CONSUMER CREDIT CODE
Editor's note: When originally enacted in 1971, articles 1 through 3 and 4 through 6 were based upon the Uniform Consumer Credit Code promulgated by the National Conference of Commissioners on Uniform State Laws; however it has been substantially amended in subsequent years and was the subject of a major rewrite in the 2000 session based upon recommendations of the office of the attorney general.
ARTICLE 1 GENERAL PROVISIONS AND DEFINITIONS
Editor's note: This article was numbered as article 1 of chapter 73, C.R.S. 1963. This title was repealed and reenacted in 1971, and this article was subsequently repealed and reenacted in 2000, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 2000, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume and the editor's note following the title heading. Former C.R.S. section numbers are shown in editor's notes following those sections that were relocated. For a detailed comparison of this article, see the comparative tables located in the back of the index.
Section
PART 1 SHORT TITLE, CONSTRUCTION, GENERAL PROVISIONS
5-1-101. Short title.
Articles 1 to 9 of this title shall be known and may be cited as the "Uniform Consumer Credit Code", referred to in said articles as the "code".
Source: L. 2000: Entire article R&RE, p. 1178, § 1, effective July 1.
Editor's note: This section is similar to former § 5-1-101, as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "The Basic Exclusions from the UCCC: A Road Map for Traversing a New World With Oblique Guides", see 43 U. Colo. L. Rev. 269 (1972). For article, "The 'New and Improved' Colorado Uniform Consumer Credit Code", see 29 Colo. Law. 5 (Dec. 2000).
5-1-102. Purposes - rules of construction.
- This code shall be liberally construed and applied to promote its underlying purposes and policies.
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The underlying purposes and policies of this code are:
- To simplify, clarify, and modernize the law governing retail installment sales, consumer credit, small loans, and usury;
- To provide rate ceilings to assure an adequate supply of credit to consumers;
- To further consumer understanding of the terms of credit transactions and to foster competition among suppliers of consumer credit so that consumers may obtain credit at reasonable cost;
- To protect consumer buyers, lessees, and borrowers against unfair practices by some suppliers of consumer credit, having due regard for the interests of legitimate and scrupulous creditors;
- To permit and encourage the development of fair and economically sound consumer credit practices;
- To conform the regulation of consumer credit transactions to the policies of the federal "Truth in Lending Act" and the federal "Consumer Leasing Act"; and
- To make uniform the law, including administrative rules, among the various jurisdictions.
- A reference to a requirement imposed by this code includes reference to a related rule of the administrator adopted pursuant to this code.
Source: L. 2000: Entire article R&RE, p. 1178, § 1, effective July 1.
Editor's note: This section is similar to former § 5-1-102, as it existed prior to 2000.
Cross references: For the definitions and federal statutory cites of the "Truth in Lending Act" and the "Consumer Leasing Act", see § 5-1-302.
ANNOTATION
Applied in Strader v. Beneficial Fin. Co., 191 Colo. 206 , 551 P.2d 720 (1976) (decided prior to 2000 repeal and reenactment).
5-1-103. Supplementary general principles of law applicable.
Unless displaced by the particular provisions of this code, the "Uniform Commercial Code" and the principles of law and equity, including the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause, supplement the provisions of this code.
Source: L. 2000: Entire article R&RE, p. 1179, § 1, effective July 1.
Editor's note: This section is similar to former § 5-1-103, as it existed prior to 2000.
Cross references: For the "Uniform Commercial Code", see title 4.
ANNOTATION
Applied in D.E.B. Adjustment Co. v. Cawthorne, 623 P.2d 82 (Colo. App. 1981) (decided prior to 2000 repeal and reenactment).
5-1-104. Construction against implicit repeal.
This code being a general act intended as a unified coverage of its subject matter, no part of it is deemed to be impliedly repealed by subsequent legislation if such construction can reasonably be avoided.
Source: L. 2000: Entire article R&RE, p. 1179, § 1 effective July 1.
Editor's note: This section is similar to former § 5-1-104, as it existed prior to 2000.
5-1-105. Severability clause.
If any provision of this code or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this code which can be given effect without the invalid provision or application, and to this end the provisions of this code are declared to be severable.
Source: L. 2000: Entire article R&RE, p. 1179, § 1, effective July 1.
Editor's note: This section is similar to former § 5-1-105, as it existed prior to 2000.
5-1-106. Waiver - agreement to forego rights - settlement of claims.
- Except as otherwise provided in this code, a consumer may not waive or agree to forego rights or benefits under this code.
- A claim by a consumer against a creditor for an excess charge, other violation of this code, or civil penalty, or a claim against a consumer for default or breach of a duty imposed by this code, if disputed in good faith, may be settled by agreement.
- A claim, whether or not disputed, against a consumer, may be settled for less value than the amount claimed.
- A settlement in which the consumer waives or agrees to forego rights or benefits under this code is invalid if the court as a matter of law finds the settlement to have been unconscionable at the time it was made. The competence of the consumer, any deception or coercion practiced upon the consumer, the nature and extent of the legal advice received by the consumer, and the value of the consideration are relevant to the issue of unconscionability.
Source: L. 2000: Entire article R&RE, p. 1179, § 1, effective July 1.
Editor's note: This section is similar to former § 5-1-107, as it existed prior to 2000.
5-1-107. Effect of code on powers of organizations.
- This code prescribes maximum charges for all creditors extending consumer credit except lessors and those excluded in sections 5-1-202 and 5-2-213 (2)(b) and displaces existing limitations on the powers of those creditors based on maximum charges.
- With respect to sellers of goods or services, small loan companies, licensed lenders, consumer and sales finance companies, loan companies, and commercial banks and trust companies, this code displaces existing limitations on their powers based solely on amount or duration of credit.
- Except as provided in subsection (1) of this section, this code does not displace limitations on powers of credit unions, savings banks, savings and loan associations, or other thrift institutions whether organized for the profit of shareholders or as mutual organizations.
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Except as provided in subsections (1) and (2) of this section, this code does not displace:
- Limitations on powers of supervised financial organizations, as defined in section 5-1-301 (45), with respect to the amount of a loan to a single borrower, the ratio of a loan to the value of collateral, the duration of a loan secured by an interest in land, or other similar restrictions designed to protect deposits; or
- Limitations on powers an organization is authorized to exercise under the laws of this state or the United States.
Source: L. 2000: Entire article R&RE, p. 1180, § 1, effective July 1. L. 2013: (2) amended, (SB 13-154), ch. 282, p. 1468, § 19, effective July 1.
Editor's note: This section is similar to former § 5-1-108, as it existed prior to 2000.
PART 2 SCOPE AND JURISDICTION
5-1-201. Territorial application - definitions.
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Except as otherwise provided in this section, this code applies to consumer credit transactions made in this state and to modifications, including refinancing, consolidations, and deferrals, made in this state, of consumer credit transactions, wherever
made. For purposes of this code, a consumer credit transaction is made in this state if:
- A written agreement evidencing the obligation or offer of the consumer is received by the creditor in this state; or
- A consumer who is a resident of this state enters into the transaction with a creditor who has solicited or advertised in this state by any means, including but not limited to mail, brochure, telephone, print, radio, television, internet, or any other electronic means.
- Notwithstanding paragraph (b) of subsection (1) of this section, unless made subject to this code by agreement of the parties, a consumer credit transaction is not made in this state if a resident of this state enters into the transaction while physically present in another state.
- Part 1 of article 5 of this title and sections 5-3-104 and 5-3-105 apply to actions or other proceedings brought in this state to enforce rights arising out of a consumer credit transaction, or modification thereof, wherever made.
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If a consumer credit transaction, or modification thereof, is made in another state with a person who is a resident of this state when the consumer credit transaction or modification is made, the following provisions apply as though the transaction occurred
in this state:
- A creditor, or assignee of the creditor's rights, may not collect charges through actions or other proceedings in excess of those permitted by this code; and
- A creditor, or assignee of the creditor's rights, may not enforce rights against the consumer that violate the provisions of this code on limitations on agreements and practices.
- Except as provided in subsection (3) of this section, a consumer credit transaction, or modification thereof, made in another state with a person who was not a resident of this state when the consumer credit transaction or modification was made is valid and enforceable in this state according to its terms to the extent that it is valid and enforceable under the laws of the state applicable to the transaction.
- For the purposes of this code, the "residence" of a consumer is the address given by the consumer as the consumer's residence in any writing provided by the consumer in connection with a credit transaction. Until the consumer notifies the creditor of a new or different address, the given address is presumed to be unchanged.
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Notwithstanding other provisions of this section:
- Except as provided in subsection (3) of this section, this code does not apply if the consumer is not a resident of this state at the time of a credit transaction and the parties then agree that the law of the consumer's residence applies; and
- This code applies if the consumer is a resident of this state at the time of a credit transaction and the parties then agree that the law of this state applies.
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Except as provided in subsection (7) of this section, an agreement by a consumer is invalid with respect to consumer credit transactions, or modifications thereof, to which this code applies when such agreement provides that:
- The law of another state shall apply;
- The consumer consents to the jurisdiction of another state; or
- Venue is fixed.
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The following provisions of this code specify the applicable law governing certain cases:
- Section 5-6-102 on the powers and functions of the administrator; and
- Section 5-6-201 on notification and fees.
- For the purpose of subsection (1) of this section, "receive" means obtained as a result of physical delivery, transmission, or communication to one who has actual or apparent authority to act for the creditor in this state whether or not approval, acceptance, or ratification by any other agent or representative of such creditor in some other state is necessary to give legal consequence to the consumer credit transaction.
- Notwithstanding any other provision of this section, this code applies to any consumer insurance premium loan made to a resident of this state.
Source: L. 2000: Entire article R&RE, p. 1180, § 1, effective July 1.
Editor's note: This section is similar to former § 5-1-201, as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "Colorado Usury", see 11 Colo. Law. 2557 (1982). For article, "Colorado Usury: The Sequel - Parts I and 2", see 23 Colo. Law. 565 and 829 (1994).
Applied in D.E.B. Adjustment Co. v. Cawthorne, 623 P.2d 82 (Colo. App. 1981) (decided prior to 2000 repeal and reenactment).
5-1-202. Exclusions.
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This code does not apply to:
- Extensions of credit to government or governmental agencies or instrumentalities;
- Except as otherwise provided in article 4 of this title, the sale of insurance if there is no legal obligation to pay installments of the premium and the insurance may terminate or be canceled after nonpayment of an installment of the premium;
- Transactions under public utility or common carrier tariffs if a subdivision or agency of this state or of the United States regulates the charges for the services involved, the charges for delayed payment, and any discount allowed for early payment;
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With respect to contracts for purchase entered into by a pawnbroker, as the terms are defined in section 29-11.9-101, the rates and charges, and the disclosure of rates and charges, if the rates and charges do not exceed the fixed price permitted by section
29-11.9-101 (2). The exclusion in this subsection (1)(d)(I) applies to pawnbrokers who are:
- Licensed by a local licensing authority pursuant to section 29-11.9-102; or
- Regulated, with respect to rates and charges, by a local governing authority pursuant to section 29-11.9-102.
- The exclusion in subparagraph (I) of this paragraph (d) also applies to pawnbrokers authorized to make supervised loans under section 5-2-301 with respect to contracts for purchase; except that the exclusion does not apply to the disclosure of rates and charges of pawnbrokers authorized to make supervised loans.
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With respect to contracts for purchase entered into by a pawnbroker, as the terms are defined in section 29-11.9-101, the rates and charges, and the disclosure of rates and charges, if the rates and charges do not exceed the fixed price permitted by section
29-11.9-101 (2). The exclusion in this subsection (1)(d)(I) applies to pawnbrokers who are:
- The disclosure of rates and charges in connection with transactions in securities and commodities accounts by a broker-dealer registered with the securities and exchange commission;
- Loans made, originated, disbursed, serviced, or guaranteed by an agency, instrumentality, or political subdivision of the state pursuant to article 3.1 of title 23, C.R.S.
Source: L. 2000: Entire article R&RE, p. 1182, § 1, effective July 1. L. 2012: IP(1) and (1)(d) amended, (HB 12-1328), ch. 218, p. 936, § 1, effective August 8. L. 2017: (1)(d)(I) amended, (SB 17-228), ch. 246, p. 1041, § 4, effective August 9.
Editor's note: This section is similar to former § 5-1-202, as it existed prior to 2000.
Cross references: For regulation of insurance agents, brokers, and representatives, see article 2 of title 10; for regulation of pawnbrokers, see article 11.9 of title 29; for regulation of securities brokers, see article 51 of title 11; for credit unions, see article 30 of title 11.
5-1-203. Jurisdiction and service of process.
- The court of record of any judicial district in this state may exercise jurisdiction over any creditor with respect to any conduct in this state governed by this code or with respect to any claim arising from a transaction subject to this code. In addition to any other method provided by the Colorado rules of civil procedure or by statute, personal jurisdiction over a creditor may be acquired in a civil action or proceeding instituted in the court of record by the service of process in the manner provided by this section.
- If a creditor is not a resident of this state or is a corporation not authorized to do business in this state and engages in any conduct in this state governed by this code or engages in a transaction subject to this code, the creditor may designate an agent upon whom service of process may be made in this state. The agent shall be a resident of this state or a corporation authorized to do business in this state. The designation shall be in writing and filed with the secretary of state. If no designation is made and filed or if process cannot be served in this state upon the designated agent, process may be served upon the secretary of state, but service upon the secretary of state is not effective unless the plaintiff or petitioner forthwith mails a copy of the process and pleading by registered or certified mail to the defendant or respondent at his or her last reasonably ascertainable address. An affidavit of compliance with this section shall be filed with the clerk of the court on or before the return day of the process, if any, or within any further time the court allows.
Source: L. 2000: Entire article R&RE, p. 1183, § 1, effective July 1.
Editor's note: This section is similar to former § 5-1-203, as it existed prior to 2000.
PART 3 DEFINITIONS
5-1-301. General definitions.
In addition to definitions appearing in subsequent articles, as used in this code, unless the context otherwise requires:
- "Actuarial method" means the method, defined by rules promulgated by the administrator in accordance with article 4 of title 24, C.R.S., of allocating payments made on a debt between the amount financed and finance charge pursuant to which a payment is applied first to the accumulated finance charge and the balance subtracted from, or any deficiency is added to, the unpaid balance of the amount financed.
- "Administrator" means the administrator designated in section 5-6-103.
- "Agreement" means the bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance.
- "Agricultural purpose" means a purpose related to the production, harvest, exhibition, marketing, transportation, processing, or manufacture of agricultural products by a natural person who cultivates, plants, propagates, or nurtures the agricultural products. "Agricultural products" includes agricultural, horticultural, viticultural, and dairy products, livestock, wildlife, poultry, bees, forest products, fish and shellfish, and any products thereof, including processed and manufactured products, and any and all products raised or produced on farms and any processed or manufactured products thereof.
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"Amount financed" means the total of the following items to the extent that payment is deferred:
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In the case of a sale:
- The cash price of the goods, services, or interest in land, less the amount of any down payment whether made in cash or in property traded in; and
- The amount actually paid or to be paid by the seller pursuant to an agreement with the buyer to discharge a security interest in or a lien on property traded in;
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In the case of a loan:
- The net amount paid to, receivable by, or paid or payable for the account of the debtor; and
- The amount of any discount excluded from the finance charge described in paragraph (c) of subsection (20) of this section; and
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In the case of a sale or loan, to the extent that payment is deferred and the amount is not otherwise included in the cash price:
- Any applicable sales, use, excise, or documentary stamp taxes;
- Amounts actually paid or to be paid by the creditor for registration, certificate of title, or license fees; and
- Additional charges permitted by this code described in section 5-2-202.
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In the case of a sale:
- "Business day" means any calendar day except Sunday, New Year's day, the third Monday in January observed as the birthday of Dr. Martin Luther King, Jr., Washington-Lincoln day, Memorial day, Independence day, Labor day, Frances Xavier Cabrini day, Veterans' day, Thanksgiving day, and Christmas day.
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"Cash price" means, except as the administrator may otherwise prescribe by rule promulgated in accordance with article 4 of title 24, C.R.S., the price at which goods, services, or an interest in land is offered for sale by the seller to cash buyers in
the ordinary course of business and may include the cash price of accessories or related services such as delivery, installation, servicing, repairs, alterations, modifications, and improvements and, if individually itemized,
may also include:
(I) Applicable sales, use, and excise and documentary stamp taxes; and
(II) Amounts actually paid or to be paid by the seller for registration, certificate of title, or license fees.
- The cash price stated by the seller to the buyer pursuant to the provisions on disclosure contained in section 5-3-101 is presumed to be the cash price.
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"Cash price" means, except as the administrator may otherwise prescribe by rule promulgated in accordance with article 4 of title 24, C.R.S., the price at which goods, services, or an interest in land is offered for sale by the seller to cash buyers in
the ordinary course of business and may include the cash price of accessories or related services such as delivery, installation, servicing, repairs, alterations, modifications, and improvements and, if individually itemized,
may also include:
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"Closing costs" with respect to a debt secured by an interest in land includes:
- Fees or premiums for title examination, title insurance, or similar purposes including surveys;
- Fees for preparation of a deed, settlement statement, or other documents;
- Escrows for future payments of taxes and insurance;
- Fees for notarizing deeds and other documents;
- Appraisal fees; and
- Credit reports.
- "Conspicuous" means a term or clause that is so written that a reasonable person against whom it is to operate ought to have noticed it. Whether a term or clause is conspicuous or not is for decision by the court. A printed heading in capitals (as: WARRANTY) is conspicuous, and language in the body of the form is conspicuous if it is in larger or other contrasting type or color. In a telegram, any stated term is conspicuous.
- "Consumer" means a person other than an organization who is the buyer, lessee, or debtor to whom credit is granted in a consumer credit transaction.
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"Consumer credit sale" means, except as provided in paragraph (b) of this subsection (11), a sale of goods, services, a mobile home, or an interest in land in which:
- Credit is granted or arranged by a person who regularly engages as a seller in credit transactions of the same kind or pursuant to a seller credit card;
- The buyer is a person other than an organization;
- The goods, services, mobile home, or interest in land are purchased primarily for a personal, family, or household purpose;
- Either the debt is by written agreement payable in installments or a finance charge is made; and
- With respect to a sale of goods or services, the amount financed does not exceed seventy-five thousand dollars.
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Unless the sale is made subject to this code by section 5-2-501, "consumer credit sale" does not include:
- A sale in which the seller allows the buyer to purchase goods or services pursuant to a lender credit card or similar arrangement;
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- Except as required by the federal "Truth in Lending Act" or the federal "Consumer Leasing Act" with respect to disclosure contained in section 5-3-101 and consumers' remedies for transactions secured by interests in land as contained in section 5-5-204, a sale of a mobile home or a sale of an interest in land if the finance charge does not exceed twelve percent per year calculated according to the actuarial method on the unpaid balances of the amount financed on the assumption that the debt will be paid according to the agreed terms and will not be paid before the end of the agreed term or, notwithstanding the rate of the finance charge with respect to the sale of an interest in land, the sale is secured by a first mortgage or deed of trust lien against a dwelling to finance the acquisition of that dwelling.
- For the purposes of this subparagraph (II), "dwelling" means any improved real property or portion thereof that is used or intended to be used as a residence and contains not more than four dwelling units, and "first mortgage or deed of trust" means a mortgage or deed of trust having priority as a lien over the lien of any other mortgage or deed of trust on the same dwelling and subject to the lien of taxes levied on that dwelling.
- A sale for a business, investment, or commercial purpose; or
- A sale primarily for an agricultural purpose.
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"Consumer credit sale" means, except as provided in paragraph (b) of this subsection (11), a sale of goods, services, a mobile home, or an interest in land in which:
- "Consumer credit transaction" means a consumer credit sale or consumer loan, or a refinancing or consolidation thereof, or a consumer lease.
