The Rule 120 hearing, regarded as the most important part of the process, is your first opportunity to plead your case and FIGHT YOUR FORECLOSURE. You have a constitutional right to this hearing, so demand it. This is where you point out all of the things the lender has done wrong in your foreclosure, the unlawful and predatory characteristics of the loan itself and any other facts relating to the default of your loan. The scope of this hearing also allows for you to argue that the foreclosing lender has no right to foreclose if it is not the lender on the deed of trust and has not been lawfully assigned the rights under the deed of trust. Even though it is a lawful requirement of the judge to verify that the lender is the correct lender, you cannot rely on this to be done.
DO NOT LET THEM GET AWAY WITH ARGUING THAT THE SCOPE OF THIS HEARING IS LIMITED TO JUST WHETHER OR NOT YOU ARE IN DEFAULT. THERE ARE NUMEROUS SUPREME COURT CASES THAT ENABLE YOU TO ARGUE OTHER ISSUES IN THIS HEARING AS WELL!!
The lenders, through their attorneys must file a motion with the court for an "Order Authorizing Sale" which if granted, will direct the Public Trustee to sell your home. The Public Trustee CANNOT sale your home prior to this order. When the motion is filed with the court, a hearing is scheduled. You must be notified of the time, place and date of this hearing and the lender must send you notification of this hearing at least 15 days before the scheduled date. This is the law!
The Rule also requires that the date of the hearing be scheduled no sooner than 20 days and no more than 30 days after the notice is filed with the court (check the filing date of the notice in your court file). For example, if your “Notice of Hearing” was filed with the court on September 15th, then your hearing date can only be set from October 5th thru October 15th. Even though the law requires strict compliance with this section, they screw this one up frequently! Proof of noncompliance with this section of law alone will void a foreclosure sale!!
Once you receive your notice, you must file a response letting the court know that you want your hearing and that you have relevant issues to bring up. Your response must be filed with the court at least five (5) days prior to the scheduled date of your hearing.
FILE YOUR RESPONSE.
DO NOT GIVE THEM A REASON TO DENY YOUR HEARING!!!
Your response does not have to be in any particular legal form, but we have provided one for you on this site ("file your response" on the home page). There is also a $70.00 fee that must be paid at the time you file your response. YOU MUST STATE IN YOUR RESPONSE THAT "YOU ARE NOT IN DEFAULT".
Rule 17 of Colorado Rules of Civil Procedure allows only for the “real party in interest” to bring a legal action in court. In other words, if your friend is harmed in some way and has grounds to sue, he must bring the lawsuit himself. You cannot bring the suit on his behalf, neither can you bring the lawsuit because he owes you money and intends to pay you when he wins the suit. Your friend must bring this action himself or through his attorney.
This is also true when a lender files a motion in court for an Order Authorizing Sale on your home. As explained earlier, it must be the correct lender or the foreclosure action is illegal from the start. If the lender attempting to foreclose is not the lender on the deed of trust or has not been legally assigned the rights of the original lender on the deed of trust, then this lender cannot legally foreclose because the foreclosing lender is not yet the "real party in interest."
If the lender that is attempting to foreclose is not the lender on your deed of trust and does not have a recorded assignment on file at the Clerk and Recorder’s office, assigning the deed of trust to the foreclosing lender, the foreclosing lender has no legal authority to foreclose using the Public Trustee!!! Attorneys, and even some judges will act as if they don’t understand this, but they do, they just think that you don’t. Remember, the laws are there for your protection too, and not just to be twisted and misinterpreted by some attorney representing the lender or some judge that is sympathetic to the lender.
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