-of-way line: (1) S 70°56'28" E 531.97 feet; (2) 318.68 feet along the arc-of a 1055.37 foot radius curve to the left, said curve having a central angle of 17°18104" and a, chord that bears S 79035130" E 317.47 feet; thence, departing said southerly right-of-way line S 00°03143" W 256.73 feet, to the point of beginning, containing 4.59 acres, more or less. PARCEL B Those parts of the NE ~j NW 4 and NW ~j NE 1%, Section 11, Township 5 South, Range 82 West of the Sixth Principal Meridian, Eagle County, Colorado, described as follows: • • -2- Beginning at a point on the northerly -right-of-way line of U.S. Highway 6 andd4 whence the southwesterly corner of Lot 1, block 3, Official Plat - Town of Avon, Eagle County, Colorado & Final Subdivision Plat - Amendment No. 4, Benchmark at Beaver Creek, as recorded in the office of the Eagle County, Colorado, Clerk and Recorder, bears S 84°15'33" E 275.35 feet; thence the following two courses along said northerly right-of-way line: (1) N 84°15'3311 W 294.36 feet; (2) 297.91 -feet along the arc of a 2815.00 foot radius curve to the right, said.. curve having a:'central angle of 6003149" and a chord that bears N 811113'38" W 297.77 feet; thence, departing said northerly right-of-way line, N 0000314311 E 256:73 feet, to a- point on curve on the southerly right-of- way line of the Denver and Rio Grande Western Railroad; thence along said southerly right-of-way line the following two courses: (1) 292.19 feet along the arc of a 1055.37 foot radius curve to the left, said curve having a central angle of 15°51147" and a chord that bears N 83°49135" E 291.26 feet; (2) N 75°531411' E 254.45 feet, to the westerly line of Tract L said Official Plat; thence, along the westerly line of said Tract L and the prolongation thereof, S 00110314311 W 259.81 feet; thence S 89°5611711 E 51.00 feet; thence S 00°0314311 W 165.00 feet, to the point of beginning, containing 4.25 acres, more or less. • • Phase I Premises Description of Mortgaged Pro erty All those parcel or certain parcels of property and all buildings and all other .improvements now thereon or hereafter constructed thereon, situated in the County of Eagle, State of Colorado, bounded and described as follows: A part of the NW NE h Section 11, Township 5 South, Range 82 West of the Sixth 'Principal Meridian, Eagle County, Colorado, described as follows ("parcel C+1): Beginning at a point on the northerly right-of-way line of U.S. Highway 6 and 24, said point being the southwesterly corner-- of Lot 1, block 3, Official Plat - Town of 'Avon, Eagle County, Colorado & Final Subdivision Plat - Amendment No. 4, Benchmark at Beaver Creek, as recorded in the office ofs the Eagle County, Colorado, Clerk and Recorder; thence it 84 15 33 W 2.75.35 feet; along said northerly right-of-way line; thence, departing said northerly right-of-way line, N 00120314311 E 165.00 feet; thence N 89056117" W 51.00 feet; thence N 00°03143" E 174.23 feet to the southwesterly corner of Tract L, said Official Plat;- thence the following two courses along the southerly line of said Tract L: (1) S 86032'41" R 100.17 feet; (2) N 73°28117" E 234.76 feet to the northwesterly corner of said Lot 1, thence S 00003143" W 427.58 feet along the westerly line of said Lot 1, to the point of beginning, containing 2.56. acres, more or less. r - COLORADO REVISED STATUTES .38.39-102. Redemption wlthiu ape period - procedure. (1) Except as provided in this secti dawri respect to agricultural teal estate or, from the effective date subsection (1), as amended, until January 31, 1990, with respect to agricultural homestead real estate, within seventy-five days after the dace of the sale of real estate by virtue of any foreclosure of a mortgage. trust deed, or other lien or by virtue of an execution and levy, the owner of the premises or any person who might be liable upon a deficiency may redeem the premises sold by paying to the public trustee, sheriff, or other proper officer the sum for which the property was sold, with interest from the date of sale at the default rate if specified in the original instrument or if not so specified at the regular rate specified in the original instrument, together with any taxes paid or other proper charges as now provided by law, and a certificate of redemption shall be executed by the proper officer and recorded. and the public trustee, sheriff, or other proper officer shall forthwith pay said money to the holder of the certificate of purchase. If the owner of the premises fails to redeem under this section, any person who might be liable upon a deficiency who redeems under this section shall be issued a certificate of redemption only after the expiration of the proper redemption period. (2) (a) In the case of any mortgage or deed of trust upon one or more parcels of real estate, all of which were agricultural real estate upon the date of execution of such mortgage or deed of trust, as such date of execution is recited in such mortgage or deed of trust. the period within which the owner of the premises or any person who might be liable upon a deficiency may redeem the premises sold is six months. (b) (1) From the effective date of this paragraph (b) until January 31. 1990. the provisions of this subsection (2) shall apply to the redemption of agricultural homestead real estate. (m This paragraph (b) is repealed, effective January 31. 