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"Consumer insurance premium loan" means a consumer loan that:
- Is made for the sole purpose of financing the payment by or on behalf of an insured of the premium on one or more policies or contracts issued by or on behalf of an insurer;
- Is secured by an assignment by the insured to the lender of the unearned premium on the policy or contract; and
- Contains an authorization to cancel the policy or contract so financed.
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"Consumer lease" means a lease of goods and includes any insurance incidental to the lease and any other services merely incidental to upkeep or repair of the goods:
- That a lessor regularly engaged in the business of leasing makes to a person, other than an organization, who takes under the lease primarily for a personal, family, or household purpose;
- In which the amount payable under the lease does not exceed seventy-five thousand dollars; and
- That is for a term exceeding four months.
- "Consumer lease" does not include a lease made pursuant to a lender credit card or similar arrangement.
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"Consumer lease" means a lease of goods and includes any insurance incidental to the lease and any other services merely incidental to upkeep or repair of the goods:
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Except as provided in paragraph (b) of this subsection (15) and except with respect to a "loan primarily secured by an interest in land" as defined in subsection (26) of this section, "consumer loan" means a loan made or arranged by a person regularly
engaged in the business of making loans in which:
- The consumer is a person other than an organization;
- The debt is incurred primarily for a personal, family, or household purpose;
- Either the debt is by written agreement payable in installments or a finance charge is made; and
- Either the principal does not exceed seventy-five thousand dollars or the debt is secured by an interest in land.
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Unless the loan is made subject to this code by an agreement described in section 5-2-501, "consumer loan" does not include:
- A loan for a business, investment, or commercial purpose;
- A loan primarily for an agricultural purpose; or
- A reverse mortgage as defined in section 11-38-102, C.R.S.
- Unless the loan is made subject to this code by an agreement described in section 5-2-501 and except as provided with respect to the disclosure described in section 5-3-101, consumers' remedies for transactions secured by interests in land as described in section 5-5-204, and powers and functions of the administrator under part 1 of article 6 of this title, "consumer loan" does not include a "loan primarily secured by an interest in land" as defined in subsection (26) of this section.
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Except as provided in paragraph (b) of this subsection (15) and except with respect to a "loan primarily secured by an interest in land" as defined in subsection (26) of this section, "consumer loan" means a loan made or arranged by a person regularly
engaged in the business of making loans in which:
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"Credit" means the right granted by a creditor to a consumer to defer payment of debt or to incur debt and defer its payment.
(16.5) "Credit card" means a lender credit card or a seller credit card, except as otherwise provided in this code.
- "Creditor" means the seller, lessor, lender, or person who makes or arranges a consumer credit transaction and to whom the transaction is initially payable, or the assignee of a creditor's right to payment, but use of the term does not in itself impose on an assignee any obligation of his or her assignor. In case of credit granted pursuant to a credit card, "creditor" means the card issuer and not another person honoring the credit card.
- "Dwelling" means a residential structure or mobile home that contains one to four family housing units or individual units of condominiums or cooperatives.
- "Earnings" means compensation paid or payable to an individual or for the individual's account for personal services rendered or to be rendered by the individual, whether denominated as wages, salary, fees, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension, retirement, or disability program.
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"Finance charge" means:
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The sum of all charges payable directly or indirectly by the consumer and imposed directly or indirectly by the creditor as an incident to or as a condition of the extension of credit, whether paid or payable by the consumer, the creditor, or any other
person on behalf of the consumer to the creditor or to a third party, including any of the following types of charges that are applicable:
- Interest or any amount payable under a point, discount, or other system of charges, however denominated;
- Time-price differential, credit service, service, carrying, or other charge, however denominated;
- Premium, or other charge for any guarantee or insurance protecting the creditor against the consumer's default or other credit loss; and
- Charges incurred for investigating the collateral or credit-worthiness of the consumer or for commissions or brokerage for obtaining the credit.
- The term does not include charges as a result of default described in section 5-3-302, additional charges described in section 5-2-202, delinquency charges described in section 5-2-203, or deferral charges described in section 5-2-204.
- If a creditor makes a loan to a consumer by purchasing or satisfying obligations of the consumer pursuant to a credit card or similar arrangement and the purchase or satisfaction is made at less than the face amount of the obligation, the discount is not part of the finance charge.
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The sum of all charges payable directly or indirectly by the consumer and imposed directly or indirectly by the creditor as an incident to or as a condition of the extension of credit, whether paid or payable by the consumer, the creditor, or any other
person on behalf of the consumer to the creditor or to a third party, including any of the following types of charges that are applicable:
- "Goods" includes goods not in existence at the time the transaction is entered into and merchandise certificates but excludes money, chattel paper, documents of title, and instruments.
- "Investment purpose" means that the primary purpose of the credit sale or loan is for future financial gain rather than for a present personal, family, or household use.
- "Lender" includes an assignee of the lender's right to payment, unless otherwise provided in this code, but use of the term does not in itself impose on an assignee any obligation of the lender with respect to events occurring before the assignment.
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"Lender credit card or similar arrangement" means an arrangement or loan agreement, other than a seller credit card, pursuant to which a lender gives a consumer the privilege of using a credit card, letter of credit, or other credit confirmation or identification
in transactions out of which debt arises:
- By the lender's honoring a draft or similar order for the payment of money drawn or accepted by the consumer;
- By the lender's payment or agreement to pay the consumer's obligations; or
- By the lender's purchase from the obligee of the consumer's obligations.
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"Loan" includes:
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Except as otherwise provided in paragraph (b) of this subsection (25):
- The creation of debt by the lender's payment of or agreement to pay money to the consumer or to a third party for the account of the consumer;
- The creation of debt by a credit to an account with the lender upon which the consumer is entitled to draw immediately;
- The creation of debt pursuant to a lender credit card in any manner, including a cash advance or the card issuer's honoring a draft or similar order for the payment of money drawn or accepted by the consumer, paying or agreeing to pay the consumer's obligation, or purchasing or otherwise acquiring the consumer's obligation from the obligee or his or her assignees;
- The forbearance of debt arising from a loan; and
- The creation of debt by a cash advance to a consumer pursuant to a seller credit card.
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"Loan" does not include:
- A card issuer's payment or agreement to pay money to a third person for the account of a consumer if the debt of the consumer arises from a sale or lease and results from use of a seller credit card; or
- The forbearance of debt arising from a sale or lease.
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Except as otherwise provided in paragraph (b) of this subsection (25):
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"Loan primarily secured by an interest in land" means a consumer loan secured by a mobile home or primarily secured by an interest in land if, at the time the loan is made the value of the collateral is substantial in relation to the amount of the loan,
and:
(I) The rate of the finance charge does not exceed twelve percent per year calculated according to the actuarial method on the unpaid balances of the principal on the assumption that the debt will be paid according to the agreed terms and will not be paid before the end of the agreed term; or
(II) Notwithstanding the rate of the finance charge, and other than a precomputed loan as defined in subsection (35) of this section, the loan is secured by a first mortgage or deed of trust lien against a dwelling to:
- Finance the acquisition of that dwelling; or
- To refinance, by amendment, payoff, or otherwise, an existing loan made to finance the acquisition of that dwelling, including a refinance loan providing additional sums for any purpose whether or not related to acquisition or construction.
- As to any refinance loan in the form of a revolving loan account that is in whole or in part for purposes other than acquisition or construction, section 5-3-103 shall apply.
- With respect to loans secured by a first mortgage or deed of trust lien against a dwelling to refinance an existing loan to finance the acquisition of the dwelling and providing additional sums for any other purpose that are not subject to this code pursuant to paragraph (a) of this subsection (26), the lender shall disclose to the consumer that the refinance loan creates a lien against the dwelling or property and that the limits set forth in section 5-5-112 on the amount of attorney fees that a lender may charge the consumer are not applicable.
-
For purposes of this subsection (26):
- A "loan secured by a first mortgage or deed of trust lien against a dwelling to finance the acquisition of the dwelling" includes a loan secured by a first mortgage or deed of trust lien against a dwelling to finance the original construction of such dwelling or to refinance any such construction loan;
- "Dwelling" means any improved real property, or portion thereof, that is used or intended to be used as a residence and contains not more than four dwelling units; and
- "First mortgage or deed of trust" means a mortgage or deed of trust having priority as a lien over the lien of any other mortgage or deed of trust on the same dwelling and subject to the lien of taxes levied on that dwelling.
-
"Loan primarily secured by an interest in land" means a consumer loan secured by a mobile home or primarily secured by an interest in land if, at the time the loan is made the value of the collateral is substantial in relation to the amount of the loan,
and:
- "Material disclosures" means the disclosure, as required by this code, of the annual percentage rate, the method of determining the finance charge and the balance upon which a finance charge will be imposed, the amount of the finance charge, the amount to be financed, the total of payments, the number and amount of payments, and the due dates or periods of payments scheduled to repay the indebtedness.
- "Merchandise certificate" means a writing not redeemable in cash and usable in its face amount in lieu of cash in exchange for goods or services.
- "Mobile home" means a dwelling that is built on a chassis designed for long-term residential occupancy, that is capable of being installed in a permanent or semi-permanent location, with or without a permanent foundation, and with major appliances and plumbing, gas, and electrical systems installed but needing the appropriate connections to make them operable, and that may be occasionally drawn over the public highways, by special permit, as a unit or in sections to its permanent or semi-permanent location.
-
"Official fees" means:
- Fees and charges prescribed by law that actually are or will be paid to public officials for determining the existence of or for perfecting, releasing, or satisfying a security interest related to a consumer credit transaction; or
- Premiums payable for insurance in lieu of perfecting a security interest otherwise required by the creditor in connection with the consumer credit transaction if the premium does not exceed the fees and charges described in paragraph (a) of this subsection (30) that would otherwise be payable.
- "Organization" means a corporation, limited liability company, government or governmental subdivision or agency, trust, estate, partnership, limited liability partnership, cooperative, or association.
- "Payable in installments" means that payment is required or permitted by agreement to be made in more than four periodic payments, excluding a down payment. If any periodic payment other than the down payment under an agreement requiring or permitting two or more periodic payments is more than twice the amount of any other periodic payment, excluding the down payment, the consumer credit transaction is "payable in installments".
- "Person" includes a natural person or an individual and an organization.
-
- "Person related to" means, with respect to an individual, the spouse of the individual; a brother, brother-in-law, sister, or sister-in-law of the individual; an ancestor or lineal descendant of the individual or the individual's spouse; and any other relative, by blood or marriage, of the individual or the individual's spouse who shares the same home with the individual.
- "Person related to" means, with respect to an organization, a person directly or indirectly controlling, controlled by, or under common control with the organization; an officer or director of the organization or a person performing similar functions with respect to the organization or to a person related to the organization; the spouse of a person related to the organization; and a relative by blood or marriage of a person related to the organization who shares the same home with such person.
- "Precomputed" means a consumer credit sale or consumer loan in which the debt is expressed as a sum comprising the amount financed and the amount of the finance charge computed in advance or in which any portion of the finance charge is prepaid and the amount of that portion of the finance charge either computed in advance or prepaid constitutes more than one-half of the total finance charge applicable to the consumer credit sale or consumer loan.
- "Presumed" or "presumption" means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced that would support a finding of its nonexistence.
- "Regularly" has the same meaning as stated in the federal "Truth in Lending Act" and the federal "Consumer Leasing Act".
-
"Revolving credit" means an arrangement pursuant to which:
- A creditor may permit a consumer, from time to time, to purchase or lease on credit from the creditor or to obtain loans from the creditor;
- The amounts financed and the finance and other appropriate charges are debited to an account;
- The finance charge, if made, is computed on the account periodically; and
- Either the consumer has the privilege of paying in full or in installments or the creditor periodically imposes charges computed on the account for delaying payment and permits the consumer to continue to purchase or lease on credit.
- "Sale of goods" includes any agreement in the form of a bailment or lease of goods if the bailee or lessee agrees to pay as compensation for use a sum substantially equivalent to or in excess of the aggregate value of the goods involved and it is agreed that the bailee or lessee will become, or for no other or a nominal consideration has the option to become, the owner of the goods upon full compliance with his or her obligations under the agreement.
- "Sale of an interest in land" includes a lease in which the lessee has an option to purchase the interest and all or a substantial part of the rental or other payments previously made by him are applied to the purchase price.
- "Sale of services" means furnishing or agreeing to furnish services and includes making arrangements to have services furnished by another.
- "Seller", except as otherwise provided, includes an assignee of the seller's right to payment, but use of the term does not in itself impose on an assignee any obligation of the seller with respect to events occurring before the assignment.
- "Seller credit card" means an arrangement pursuant to which a person gives to a buyer or lessee the privilege of using a credit card, letter of credit, or other credit confirmation or identification primarily for the purpose of purchasing or leasing goods or services from that person or from that person and any other person.
-
"Services" includes:
- Work, labor, and other personal services;
- Privileges with respect to transportation, hotel and restaurant accommodations, education, entertainment, recreation, physical culture, hospital accommodations, funerals, cemetery accommodations, and the like; and
- Insurance provided by a person other than the insurer.
-
"Supervised financial organization" means a person, other than an insurance company or other organization primarily engaged in an insurance business:
- Organized, chartered, or holding an authorization certificate under the laws of any state or of the United States that authorize the person to make loans and to receive deposits, including a savings, share, certificate, or deposit account; and
- Subject to supervision by an official or agency of any state or of the United States.
- "Supervised lender" means a person authorized to make or take assignments of supervised loans under a license issued by the administrator or as a supervised financial organization.
- "Supervised loan" means a consumer loan, including a loan made pursuant to a revolving credit account, in which the rate of the finance charge exceeds twelve percent per year as determined according to the provisions on finance charges contained in section 5-2-201.
- "Written" or "in writing" means any record conveying information and that is in a form the consumer may retain, or is capable of being displayed in visual text in a form the consumer may retain, including paper, electronic, digital, magnetic, optical, and electromagnetic.
Source: L. 2000: Entire article R&RE, p. 1183, § 1, effective July 1; (17) amended, p. 443, § 2, effective July 1. L. 2001: (1), (5)(b)(II), (15)(a)(III), and (26)(c) amended, p. 27, § 1, effective March 9. L. 2003: (16.5) added, p. 1892, § 1, effective July 1. L. 2004: (11)(b)(II)(A) and (15)(c) amended, p. 1187, § 6, effective August 4. L. 2020: (6) amended, (HB 20-1031), ch. 43, p. 143, § 3, effective September 14.
Editor's note:
- This section is similar to former § 5-1-301, as it existed prior to 2000.
- Subsection (17) was amended in Senate Bill 00-144. Those amendments were duplicated in § 5-1-301 (45)(a) as contained in the repeal and reenactment of article 1 of title 5 by House Bill 00-1185.
Cross references: (1) For additional definitions of the days under subsection (6) of this section, see § 24-11-101.
(2) For the definitions and federal statutory cites of the "Truth in Lending Act" and the "Consumer Leasing Act", see § 5-1-302.
(3) For the legislative declaration in HB 20-1031, see section 1 of chapter 43, Session Laws of Colorado 2020.
ANNOTATION
Law reviews. For article, "State Variations of the Uniform Consumer Credit Code: The Case for Legislative Restraint", see 48 Den. L.J. 239 (1971). For article, "Colorado Usury", see 11 Colo. Law. 2557 (1982). For article, "Colorado Usury: The Sequel - Parts I and II", see 23 Colo. Law. 565 and 829 (1994). For article, "The Colorado Equity Protection Act: A Response to Predatory Lending Practices", see 32 Colo. Law. 79 (April 2003).
Subdivision of property and sale of lots held to be "credit transactions of the same kind" and therefore "consumer credit sales" under subsection (1)(a). Varady v. White, 661 P.2d 284 (Colo. App. 1982) (decided prior to 2000 repeal and reenactment).
Advance to tort plaintiffs in exchange for future litigation proceeds is a "loan", even if the plaintiff has no obligation to repay a deficiency if the litigation proceeds are less than the amount due. This transaction creates a debt, or an obligation to repay, that grows with the passage of time. Oasis Legal Fin. Grp. v. Coffman, 2015 CO 63, 361 P.3d 400.
The sale and assignment of a taxpayer's right to receive an income tax refund from the internal revenue service constitutes a loan subject to the Uniform Consumer Credit Code. State ex rel. Salazar v. The Cash Now Store, Inc., 31 P.3d 161 (Colo. 2001) (decided under former § 5-3-104 as it existed prior to the 2000 repeal and reenactment).
Where the loan was for taxes and business expenses incurred by an auto repair garage, it was frivolous to argue that the loan was personal because it preserved the business for plaintiff's son. Nienke v. Naiman Group, Ltd., 857 P.2d 446 (Colo. App. 1992) (decided prior to 2000 repeal and reenactment).
Transactions were consumer credit sales, not consumer loans, where transactions involved the purchase of vehicles from a used car dealership, the arrangement of financing by the dealership, the financing of the purchases by a third party lender, and the assignment of the dealer's right to payment from the purchasers to the third party lender, and where the purchasers never directly received money from the lender. De La Rosa v. Western Funding, Inc., 24 P.3d 637 (Colo. App. 2001).
Applied in Empire Sav., Bldg. & Loan Ass'n v. Otero Sav. & Loan Ass'n, 640 P.2d 1151 (Colo. 1982) (decided prior to 2000 repeal and reenactment).
5-1-302. Definitions - federal "Truth in Lending Act" and federal "Consumer Leasing Act".
In this code, federal "Truth in Lending Act", 15 U.S.C. sec. 1601 et seq., and federal "Consumer Leasing Act", 15 U.S.C. sec. 1667 et seq., mean chapters of the "Consumer Credit Protection Act" (Public Law 90-321; 82 Stat. 146), as amended from time to time, and include regulations issued pursuant to those acts.
Source: L. 2000: Entire article R&RE, p. 1194, § 1, effective July 1.
Editor's note:
- This section is similar to former § 5-1-302, as it existed prior to 2000.
- "Consumer Leasing Act", referred to throughout this title, means the federal "Consumer Leasing Act of 1976", Pub.L. 94-240.
5-1-303. Index of definitions in code.
Definitions in this code and the sections in which they appear are:
"Actuarial method" section 5-1-301 (1) "Administrator" sections 5-1-301 (2) and 5-6-103 "Agreement" section 5-1-301 (3) "Agricultural purpose" section 5-1-301 (4) "Amount financed" section 5-1-301 (5) "Business day" section 5-1-301 (6) "Cash price" section 5-1-301 (7) "Closing costs" section 5-1-301 (8) "Conspicuous" section 5-1-301 (9) "Consumer" section 5-1-301 (10) "Consumer credit insurance" section 5-4-103 (1) "Consumer credit sale" section 5-1-301 (11) "Consumer credit transaction" section 5-1-301 (12) "Consumer insurance premium loan" section 5-1-301 (13) "Consumer lease" section 5-1-301 (14) "Consumer loan" section 5-1-301 (15) "Credit" section 5-1-301 (16) "Credit card bank or financial institution" section 5-2-213 (1) "Creditor" section 5-1-301 (17) "Credit Insurance Act" section 5-4-103 (2) "Dwelling" section 5-1-301 (18) "Earnings" section 5-1-301 (19) "Federal 'Truth in Lending Act'" and "Federal 'Consumer Leasing Act'" section 5-1-302 "Finance charge" section 5-1-301 (20) "Goods" section 5-1-301 (21) "Home solicitation sale" section 5-3-401 "Investment purpose" section 5-1-301 (22) "Lender" section 5-1-301 (23) "Lender credit card or similar arrangement" section 5-1-301 (24) "Loan" section 5-1-301 (25) "Loan primarily secured by an interest in land" section 5-1-301 (26) "Material disclosures" section 5-1-301 (27) "Merchandise certificate" section 5-1-301 (28) "Mobile home" section 5-1-301 (29) "Official fees" section 5-1-301 (30) "Organization" section 5-1-301 (31) "Payable in installments" section 5-1-301 (32) "Person" section 5-1-301 (33) "Person related to" section 5-1-301 (34) "Precomputed" section 5-1-301 (35) "Presumed" or "Presumption" section 5-1-301 (36) "Receive" section 5-1-201 (10) "Regularly" section 5-1-301 (37) "Residence" section 5-1-201 (6) "Revolving credit" section 5-1-301 (38) "Sale of goods" section 5-1-301 (39) "Sale of an interest in land" section 5-1-301 (40) "Sale of services" section 5-1-301 (41) "Seller" section 5-1-301 (42) "Seller credit card" section 5-1-301 (43) "Services" section 5-1-301 (44) "Supervised financial organization" section 5-1-301 (45) "Supervised lender" section 5-1-301 (46) "Supervised loan" section 5-1-301 (47) "Written" or "In writing" section 5-1-301 (48)
Source: L. 2000: Entire article R&RE, p. 1194, § 1, effective July 1.
