2016 Colorado County Treasurers and Public Trustees Seminar

Transcription

1 2016 Colorado County Treasurers and Public Trustees Seminar Treasurer s Deeds: The Quiet Title Process and your involvement All Rights Reserved 1

2 OVERVIEW OF THE QUIET TITLE PROCESS What is Quiet Title? A proceeding to establish the plaintiff s title to land by bringing into court an adverse claimant and there compelling him either to establish his claim or be forever after estopped from asserting it. Black s Law Dictionary 6th Ed. Bring in the interested parties, ask the Court to quiet the competing claims. Result is good and marketable title in the property. All Rights Reserved 2

3 Where would you use a quiet title action? Colorado Rules of Civil Procedure Rule 105: Remove or adjudicate clouds on title. Foreclose deeds of trust to the public or a private trustee or other liens on real property. Reform deeds or other documents such as easements Adverse possession Boundary disputes Tax deed disputes Mineral interests, water rights disputes All Rights Reserved 3

4 Quiet title ingredients (1) Review vesting deed and chain of title Litigation guarantee-separate from Treasurer s due diligence Review of legal description Differences? Illegal land splits? Inspection of the property Personal inspection Google Earth/County assessor maps All Rights Reserved 4

5 Map Search All Rights Reserved 5

6 Sample legal description That part of the S1/2 of the SW 1/4 of Section 36, Township 5 North, Range 66 West of the 6 th P.M., Weld County, Colorado, described as follows: Beginning at the southwest corner of said Section 36; thence running East 198 feet; thence North 66º East 1253 feet to the true point of beginning; thence North 380 feet; thence South 73º 40 West 273 feet; thence South 25º 35 East 420 feet; thence North 66º East 84 feet to the point of beginning, together with one share of the capital stock of The Godfrey Ditch Company. All Rights Reserved 6

7 Quiet Title ingredients (2) Who to include? Anyone with cloud appearing on title Anyone who is a tenant or possessor of the property or any part of the property Holders and Grantees of Deeds of Trust Judgment Creditors Lien holders Federal Government State and Local unknown or missing persons All Rights Reserved 7

8 Who To Serve? Plaintiff s standard Different standard of due diligence for Plaintiff than for County Treasurer Search public records, telephone and other available directories. Various inquiries of persons who might have information concerning Defendants. All Rights Reserved 8

9 Quiet Title ingredients (3) An intransigent lady: Lis Pendens Notice of Lis Pendens- A notice filed on public records for the purpose of warning all persons that the title to certain property is in litigation, and that they are in danger of being bound by an adverse judgment. Black s Law Dictionary, 6 th Ed. Functionally prevents transfer of property pending litigation. Court must order a release after litigation. All Rights Reserved 9

10 Quiet Title ingredients (4) Service Parties with record interest and parties in possession Rule 105(b), C.R.S Governmental subdivisions-public Trustee and County Treasurer, County Commissioners Service districts-ditch companies, HOAs, Metro Districts Deceased owners-estate and living heirs All Rights Reserved 10

11 Quiet Title ingredients (5) Service continued Unknown parties all unknown persons who claim any interest in the subject matter of this action. C.R.C.P. 9(a)(3) and 10(a). Through publication Servicemembers Civil Relief Act If the Defendant is in the military, the Court cannot enter a judgment against that defendant until after the Court appoints an attorney to represent the defendant. 50 App. U.S.C. 521(b)(2) All Rights Reserved 11

12 Quiet Title ingredients (6) Service of process continued Personal service If cannot be found, by registered or certified mail, upon order of Court. Return receipt to be signed by addressee only. If cannot find address, by publication upon order of Court. Newspaper published in the county where the property is located. 1x per week for 5 consecutive weeks. All Rights Reserved 12

13 Notice issues Wanda and Carl Cordell and Bradley Klingsheim Cordells don t pay property taxes, Klingsheim assignee of tax liens. Klingsheim applies for Treasurer s Deed La Plata Co. Treasurer s Office obtained litigation guarantee from Title insurance company publishes notice in local paper Sends notice to Cordells by certified mail to 705 N. Vine, Farmington, NM per La Plata County tax roll. Return receipt signed by Cleo Cordell, 703 N. Vine. Agent box not checked. Issues Treasurer s Deed What would you do? All Rights Reserved 13

14 Cordell v. Klingsheim, 2014 WL , 2914 COA 133, October 9, District Court set aside Treasurer Deeds as void. Affirmed by Colorado Court of Appeals Issuance of deed requires notice of tax lien purchase upon all persons having an interest or title of record in or to the subject property if, upon diligent inquiry, the residence of such persons can be determined. C.R.S (1)(a) Anything less than full compliance voids Treasurer s Deed. What is diligent inquiry? Steady, earnest, attentive, and energetic application and effort in the inquiry. Purpose to afford record owners an opportunity to redeem. Here, Treasurer did not conduct further inquiry after receiving return receipt with recipient other than owners. Did not check for alternate addresses or reexamine county records after delivered at different address than mailed. All Rights Reserved 14

15 Klingsheim v. Cordell, 379 P.3d 270, Colo., April 4, County Treasurer s duty of diligent inquiry does not require Treasurer to ensure actual notice of pending tax sale, but rather reasonable diligence to ensure notice. Treasurer s duty of further inquiry after initial notice only when facts known to Treasurer show that the taxpayer could not have received the notice. Treasurer owed no duty of further inquiry after it exercised reasonable diligence in sending tax deed notices to property owners. Tax deed notices sent by certified mail to the address listed in the tax rolls, with no notice of issue serves as adequate due process. All Rights Reserved 15

16 Notice issues What else could have been done? Is it reasonable? All Rights Reserved 16

17 Treasurer s role in the quiet title process Interact with Treasurer Deed Grantee s attorney Attention to detail throughout the process. Working together to support the Treasurer s Deed. Review service of notice to taxpayer and any mortgage or lien holder. Courts look for opportunity to overturn your Deed. Harms your investors. Takes up Treasurer s Office and County Attorney resources. May give deposition or witness at quiet title hearing. 17

18 Questions? William F. Garcia Coan, Payton & Payne, LLC 5586 W. 19 th Street, Suite 2000 Greeley, CO (970) All Rights Reserved 18