1990. (3) (a) The term "agricultural real estate" means, for the purposes of this section. any parcel of real estate which has not been platted as a subdivision. in whole or in part, or which is not apart of any platted subdivision. Wheneverthe legal description set forth in any mortgage or deed of trust being foreclosed recites that all or any part of the real estate conveyed thereby is within any platted subdivision or describes such real estate as being all or any part of any one or more lom. plots, or blocks of any named subdivision, it shall be presumed for all purposes under this section, and as against all persons, that such parcel is not agricultural real estate. (b) (I) The tam "agricultural homestead real estate" means, for the purposes of this section, notwithstanding any limitations to the contrary contained in or pursuant to Article 28 or 35 of Title 30, C.R.S., or Article 23 of Title 31, C.R.S., a contiguous parcel of agricultural land appropriately and reasonably operated as a unit (without unnecessary damage or unreasonable effect upon the remainder of the agricultural real estate) containing up to forty acres, with reasonable access to domestic water, including the residence of the owner of the premises and the owner's mineral rights on said forty acres and may include surrounding outbuildings and corrals and agricultural land; except that said pmcd shall not contain without the consent of the secured leader more than five acres or a facility material to the operation of the remaining agricultural real estate, nor shall said parcel or use thereof materially interfere with access to water rights usable on said remaining agriculntral real estate; nor shall said parcel or use thereof materially interfere with access to the agricultural teal estate. Said parcel shall be deemed a permitted division of land created by order of court pursuant to section 30-28-101 (10) (c) (11). (11) This paragraph (b) is repealed, effective January 31. 1990. (4) In the case of a foreclosure sale by a public trustee, the public trustee, at least twenty-one days prior to the date on which the sale is originally scheduled by the public trustee, shall mail a notice to the grantor of the deed of trust being foreclosed, to any subsequent owner of record and to any other person having the right to redeem the premises under subsection (1) of this section, informing such persons of their redemptive rights, if any, under this section. (5) The public trustee shall mail such notice to the persons described in subsection (4) of this section only if their interest in the real estate being foreclosed was established by an instrument recorded with the county clerk and recorder of the county in which said real estate is located subsequent to the recording of the deed of trust being foreclosed and prior to the recording of the notice of election and demand for sale pursuant to section 38-37-113 (1). Said notice shall be mailed to such persons at the address given in the recorded instrument evidencing their interests. Postage costs under this section shall be part of the foreclosure costs. (6) The sheriff or other proper officer empowered to sell real estate at a foreclosure sale or at an execution sale, but not including foreclosure sales by the public trustee, at least twenty-one days prior to the date on which the sale is originally scheduled, shall mail a notice to the owner of the premises at the street address or comparable identifying numbers of the real estate being sold, if such address or numbers are displayed on the property or any building thereon, informing the owner thereof of his rights, if any, under this section. If there is no street address or comparable identifying numbers to which said notice can be mailed, the sheriff or other proper officer shall mail said act= to the last known address of the owner according to the records of the party requesting the foreclosure or execution sale. (7) If the last day of the seventy-five day redemption period, the six-month redemption period or the lienor redemption periods provided for in 38-39-103 (1) is a Saturday, Sunday, legal holiday, or a day the county courthouse is closed due to inclement weal= the period is extended to include the next business day. (8) (a) Any owner of agricultural homestead real estate may tender to the public trustee, sheriff, or other officer conducting a foreclosure sale with respect to said property a legal description of said agricultural homestead real estate, and his statement of the proposed payment therefor sixty days prior to the expiration of raderaptio on rights pursuant to this section. (b) This subsection (8) is repealed, effective January 31, 1990. (9) (a) Within the redemption period provided for agricultural real estate pursuant to this section, the owner of the agricultural homestead real estate may redeem the agricultural homestead real estate sold by paying to the public trustee, sheriff, or other proper officer that portion of the sum for which the property was sold with interest from the date of sale at the default rate if specified in the original instrument or, if not so specified, at the regular rate specified in the original instrument, together with any taxes paid or other proper charges as provided by law, which equals the fraction in which the fair market value of the agricultural real estate sold represents the denominator and the fair market value of the agricultural homestead real estate represents the numerator, except that, in the event that