Editor's note: This section is similar to former § 5-1-303, as it existed prior to 2000.
ARTICLE 2 FINANCE CHARGES AND RELATED PROVISIONS
Editor's note: This article was numbered as article 2 of chapter 73, C.R.S. 1963. This title was repealed and reenacted in 1971, and this article was subsequently repealed and reenacted in 2000, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 2000, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume and the editor's note following the title heading. Former C.R.S. section numbers are shown in editor's notes following those sections that were relocated. For a detailed comparison of this article, see the comparative tables located in the back of the index.
Section
PART 1 GENERAL PROVISIONS
5-2-101. Short title.
This article shall be known and may be cited as "Uniform Consumer Credit Code - Finance Charges and Related Provisions".
Source: L. 2000: Entire article R&RE, p. 1195, § 1, effective July 1.
Editor's note: This section is similar to former § 5-2-101, as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "The Uniform Small Loan Law", see 6 Dicta 5 (1929). For article, "Professional Ethics", see 9 Dicta 317 (1932). For article, "Installment Selling in Colorado and Needed Legislation", see 29 Dicta 81 (1952). For note, "Colorado Interest Law", see 34 Dicta 398 (1957). For article, "Highlights of 1955 Colorado Legislative Session -- Consumer Finance Act", see 28 Rocky Mt. L. Rev. 77 (1955). For article, "One Year Review of Real Property", see 36 Dicta 57 (1959). For article, "One Year Review of Contracts", see 38 Dicta 161 (1961). For article, "The Revolution in Consumer Credit Legislation", see 45 Den. L.J. 679 (1968). For article, "The Plight of the Consumer in the Uniform Consumer Credit Code", see 48 Den. L.J. 1 (1971). For article, "Legislative Overview of the Uniform Consumer Credit Code: A 1971 Perspective", see 48 Den. L.J. 27 (1971).
Annotator's note. (1) For cases construing prior provisions (§ 73-2-1 et seq., C.R.S. 1963, § 73-3-1 et seq., CRS 53) governing loans over $15,000, see Waggener v. Holt Chew Motor Co., 130 Colo. 294 , 274 P.2d 968 (1954); Siegal v. Lechler, 130 Colo. 338 , 275 P.2d 949 (1954); Camellia Cleaners, Inc. v. Siegal, 131 Colo. 570 , 283 P.2d 1083 (1955); Horlbeck v. Walther, 133 Colo. 19 , 291 P.2d 688 (1955); Denning v. A.D. Wilson & Co., 137 Colo. 372 , 326 P.2d 77 (1958); Von Reisen v. Greeley Fin. Co., 142 Colo. 210 , 350 P.2d 340 (1960); Theodore Roosevelt Agency, Inc. v. GMAC, 156 Colo. 237 , 398 P.2d 965 (1965), Dennis v. Bradbury, 236 F. Supp. 683 (D. Colo. 19 64), aff'd and reh'g denied, 368 F.2d 905 (1966); Lederman Enters., Inc. v. Westinghouse Credit Corp., 347 F. Supp. 1291 (D. Colo. 1972 ).
(2) For case construing prior provisions (§ 73-3-1 et seq., C.R.S. 1963, § 73-4-1 et seq., CRS 53) governing loans of $15,000 or less, see Klipping v. McCauley, 143 Colo. 444 , 354 P.2d 167 (1960).
(3) For cases construing prior provisions (§ 73-2-1 et seq., CRS 53; CSA, C. 88, §§ 22 through 44; and laws antecedent to CSA, C. 88, §§ 22 through 44) governing small loans ($300 or less), see Newman v. People, 23 Colo. 300 , 47 P. 278 (1896); Lamar Canal Co. v. Amity Land & Irrigation Co., 26 Colo. 370 , 58 P. 600 (1899); People ex rel. Colo. Bar Ass'n v. Erbaugh, 42 Colo. 480 , 94 P. 349 (1908); Cavanaugh v. People, 61 Colo. 292 , 157 P. 200 (1916); Warner v. People, 71 Colo. 559 , 208 P. 459 (1922); Beneficial Loan & Inv. Co. v. Ira, 75 Colo. 379 , 226 P. 136 (1924); Rice v. Franklin Loan & Fin. Co., 82 Colo. 1 63 , 258 P. 223 (1927); Angleton v. Franklin Fin. Co., 88 Colo. 322 , 295 P. 797 (1931); Gilbert v. Hudgens, 92 Colo. 571 , 22 P.2d 858 (1933); Gronert v. People, 95 Colo. 508 , 37 P.2d 396 (1934); Furlong v. People, 95 Colo. 571 , 37 P.2d 1119 (1934); Daniels v. Fenton, 97 Colo. 40 9 , 50 P.2d 62 (1935); Dowd v. Labor Fin. Corp., 100 Colo. 512 , 69 P.2d 305 (1937); Siebers v. Labor Fin. Corp., 100 Colo. 40 , 64 P.2d 1263 (1937); Waddell v. Traylor, 99 Colo. 576 , 64 P.2d 1273 (1937); Siebers v. Disque, 102 Colo. 39 , 76 P.2d 1108 (1938); Personal Fin. Co. v. Baker, 105 Colo. 1 , 94 P.2d 460 (1939); Personal Fin. Co. v. Day, 126 F.2d 281 (10th Cir. 1942); Ray v. City & County of Denver, 109 Colo. 74 , 121 P.2d 886 (1942); Sullivan v. Siegal, 125 Colo. 544 , 245 P.2d 860 (1952).
5-2-102. Scope.
For purposes of this article, "consumer credit transaction" applies to consumer loans, including supervised loans, consumer credit sales, and refinancing and consolidations of these transactions but does not include consumer leases except for the charges and procedures in sections 5-2-202 and 5-2-203. The provisions concerning credit card surcharges contained in section 5-2-212 apply to all sales and leases.
Source: L. 2000: Entire article R&RE, p. 1195, § 1, effective July 1. L. 2009: Entire section amended, (HB 09-1141), ch. 41, p. 157, § 1, effective July 1.
Editor's note: This section is similar to former § 5-2-102, as it existed prior to 2000.
PART 2 MAXIMUM FINANCE CHARGES AND OTHER FEES AND CHARGES
5-2-201. Finance charge for consumer credit transactions.
- With respect to a consumer loan other than a supervised loan, including a revolving loan, a lender may contract for and receive a finance charge calculated according to the actuarial method not exceeding twelve percent per year on the unpaid balance of the amount financed.
-
With respect to a supervised loan or a consumer credit sale, except for a loan or sale pursuant to a revolving account, a supervised lender or seller may contract for and receive a finance charge, calculated according to the actuarial method, not exceeding
the equivalent of the greater of either of the following:
-
The total of:
- Thirty-six percent per year on that part of the unpaid balances of the amount financed that is one thousand dollars or less;
- Twenty-one percent per year on that part of the unpaid balances of the amount financed that is more than one thousand dollars but does not exceed three thousand dollars; and
- Fifteen percent per year on that part of the unpaid balances of the amount financed that is more than three thousand dollars; or
- Twenty-one percent per year on the unpaid balances of the amount financed.
-
The total of:
-
- Except as provided in paragraph (b) of this subsection (3), the finance charge for a supervised loan or consumer credit sale pursuant to a revolving credit account, calculated according to the actuarial method, may not exceed twenty-one percent per year on the unpaid balance of the amount financed.
- Notwithstanding paragraph (a) of this subsection (3), if there is an unpaid balance on the date as of which the finance charge is applied, the creditor may contract for and receive a minimum finance charge not exceeding fifty cents.
-
- Except as provided in paragraph (b) of this subsection (4), this section does not limit or restrict the manner of contracting for the finance charge, whether by way of add-on, discount, single annual percentage rate, or otherwise, so long as the rate of the finance charge does not exceed that permitted by this section.
- A seller or lender may contract for the payment by a consumer of a prepaid finance charge. In addition to any other disclosure required by this code, a seller or lender shall disclose to the consumer the amount of any such prepaid finance charge.
-
If the consumer credit transaction is precomputed:
- The finance charge may be calculated on the assumption that all scheduled payments will be made when due;
- The effect of prepayment is governed by the provisions on rebate upon prepayment contained in section 5-2-211.
- Except as provided in subsection (8) of this section, the term of a consumer credit transaction, for the purposes of this section, commences on the date the consumer credit transaction is made. Differences in the lengths of months are disregarded and a day may be counted as one-thirtieth of a month. Subject to classifications and differentiations the creditor may reasonably establish, a part of a month in excess of fifteen days may be treated as a full month if periods of fifteen days or less are disregarded and that procedure is not consistently used to obtain a greater yield than would otherwise be permitted.
-
Subject to classifications and differentiations the creditor may reasonably establish, the creditor may make the same finance charge on all amounts financed within a specified range. A finance charge so made does not violate this section if:
- When applied to the median amount within each range, it does not exceed the maximum permitted in this section; and
- When applied to the lowest amount within each range, it does not produce a rate of finance charge exceeding the rate calculated according to paragraph (a) of this subsection (6) by more than eight percent of such rate.
- Notwithstanding the provisions of subsections (1), (2), and (3) of this section, the creditor, in connection with a consumer credit transaction other than a deferred deposit loan as defined in section 5-3.1-102 (3) or one pursuant to a revolving credit account, may contract for and receive a minimum loan finance charge of not more than twenty-five dollars.
- With respect to a consumer insurance premium loan, the term of the loan commences on the earliest inception date of a policy or contract of insurance on which payment of the premium is financed by the loan.
Source: L. 2000: Entire article R&RE, p. 1196, § 1, effective July 1. L. 2001: (4)(b) amended, p. 28, § 2, effective March 9. L. 2003: (7) amended, p. 1892, § 2, effective July 1.
Editor's note: This section is similar to former § 5-2-201, as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "State Variations of the Uniform Consumer Credit Code: The Case for Legislative Restraint", see 48 Den. L.J. 239 (1971). For article, "Colorado Usury", see 11 Colo. Law. 2557 (1982).
Defendant was entitled to charge 21% interest with respect to installment payments on the purchase of vehicles from a used-car dealership. Transaction was a consumer credit sale, not a consumer loan, so defendant who was an assignee of the dealership was legally entitled to charge 21% interest under this section. De La Rosa v. Western Funding, Inc., 24 P.3d 637 (Colo. App. 2001).
5-2-202. Additional charges.
-
In addition to the finance charge permitted by this article and in a consumer lease, a creditor may contract for and receive the following additional charges in connection with a consumer credit transaction:
- Official fees and taxes;
- Charges for insurance as described in subsection (3) of this section;
- Annual charges, payable in advance, for the privilege of using a credit card or similar arrangement;
- Charges for other benefits conferred on the consumer, including insurance, if the benefits are of value to the consumer and if the charges are reasonable in relation to the benefits, are of a type that is not for credit, and are authorized as permissible additional charges by rule adopted by the administrator;
-
The following charges if agreed to by the parties:
- A charge, not to exceed the greater of two dollars or two and one-half percent of the amount advanced, for each cash advance transaction made pursuant to a credit card; and
- A fee, not to exceed twenty-five dollars, assessed upon return or dishonor of a check or other instrument tendered as payment.
- No finance charge may be assessed on any charge listed in paragraph (e) of subsection (1) of this section.
-
An additional charge may be made for insurance written in connection with the transaction, other than insurance protecting the creditor against the consumer's default or other credit loss, if:
- With respect to insurance against loss of or damage to property or against liability, the creditor furnishes a clear and specific statement in writing to the consumer setting forth the cost of the insurance if obtained from or through the creditor and stating that the consumer may choose the person through whom the insurance is to be obtained; and
- With respect to consumer credit insurance providing life, accident, or health coverage, the insurance coverage is not a factor in the approval by the creditor of the extension of credit and this fact is clearly disclosed in writing to the consumer and if, in order to obtain the insurance in connection with the extension of credit, the consumer gives specific affirmative written indication of the consumer's desire to do so after written disclosure to the consumer of the cost thereof.
- With respect to a debt secured by an interest in land, bona fide and reasonable closing costs described in section 5-1-301 (8) are additional charges.
Source: L. 2000: Entire article R&RE, p. 1197, § 1, effective July 1. L. 2002: (1)(b) amended, p. 1012, § 2, effective June 1. L. 2009: IP(1) amended, (HB 09-1141), ch. 41, p. 157, § 2, effective July 1.
Editor's note: This section is similar to former § 5-2-202, as it existed prior to 2000.
ANNOTATION
National Bank Act preempts this section to the extent that an out-of-state national bank may "export" a favorable interest rate from the state in which it is located. Copeland v. MBNA Am., N.A., 883 P.2d 564 (Colo. App. 1994) (decided prior to 2000 repeal and reenactment).
Applied in Empire Sav., Bldg. & Loan Ass'n v. Otero Sav. & Loan Ass'n, 640 P.2d 1151 (Colo. 1982) (decided prior to 2000 repeal and reenactment).
5-2-203. Delinquency charges.
-
With respect to a consumer credit transaction, the parties may contract for a delinquency charge on any installment or minimum payment not paid in full within ten days after its scheduled due date in an amount not exceeding:
- Fifteen dollars for a transaction not secured by an interest in land; except that, if the transaction is precomputed, the amount may not exceed the greater of fifteen dollars or the deferral charge described in section 5-2-204 (1) that would be permitted to defer the unpaid amount of the installment for the period that it is delinquent; or
- Five percent of the unpaid amount of the installment or minimum payment due for a transaction secured by an interest in land.
- A delinquency charge under this section may be collected only once on an installment or minimum payment however long it remains in default. No delinquency charge may be collected if the installment or minimum payment has been deferred and a deferral charge described in section 5-2-204 has been paid or incurred until ten days after the deferred due date. A delinquency charge may be collected at the time it accrues or at any time thereafter.
- No delinquency charge may be collected on an installment or minimum payment that is paid in full within ten days after its scheduled installment due date even though an earlier maturing installment, minimum payment, or a delinquency charge on an earlier installment or minimum payment may not have been paid in full. For purposes of this subsection (3), payments are applied first to current installments or minimum payments due and then to delinquent installments or minimum payments due.
-
-
A creditor who has imposed a delinquency charge shall notify the consumer in writing of the amount of the delinquency charge assessed as follows:
- Before the due date of the next scheduled payment;
- If the creditor provides the consumer with periodic statements for each installment, on or with the next periodic statement provided to the consumer after the delinquency charge has been assessed; or
- For a revolving credit account for which a credit card is issued and that is not secured by an interest in land, before, on, or with the next periodic statement after the delinquency charge has been assessed.
- A creditor shall not assess a delinquency charge unless the delinquency charge is assessed within thirty days after the scheduled due date of any installment not paid in full or, for a revolving credit account for which a credit card is issued and that is not secured by an interest in land, within ninety days after the scheduled due date of the delinquent minimum payment.
-
A creditor who has imposed a delinquency charge shall notify the consumer in writing of the amount of the delinquency charge assessed as follows:
- No finance charge may be assessed on any delinquency charge. For purposes of this section, for revolving credit, an installment is the minimum payment that the debtor is required to make during any billing cycle excluding any past-due amount from any previous billing cycle.
- If two installments or parts thereof of a precomputed transaction are in default for ten days or more, the creditor may elect to convert the transaction from a precomputed transaction to one in which the finance charge is based on unpaid balances, and the terms of the converted transaction shall be no less favorable to the consumer than the terms of the original transaction. In this event the creditor shall make a rebate pursuant to the provisions on rebate upon prepayment contained in section 5-2-211 as of the maturity date of the first delinquent installment and thereafter may make a finance charge as authorized by the provisions on finance charges. The amount of the rebate shall not be reduced by the amount of any permitted minimum charge described in section 5-2-201. If the creditor proceeds under this subsection (6), any delinquency or deferral charges made with respect to installments due at or after the maturity date of the first delinquent installment shall be rebated and no further delinquency or deferral charges shall be made.
Source: L. 2000: Entire article R&RE, p. 1198, § 1, effective July 1. L. 2007: (4) amended, p. 842, § 1, effective May 14.
Editor's note: This section is similar to former § 5-2-203, as it existed prior to 2000.
ANNOTATION
Section 521 of the Depository Institutions Deregulation and Monetary Control Act of 1980 preempted plaintiff's claims against a Delaware bank that the bank's late charges violated this section and § 5-5-202. Stoorman v. Greenwood Trust Co., 888 P.2d 289 (Colo. App. 1994) (decided under law in effect prior to the 2000 repeal and reenactment).
"Interest" under § 521 of the Depository Institutions Deregulation and Monetary Control Act of 1980 includes late fees and, therefore, Colorado law is preempted by the federal law with respect to late charges. Stoorman v. Greenwood Trust Co., 888 P.2d 289 (Colo. App. 1994); Richardson v. Citibank (S.D.), N.A., 908 P.2d 532 ( Colo. 1995 ); Smiley v. Citibank (S.D.), 517 U.S. 735 (1996) (decided under law in effect prior to the 2000 repeal and reenactment).
Plaintiff's common law challenges were preempted by § 521 of the Depository Institutions Deregulation and Monetary Control Act of 1980 since that law creates an exclusive federal remedy and an exclusive federal remedy is inconsistent with the idea that a plaintiff can seek relief under state common law theories. Stoorman v. Greenwood Trust Co., 888 P.2d 289 (Colo. App. 1994) (decided under law in effect prior to the 2000 repeal and reenactment).
National Bank Act preempts this section to the extent that an out-of-state national bank may "export" a favorable interest rate from the state in which it is located. Copeland v. MBNA Am., N.A., 883 P.2d 564 (Colo. App. 1994) (decided under law in effect prior to the 2000 repeal and reenactment).
Section 86 of the National Bank Act of 1982 authorizes a national bank to charge interest at the rate allowed by the laws of the state where the bank is located. Copeland v. MBNA Am. Bank, N.A., 907 P.2d 87 (Colo. 1995) (decided under law in effect prior to 1993 amendment).
"Interest" under § 85 of the National Bank Act of 1982, includes late payment fees and, therefore, a national bank located in Delaware is authorized to charge such fees to a Colorado cardmember despite the fact that Colorado law prohibits late payment fees in addition to finance charges. Copeland v. MBNA Am. Bank, N.A., 907 P.2d 87 ( Colo. 1995 ) (decided under law in effect prior to 1993 amendment).
5-2-204. Deferral charges.
- With respect to a precomputed consumer credit transaction, the parties before or after default may agree in writing to a deferral of all or part of one or more unpaid installments, and the creditor may make and collect a charge not exceeding the rate previously stated to the consumer pursuant to the provisions on disclosure contained in section 5-3-101 applied to the amount or amounts deferred for the period of deferral calculated without regard to differences in the lengths of months, but proportionally for a part of a month, counting each day as one-thirtieth of a month. A deferral charge may be collected at the time it is assessed or at any time thereafter.
- The creditor, in addition to the deferral charge, may make appropriate additional charges described in section 5-2-202, and the amount of these charges that is not paid in cash may be added to the amount deferred for the purpose of calculating the deferral charge.
- The parties may agree in writing at the time of a precomputed consumer credit transaction that, if an installment is not paid within ten days after its due date, the creditor may unilaterally grant a deferral and make charges as provided in this section. No deferral charge may be made for a period after the date that the creditor elects to accelerate the maturity of the agreement.
