Right to be heard at the Rule 120 hearing before a sale is authorized
C.R.C.P. 120
In plain words
Before a Colorado public trustee can sell a home, a court must issue an order authorizing the sale in a short hearing under Rule 120. You can file a written response and appear. The court mainly decides whether there is a reasonable probability of default and whether you are protected by the Servicemembers Civil Relief Act; other defenses are usually raised in a separate lawsuit.
Who is protected
Colorado owners and occupants named in a Rule 120 motion.
When it applies
- Only in Colorado.
- Only after a notice of default or once a sale date is set.
What you can do
Get ready for court
Read the Rule 120 notice, file a response by the date it gives, and attend the hearing.
Deadline: The response date in the Rule 120 notice
Open the toolCompare your options
If you have other defenses, ask legal aid whether to file a separate lawsuit.
Open the tool
Honest limits
- The hearing is narrow; winning it does not decide every dispute with the lender.
- This is general education, not legal advice. Laws change and details depend on your papers and your court; check the current law or ask a lawyer or legal aid.
The law
- State court ruleOrder authorizing sale
C.R.C.P. 120
What it says: Sets the court hearing, the right to respond, and the limited issues the court decides before a sale.
Read the official texthttps://www.coloradojudicial.gov/ - State lawCourt order authorizing sale
Colo. Rev. Stat. § 38-38-105
What it says: Requires the court order authorizing the sale in a public-trustee foreclosure.
Read the official texthttps://leg.colorado.gov/sites/default/files/images/olls/crs2024-title-38.pdf
Court cases
- Homeowner lostSame topicBoren v. U.S. National Bank Ass'n
Boren v. U.S. Nat'l Bank Ass'n, 807 F.3d 99 (5th Cir. 2015)
a lender may abandon a prior acceleration by giving notice that it seeks less than the full accelerated balance, which restarts the four-year limitations period
- Homeowner lostSame topicMartins v. BAC Home Loans Servicing, L.P.
Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249 (5th Cir. 2013)
a mortgage servicer acting for a properly assigned mortgagee may foreclose in Texas without possessing the original note, and an oral promise to modify a large loan is not enforceable
- Partial winSame topicReinagel v. Deutsche Bank National Trust Co.
Reinagel v. Deutsche Bank Nat'l Tr. Co., 735 F.3d 220 (5th Cir. 2013)
a Texas borrower may challenge an assignment of the loan on any ground that renders it void, though not on grounds that make it merely voidable
- Partial winSame topicCulhane v. Aurora Loan Services
Culhane v. Aurora Loan Servs., 708 F.3d 282 (1st Cir. 2013)
a mortgagor may contest the validity of a MERS assignment to the foreclosing entity, although the MERS framework itself is lawful
- Homeowner wonSame topicJerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, L.P.A.
Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, L.P.A., 559 U.S. 573 (2010)
the FDCPA's bona fide error defense does not excuse a debt collector's incorrect interpretation of what the Act requires
- Homeowner lostSame topicWhittier v. Ocwen Loan Servicing, L.L.C.
Whittier v. Ocwen Loan Servicing, L.L.C., 594 F. App'x 833 (5th Cir. 2014) (per curiam) (unpublished)
a RESPA claim against a servicer fails without evidence of actual damages caused by the violation
Related rights
Right to cure — file a notice of intent to cure 15 days before the sale
Colo. Rev. Stat. § 38-38-104(1)
In a Colorado public-trustee foreclosure, the owner can cure the default by paying what is past due plus allowed fees and costs. To keep this right, you must file a written notice of intent to cure with the public trustee no later than 15 calendar days before the sale date. The trustee then gives you a cure statement with the exact amount and deadline.
Read this rightThe right to be heard in court, and to speak for yourself
U.S. Const. amend. XIV, § 1Due Process Clause
Due process means that before the government, through a court, takes your property, you must get a meaningful chance to be heard. In federal court, you have a legal right to present your own case without a lawyer. Most state courts also let people represent themselves, under state rules.
Read this rightPause a court case while on military duty
50 U.S.C. § 3932(b)(1)
If you are in military service and get sued, the court must pause the case for at least 90 days if you ask and show that your duty keeps you from appearing. Before a court can enter a default judgment against you, the other side must file a sworn statement saying whether you are in the military, and the court may appoint a lawyer for you.
Read this rightThe right to real notice before the government takes or sells your home
U.S. Const. amend. XIV, § 1Due Process Clause
Before a state or county sells your property — for example at a tax sale, or through a court foreclosure — the Constitution requires notice that is reasonably likely to actually reach you. If the government knows your address, publishing a notice in the newspaper is not enough. If a mailed notice comes back unclaimed, the government must take extra reasonable steps to reach you, if it practicably can.
Read this rightThe automatic stay: filing bankruptcy pauses most collection
11 U.S.C. § 362(a)
When a bankruptcy case is filed, an "automatic stay" goes into effect right away. It generally stops lawsuits, foreclosure steps, and other collection against you and your property, without anyone needing to ask a judge. Creditors who knowingly violate it can owe damages.
Read this rightChapter 13: catch up on missed mortgage payments over time
11 U.S.C. § 1322(b)(5)
In a Chapter 13 bankruptcy, a plan can let you catch up on missed mortgage payments over a reasonable time (often 3 to 5 years) while you keep paying the regular monthly payment. For your main home, you can use this cure until the home is sold at a foreclosure sale held under state law.
Read this right