(1) Before any creditor of the owner of the homesteaded property may proceed against said property, such creditor shall file with the county clerk and recorder of the proper county and the sheriff or other proper officer authorized to levy on said property:
(a) His affidavit showing:
(I) A description of the homesteaded property and the name of the claimant of the homestead exemption;
(II) The fair market value of said property;
(III) That the fair market value of said property less any prior liens or encumbrances thereon exceeds the amount of the homestead exemption fixed in section 38-41-201 for which the claimant qualifies; and
(IV) That no previous execution arising out of the same judgment has been levied upon said property;
(b) The affidavit of a professionally qualified independent appraiser showing the same information required by subparagraphs (I) to (III) of paragraph (a) of this subsection (1).
(2) If the amount offered at the sale of the homesteaded property does not exceed seventy percent of the fair market value shown in the affidavit of the independent appraiser filed pursuant to paragraph (b) of subsection (1) of this section, all proceedings to sell said property shall terminate. The sheriff or the proper officer shall then file for record in the office of the county clerk and recorder of the proper county an instrument releasing all levies on said property in connection with such sale, and the person instituting the proceedings shall pay the costs of such proceedings, and the title of the owner to said property shall not be impaired or affected.
(3) If the successful bidder at such sale is a judgment creditor, he shall be required to pay in cash to the sheriff or other proper officer making the sale an amount sufficient to pay the exemption plus the proper costs and expenses and shall not have the right to have such exempt amount applied toward the satisfaction of his judgment.
(4) If a sale is made, the proceeds thereof shall be applied in the following order:
(a) First, to the discharge of all prior liens and encumbrances, if any, on said property;
(b) Second, to the homestead claimant in the amount of the homestead exemption for which he qualifies;
(c) Third, to the sheriff or other proper officer making the sale in an amount sufficient to pay the proper costs and expenses of the sale;
(d) Fourth, to the satisfaction of the judgment; and
(e) Fifth, the balance, if any, to the homestead claimant.
Source: R.S. p. 386, § 63. G.L. § 1349. G.S. § 1637. R.S. 08: § 2956. C.L. § 5930. CSA: C. 93, § 28. L. 53: p. 412, § 4. CRS 53: § 77-3-6. C.R.S. 1963: § 77-3-6. L. 75: Entire section R&RE, p. 1445, § 3, effective July 14. L. 83: (1)(a)(III) amended, p. 1478, § 1, effective July 1.
Notes of Decisions
Cited in
12
cases (
4 in the last 5 years), 1982–2024 · leading case:
Janicek v. Obsideo, LLC, 271 P.3d 1133 (Colo. Ct. App. 2011).
Janicek v. Obsideo, LLC, 271 P.3d 1133 (Colo. Ct. App. 2011).
· cites it 4× “See § 38-41-206, C.R.S.2011. However, nothing in the second deed of trust provides that section 38-41-212(1) would not apply in the event of a foreclosure under the first deed of trust and a redemption by the second deed of trust holder.”
Howell v. Farrish, 725 P.2d 9 (Colo. Ct. App. 1986).
· cites it 4× “I would reverse the trial court ruling because of Howell's failure to comply with the provisions of § 38-41-206, C.R.S. The trial court erred in concluding that Howell's redemption of the property was not a proceeding against the property.”
Fleet v. Zwick, 994 P.2d 480 (Colo. Ct. App. 1999).
· cites it 2× “The statute provides, in pertinent part, as follows: The proceeds from the exempt amount under this part 2, in the event the property is sold by the owner, or the proceeds from such sale under section 38-41-206 paid to the owner of the property or person entitled to the…”
Frank v. First Nat'l Bank in Loveland, 653 P.2d 748 (Colo. Ct. App. 1982).
· cites it 3× “Additionally, plaintiff alleges that the public trustee improperly sold her homestead interest in the property in violation of § 38-41-206, C.R.S.1973 (1981 Cum.Supp.).”
Bargas v. Nye (In Re Nye), 210 B.R. 857 (D. Colo. 1997).
· cites it 2× “The proceeds from the exempt amount under this part 2, in the event the property is sold by the owner, or the proceeds from such sale under section 38-41-206 paid to the owner of the property or person entitled to the homestead shall be exempt from the execution or attachment…”
Welcome to Realty v. Wilson, 2024 COA 122, 564 P.3d 658.
· cites it 10× “In its reply to Wilson’s counterclaim, Welcome conceded that it hadn’t complied with section 38-41-206(1) but maintained that such compliance wasn’t required because any homestead exemption in the house terminated upon Wilson’s mother’s death, and, even if it didn’t, 1 Section…”
In re Makeen, No. 1:21-cv-01461 (D. Colo. Mar. 18, 2022).
· cites it 9× “The Debtor also argues that the Trustee’s sale of Tulare is invalid because the Trustee has failed to comply with Colo. Rev. Stat. § 38-41-206 , entitled “Levy on homestead— excess—costs.”
In re Makeen, No. 1:22-cv-00023 (D. Colo. Mar. 18, 2022).
· cites it 9× “The Debtor also argues that the Trustee’s sale of Tulare is invalid because the Trustee has failed to comply with Colo. Rev. Stat. § 38-41-206 , entitled “Levy on homestead— excess—costs.”
In re Makeen, No. 1:21-cv-01853 (D. Colo. Mar. 18, 2022).
· cites it 9× “The Debtor also argues that the Trustee’s sale of Tulare is invalid because the Trustee has failed to comply with Colo. Rev. Stat. § 38-41-206 , entitled “Levy on homestead— excess—costs.”
Estes Park Bank v. Shanks, 794 P.2d 1108 (Colo. Ct. App. 1990).
· cites it 9× “The sole issue on appeal is whether the trial court erred in finding that plaintiffs failure to file the affidavits required by § 38-41-206, C.R.S. (1982 Repl.Yol. 16A) precluded it from proceeding with a sheriffs sale based on its October 18, 1983 levy or seizure.”
In re Hoover, 35 B.R. 709 (D. Colo. 1984).
· cites it 2× “The proceeds from the exempt amount under this part 2, in the event the property is sold by the owner, or the proceeds from such sale under section 38-41-206 paid to the owner of the property or person entitled to the homestead shall be exempt from execution or attachment for a…”
Colo. Rev. Stat. § 38-41-206(1): 1 case
Welcome to Realty v. Wilson, 2024 COA 122, 564 P.3d 658.
“In its reply to Wilson’s counterclaim, Welcome conceded that it hadn’t complied with section 38-41-206(1) but maintained that such compliance wasn’t required because any homestead exemption in the house terminated upon Wilson’s mother’s death, and, even if it didn’t, 1 Section…”
Colo. Rev. Stat. § 38-41-206(4): 1 case
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