- A delinquency charge made by the creditor on an installment may not be retained if a deferral charge is made pursuant to this section with respect to the period of delinquency.
- A deferral charge made according to this section is earned pro rata during the period in which no installment is scheduled to be paid by reason of the deferral and is fully earned on the last day of that period.
Source: L. 2000: Entire article R&RE, p. 1200, § 1, effective July 1.
Editor's note: This section is similar to former § 5-2-204, as it existed prior to 2000.
5-2-205. Finance charge on refinancing.
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With respect to a consumer credit transaction, the creditor may by agreement with the consumer refinance the unpaid balance and may contract for and receive a finance charge based on the amount financed resulting from the refinancing at a rate not exceeding
that permitted by the provisions on finance charges. For the purpose of determining the finance charge permitted, the amount financed resulting from the refinancing comprises the following:
- If the transaction was not precomputed, the total of the unpaid balance and the accrued charges on the date of the refinancing, or, if the transaction was precomputed, the amount that the consumer would have been required to pay upon prepayment pursuant to the provisions on rebate upon prepayment contained in section 5-2-211 on the date of refinancing; except that, for the purpose of computing this amount, no minimum charge described in section 5-2-201 shall be allowed; and
- Appropriate additional charges described in section 5-2-202, payment of which is deferred.
Source: L. 2000: Entire article R&RE, p. 1200, § 1, effective July 1.
Editor's note: This section is similar to former § 5-2-205, as it existed prior to 2000.
5-2-206. Finance charge on consolidation.
If a consumer owes an unpaid balance to a creditor with respect to a consumer credit transaction and becomes obligated on another consumer credit transaction with the same creditor, the parties may agree to a consolidation resulting in a single schedule of payments. If the previous consumer credit transaction was not precomputed, the parties may agree to add the unpaid amount of the amount financed and accrued charges on the date of consolidation to the amount financed with respect to the subsequent consumer credit transaction. If the previous consumer credit transaction was precomputed, the parties may agree to refinance the unpaid balance pursuant to the provisions on refinancing contained in section 5-2-205 and to consolidate the amount financed resulting from the refinancing by adding it to the amount financed with respect to the subsequent consumer credit transaction. In either case, the creditor may contract for and receive a finance charge based on the aggregate amount financed resulting from the consolidation at a rate not in excess of that permitted by the provisions on finance charges.
Source: L. 2000: Entire article R&RE, p. 1201, § 1, effective July 1.
Editor's note: This section is similar to former § 5-2-205, as it existed prior to 2000.
5-2-207. Prepaid finance charge.
- Subject to the provisions of subsection (2) of this section, a creditor may contract for the payment by the consumer of a prepaid finance charge; except that the total finance charge contracted for and received by the creditor shall not exceed that permitted for consumer credit transactions.
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With respect to a refinancing pursuant to section 5-2-205 or consolidation pursuant to section 5-2-206 of a previous consumer credit transaction for which a prepaid finance charge was imposed, if said refinancing or consolidation is consummated within
one year after the previous transaction, a new prepaid finance charge may be imposed:
- Only on that portion of the aggregate amount financed resulting from the refinancing or consolidation that exceeds the unpaid balance of the previous transaction determined in accordance with the provisions of section 5-2-205 or section 5-2-206, whichever is appropriate; or
- On the aggregate amount financed resulting from the refinancing or consolidation; except that any unearned portion of the prepaid finance charge imposed in connection with the previous transaction shall be rebated to the consumer in accordance with the actuarial method as defined in section 5-1-301 and applicable rules adopted by the administrator.
Source: L. 2000: Entire article R&RE, p. 1201, § 1, effective July 1.
Editor's note: This section is similar to former § 5-3-206.5, as it existed prior to 2000.
5-2-208. Conversion to revolving account.
The parties may agree to add to a revolving account the unpaid balance of a consumer credit transaction not made pursuant to a revolving account. The unpaid balance is an amount equal to the amount financed determined according to the provisions on refinancing contained in section 5-2-205.
Source: L. 2000: Entire article R&RE, p. 1201, § 1, effective July 1.
Editor's note: This section is similar to former § 5-2-207 (5), as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "State Variations of the Uniform Consumer Credit Code: The Case for Legislative Restraint", see 48 Den. L.J. 239 (1971). For article, "Colorado Usury", see 11 Colo. Law. 2557 (1982).
5-2-209. Advances to perform covenants of consumer.
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If the agreement with respect to a consumer credit transaction contains covenants by the consumer to perform certain duties pertaining to insuring or preserving collateral, and the creditor pursuant to the agreement pays for performance of the duties
on behalf of the consumer, the creditor may add the amounts paid to the debt if:
- The expenditure is reasonable to protect the risk of loss or damage to the property;
- The creditor has mailed to the consumer, at the consumer's last known address, written notice of the consumer's nonperformance and has given the consumer reasonable opportunity after such notice to so perform; and
- In the absence of performance, the creditor has made all expenditures on behalf of the consumer in good faith and in a commercially reasonable manner.
- Within a reasonable time after advancing any sums, the creditor shall state to the consumer in writing the amount of the sums advanced, any charges with respect to this amount, and any revised payment schedule, and, if the duties of the consumer performed by the creditor pertain to insurance, a brief description of the insurance paid for by the creditor including the type and amount of coverage. No further information need be given.
- A finance charge may be made for sums advanced pursuant to this section at a rate not exceeding the rate stated to the consumer pursuant to the provisions on disclosure contained in section 5-3-101 with respect to the consumer credit transaction; except that, with respect to a revolving account, the amount of the advance may be added to the unpaid balance of the debt and the creditor may make a finance charge not exceeding that permitted by the provisions on finance charges.
Source: L. 2000: Entire article R&RE, p. 1202, § 1, effective July 1.
Editor's note: This section is similar to former § 5-2-208, as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "State Variations of the Uniform Consumer Credit Code: The Case for Legislative Restraint", see 48 Den. L.J. 239 (1971).
5-2-210. Right to prepay.
Subject to the provisions on rebate upon prepayment contained in section 5-2-211, the consumer may prepay in full, or in part if payment is no less than five dollars, the unpaid balance of a consumer credit transaction at any time without penalty. A payment in the amount of a scheduled installment, other than the last scheduled installment, not identified by the consumer as a partial prepayment shall not be deemed to be a partial prepayment regardless of when the payment is made if the amount equals the next scheduled installment. If such a payment is applied by the creditor to the scheduled installment, the payment shall be deemed to have been made on the due date for the scheduled installment to which it was applied.
Source: L. 2000: Entire article R&RE, p. 1202, § 1, effective July 1.
Editor's note: This section is similar to former § 5-2-209, as it existed prior to 2000.
ANNOTATION
Applied in Empire Sav., Bldg. & Loan Ass'n v. Otero Sav. & Loan Ass'n, 640 P.2d 1151 (Colo. 1982) (decided prior to 2000 repeal and reenactment).
5-2-211. Rebate upon prepayment - definitions.
- Except as otherwise provided in this section, upon prepayment in full of the unpaid balance of a precomputed consumer credit transaction, an amount not less than the unearned portion of the finance charge calculated according to this section shall be rebated to the consumer. If the rebate otherwise required is less than one dollar, no rebate need be made.
- Upon prepayment in full of a consumer credit transaction, other than one pursuant to a revolving account, a refinancing, or a consolidation, whether or not precomputed, the creditor may collect or retain a minimum charge within the limits stated in this subsection (2) if the finance charge earned at the time of prepayment is less than any minimum charge contracted for. The minimum charge may not exceed the lesser of the amount of finance charge contracted for or twenty-five dollars.
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- Except as otherwise provided in this section, the unearned portion of the finance charge is a fraction of the finance charge of which the numerator is the sum of the periodic balances scheduled to follow the computational period in which prepayment occurs, and the denominator is the sum of all periodic balances under either the consumer credit agreement or, if the balance owing resulted from a refinancing described in section 5-2-205 or a consolidation described in section 5-2-206, under the refinancing agreement or consolidation agreement.
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With respect to a precomputed transaction entered into on or after October 28, 1975, and payable according to its original terms in more than sixty-one installments or on any precomputed transaction entered into on or after January 1, 1982, the unearned
portion of the finance charge is, at the option of the lender, either:
- That portion that is applicable to all fully unexpired computational periods as originally scheduled, or if deferred, as deferred, that follow the date of prepayment. For this purpose, the applicable charge is the total of that which would have been made for each such period, had the consumer credit transaction not been precomputed, by applying to unpaid balances of the amount financed, according to the actuarial method, the annual percentage rate of charge previously stated to the consumer pursuant to the provisions on disclosure contained in section 5-3-101 based upon the assumption that all payments were made as originally scheduled, or if deferred, as deferred. The creditor, at the creditor's option, may round the annual percentage rate to the nearest one-half of one percent so long as such procedure is not consistently used to obtain a greater yield than would otherwise be permitted; or
- The total finance charge minus the earned finance charge. The earned finance charge shall be determined by applying the annual percentage rate previously stated to the consumer pursuant to the provisions on disclosure contained in section 5-3-101 according to the actuarial method to the actual unpaid balances for the actual time the balances were unpaid up to the date of prepayment. If a delinquency or deferral charge was collected, it shall be treated as a payment.
- In the case of a consumer credit transaction primarily secured by an interest in land, reasonable sums actually paid or payable to persons not related to the creditor for customary closing costs included in the finance charge shall be deducted from the finance charge before the calculation prescribed by this subsection (3) is made.
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As used in this section, unless the context otherwise requires:
- "Computational period" means one month if one-half or more of the intervals between scheduled payments under the agreement is one month or more and otherwise means one week.
- The "interval" to the due date of the first scheduled installment or the final scheduled payment date is measured from the date of a consumer credit transaction and includes either the first or last day of the interval. If the interval to the due date of the first scheduled installment does not exceed one month by more than fifteen days when the computational period is one month or eleven days when the computational period is one week, the interval shall be considered as one computational period.
- "Periodic balance" means the amount scheduled to be outstanding on the last day of a computational period before deducting the payment, if any, scheduled to be made on that day.
-
- This subsection (5) applies only if the schedule of payments is not regular.
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If the computational period is one month and:
- If the number of days in the interval to the due date of the first scheduled installment is less than one month by more than five days or more than one month by more than five but not more than fifteen days, the unearned finance charge shall be increased by an adjustment for each day by which the interval is less than one month and, at the option of the creditor, may be reduced by an adjustment for each day by which the interval is more than one month; the adjustment for each day shall be one-thirtieth of that part of the finance charge earned in the computational period prior to the due date of the first scheduled installment assuming that period to be one month; and
- If the interval to the final scheduled payment date is a number of computational periods plus an additional number of days less than a full month, the additional number of days shall be considered a computational period only if sixteen days or more. This subparagraph (II) applies whether or not subparagraph (I) of this paragraph (b) applies.
- Notwithstanding paragraph (b) of this subsection (5), if the computational period is one month, the number of days in the interval to the due date of the first installment exceeds one month by not more than fifteen days and the schedule of payments is otherwise regular, the creditor at the creditor's option may exclude the extra days and the charge for the extra days in computing the unearned finance charge; but if the creditor does so and a rebate is required before the due date of the first scheduled installment, the creditor shall compute the earned charge for each elapsed day as one-thirtieth of the amount the earned charge would have been if the first interval had been one month.
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If the computational period is one week and:
- If the number of days in the interval to the due date of the first scheduled installment is less than five days or more than nine days but not more than eleven days, the unearned finance charge shall be increased by an adjustment for each day by which the interval is less than seven days and, at the option of the creditor, may be reduced by an adjustment for each day by which the interval is more than seven days; the adjustment for each day shall be one-seventh of that part of the finance charge earned in the computational period prior to the due date of the first scheduled installment assuming that period to be one week; and
- If the interval to the final scheduled payment date is a number of computational periods plus an additional number of days less than a full week, the additional number of days shall be considered a computational period only if four days or more. This subparagraph (II) applies whether or not subparagraph (I) of this paragraph (d) applies.
- Except as otherwise provided in paragraph (b) of subsection (3) of this section, if a deferral described in section 5-2-204 has been agreed to, the unearned portion of the finance charge is the portion thereof attributable according to the sum of the balances method to the period from the first day of the computational period following that in which prepayment occurs; except that the numerator of the fraction is the sum of the periodic balances, after rescheduling to give effect to any deferral, scheduled to follow the computational period in which prepayment occurs. A separate rebate of the deferral charge is not required unless the unpaid balance of the transaction is paid in full during the deferral period, in which event the creditor shall also rebate the unearned portion of the deferral charge.
- Except as otherwise provided in paragraph (b) of subsection (3) of this section, this section does not preclude the collection or retention by the creditor of delinquency charges described in section 5-2-203.
- If the maturity is accelerated for any reason and judgment is obtained, the consumer is entitled to the same rebate as if payment had been made on the date judgment is entered.
- Upon prepayment in full of a consumer credit transaction by the proceeds of consumer credit insurance described in section 5-4-103, the consumer or the consumer's estate is entitled to the same rebate as though the consumer had prepaid the agreement on the date the proceeds of the insurance are paid to the creditor but no later than ten business days after satisfactory proof of loss is furnished to the creditor.
Source: L. 2000: Entire article R&RE, p. 1203, § 1, effective July 1. L. 2001: IP(3)(b) and (5)(d)(I) amended, p. 28, § 3, effective March 9.
Editor's note: This section is similar to former § 5-2-210, as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "Colorado Usury", see 11 Colo. Law. 2557 (1982).
5-2-212. Surcharges on credit transactions - enforcement - definitions.
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[ Editor's note: This version of subsection (1) is effective until July 1, 2022.] Except as otherwise provided in sections 24-19.5-103 (3) and 29-11.5-103 (3), C.R.S., no seller or lessor in any sales or lease transaction or any company issuing credit
or charge cards may impose a surcharge on a holder who elects to use a credit or charge card in lieu of payment by cash, check, or similar means. A surcharge is any additional amount imposed at the time of the sales or lease transaction
by the merchant, seller, or lessor that increases the charge to the buyer or lessee for the privilege of using a credit or charge card. For purposes of this section, charge card includes those cards pursuant to which unpaid balances
are payable on demand.
(1) [ Editor's note: This version of subsection (1) is effective July 1, 2022. ] (a) Except as otherwise provided in sections 24-19.5-103 (3) and 29-11.5-103 (3), a seller or lessor in any sales or lease transaction may impose a surcharge on a buyer or lessee who elects to use a credit or charge card in lieu of payment by cash, check, or similar means in accordance with subsection (1)(c) of this section.
(b) A surcharge is any additional amount imposed at the time of the sales or lease transaction by the merchant, seller, or lessor that increases the charge to the buyer or lessee for the privilege of using a credit or charge card.
(c) A seller or lessor may impose a surcharge pursuant to either subsection (1)(c)(I) or (1)(c)(II) of this section as follows:
- An amount not to exceed two percent of the total cost to the buyer or lessee for the sales or lease transaction. A seller or lessor that imposes a surcharge on credit or charge cards shall post signage at the seller's or lessor's premises in a manner that is visible to customers or, for a sales or lease transaction made online, display before an online customer's completion of the sales or lease transaction in a manner that is visible to the online customer, the following language:
-
- An amount not to exceed the merchant discount fee that the seller or lessor incurs in processing the sales or lease transaction. The seller or lessor or the seller's or lessor's service provider shall calculate the surcharge at an amount not to exceed the actual amount paid to the processor or service provider to process the transaction.
- A seller or lessor shall post signage at the seller's or lessor's premises in a manner that is visible to customers or, for a sales or lease transaction made online, display before an online customer's completion of the sales or lease transaction in a manner that is visible to the online customer, the following language:
-
The service provider may provide the seller or lessor with the means to make the disclosure required by this subsection (1)(c)(II).
(d) For any goods or services purchased or leased through payment by credit or charge card, the seller, lessor, or service provider shall provide as a separate line item on the customer's receipt the surcharge amount imposed pursuant to subsection (1)(c) of this section.
(e) A seller or lessor may impose only a single credit or charge card surcharge per sales or lease transaction pursuant to subsection (1)(a) of this section.
(f) A seller or lessor shall not impose a surcharge if a customer elects to pay for goods or services by:
(I) Using cash or a check;
(II) Using a debit card, whether or not a personal identification number is used;
- Processing a payment as a debit payment; or
-
Redeeming a gift card.
(g) As used in this subsection (1):
(I) "Charge card" includes those cards pursuant to which unpaid balances are payable on demand.
(II) "Merchant discount fee" means the actual fee, expressed as a percentage or fixed amount of the total transaction amount, that a seller or lessor pays its processor or service provider to process the transaction.
- A discount offered by a seller or lessor for the purpose of inducing payment by cash, check, or other means not involving the use of a seller or lender credit card shall not constitute a finance charge if such discount is offered to all prospective buyers and its availability is disclosed to all prospective buyers clearly and conspicuously in accordance with regulations of the administrator.
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[ Editor's note: Subsection (3) is effective July 1, 2022.] (a) A seller or lessor who violates this section:
(I) Violates the code; and
(II) Is subject to liability as a creditor under the code.
(b) For purposes of liability for a violation of this section, a buyer or lessee is a consumer.
- [ Editor's note: Subsection (4) is effective July 1, 2022.] A seller or lessor may impose a surcharge under this section regardless of any contract or agreement that the seller or lessor enters into on or after July 1, 2022.
To cover the cost of processing a credit or charge card transaction, and pursuant to section 5-2-212, Colorado Revised Statutes, a seller or lessor may impose a processing surcharge in an amount not to exceed 2% of the total payment made for goods or services purchased or leased by use of a credit or charge card. A seller or lessor shall not impose a processing surcharge on payments made by use of cash, a check, or a debit card or redemption of a gift card.
To cover the cost of processing a credit or charge card transaction, and pursuant to section 5-2-212, Colorado Revised Statutes, a seller or lessor may impose a processing surcharge in an amount not to exceed the merchant discount fee that the seller or lessor incurs in processing the sales or lease transaction. A seller or lessor shall not impose a processing surcharge on payments made by use of cash, a check, or a debit card or redemption of a gift card.
Source: L. 2000: Entire article R&RE, p. 1206, § 1, effective July 1. L. 2003: (1) amended, p. 1442, § 3, effective April 29. L. 2021: (1) amended and (3) and (4) added, (SB 21-091), ch. 476, p. 3404, § 1, effective July 1, 2022.
Editor's note: This section is similar to former § 5-3-110, as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "Colorado Usury", see 11 Colo. Law. 2557 (1982).
5-2-213. Lender and seller credit cards.
- For purposes of this section, "credit card bank or financial institution" means a commercial bank, credit union, thrift, savings and loan association, savings bank, or other state or federally supervised institution in this state that issues credit cards and may export rates and fees pursuant to the "National Bank Act", 12 U.S.C. sec. 85, "Depository Institutions Deregulation and Monetary Control Act of 1980", 12 U.S.C. secs. 1463, 1785, and 1831d, "Federal Credit Union Act", 12 U.S.C. sec. 1757, or "Alternative Mortgage Transaction Parity Act of 1982", 12 U.S.C. secs. 3801 to 3805, and any regulations under those acts.
-
Notwithstanding any other provisions of this part 2, with respect to a lender or seller credit card issued by a credit card bank or financial institution:
- The finance charge, calculated according to the actuarial method, may not exceed the amounts provided in section 5-2-201; and
- Any fees imposed for a minimum finance charge described in section 5-2-201 (3)(b), annual charges described in section 5-2-202 (1)(c), cash advances described in section 5-2-202 (1)(e)(I), return or dishonor of a check described in section 5-2-202 (1)(e)(II), delinquency described in section 5-2-203, or exceeding the credit limit may be in an amount established by written agreement of the parties.
Source: L. 2000: Entire article R&RE, p. 1206, § 1, effective July 1. L. 2013: (1) amended, (SB 13-154), ch. 282, p. 1468, § 20, effective July 1.
