Garnishment defined: He owes me money, you owe him money; where’s my money? Here, a Public Trustee held excess funds following a foreclosure sale and redemption. Creditor did not obtain judgment until after the foreclosure, and the redemption period expired. Creditor sought to garnish the excess from the Public Trustee, who claimed the excess funds cannot be garnished. CRS 38-38-111 dictates distribution of excess funds following a foreclosure, and states that after the redemption period for junior lien holders ends, excess funds are paid to the owner. CRCP 103 permits garnishing funds of a judgment debtor held in escrow by a public entity. The court of appeals held the statute did not bar garnishment because Creditor was not a junior lienor, but a judgment creditor. Thus, the funds were subject to garnishment once the Public Trustee determined the excess funds were due to Debtor.
Tag Archives: Foreclosure
TCF Equipment Finance, Inc. v. Public Trustee for the City and County of Denver, 2013COA8 (January 17, 2013)
The competition for Aspen property can be fierce – or is it? An estate owns an Aspen condo. It gets foreclosed. The only 3 bidders at the sale bid up the price and then decide to form a joint venture to purchase the property and stop the bidding. They buy the condo. The Court finds they did not engage in unlawful bid-rigging because they did not interfere with competition, or agree to the venture ahead of time, and paid well above the starting price. A co-representative of the estate sought to set aside the sale. She received actual notice of the foreclosure sale but the estate did not. CRCP 120 strictly requires actual notice. Because wife received actual notice of the sale, the estate had constructive notice and chose not to object. So the lack of actual notice did not harm the estate. The sale is not set aside, notwithstanding the failure to comply strictly with CRCP 120.