the fair market value of the agricultural homestead real estate is disproportionately large in comparison to the redemption price, the court may adjust said fraction to a fair redemption price for the agricultural homestead real estate. considering the secured parry's ability to mover fully the entire redemption price from the agricultural real estate and the agricultural homestead real estate. In the event of any dispute regarding the appropriate legal description for or redemption amount for the agriculmrai homestead real estate, the court having jurisdiction over the foreclosure sale shall, upon hearing, within the redemption period, determine the appropriate legal description or redemption price for the-agricultural homestead real estate. In setting the redemption price for agricultural homestead real estate. the court shall consider adverse effects, if any, on the value of the remaining agricultural real estate. considering the ability of the secured party to recover fully the entire redemption price from the agricultural real estate and the agricultural homestead real estate. The owner of the premises shall tender the redemption price approved by the court within the redemption period. (b) This subsection (9) is repealed, effective January 31, 1990. (10) (a) Proceedings pursuant to subsection (9) of this section shall be given priority by the court of jurisdiction and shall be heard overall other mattes before the court. The general assembly hereby determines time to be of the essence arid intends that the court of jurisdiction shall act accordingly. (b) This subsection (10) is repealed, effective January 31, 1990. 38.39-118. When default is nonpayment. (1) (a) Whenever the default or violation in the tams of the now and deed of motor mortgage being foreclosed is nonpayment of any sums due thereunder, the owners of the property being foreclosed or parties liable thereon shall be entitled to cure said defaults if. at least seven days prior to the date the foreclosure sale is hold, such owners or patties give written notice, attaching recorded instruments evidencing their right to cure, to the public trustee, sheriff, or other officer conducting the sale of their intention to cure said default and violation and if, on or before twelve o'clock noon of the date before the day upon which said sale is set, the owners or parties pay w the officer conducting the sale all delinquent principal and interest payments which are due as of the date ofsuch payment exclusive of that portion ofthe principal which would not have been due in the absence of acceleration. plus all costs, expenses, late charges, attorney's fees. and other fees incurred by the holder of such note, deed of trust, or mortgage as of the date of payment in connection with such proceedings for collection and foreclosure. (1) (b) Widbin ten days after the recording of the notice of election and demand for sale by the public trustee pursuant to section 38-37-113, said public trustee or any other proper officer empowered to sell teal estate at a foreclosure sale shall mail a nonce to the grantor of the deed of trust and to the owners of the property being foreclosed at the address given in the recorded instrument evidencing the interest of said parties. informing such parties of their rights. if any, under this section, if such instrument evidencing the interest of the owners of the property being foreclosed was recorded with the county cleric and recorder of the county in which said real estate is located subsequent to the recording of the deed of trust being foreclosed and prior to the recording of the notice of election and demand for sale pursuant to section 38-37-113 (1). (2) Upon receipt by the officer conducting the sale of said notice of intention to cure the default and violation, such officer shall obtain in writing from the holder of the note, deed of trust, or mortgage a statement of all sums of principal, interest. costs, expenses, late charges, attorney fees. and such other fees as are necessary to cure said default and violation. Upon payment of all withdrawal fees and costs plus an additional fee of rhirty-five dollars to the officer conducting said sale on or before 12 noon as provided in this section. all proceedings for foreclosure shall terminate. The officer conducting the sale, upon receipt of a withdrawal pursuant to section 38-37-113 (5), shall deliver said sum to the holder of die note, deed of trust, or mortgage or to the agent or attomey for such holder. (3) Nothing in this section shall constitute a waiver of any right accruing after a subsequent violation of any covenant of said note, deed of trust, or mortgage. 38-37-113. (8) The public trustee shall comply with the notice requirements in sections 38-39-102 (4) and 38-39-118 (1), when applicable, by mailing a single notice to the grantor of the deed of trust being foreclosed and to the owners of the property being foreclosed. 38.37-138. Form of payments to public trustee. All moneys payable to a public trustee at any foreclosure sale underthe provisions of this article or upon redemption or cute underthe provisions of Article 39 of this title shall be in the form of cash or in the form of a certified check or cashier's check made payable to such public trustee issued by a federally chartered or state- chartered financial institution, as defined in section 15-15-101 (3), C.R.S., licensed to do business in the State of Colorado.