Editor's note: This section is similar to former § 5-3-508, as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "State Variations of the Uniform Consumer Credit Code: The Case for Legislative Restraint", see 48 Den. L.J. 239 (1971). For article, "Colorado Usury", see 11 Colo. Law. 2557 (1982).
5-2-214. Alternative charges for loans not exceeding one thousand dollars.
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For a consumer loan where the amount financed is not more than one thousand dollars, a supervised lender may charge, in lieu of the loan finance charges permitted by section 5-2-201, the following finance charges:
- An acquisition charge for making the original loan, not to exceed ten percent of the amount financed;
- An acquisition charge for making any refinanced loan, not to exceed seven and one-half percent of the amount financed; and
- A monthly installment account handling charge, not to exceed the following amounts:
- The minimum term of a loan made pursuant to this section shall be ninety days. The maximum term of a loan made pursuant to this section shall be twelve months. All loans shall be scheduled to be payable in substantially equal installments at equal periodic intervals.
- On a loan subject to the alternative charges authorized by this section, no other finance charge or any other charge or fee is permitted except as specifically provided for in this section and except for the delinquency charges provided for in section 5-2-203, reasonable attorney fees provided for in section 5-5-112, and the fee for a dishonored check provided for in section 5-2-202 (1)(e)(II).
- The acquisition charge authorized in this section shall be fully earned at the time the loan is made and shall not be subject to refund; except that, if the loan is prepaid in full, refinanced, or consolidated within the first sixty days, the first ten dollars of the acquisition charge shall be retained by the lender and the remainder of the acquisition charge shall be refunded at a rate of one-sixtieth of the remainder of the acquisition charge per day, beginning on the day after the date of the prepayment, refinancing, or consolidation and ending on the sixtieth day after the loan was made.
- Upon the prepayment of a loan made pursuant to this section, the unearned portion of the installment account handling charge shall be refunded to the consumer. The unearned portion of the installment account handling charge that is refunded shall be calculated pursuant to the provisions on rebate upon prepayment contained in section 5-2-211 on the date of refinancing; except that, for the purpose of computing this amount, no minimum charge described in section 5-2-201 shall be allowed.
- The rates and charges permitted by this section shall not apply to deferred deposit loans subject to article 3.1 of this title.
- A lender shall not take collateral from a consumer as security for payment for any loan made pursuant to this section.
- A lender may not refinance a loan made pursuant to this section more than three times in one year.
Amount financed Per month charge $100.00 - $ 300 $12.50 $300.01 - $ 500 $15.00 $500.01 - $ 750 $17.50 $750.01 - $ 1,000 $20.00
Source: L. 2004: Entire section added, p. 589, § 1, effective August 4. L. 2007: (1)(a) and (5) amended and (1)(a.5), (7), and (8) added, p. 711, §§ 1, 2, effective August 3.
PART 3 SUPERVISED LOANS AND SUPERVISED LENDERS
5-2-301. Authority to make supervised loans.
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Unless a person is a supervised financial organization or has first obtained a license from the administrator authorizing him or her to make supervised loans, he or she shall not engage in the business of:
- Making supervised loans or undertaking direct collection of payments from or enforcement of rights against consumers arising from supervised loans he or she has previously made; or
- Taking assignments of and undertaking direct collection of payments from or enforcement of rights against consumers arising from supervised loans; except that a person who is licensed by the administrator as a collection agency pursuant to article 16 of this title 5 or is licensed by the Colorado supreme court to practice law, and who takes assignment of supervised loans only after such loans are in default, is not required to obtain a supervised lender license to engage in the activities described in this subsection (1)(b).
Source: L. 2000: Entire article R&RE, p. 1206, § 1, effective July 1. L. 2006: (1)(b) amended, p. 530, § 1, effective April 18. L. 2017: (1)(b) amended, (HB 17-1238), ch. 260, p. 1170, § 6, effective August 9.
Editor's note: This section is similar to former § 5-3-502, as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "State Variations of the Uniform Consumer Credit Code: The Case for Legislative Restraint", see 48 Den. L.J. 239 (1971). For article, "Colorado Usury", see 11 Colo. Law. 2557 (1982).
5-2-302. License to make supervised loans.
- The administrator shall receive and act on all applications for licenses to make supervised loans under this code. Applications shall be filed in the manner prescribed by the administrator and shall contain such information as the administrator may reasonably require. No license shall be issued without payment of a nonrefundable license fee. The license year shall be the calendar year.
- No license shall be issued unless the administrator, upon investigation, finds that the financial responsibility, character, and fitness of the applicant and of the members, managers, partners, officers, and directors thereof are such as to warrant belief that the business will be operated honestly and fairly within the purposes of this code. In determining financial responsibility of an applicant proposing to engage in making consumer insurance premium loans, the administrator shall consider the liabilities the lender may incur for erroneous cancellation of insurance. The administrator may deny an application for licensure for any of the grounds provided in section 5-2-303.
-
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Upon written request, the applicant is entitled to a hearing on the question of the applicant's qualifications for a license if:
- The administrator has notified the applicant in writing that his or her application has been denied; or
- The administrator has not issued a license within sixty days after the application for the license was filed.
- A request for a hearing may not be made more than sixty days after the administrator has mailed a writing to the applicant notifying the applicant that the application has been denied and stating in substance the administrator's findings supporting denial of the application.
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Upon written request, the applicant is entitled to a hearing on the question of the applicant's qualifications for a license if:
- If a supervised lender has more than one place of business, it must obtain a master license. The administrator may authorize the addition of branch locations to the master license. A separate license fee and proof of financial responsibility shall be required for each authorized branch location. Each master license and branch location license shall remain in full force and effect until surrendered, suspended, or revoked.
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- The application for approval of a branch location license may be more abbreviated than the application for a new or master supervised lender's license. An application for a branch location license may be filed by any means, including facsimile or electronic filing, followed by the license fee required by this section.
- Upon receipt of a completed branch location license application and the required license fee, the branch location is automatically licensed for a temporary period not to exceed one hundred twenty days. If the administrator does not deny the branch location application on or before the end of that period, the temporary branch location license shall become permanent. The administrator may deny an application for a branch location for any of the grounds provided in subsection (2) of this section and section 5-2-303.
- The administrator's approval of an additional branch location license may be provided by letter. No license certificate need be issued for a licensed branch location. All provisions of this part 3 relating to licenses apply equally to branch location licenses.
- No licensee shall change the location of any place of business or license without giving the administrator at least fifteen days prior written notice. The administrator may by rule promulgated in accordance with article 4 of title 24, C.R.S., establish an administrative fee for such a change of address.
- A licensee shall not engage in the business of making supervised loans at any place of business for which the licensee does not hold a license, nor shall a licensee engage in business under any other name than that in the license. The administrator may by rule establish an administrative fee for such a change of name. For the purposes of this subsection (7), a consumer insurance premium loan is made at the lender's business office.
- Each license shall be renewed by payment of a nonrefundable license fee and the filing of a renewal form. The fee and renewal form shall be due each January 31. If a licensee fails to pay the prescribed fee on or before March 1, it shall pay a penalty of five dollars per day per license from March 2 to the date the payment is postmarked. However, if a licensee fails to pay the appropriate renewal and penalty fees by March 15, its license shall automatically expire.
- (Deleted by amendment, L. 2009, (HB 09-1141), ch. 41, p. 157, § 3, effective January 1, 2010.)
Source: L. 2000: Entire article R&RE, p. 1207, § 1, effective July 1. L. 2009: (1), (8), and (9) amended, (HB 09-1141), ch. 41, p. 157, § 3, effective January 1, 2010.
Editor's note: This section is similar to former §§ 5-3-503 and 5-6-203, as they existed prior to 2000.
ANNOTATION
Law reviews. For article, "State Variations of the Uniform Consumer Credit Code: The Case for Legislative Restraint", see 48 Den. L.J. 239 (1971).
5-2-303. Denial and discipline of license.
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The administrator may deny an application for a license or take disciplinary action against a person licensed to make supervised loans if the administrator finds that:
- The applicant or licensee has violated this code or any rule or order lawfully made pursuant thereto;
- Facts or conditions exist that would clearly have justified the administrator in refusing to grant a license had these facts or conditions been known to exist at the time the application for the license was made;
- The applicant has failed to complete an application for licensure;
- The applicant or licensee has failed to provide information required by the administrator within a reasonable time as fixed by the administrator;
- The applicant or licensee has failed to provide or maintain proof of financial responsibility;
- The applicant or licensee is insolvent;
- The applicant or licensee has made, in any document or statement filed with the administrator, a false representation of a material fact or has omitted to state a material fact;
- The applicant, licensee, or its owners, partners, members, officers, or directors have been convicted of or entered a plea of guilty or nolo contendere to a crime specified in part 4 of article 4 of title 18, C.R.S., or in part 1, 2, 3, 5, or 7 of article 5 of title 18, C.R.S., to a crime involving fraud or deceit, or to any similar crime under the jurisdiction of any federal court or court of another state;
- The applicant or licensee has failed to make, maintain, or produce records which comply with section 5-2-304 and any regulation adopted by the administrator;
- The applicant or licensee has been the subject of any disciplinary action by any state or federal agency;
- A final judgment has been entered against the applicant or licensee for violations of this code, any state or federal law concerning consumer finance, banking, or mortgage brokers or lenders, or any state or federal law prohibiting deceptive or unfair trade or business practices; or
- The applicant or licensee has failed to, in a timely manner as fixed by the administrator, take or provide proof of the corrective action required by the administrator subsequent to an examination or investigation pursuant to section 5-2-305 or 5-6-106.
- The administrator may summarily suspend a license as provided in section 24-4-104, C.R.S.
- Whenever the administrator denies a license application or takes disciplinary action pursuant to this section, the administrator shall enter an order to that effect and notify the licensee or applicant of the denial or disciplinary action. The notification required by this subsection (3) shall be given by personal service or by mail to the last known address of the licensee or applicant as shown on the application, license, or as subsequently furnished in writing to the administrator.
- Any person holding a license to make supervised loans may relinquish the license by notifying the administrator in writing of its relinquishment. The revocation, suspension, expiration, or relinquishment of a license shall not affect the licensee's liability for acts previously committed nor impair the administrator's ability to issue a final agency order or impose discipline against the licensee.
- No revocation, suspension, or relinquishment of a license shall impair or affect the obligation of any preexisting lawful contract between the licensee and any consumer.
- The administrator may reinstate a license, terminate a suspension, or grant a new license to a person whose license has been revoked or suspended if no fact or condition then exists that clearly would have justified the administrator in refusing to grant a license.
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After a finding of one or more of the conditions stated in subsection (1) of this section, the administrator may take any or all of the following actions:
- Deny an application for licensure including an application for a branch office license;
- Revoke the license;
- Suspend the license for a period of time;
- Issue an order to the licensee to cease and desist from such acts;
- Order the licensee to make refunds to consumers of excess charges under this code;
- Impose penalties of up to a maximum of one thousand dollars for each violation all or part of which may be specifically designated for consumer and creditor educational expenses;
- Bar the person from applying for or holding a license for a period of five years following revocation of his or her license;
- Issue a letter of admonition; or
- Impose a penalty of two hundred dollars per day for failure to make, produce, or retain records required to be maintained under this code within forty-eight hours after the administrator's written demand. If the administrator has provided advance written notice of forty-eight hours or more to a licensee prior to conducting an examination pursuant to section 5-2-305, the penalty may be imposed without allowing additional time.
- The discipline stated in paragraphs (h) and (i) of subsection (7) of this section may be imposed without a hearing, but the licensee may, within thirty days thereafter, file with the administrator a written notice requesting a hearing. If such request is timely made, the letter of admonition shall be deemed vacated and a hearing shall be held. If, after such hearing, there is a finding that one or more of the grounds for discipline exist, any or all of the forms of discipline listed in this section may be imposed.
Source: L. 2000: Entire article R&RE, p. 1209, § 1, effective July 1. L. 2003: (4) amended, p. 1892, § 3, effective July 1.
Editor's note: This section is similar to former §§ 5-3-503 and 5-3-504, as they existed prior to 2000.
ANNOTATION
Law reviews. For article, "State Variations of the Uniform Consumer Credit Code: The Case for Legislative Restraint", see 48 Den. L.J. 239 (1971).
5-2-304. Records - annual reports - proof of financial responsibility.
- Every licensee shall maintain records in conformity with this code, rules adopted thereunder, and generally accepted accounting principles and practices in a manner that will enable the administrator to determine whether the licensee is complying with the provisions of this code. The record-keeping system of a licensee shall be sufficient if the licensee makes the required information reasonably available. The records need not be kept in the place of business where supervised loans are made if the administrator is given free access to the records wherever located. The records pertaining to any loan need not be preserved for more than four years after making the final entry relating to the loan, but, in the case of a revolving loan account, the four years is measured from the date of each entry.
- On or before June 1 of each year, every licensee shall file with the administrator an annual report in the form prescribed by the administrator relating to all supervised loans made by the licensee, which report shall also demonstrate satisfactory proof of the licensee's financial responsibility. At all other times, the licensee shall maintain satisfactory proof of financial responsibility. The administrator shall consult with comparable officials in other states for the purpose of making the kinds of information required in annual reports uniform among the states. Information contained in annual reports shall be confidential and may be published only in composite form. The administrator may, by rule, determine the types and amounts of financial responsibility deemed to be satisfactory.
- If a licensee fails to file the annual report or proof of financial responsibility by July 1, the administrator may impose a penalty of five dollars per day from July 2 to the date the filing is postmarked. However, if a licensee fails to file and pay the appropriate penalty by July 15, or, at all other times, fails to provide satisfactory proof of financial responsibility within thirty days after receiving notice from the administrator, its license shall automatically expire.
Source: L. 2000: Entire article R&RE, p. 1211, § 1, effective July 1. L. 2003: (2) and (3) amended, p. 1893, § 4, effective July 1.
Editor's note: This section is similar to former § 5-3-505, as it existed prior to 2000.
5-2-305. Examinations and investigations.
- The administrator shall examine periodically, at intervals the administrator deems appropriate, the loans, business, and records of every licensee. In addition, for the purpose of discovering violations of this code or securing information lawfully required, the administrator or, in lieu thereof, the official or agency to whose supervision the organization is subject pursuant to section 5-6-105, may at any time investigate the loans, business, and records of any supervised lender or any supervised financial organization. For these purposes the administrator shall have free and reasonable access to the offices, places of business, and records of the lender.
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- If the lender's records are located outside this state, the lender shall, at the lender's option, either make them available to the administrator at a convenient location within this state or pay the reasonable and necessary expenses for the administrator or the administrator's representative to examine them at the place where they are maintained; except that the lender shall make the records available for examination at the administrator's office or at any other location the administrator deems appropriate, at the cost of the lender, if the administrator determines that the examination of the records at the location where the records are maintained endangers the safety of the administrator's representative or that there are not adequate facilities at the location where the records are maintained to conduct the examination. The administrator may designate representatives, including comparable officials of the state in which the records are located, to inspect them on the administrator's behalf.
- The administrator may require any lender whose records are located within the state to make its records available for examination at the administrator's office or at any other location the administrator deems appropriate at the cost of the lender if the administrator determines that the examination of the records at the location where the records are maintained endangers the safety of the administrator's representative or that there are not adequate facilities at the location where the records are maintained to conduct the examination.
- For the purposes of this section, the administrator may administer oaths or affirmations, and, upon the administrator's own motion or upon request of any party, may subpoena witnesses, compel their attendance, adduce evidence, and require the production of any matter that is relevant to the investigation, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts or any other matter reasonably calculated to lead to the discovery of admissible evidence.
- Upon failure without lawful excuse to obey a subpoena or to give testimony, the administrator may apply to the district court in the city and county of Denver for an order compelling compliance.
- After the administrator has examined a licensee pursuant to this section, the administrator shall provide a report of the examination to the licensee and request the licensee to take the corrective action required therein. The licensee shall, within a time and manner as fixed by the administrator, take the corrective action required in the report and provide proof that the corrective action was taken. The corrective action required may include refunds of excess charges and corrections of disclosures required by this code. This subsection (5) does not require the administrator to allow a licensee to take corrective action prior to the administrator filing legal or administrative action for repeated or willful violations of this code.
Source: L. 2000: Entire article R&RE, p. 1211, § 1, effective July 1.
Editor's note: This section is similar to former § 5-3-506, as it existed prior to 2000.
5-2-306. Administrative procedures - applicability.
Except as otherwise provided, the provisions of sections 24-4-102 to 24-4-106, C.R.S., apply to and govern all rules promulgated and all administrative action taken by the administrator pursuant to this code; except that section 24-4-104 (3), C.R.S., shall not apply to any such action.
Source: L. 2000: Entire article R&RE, p. 1213, § 1, effective July 1.
Editor's note: This section is similar to former § 5-3-507, as it existed prior to 2000.
5-2-307. Judicial review.
Any person aggrieved by any final action or order of the administrator and affected thereby is entitled to a review thereof by the court of appeals by appropriate proceedings under section 24-4-106 (11), C.R.S.
Source: L. 2000: Entire article R&RE, p. 1213, § 1, effective July 1.
Editor's note: This section is similar to former §§ 5-6-107 and 5-6-108, as they existed prior to 2000.
5-2-308. Regular schedule of payments - maximum loan term.
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Supervised loans not made pursuant to a revolving credit account and in which the principal is three thousand dollars or less shall be scheduled to be payable in substantially equal installments at equal periodic intervals except to the extent that the
schedule of payments is adjusted to the seasonal or irregular income of the debtor and:
- Over a period of not more than thirty-seven months if the principal is more than one thousand dollars; or
- Over a period of not more than twenty-five months if the principal is one thousand dollars or less.
Source: L. 2000: Entire article R&RE, p. 1213, § 1, effective July 1.
Editor's note: This section is similar to former § 5-3-511, as it existed prior to 2000.
5-2-309. Conduct of business other than making loans.
A supervised lender may not carry on any other business for the purpose of evasion or violation of this code nor may the supervised lender extend credit on the condition or requirement that the consumer obtain additional credit, goods, or services from the supervised lender or a person related to the supervised lender unless otherwise permitted by law.
Source: L. 2000: Entire article R&RE, p. 1213, § 1, effective July 1.
Editor's note: This section is similar to former § 5-3-512, as it existed prior to 2000.
Cross references: For regulation of pawnbrokers, see article 56 of title 12.
5-2-310. Application of other provisions.
Except as otherwise provided, all provisions of this code applying to consumer loans apply to supervised loans.
Source: L. 2000: Entire article R&RE, p. 1213, § 1, effective July 1.
Editor's note: This section is similar to former § 5-3-513, as it existed prior to 2000.
PART 4 (Reserved)
PART 5 OTHER CREDIT TRANSACTIONS
5-2-501. Transactions subject to code by agreement of parties.
The parties to a transaction other than a consumer credit transaction may agree in a writing signed by the parties that the transaction is subject to the provisions of this code. If the parties so agree, the transaction is a consumer credit transaction for the purposes of this code.
Source: L. 2000: Entire article R&RE, p. 1213, § 1, effective July 1.
Editor's note: This section is similar to former § 5-3-601, as it existed prior to 2000.
5-2-502. Finance charge for other transactions.
With respect to a transaction that is specifically exempt from the rate ceilings of this code by the provisions of section 5-1-301 (15)(c), the parties may contract for the payment by the consumer of any finance charge up to a rate not to exceed an annual percentage rate of forty-five percent pursuant to section 18-15-104, C.R.S. The rate of the finance charge shall be calculated on the unpaid balances of the debt on the assumption that the debt will be paid according to its terms and will not be paid before the end of the agreed term.
Source: L. 2000: Entire article R&RE, p. 1214, § 1, effective July 1.
Editor's note: This section is similar to former § 5-3-605, as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "The Colorado Equity Protection Act: A Response to Predatory Lending Practices", see 32 Colo. Law. 79 (April 2003).
ARTICLE 3 REGULATION OF AGREEMENTS AND PRACTICES
Editor's note: This article was numbered as article 3 of chapter 73, C.R.S. 1963. This title was repealed and reenacted in 1971, and this article was subsequently repealed and reenacted in 2000, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 2000, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume and the editor's note following the title heading. Former C.R.S. section numbers are shown in editor's notes following those sections that were relocated. For a detailed comparison of this article, see the comparative tables located in the back of the index.
Section
PART 1 DISCLOSURES, NOTICES, RECORDS, AND ADVERTISING
5-3-101. Applicability - information required.
- For purposes of this section, a consumer credit transaction includes a transaction secured primarily by an interest in land without regard to the rate of the finance charge if the consumer credit transaction is otherwise a consumer credit transaction.
- The creditor shall disclose to the consumer to whom credit is extended with respect to a consumer credit transaction the information, disclosures, and notices required by the federal "Truth in Lending Act", the federal "Consumer Leasing Act", and any regulation thereunder.
- The information, disclosures, and notices required by subsection (2) of this section must be provided if the transaction is a consumer credit transaction under this code even though the transaction is one of a class of credit transactions exempted from the federal "Truth in Lending Act", the federal "Consumer Leasing Act", and any regulation thereunder.
Source: L. 2000: Entire article R&RE, p. 1214, § 1, effective July 1. L. 2001: (1) amended, p. 28, § 4, effective March 9.
Editor's note: This section is similar to former § 5-2-301, as it existed prior to 2000.
Cross references: For the definitions and federal statutory cites of the "Truth in Lending Act" and the "Consumer Leasing Act", see § 5-1-302.
5-3-102. Notice of assignment.
The consumer is authorized to pay the original creditor until the consumer receives notification of assignment of rights to payment pursuant to a consumer credit transaction and that payment is to be made to the assignee. A notification that does not reasonably identify the rights assigned is ineffective. If requested by the consumer, the assignee must seasonably furnish reasonable proof that the assignment has been made and unless the assignee does so the consumer may pay the original creditor.
Source: L. 2000: Entire article R&RE, p. 1214, § 1, effective July 1.
Editor's note: This section is similar to former § 5-3-406, as it existed prior to 2000.
5-3-103. Change in terms of revolving credit accounts.
- If a creditor makes a change in the terms of a revolving account without complying with this section, any additional cost or charge to the consumer resulting from the change is an excess charge and subject to the remedies available to consumers described in section 5-5-202 and to the administrator described in section 5-6-114.
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- Except as otherwise provided in paragraph (b) or (c) of this subsection (2), whenever any term of a revolving credit account is changed or the required minimum periodic payment thereon is increased, the creditor shall mail or deliver written notice of the change, at least one billing cycle before the effective date of the change, to each consumer who may be affected by the change.
- The notice required by paragraph (a) of this subsection (2) shall be given in advance, but need not be given one billing cycle in advance, if the change has been agreed to by the consumer or if the change is an increase in a finance charge, periodic rate, or other charge permitted under section 5-2-202 as a result of the consumer's delinquency or default.
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The notice otherwise required by paragraph (a) of this subsection (2) is not required if the change:
- Results from the consumer's delinquency or default but is not of a kind listed in paragraph (b) of this subsection (2);
- Results from an agreement related to a court proceeding or arbitration;
- Is a reduction of any charge or component thereof; or
- Is a suspension of future credit privileges or termination of a consumer credit transaction.
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The notice provisions of subsection (2) of this section shall not apply if:
- The consumer, after receiving notice in writing of the specific change, agrees in writing to the change;
- The consumer elects to pay an amount designated on a billing statement as including a new charge for a benefit offered to the consumer when the benefit and charge constitutes the change in terms and when the billing statement also states the amount payable if the new charge is excluded;
- The change involves no significant cost to the consumer; or
- The agreement provides limitations on changing of terms that are more restrictive than the requirements of subsection (2) of this section.
- The notice provided for in this section is given to the consumer when mailed to the consumer at the address used by the creditor for sending periodic billing statements.
Source: L. 2000: Entire article R&RE, p. 1214, § 1, effective July 1.
Editor's note: This section is similar to former § 5-2-416, as it existed prior to 2000.
5-3-104. Receipts - statements of account - evidence of payment.
- The creditor shall deliver or mail to the consumer, without request, a written receipt for each payment by coin or currency on an obligation pursuant to a consumer credit transaction. A periodic statement showing a payment received by the creditor complies with this subsection (1).
- Upon written request of a consumer, the creditor of a consumer credit transaction, other than one pursuant to a revolving credit account, shall provide a written statement of the dates and amounts of payments made within the twelve months preceding the month in which the request is received and the total amount unpaid as of the end of the period covered by the statement. The statement shall be provided without charge twice during each year of the term of the obligation. If additional statements are requested, the creditor may charge not more than ten dollars for each additional statement.
- Within thirty days after a consumer has fulfilled all obligations with respect to a consumer credit transaction, other than one pursuant to a revolving credit account, the creditor shall deliver or mail to the consumer written evidence acknowledging payment in full of all obligations with respect to the transaction and written evidence of release of any security interest and termination of any financing statement held, retained, or acquired.
Source: L. 2000: Entire R&RE, p. 1216, § 1, effective July 1.
Editor's note: This section is similar to former § 5-5-110, as it existed prior to 2000.
5-3-105. Notice to cosigners and similar parties.
- No natural person, other than the spouse of the consumer, shall be obligated as a cosigner, comaker, guarantor, endorser, surety, or similar party with respect to a consumer credit transaction, unless before or contemporaneously with signing any agreement of obligation or any writing setting forth the terms of the consumer's agreement, the person receives a written notice that contains a completed identification of the debt he or she may have to pay and reasonably informs such person of his or her obligation with respect to it. Such written notice may be set forth in the consumer's agreement of obligation or in a separate writing. For purposes of this section, the word "cosigner", "comaker", "guarantor", "endorser", or "surety" means a natural person who, by agreement and without compensation, renders himself or herself liable for the obligation of another in a consumer credit transaction, and the terms "agreement" and "consumer's agreement" mean the original underlying agreement.
- The notice required by this section must be clear and conspicuous notice and comply with the disclosure requirements of 16 CFR 444.3, 12 CFR 227.14, or 12 CFR 535.3.
- The notice required by this section need not be given to a seller, lessor, or lender who is obligated to an assignee of his or her rights.
- A person entitled to notice pursuant to this section shall also be given a copy of any writing setting forth the terms of the consumer's agreement and of any separate agreement of obligation signed by the person entitled to the notice.
- A cosignor is entitled to a notice of right to cure pursuant to sections 5-5-110 (4) and 5-5-111 (3).
Source: L. 2000: Entire article R&RE, p. 1216, § 1, effective July 1.
Editor's note:
- This section is similar to former § 5-5-109, as it existed prior to 2000.
- Although this section was effective July 1, 2000, section 5 of chapter 265, Session Laws of Colorado 2000, provides that the disclosures described in subsection (5) are effective January 1, 2001.
5-3-106. Disclosures for real estate secured consumer credit transactions.
- With respect to a real estate secured consumer credit transaction payable in installments, other than one pursuant to a revolving credit account, if the creditor credits payments made after the due date as of the date of receipt rather than the date payment was due, the creditor must clearly and conspicuously disclose to the consumer at or before the time that credit is extended the effect of untimely payments using language in substantially the following form:
- A creditor that makes or arranges for extensions of consumer loans secured by a dwelling and that uses credit scores for that purpose shall, upon request of the consumer, provide to the consumer to whom the credit report relates, as soon as practicable and reasonable, but in a period not to exceed thirty days, a copy of the information specifically required to be disclosed pursuant to section 5-18-107 (1) in a form obtained from a consumer reporting agency as defined in section 5-18-103 (4). The creditor may charge a reasonable fee for making such information available to the consumer and such charge shall be an additional charge within the meaning of section 5-2-202 and not part of the finance charge.
-
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Nothing in subsection (2) of this section shall require the creditor to:
- Explain to the consumer the information specifically required to be disclosed pursuant to section 5-18-107 (1);
- Disclose any information other than the information required pursuant to subsection (2) of this section;
- Disclose any credit score or related information obtained by the creditor after the transaction occurs; or
- Provide more than one disclosure to any one consumer per credit transaction.
- The creditor's obligation pursuant to subsection (2) of this section and this subsection (3) shall be limited to providing a copy of the information that was received from a consumer reporting agency, as defined in section 5-18-103 (4). A creditor who uses a credit score has no liability under this subsection (3) or subsection (2) of this section for the content of the credit score information received from a consumer reporting agency or from the omission of any information within the report provided by the consumer reporting agency.
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Nothing in subsection (2) of this section shall require the creditor to:
"The dollar amount of the finance charge disclosed to you for this credit transaction is based upon your payments being received by the creditor on the date payments are due. If your payments are received after the due date, even if received before the date a late fee applies, you may owe additional and substantial money at the end of the credit transaction and there may be little or no reduction of principal. This is due to the accrual of daily interest until a payment is received."
Source: L. 2000: Entire article R&RE, p. 1217, § 1, effective July 1. L. 2001: Entire section amended, p. 28, § 5, effective March 9. L. 2002: Entire section amended, p. 647, § 3, effective July 1, 2003. L. 2003: (1) amended, p. 1893, § 5, effective July 1. L. 2017: (2), (3)(a)(I), and (3)(b) amended, (HB 17-1238), ch. 260, p. 1170, § 7, effective August 9.
Editor's note: Although this section was effective July 1, 2000, section 5 of chapter 265, Session Laws of Colorado 2000, provides that the disclosures described in this section are effective January 1, 2001.
5-3-107. Disclosures for consumer credit sale secured by a motor vehicle.
If the property that secures a consumer credit sale includes a motor vehicle and the written agreement does not provide for automobile liability insurance, the following clause shall be in the written agreement in capital letters and bold-face type: "THIS CONTRACT DOES NOT PROVIDE FOR AUTOMOBILE LIABILITY INSURANCE, AND SAID BUYER ALSO STATES THAT HE OR SHE HAS/DOES NOT HAVE (strike words not applicable) IN EFFECT AN AUTOMOBILE LIABILITY POLICY AS DEFINED IN SECTION 42-7-103 (2), COLORADO REVISED STATUTES, ON THE MOTOR VEHICLE SOLD BY THIS CONTRACT."
Source: L. 2000: Entire article R&RE, p. 1217, § 1, effective July 1. L. 2009: Entire section amended, (SB 09-292), ch. 369, p. 1939, § 4, effective August 5.
5-3-108. Written agreement required.
No consumer credit transaction shall be valid or enforceable in this state unless its terms are contained in a written agreement and a copy is provided to the consumer at or before the time credit is extended. A creditor may provide the copy to the consumer in a form other than paper upon the consumer's written authorization.
Source: L. 2000: Entire article R&RE, p. 1217, § 1, effective July 1.
ANNOTATION
Law reviews. For article, "Colorado Usury", see 11 Colo. Law. 2557 (1982). For article, "Colorado Usury: The Sequel - Parts I and 2", see 23 Colo. Law. 565 and 829 (1994).
Applied in D.E.B. Adjustment Co. v. Cawthorne, 623 P.2d 82 (Colo. App. 1981) (decided prior to 2000 repeal and reenactment).
5-3-109. Records.
Every creditor shall maintain records in conformity with this code, rules adopted thereunder, and generally accepted accounting principles and practices in a manner that will establish that the creditor is complying with the provisions of this code. The record-keeping system of a creditor shall be sufficient if the creditor makes the required information reasonably available. The records pertaining to any credit transaction need not be preserved for more than four years after making the final entry relating to the transaction, but, in the case of a revolving credit account, the four years is measured from the date of each entry.
Source: L. 2000: Entire article R&RE, p. 1217, § 1, effective July 1.
5-3-110. Advertising.
- A creditor may not advertise, print, display, publish, distribute, broadcast, transmit or cause to be advertised, printed, displayed, published, distributed, broadcast, or transmitted in any manner any false, misleading, or deceptive statement or representation with regard to the rates, terms, or conditions of credit of a consumer credit transaction.
- This section imposes no liability on the owner or personnel, as such, of any medium in which an advertisement appears or through which it is disseminated.
- Advertising that complies with the federal "Truth in Lending Act" and the federal "Consumer Leasing Act" does not violate this section.
Source: L. 2000: Entire article R&RE, p. 1217, § 1, effective July 1.
Editor's note: This section is similar to former §§ 5-2-312 and 5-2-313, as they existed prior to 2000.
Cross references: For the definitions and federal statutory cites of the "Truth in Lending Act" and the "Consumer Leasing Act", see § 5-1-302.
5-3-111. Use of credit scores.
Any provision in a contract that prohibits the disclosure of a credit score by a consumer reporting agency or a person who makes or arranges loans secured by a dwelling is void. For the purposes of this section, "dwelling" means a residential structure that contains one to four units, whether or not that structure is attached to real property. The term includes an individual condominium unit, cooperative unit, mobile home, or trailer, if it is used as a residence.
Source: L. 2002: Entire section added, p. 648, § 4, effective July 1, 2003.
PART 2 LIMITATIONS ON AGREEMENTS AND PRACTICES
5-3-201. Security in sales or leases.
- With respect to a consumer credit sale, a creditor may take a security interest in the property sold. In addition, a creditor may take a security interest in goods upon which services are performed or to which goods sold are annexed, or in land to which the goods are affixed or that is maintained, repaired, or improved as a result of the sale of the goods or services, if in the case of a security interest in land the debt secured is three thousand dollars or more, or in the case of a security interest in goods the debt secured is one thousand dollars or more. Except as provided with respect to cross-collateral described in section 5-3-202, a creditor may not otherwise take a security interest in property of the consumer to secure the debt arising from a consumer credit sale.
- With respect to a consumer lease, a creditor may not take a security interest in property of the consumer to secure the debt arising from the lease. This subsection (2) does not apply to a security deposit for a consumer lease.
- A security interest taken in violation of this section is void.
Source: L. 2000: Entire article R&RE, p. 1218, § 1, effective July 1.
Editor's note: This section is similar to former § 5-2-407, as it existed prior to 2000.
5-3-202. Cross-collateral.
- In addition to contracting for a security interest pursuant to the provisions on security in sales or leases contained in section 5-3-201, a seller in a consumer credit sale may secure the debt arising from the sale by contracting for a security interest in other property if as a result of a prior sale the seller has an existing security interest in the other property. The seller may also contract for a security interest in the property sold in the subsequent sale as security for the previous debt.
- If the seller contracts for a security interest in other property pursuant to this section, the rate of finance charge thereafter on the aggregate unpaid balances so secured may not exceed that permitted if the balances so secured were consolidated pursuant to the provisions on consolidation involving a refinancing contained in section 5-2-205 (1). The seller has a reasonable time after so contracting to make any adjustments required by this section. "Seller" in this section does not include an assignee not related to the original seller.
Source: L. 2000: Entire article R&RE, p. 1218, § 1, effective July 1.
Editor's note: This section is similar to former § 5-2-408, as it existed prior to 2000.
5-3-203. Debt secured by cross-collateral.
- If debts arising from two or more consumer credit sales, other than sales pursuant to a revolving credit account, are secured by cross-collateral or consolidated into one debt payable on a single schedule of payments and the debt is secured by security interests taken with respect to one or more of the sales, payments received by the seller after the taking of the cross-collateral or the consolidation are deemed, for the purpose of determining the amount of the debt secured by the various security interests, to have been applied first to the payment of the debts arising from the sales first made. To the extent debts are paid according to this section, security interests in items of property terminate as the debts originally incurred with respect to each item are paid.
- Payments received by the seller upon a revolving credit account are deemed, for the purpose of determining the amount of the debt secured by the various security interests, to have been applied first to the payment of finance charges in the order of their entry to the account and then to the payment of debts in the order in which the entries to the account showing the debts were made.
- If the debts consolidated arose from two or more sales made on the same day, payments received by the seller are deemed, for the purpose of determining the amount of the debt secured by the various security interests, to have been applied first to the payment of the smallest debt.
Source: L. 2000: Entire article R&RE, p. 1219, § 1, effective July 1.
Editor's note: This section is similar to former § 5-2-409, as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "State Variations of the Uniform Consumer Credit Code: The Case for Legislative Restraint", see 48 Den. L.J. 239 (1971).
5-3-204. Restrictions on interest in land as security.
- With respect to a consumer loan in which the amount financed is three thousand dollars or less, a lender may not contract for an interest in land as security. A security interest taken in violation of this section is void.
- For the purposes of this section, on revolving credit accounts, the amount financed shall be determined by the limit in the amount of credit made available to or for the account of the consumer if that limit is established by an express written agreement by the lender and if the lender does not retain the right to unilaterally reduce that credit limit, except in the event of default.
Source: L. 2000: Entire article R&RE, p. 1219, § 1, effective July 1.
Editor's note: This section is similar to former § 5-3-510, as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "An Overview of Home Equity as Security for a Line of Credit", see 14 Colo. Law. 226 (1985).
5-3-205. Use of multiple agreements.
A creditor may not use multiple agreements with respect to a single consumer credit transaction for the purpose of obtaining a higher finance charge than would otherwise be permitted by this code or to avoid disclosure of an annual percentage rate pursuant to the provisions on disclosure and advertising. Dividing a single consumer credit transaction between a husband and wife shall be presumed to be a violation of this section. The excess amount of finance charge provided for in agreements in violation of this section is an excess charge for the purposes of the provisions on the effect of violations on rights of parties contained in section 5-5-201 and the provisions on civil actions by the administrator contained in section 5-6-114.
Source: L. 2000: Entire article R&RE, p. 1219, § 1, effective July 1.
Editor's note: This section is similar to former §§ 5-2-402 and 5-3-409, as they existed prior to 2000.
ANNOTATION
Law reviews. For article, "State Variations of the Uniform Consumer Credit Code: The Case for Legislative Restraint", see 48 Den. L.J. 239 (1971).
5-3-206. No assignment of earnings.
- A creditor may not take an assignment of earnings of the consumer for payment or as security for payment of a debt arising out of a consumer credit transaction. An assignment of earnings in violation of this section is unenforceable by the assignee of the earnings and revocable by the consumer.
- A sale of unpaid earnings made in consideration of the payment of money to or for the account of the seller of the earnings is deemed to be a loan to him or her secured by an assignment of earnings.
Source: L. 2000: Entire article R&RE, p. 1220, § 1, effective July 1.
Editor's note: This section is similar to former §§ 5-2-410 and 5-3-403, as they existed prior to 2000.
5-3-207. Authorization to confess judgment prohibited.
A consumer may not authorize any person to confess judgment on a claim arising out of a consumer credit transaction. An authorization in violation of this section is void.
Source: L. 2000: Entire article R&RE, p. 1220, § 1, effective July 1.
Editor's note: This section is similar to former §§ 5-2-415 and 5-3-407, as they existed prior to 2000.
5-3-208. Balloon payments.
With respect to a consumer credit transaction other than one pursuant to a revolving credit account, if any scheduled payment is more than twice as large as the average of all other regularly scheduled payments, the consumer has the right to refinance the amount of that payment at the time it is due at the creditor's prevailing rates for such type of transaction if the consumer meets the creditor's normal credit standards and if the creditor is, at that time, in the business of making such transactions. The creditor shall disclose this right in writing to the consumer at the time the transaction is entered into. These provisions do not apply to the extent that the payment schedule is adjusted to the seasonal or irregular income of the consumer. This section shall not apply to a transaction of a class defined by rule of the administrator promulgated in accordance with article 4 of title 24, C.R.S., as not requiring for the protection of the consumer his or her right to refinance as provided in this section.
Source: L. 2000: Entire article R&RE, p. 1220, § 1, effective July 1.
Editor's note: This section is similar to former §§ 5-2-405 and 5-3-402, as they existed prior to 2000.
ANNOTATION
Law reviews. For article, "State Variations of the Uniform Consumer Credit Code: The Case for Legislative Restraint", see 48 Den. L.J. 239 (1971).
5-3-209. Referral sales.
With respect to a consumer credit sale or consumer lease, the seller or lessor may not give or offer to give a rebate or discount or otherwise pay or offer to pay value to the consumer as an inducement for a sale or lease in consideration of the consumer giving to the seller or lessor the names of prospective purchasers or lessees, or otherwise aiding the seller or lessor in making a sale or lease to another person, if the earning of the rebate, discount, or other value is contingent upon the occurrence of an event subsequent to the time the consumer agrees to buy or lease. If a consumer is induced by a violation of this section to enter into a consumer credit sale or consumer lease, the agreement is unenforceable by the seller or lessor and the consumer, at his or her option, may rescind the agreement or retain the goods delivered and the benefit of any services performed without any obligation to pay for them.
Source: L. 2000: Entire article R&RE, p. 1220, § 1, effective July 1.
Editor's note: This section is similar to former § 5-2-411, as it existed prior to 2000.
5-3-210. Discrimination prohibited - exemption.
A consumer credit transaction regulated by this code shall not be denied any person, nor shall terms and conditions be made more stringent, on the basis of discrimination, solely because of disability, race, creed, religion, color, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry. This section does not apply to any consumer credit transaction made or denied by a seller, lessor, or lender whose total original unpaid balances arising from consumer credit transactions for the previous calendar year are less than one million dollars.
Source: L. 2000: Entire article R&RE, p. 1220, § 1, effective July 1. L. 2008: Entire section amended, p. 1598, § 10, effective May 29. L. 2021: Entire section amended, (HB 21-1108), ch. 156, p. 889, § 10, effective September 7.
Editor's note: This section is similar to former § 5-1-109, as it existed prior to 2000.
Cross references: (1) For civil liability for discrimination, see § 5-5-206; for discrimination generally, see article 34 of title 24.
(2) For the legislative declaration contained in the 2008 act amending this section, see section 1 of chapter 341, Session Laws of Colorado 2008.
(3) For the legislative declaration in HB 21-1108, see section 1 of chapter 156, Session Laws of Colorado 2021.
PART 3 LIMITATIONS ON CONSUMERS' LIABILITIES
5-3-301. Restriction on liability in consumer lease.
The obligation of a lessee upon expiration of a consumer lease, may not exceed twice the average payment allocable to a monthly period under the lease. This limitation does not apply to charges for damages to the leased property or for other default.
Source: L. 2000: Entire article R&RE, p. 1221, § 1, effective July 1.
Editor's note: This section is similar to former § 5-2-406, as it existed prior to 2000.
5-3-302. Limitation on default charges.
Except for reasonable expenses incurred in realizing on a security interest, the agreement with respect to a consumer credit transaction may not provide for charges as a result of default by the consumer other than those authorized by this code. A provision in violation of this section is unenforceable.
Source: L. 2000: Entire article R&RE, p. 1221, § 1, effective July 1.
Editor's note: This section is similar to former §§ 5-2-414 and 5-3-405, as they existed prior to 2000.
ANNOTATION
Because this section provides that only those charges allowable elsewhere under the UCCC plus reasonable expenses in realizing a security interest are permissible as default charges, higher default interest on a note is unenforceable. First Nat. Bank v. Union Tavern Corp., 794 P.2d 261 (Colo. App. 1990) (decided prior to 2000 repeal and reenactment).
5-3-303. Assignee subject to claims and defenses.
- With respect to a consumer credit sale or consumer lease, an assignee of the rights of the seller or lessor is subject to all claims and defenses of the buyer against the seller or lessor arising from the sale or lease of goods or services, notwithstanding that the assignee is a holder in due course of a negotiable instrument issued in connection with the consumer credit sale or consumer lease.
- A claim or defense of a consumer specified in subsection (1) of this section may be asserted against the assignee under this section only to the extent of the amount owing to the assignee with respect to the sale or lease of the goods or services as to which the claim or defense arose at the time the assignee has written notice of the claim or defense.
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For the purpose of determining the amount owing to the assignee with respect to the sale or lease:
- Payments received by the assignee after the consolidation of two or more consumer credit sales, except pursuant to a revolving credit account, are deemed to have been first applied to the payment of the sales first made; if the sales consolidated arose from sales made on the same day, payments are deemed to have been first applied to the smallest sale; and
- Payments received upon a revolving credit account are deemed to have been first applied to the payment of finance charges in the order of their entry to the account and then to the payment of debts in the order in which the entries of the debts are made to the account.
- An agreement may not limit or waive the claims or defenses of a consumer under this section.
Source: L. 2000: Entire article R&RE, p. 1221, § 1, effective July 1.
Editor's note: This section is similar to former § 5-2-403, as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "State Variations of the Uniform Consumer Credit Code: The Case for Legislative Restraint", see 48 Den. L.J. 239 (1971).
5-3-304. Use of account - constructive assent to terms.
The use of a revolving credit account by a consumer, or by any person authorized by the consumer, constitutes the consumer's acceptance of the creditor's offer of credit and creates a binding contract on the creditor's terms then in effect. Such terms may be modified in the future as agreed by the parties and subject to the requirements of this article, including, but not limited to, the notice requirements of section 5-3-103.
Source: L. 2000: Entire article R&RE, p. 1222, § 1, effective July 1.
Editor's note: This section is similar to former §§ 5-2-417 and 5-3-411, as they existed prior to 2000.
5-3-305. Advance payment to reserve lodging and motor vehicle rental services - notice to consumer required.
If a deposit, reservation fee, or other advance payment is to be charged to a revolving credit account for lodging or motor vehicle rental services to be provided in the future in this state, the seller shall not charge such advance payment to the consumer's account without first notifying the consumer, either orally or in writing, and giving the consumer the opportunity to reject the services.
Source: L. 2000: Entire article R&RE, p. 1222, § 1, effective July 1.
Editor's note: This section is similar to former § 5-2-418, as it existed prior to 2000.
PART 4 HOME SOLICITATION SALES
5-3-401. Definitions - "home solicitation sale".
"Home solicitation sale" means a consumer credit sale of goods or services in which the seller or a person acting for the seller personally solicits the sale and the buyer's agreement or offer to purchase is given to the seller or a person acting for the seller at a residence. It does not include a sale made pursuant to a preexisting revolving credit account, a sale made pursuant to prior negotiations between the parties at a business establishment at a fixed location where goods or services are offered or exhibited for sale, a transaction conducted and consummated entirely by mail or telephone, or a sale that is subject to the provisions of the federal "Truth in Lending Act" on the consumer's right to rescind certain transactions.
Source: L. 2000: Entire article R&RE, p. 1222, § 1, effective July 1.
Editor's note: This section is similar to former § 5-2-501, as it existed prior to 2000.
Cross references: For the definition and federal statutory cite of the "Truth in Lending Act", see § 5-1-302.
5-3-402. Buyer's right to cancel.
- Except as provided in subsection (5) of this section, in addition to any right otherwise to revoke an offer, the buyer has the right to cancel a home solicitation sale until midnight of the third business day after the day on which the buyer signs an agreement or offer to purchase that complies with this part 4.
- Cancellation occurs when the buyer gives written notice of cancellation to the seller at the address stated in the agreement or offer to purchase.
- Notice of cancellation, if given by mail, is given when it is deposited in a mail box properly addressed and postage prepaid.
- Notice of cancellation given by the buyer need not take a particular form and is sufficient if it indicates by any form of written expression the intention of the buyer not to be bound by the home solicitation sale.
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The buyer may not cancel a home solicitation sale if, by separate dated and signed statement that is not as to its material provisions a printed form and describes an emergency requiring immediate remedy, the buyer requests the seller to provide goods
or services without delay in order to safeguard the health, safety, or welfare of natural persons or to prevent damage to property the buyer owns or for which the buyer is responsible, and:
- The seller in good faith makes a substantial beginning of performance of the contract before the buyer gives notice of cancellation; and
- In the case of goods, the goods cannot be returned to the seller in substantially as good condition as when received by the buyer.
Source: L. 2000: Entire article R&RE, p. 1222, § 1, effective July 1.
Editor's note: This section is similar to former § 5-2-502, as it existed prior to 2000.
5-3-403. Form of agreement or offer - statement of buyer's rights.
- In a home solicitation sale, unless the buyer requests the seller to provide goods or services without delay in an emergency, the seller must present to the buyer, and obtain his signature to, a written agreement or offer to purchase that designates as the date of the transaction the date on which the buyer actually signs and contains a statement of the buyer's rights that complies with subsection (2) of this section. A copy of any writing required by this subsection (1) to be signed by the buyer, completed at least as to the date of the transaction and the name and mailing address of the seller, shall be given to the buyer at the time the buyer signs the writing.
- The statement shall comply with any notice of cancellation or a similar requirement of any trade regulation rule of the federal trade commission that by its terms applies to the home solicitation sale.
- Until the seller has complied with this section, the buyer may cancel the home solicitation sale by notifying the seller in any manner and by any means of the buyer's intention to cancel; except that the buyer's right of cancellation shall expire three years after the date of the consummation of the home solicitation sale, notwithstanding the fact that the seller has not complied with this part 4.
Source: L. 2000: Entire article R&RE, p. 1223, § 1, effective July 1.
Editor's note: This section is similar to former § 5-2-503, as it existed prior to 2000.
5-3-404. Restoration of down payment.
- Within ten days after a notice of cancellation has been received by the seller or an offer to purchase has been otherwise revoked, the seller shall tender to the buyer any payments made by the buyer, any note or other evidence of indebtedness, and any goods traded in. A provision permitting the seller to keep all or any part of any goods traded in, payment, note, or other evidence of indebtedness is in violation of this section and unenforceable.
- If the down payment includes goods traded in, the goods shall be tendered in substantially as good condition as when received by the seller. If the seller fails to tender the goods as provided by this section, the buyer may elect to recover an amount equal to the trade-in allowance stated in the agreement.
- Until the seller has complied with the obligations imposed by this section, the buyer may retain possession of goods delivered to the buyer by the seller and has a lien on the goods in the buyer's possession or control for any recovery to which the buyer is entitled.
Source: L. 2000: Entire article R&RE, p. 1223, § 1, effective July 1.
Editor's note: This section is similar to former § 5-2-504, as it existed prior to 2000.
5-3-405. Duty of buyer - no compensation for services prior to cancellation.
- Except as provided by the provisions on retention of goods by the buyer contained in section 5-3-404 (3) and allowing for ordinary wear and tear or consumption of the goods contemplated by the transaction, within a reasonable time after a home solicitation sale has been canceled or an offer to purchase revoked, the buyer upon demand must tender to the seller any goods delivered by the seller pursuant to the sale, but the buyer is not obligated to tender at any place other than the buyer's residence. If the seller fails to demand possession of goods within a reasonable time after cancellation or revocation, the goods become the property of the buyer without obligation to pay for them. For the purpose of this section, forty days is presumed to be a reasonable time.
- The buyer has a duty to take reasonable care of the goods in his or her possession before cancellation or revocation and for a reasonable time thereafter during which time the goods are otherwise at the seller's risk.
- If a home solicitation sale is canceled, the seller is not entitled to compensation for any services the seller performed pursuant to it.
Source: L. 2000: Entire article R&RE, p. 1224, § 1, effective July 1.
Editor's note: This section is similar to former § 5-2-505, as it existed prior to 2000.
PART 5 CONSUMER INSURANCE PREMIUM FINANCING
5-3-501. Scope.
The provisions of this part 5 apply to consumer insurance premium loans.
Source: L. 2000: Entire article R&RE, p. 1224, § 1, effective July 1.
Editor's note: This section is similar to former § 5-7-101, as it existed prior to 2000.
5-3-502. Form of insurance premium loan agreement.
An agreement pursuant to which a consumer insurance premium loan is made shall contain the names of the insurance agent or broker negotiating each policy or contract and of the insurer issuing each policy or contract, the number and inception date of and premium for each policy or contract, the date on which the term of the loan begins, and a clear and conspicuous notice that each policy or contract may be canceled if payment is not made in accordance with the agreement. If a policy or contract has not been issued by the time the agreement is signed, the agreement may provide that the insurance agent or broker may insert the appropriate information in the agreement and, if he or she does so, shall furnish the information promptly in writing to the insured.
Source: L. 2000: Entire article R&RE, p. 1224, § 1, effective July 1.
Editor's note: This section is similar to former § 5-7-102, as it existed prior to 2000.
5-3-503. Notice of cancellation.
If a default exists on a consumer insurance premium loan and any right to cure that exists has expired without cure being effected, the lender may give notice of cancellation of each insurance policy or contract to be canceled. If given, the notice of cancellation shall be in writing and given to the insurer who issued the policy or contract and to the insured. The insurer, within two business days after receipt of the notice of cancellation together with a copy of the insurance premium loan agreement if not previously given to the insurer, shall give any notice of cancellation required by the policy, contract, or law and, within ten business days after the effective date of the cancellation, pay to the lender any premium unearned on the policy or contract as of that effective date. Within ten business days after receipt of the unearned premium, the lender shall pay to the consumer indebted upon the insurance premium loan any excess of the unearned premium received over the amount owing by the consumer upon the insurance premium loan.
Source: L. 2000: Entire article R&RE, p. 1224, § 1, effective July 1.
Editor's note: This section is similar to former § 5-7-103, as it existed prior to 2000.
ARTICLE 3.1 DEFERRED DEPOSIT LOAN ACT
Law reviews: For article, "Borrowing from Peter to Pay Paul: A Statistical Analysis of Colorado's Deferred Deposit Loan Act", see 83 Den. U.L. Rev. 387 (2005).
Section
5-3.1-101. Short title.
This article shall be known and may be cited as the "Deferred Deposit Loan Act".
Source: L. 2000: Entire article added, p. 439, § 1, effective July 1.
5-3.1-101.5. Legislative declaration.
The people of this state find and declare that payday lenders are charging up to two hundred percent annually for payday loans and that excess charges on such loans can lead Colorado families into a debt trap of repeat borrowing. It is the intent of the people to lower the maximum authorized finance charge for payday loans to an annual percentage rate of thirty-six percent.
Source: Initiated 2018: Entire section added, Proposition 111, L. 2019, p. 4539 , § 1, effective February 1, 2019, proclamation of the Governor issued December 19, 2018.
5-3.1-102. Definitions.
As used in this article, unless the context otherwise requires:
-
"Administrator" means the administrator of the "Uniform Consumer Credit Code".
(1.5) "Annual percentage rate" means an annual percentage rate as determined pursuant to section 107 of the federal "Truth in Lending Act", 15 U.S.C. sec. 1601 et seq. All finance charges shall be included in the calculation of the annual percentage rate.
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"Consumer" means a person other than an organization who is the buyer, lessee, or debtor to whom credit is granted in a consumer credit transaction.
(2.5) "Default" means a consumer's failure to repay a deferred deposit loan in compliance with the terms contained in a deferred deposit loan agreement.
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"Deferred deposit loan" or "payday loan" means a consumer loan whereby the lender, for a fee, finance charge, or other consideration, does the following:
- Accepts a dated instrument from the consumer as sole security for the loan and no other collateral;
- Agrees to hold the instrument for a period of time prior to negotiation or deposit of the instrument; and
- Pays to the consumer, credits to the consumer's account, or pays to another person on the consumer's behalf the amount of the instrument, less finance charges permitted by section 5-3.1-105.
- "Instrument" means a personal check or authorization to transfer or withdraw funds from an account signed by the consumer and made payable to a person subject to this article.
-
- "Lender" means any person who offers or makes a deferred deposit loan, who arranges a deferred deposit loan for a third party, or who acts as an agent for a third party, regardless of whether the third party is exempt from licensing under this article or whether approval, acceptance, or ratification by the third party is necessary to create a legal obligation for the third party, through any method including mail, telephone, internet, or any electronic means.
- Lender includes, but is not limited to, a supervised financial organization as defined in section 5-1-301 (45).
- Notwithstanding that a bank, saving and loan association, credit union, or supervised lender may be exempted by federal law from this code's interest rate, finance charges, and licensure provisions, all other applicable provisions of this code apply to both a deferred deposit loan and a deferred deposit lender.
- "Loan amount" means the amount financed as defined in regulation z of the federal "Truth in Lending Act", 12 CFR 226.18 (b), as amended, or as supplemented by this code, articles 1 to 9 of this title.
Source: L. 2000: Entire article added, p. 439, § 1, effective July 1. L. 2001: (5)(b) amended, p. 29, § 6, effective March 9. L. 2004: (2.5) added and (3) (a) amended, p. 317, § 1, effective July 1. L. 2010: (1.5) added and IP(3) and (5)(a) amended, (HB 10-1351), ch. 267, p. 1221, § 2, effective August 11.
Cross references: For the legislative declaration in the 2010 act adding subsection (1.5) and amending the introductory portion to subsection (3) and subsection (5)(a), see section 1 of chapter 267, Session Laws of Colorado 2010.
5-3.1-103. Written agreement requirements.
Each deferred deposit loan transaction and renewal shall be documented by a written agreement signed by both the lender and consumer. The written agreement shall contain the name of the consumer; the transaction date; the amount of the instrument; the annual percentage rate charged; a statement of the total amount of finance charges charged, expressed both as a dollar amount and an annual percentage rate; and the name, address, and telephone number of any agent or arranger involved in the transaction. In addition, the written agreement shall include all disclosures required by section 5-3-101 (2). The written agreement shall set a date upon which the instrument may be deposited or negotiated. There shall be no maximum loan term or minimum finance charge. The minimum loan term shall be six months from the loan transaction date. The lender shall accept prepayment from a consumer prior to the loan due date and shall not charge the consumer a penalty if the consumer opts to prepay the loan. A lender may hold an instrument and delay completion of the transaction beyond the loan due date without any additional written agreement or new disclosure, but the lender may not charge any additional fees for holding the instrument or delaying the completion of the transaction.
Source: L. 2000: Entire article added, p. 440, § 1, effective July 1. L. 2001: Entire section amended, p. 29, § 7, effective March 9. L. 2003: Entire section amended, p. 1893, § 6, effective July 1. L. 2004: Entire section amended, p. 317, § 2, effective July 1. L. 2010: Entire section amended, (HB 10-1351), ch. 267, p. 1222, § 3, effective August 11.
Cross references: For the legislative declaration in the 2010 act amending this section, see section 1 of chapter 267, Session Laws of Colorado 2010.
5-3.1-104. Notice to consumers.
A lender shall provide the following notice in a prominent place on each loan agreement in at least ten-point type:
A DEFERRED DEPOSIT LOAN IS NOT INTENDED TO MEET LONG-TERM FINANCIAL NEEDS. A DEFERRED DEPOSIT LOAN SHOULD BE USED ONLY TO MEET SHORT-TERM CASH NEEDS. RENEWING THE DEFERRED DEPOSIT LOAN RATHER THAN PAYING THE DEBT IN FULL WILL REQUIRE ADDITIONAL FINANCE CHARGES.
Source: L. 2000: Entire article added, p. 440, § 1, effective July 1.
5-3.1-105. Authorized charges.
A lender may charge a finance charge for each deferred deposit loan or payday loan that must not exceed an annual percentage rate of thirty-six percent. If the loan is prepaid prior to the maturity of the loan term, the lender shall refund to the consumer a prorated portion of the finance charge based upon the ratio of time left before maturity to the loan term. A lender may charge only those charges expressly authorized in this article in connection with a deferred deposit loan or payday loan.
Source: L. 2000: Entire article added, p. 441, § 1, effective July 1. L. 2010: Entire section amended, (HB 10-1351), ch. 267, p. 1222, § 4, effective August 11. Initiated 2018: Entire section amended, Proposition 111, L. 2019, p. 4539 , § 2, effective February 1, 2019, proclamation of the Governor issued December 19, 2018.
Cross references: For the legislative declaration in the 2010 act amending this section, see section 1 of chapter 267, Session Laws of Colorado 2010.
5-3.1-106. Maximum loan amount - right to rescind.
- A lender shall not lend an amount greater than five hundred dollars nor shall the amount financed exceed five hundred dollars by any one lender at any time to a consumer. Nothing in this subsection (1) shall preclude a lender from making more than one loan to a consumer so long as the total amount financed does not exceed five hundred dollars at any one time and there is at least a thirty-day waiting period between loans.
- A consumer shall have the right to rescind the deferred deposit loan on or before 5 p.m. the next business day following the loan transaction.
Source: L. 2000: Entire article added, p. 441, § 1, effective July 1. L. 2004: (1) amended, p. 318, § 3, effective July 1. L. 2010: (1) amended, (HB 10-1351), ch. 267, p. 1223, § 5, effective August 11.
Cross references: For the legislative declaration in the 2010 act amending subsection (1), see section 1 of chapter 267, Session Laws of Colorado 2010.
5-3.1-107. Multiple outstanding transactions notice.
A lender shall provide the following notice in a prominent place on each deferred deposit loan agreement in at least ten-point type:
STATE LAW PROHIBITS DEFERRED DEPOSIT LOANS EXCEEDING FIVE HUNDRED DOLLARS ($500) TOTAL DEBT PLUS APPLICABLE FINANCE CHARGES PERMITTED BY LAW FROM A DEFERRED DEPOSIT LENDER. EXCEEDING THIS AMOUNT MAY CREATE FINANCIAL HARDSHIPS FOR YOU AND YOUR FAMILY. YOU HAVE THE RIGHT TO RESCIND THIS TRANSACTION BY 5 P.M. THE NEXT BUSINESS DAY FOLLOWING THIS TRANSACTION.
Source: L. 2000: Entire article added, p. 441, § 1, effective July 1. L. 2001: Entire section amended, p. 29, § 8, effective March 9.
5-3.1-108. Renewal - new loan - consecutive loans - payment plan - definitions.
- A deferred deposit loan shall not be renewed more than once. After such renewal, the consumer shall pay the debt in cash or its equivalent. If the consumer does not pay the debt, then the lender may deposit the consumer's instrument.
- Upon renewal of a deferred deposit loan or payday loan, the lender may assess a finance charge that must not exceed an annual percentage rate of thirty-six percent. If the deferred deposit loan or payday loan is renewed prior to the maturity date, the lender shall refund to the consumer a prorated portion of the finance charge based upon the ratio of time left before maturity to the loan term.
- A transaction is completed when the lender presents the instrument for payment or the consumer redeems the instrument by paying the full amount of the instrument to the holder. Once the consumer has completed the deferred deposit transaction, the consumer may enter into a new deferred deposit agreement with the lender. If the consumer's instrument is dishonored by the payor financial institution after the transaction is complete and, before the lender receives a notice of dishonor, the lender makes a new loan that does not exceed the maximum allowable loan, the lender shall not be in violation of the maximum loan amount provisions in section 5-3.1-106.
- Nothing in this section prohibits a lender from refinancing a deferred deposit loan as a supervised loan subject to the provision of this code, articles 1 to 9 of this title; except that the lender may not contract for or receive the minimum finance charge contained in section 5-2-201 (7).
- (Deleted by amendment, L. 2010, (HB 10-1351), ch. 267, p. 1223, § 6, effective August 11, 2010.)
Source: L. 2000: Entire article added, p. 441, § 1, effective July 1. L. 2001: (4) amended, p. 29, § 9, effective March 9. L. 2004: (3) amended, p. 318, § 4, effective July 1. L. 2007: (5) added, p. 384, § 1, effective July 1. L. 2010: (2) and (5) amended, (HB 10-1351), ch. 267, p. 1223, § 6, effective August 11. Initiated 2018: (2) amended, Proposition 111, L. 2019, p. 4539 , § 3, effective February 1, 2019, proclamation of the Governor issued December 19, 2018.
Cross references: For the legislative declaration in the 2010 act amending subsections (2) and (5), see section 1 of chapter 267, Session Laws of Colorado 2010.
5-3.1-109. Form of loan proceeds.
A lender may pay the proceeds from a deferred deposit loan to the consumer in the form of a business instrument, money order, cash, stored value card, internet transfer, or authorized automated clearinghouse transaction. The consumer shall not be charged an additional finance charge or fee for cashing the lender's business instrument or for negotiating forms of loan proceeds other than cash.
Source: L. 2000: Entire article added, p. 442, § 1, effective July 1. L. 2004: Entire section amended, p. 318, § 5, effective July 1.
5-3.1-110. Endorsement of instrument.
A lender shall not negotiate or present an instrument for payment unless the instrument is endorsed with the actual business name of the lender.
Source: L. 2000: Entire article added, p. 442, § 1, effective July 1.
5-3.1-111. Redemption of instrument.
Prior to the lender negotiating or presenting the instrument, the consumer shall have the right to redeem any instrument held by a lender as a result of a deferred deposit loan if the consumer pays the full amount of the instrument to the lender.
Source: L. 2000: Entire article added, p. 442, § 1, effective July 1.
5-3.1-112. Authorized dishonored instrument charge.
If an instrument held by a lender as a result of a deferred deposit loan is returned unpaid to the lender from a payor financial institution due to insufficient funds, a closed account, a stop-payment order, or any other reason, not including a bank error, the lender shall have the right to exercise all civil means authorized by law to collect the face value of the instrument; except that the provisions and remedies of section 13-21-109, C.R.S., are not applicable to any deferred deposit loan. In addition, the lender may contract for and collect one returned instrument charge for each deferred deposit loan, not to exceed twenty-five dollars, plus court costs and reasonable attorney fees as awarded by a court and incurred as a result of the default. However, such attorney fees shall not exceed the loan amount. The lender shall not collect any other fees as a result of default. A returned instrument charge shall not be allowed if the loan proceeds instrument is dishonored by the financial institution or the consumer places a stop-payment order due to forgery or theft.
Source: L. 2000: Entire article added, p. 442, § 1, effective July 1. L. 2004: Entire section amended, p. 318, § 6, effective July 1.
5-3.1-113. Posting of charges.
Any lender offering a deferred deposit loan shall post at any place of business where deferred deposit loans are made a notice of the finance charges imposed for such deferred deposit loans.
Source: L. 2000: Entire article added, p. 442, § 1, effective July 1. L. 2003: Entire section amended, p. 1894, § 7, effective July 1.
5-3.1-114. Notice on assignment or sale of instruments.
Prior to sale or assignment of instruments held by the lender as a result of a deferred deposit loan, the lender shall place a notice on the instrument in at least ten-point type to read:
THIS IS A DEFERRED DEPOSIT LOAN INSTRUMENT.
Source: L. 2000: Entire article added, p. 442, § 1, effective July 1.
5-3.1-115. Records and annual reports.
A lender shall maintain records and file an annual report in accordance with section 5-2-304.
Source: L. 2000: Entire article added, p. 442, § 1, effective July 1. L. 2001: Entire section amended, p. 30, § 10, effective March 9.
5-3.1-116. License requirement.
In accordance with section 5-2-301, no person shall engage in the business of deferred deposit loans without having first obtained a supervised lender's license pursuant to section 5-2-302. A separate license shall be required for each location where such business is conducted.
Source: L. 2000: Entire article added, p. 442, § 1, effective July 1. L. 2001: Entire section amended, p. 30, § 11, effective March 9.
5-3.1-117. Examination and investigation.
A lender may be examined and investigated in accordance with section 5-2-305.
Source: L. 2000: Entire article added, p. 443, § 1, effective July 1. L. 2001: Entire section amended, p. 30, § 12, effective March 9.
5-3.1-118. Denial of license - discipline.
- The administrator may deny a license or discipline a lender in accordance with sections 5-2-302, 5-2-303, and 5-2-306.
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- If the administrator finds that a lender has violated the code, articles 1 to 9 of this title, the administrator shall notify the lender in writing of such violations and the actions the lender must take to cure the violations. The administrator shall allow the lender thirty days after the postmark date of the notice, or the date of delivery if not mailed, to cure the violations before taking disciplinary action in accordance with subsection (1) of this section. If the administrator determines that such lender has performed such actions contained in such notice, the lender shall not be liable for the violations that have been cured.
- This subsection (2) shall not apply if the lender violated the code, articles 1 to 9 of this title, in a repeated or willful manner.
- If an alleged violation of the code, articles 1 to 9 of this title, is the result of a bona fide clerical oversight or computer-based error and not the product of the lender's established lending practices, and the alleged violation can be corrected without material change to the terms and conditions of a consumer's loan, the lender shall have thirty days after the postmark date of the notice, or the date of delivery if not mailed, to cure the alleged violation without incurring any fine or penalty or any required refund of any finance charges associated with the alleged violation. Nothing in this subsection (2) shall exempt a lender from making required refunds if the violation resulted in an overcharge or excess charge to the consumer.
- A lender shall have ninety days to comply with any rule, interpretation, or opinion of the administrator that requires a lender to implement new policies or procedures that involve the reprinting of the lender's forms to include new disclosures, or that requires the lender to revise existing computer programs or add new computer programs to comply with the rule, interpretation, or opinion. During the ninety-day period, the administrator shall not deem the lender to be in violation of articles 1 to 9 of this title for noncompliance with the new rule, interpretation, or opinion.
Source: L. 2000: Entire article added, p. 443, § 1, effective July 1. L. 2001: (1) amended, p. 30, § 13, effective March 9. L. 2004: (2) amended and (3) added, p. 319, § 7, effective July 1.
5-3.1-119. Applicability of other provisions of this title.
The provisions of the code, articles 1 to 9 of this title, apply to a lender unless such provisions are inconsistent with this article.
Source: L. 2000: Entire article added, p. 443, § 1, effective July 1.
5-3.1-120. Criminal culpability.
A consumer shall not be subject to any criminal penalty for entering into a deferred deposit loan agreement. A consumer shall not be subject to any criminal penalty in the event the instrument is dishonored, unless the consumer's account on which the instrument was written was closed before the agreed upon date of negotiation, subject to the provisions of section 18-5-205, C.R.S.
Source: L. 2000: Entire article added, p. 443, § 1, effective July 1.
5-3.1-121. Unfair or deceptive practices.
- No person shall engage in unfair or deceptive acts, practices, or advertising in connection with a deferred deposit loan.
- No person may engage in any device, subterfuge, or pretense to evade the requirements of this article, including making loans disguised as a personal property sale, and leaseback transaction; disguising loan proceeds as a cash rebate for the pretextual installment sale of goods or services; or making, offering, guaranteeing, assisting, or arranging a consumer to obtain a loan with a greater rate of interest, consideration, or charge than is permitted by this article through any method including mail, telephone, internet, or any electronic means regardless of whether the person has a physical location in the state.
Source: L. 2000: Entire article added, p. 443, § 1, effective July 1. L. 2010: Entire section amended, (HB 10-1351), ch. 267, p. 1224, § 7, effective August 11. Initiated 2018: (2) amended, Proposition 111, L. 2019, p. 4540 , § 4, effective February 1, 2019, proclamation of the Governor issued December 19, 2018.
Cross references: For the legislative declaration in the 2010 act amending this section, see section 1 of chapter 267, Session Laws of Colorado 2010.
5-3.1-122. Unconscionability.
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In applying the provisions of sections 5-5-109 and 5-6-112 to the actions of a lender, consideration shall be given to the following, among other factors:
- The financial benefits of the loan to the consumer and the level of risk incurred by the lender in extending credit;
- The absence of collateral other than the instrument executed by the consumer payable to the lender;
- The relation between the amount and terms of credit granted and the cost of making the loan.
- A lender shall require a consumer to fill out a loan application at least once in each twelve-month period of time and shall maintain this application on file. The application shall be signed and dated by the consumer.
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- A lender shall require the consumer to provide a pay stub or other evidence of income at least once each twelve-month period. Such evidence shall not be over forty-five days old when presented. If a lender requires a consumer to present a bank statement to secure a loan, the lender shall allow the consumer to delete from the statement the information regarding to whom the debits listed on the statement were payable.
- If the amount borrowed is not more than twenty-five percent of the consumer's monthly gross income and benefits, as evidenced by a paycheck stub or otherwise substantiated, a lender shall not be obligated to investigate the consumer's continued debt position, and the consumer's ability to repay the loan need not be further demonstrated.
- If a lender complies with the requirements of subsections (2) and (3) of this section, and the deferred deposit loan otherwise complies with this article and other applicable law, neither the consumer's inability to repay the loan nor the lender's decision to obtain or not obtain additional information concerning the consumer's creditworthiness shall be cause to determine that a loan is unconscionable.
Source: L. 2004: Entire section added, p. 320, § 8, effective July 1.
5-3.1-123. Use of multiple agreements for deferred deposit loans.
If a consumer obtains a deferred deposit loan voluntarily and separately from his or her spouse and the consumer's action is documented in writing, signed by the consumer, and retained by the lender, the transaction shall not be considered a violation of section 5-3-205.
Source: L. 2004: Entire section added, p. 320, § 9, effective July 1.
ARTICLE 3.5 CONSUMER EQUITY PROTECTION
Law reviews: For article, "The Colorado Equity Protection Act: A Response to Predatory Lending Practices", see 32 Colo. Law. 79 (April 2003).
Section
PART 1 OBLIGOR PROTECTION
5-3.5-101. Definitions.
As used in this article, unless the context otherwise requires:
- "Bridge loan" means temporary or short-term financing with a maturity of less than eighteen months that requires payments of only interest until the entire unpaid balance is due and payable.
- "Covered loan" means a consumer credit transaction secured by property located within this state that is considered a mortgage under section 152 of the federal "Home Ownership and Equity Protection Act of 1994", 15 U.S.C. sec. 1602 (aa), as amended, and regulations adopted pursuant thereto by the federal reserve board, including, without limitation, 12 CFR 226.32, as amended; except that, if the total points and fees paid by the obligor at or before closing exceed six percent of the total loan amount, such loan shall be deemed to be a covered loan if the transaction otherwise meets the requirements of this subsection (2).
- "Lender" means any individual or entity that originates one or more covered loans. The individual or entity to whom a covered loan is initially payable, either on the face of the note or contract or by agreement when there is no note or contract, shall be deemed to be the lender.
- "Mortgage broker" means a person other than an employee or exclusive agent of a lender who, for compensation, brings an obligor and lender together to obtain a covered loan.
- "Obligor" means each obligor, co-obligor, co-signer, or grantor obligated to repay a covered loan.
- "Political subdivision" means a county, city and county, city, town, service authority, school district, local improvement district, law enforcement authority, city or county housing authority, or water, sanitation, fire protection, metropolitan, irrigation, drainage, or other special district or any other kind of municipal, quasi-municipal, or public corporation organized pursuant to law.
- "Principal balance" means the amount financed plus prepaid finance charges as defined in the federal "Truth in Lending Act", 15 U.S.C. sec. 1601 et seq., as amended.
- "Servicer" has the same meaning as set forth in section 2605 (i)(2) of the federal "Real Estate Settlement Procedures Act of 1974", 12 U.S.C. sec. 2601 et seq., as amended.
Source: L. 2002: Entire article added, p. 1594, § 1, effective June 7. L. 2003: (2) amended, p. 1894, § 8, effective July 1.
5-3.5-102. Protection of obligors.
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A covered loan is subject to the following limitations:
- Limitation on balloon payment. No covered loan may contain a provision for a scheduled payment that is more than twice as large as the average of earlier regularly scheduled payments, unless such balloon payment becomes due and payable not less than one hundred twenty months after the date of execution of the loan. This prohibition does not apply when the payment schedule is adjusted to account for the seasonal or irregular income of the obligor or if the purpose of the loan is a bridge loan connected with, or related to, the acquisition or construction of a dwelling intended to become the obligor's principal dwelling.
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No call provision. No covered loan may contain a call provision that permits the lender, in its sole discretion, to accelerate the indebtedness. This prohibition shall not apply when:
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Acceleration of repayment of the loan is justified:
- By default in which the obligor fails to meet the repayment terms of the agreement for any outstanding balance; or
- Pursuant to a due-on-sale provision;
- There is fraud or material misrepresentation by an obligor in connection with the loan;
- There is a provision permitting acceleration if the lender, in good faith, believes itself to be materially insecure or believes that the prospect of future payment has become materially impaired; or
- There is any action or inaction by the obligor that adversely affects the lender's security for the loan or any rights of the lender in such security.
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Acceleration of repayment of the loan is justified:
- No negative amortization. No covered loan may contract for a payment schedule with regular periodic payments that cause the principal balance to increase; except that this paragraph (c) shall not prohibit negative amortization as a consequence of a temporary forbearance or restructure sought by the obligor.
- No increased interest rate upon default. No covered loan may contract for any increase in the interest rate as a result of a default; except that this paragraph (d) shall not apply to periodic interest rate changes in a variable rate loan that is otherwise consistent with the provisions of the loan agreement if the change in the interest rate is not occasioned by the event of default or a permissible acceleration of the indebtedness.
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Limitations on mandatory arbitration clauses. No covered loan may be subject to a mandatory arbitration clause that:
- Does not comply with rules set forth by a nationally recognized arbitration organization such as the American arbitration association;
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Does not require the arbitration proceeding to be conducted:
- Within the federal judicial district in which the subject property is located;
- In the city nearest the obligor's residence where a federal district court is located; or
- At such other location as may be mutually agreed upon by the parties;
- Does not require the lender to contribute at least fifty percent of the amount of any filing fee; and
- Does not require the lender to pay standard daily arbitration fees, both its own and those of the obligor, for at least the first day of arbitration.
- No advance payments. No covered loan may include terms under which any periodic payments required under the loan are paid in advance from the loan proceeds provided to the obligor.
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Limitations on prepayment fees. (I) First thirty-six months only. A prepayment fee or penalty shall be permitted only on a refinance to a different lender other than pursuant to a sale and only during the first thirty-six months after the date of execution
of a covered loan. Prepayment fees and penalties shall not exceed six months' interest for prepayment within the first three years of the loan. The prepayment fees or penalties permitted by this paragraph (g) shall apply
only to covered loans that are secured by a first mortgage, deed of trust, or security interest to refinance, by amendment, payoff, or otherwise, an existing loan made to finance the acquisition or construction of a dwelling,
including a refinance loan providing additional sums of money for any purpose, regardless of whether related to acquisition or construction. No prepayment fees or penalties shall be included in the loan documents or charged
to the obligor for prepayment:
- After the third year of the loan;
- Pursuant to a refinance with the same lender; or
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That is partial.
(II) No prepayment fees for certain refinancing. No prepayment fee or penalty may be charged on a refinancing of a covered loan if the covered loan being refinanced is owned by the refinancing lender at the time of such refinancing.
(III) Lender must offer choice. A lender shall not include a prepayment penalty fee in a covered loan unless the lender offers the obligor the option of choosing a loan product without a prepayment penalty fee. A lender shall be deemed to have complied with this requirement if the obligor receives and executes the following disclosure, which may be incorporated with any other required disclosure:
LOAN PRODUCT CHOICE
I was provided with an offer to accept a product both with and without a prepayment penalty provision. I have chosen to accept the product with / without a prepayment penalty.
Source: L. 2002: Entire article added, p. 1595, § 1, effective June 7. L. 2003: (1)(a) amended, p. 1894, § 9, effective July 1.
5-3.5-103. Restricted acts and practices.
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The following acts and practices are prohibited in the making of a covered loan:
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No lending without cautionary notice. (I) A lender may not make a covered loan unless the lender or a mortgage broker has given the following notice, or a substantially similar notice, in writing to the obligor within a reasonable period of time after
determining that the loan would result in a covered loan, but no later than the time by which the notice is required under the notice provision contained in 12 CFR 226.31 (c), as amended:
(II) It shall be a rebuttable presumption that a lender or broker has met its obligation to provide this disclosure if the consumer provides the lender or broker with a signed acknowledgment of receipt of a copy of the notice set forth in subparagraph (I) of this paragraph (a).
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No lending without due regard to repayment ability. (I) A lender may not make a covered loan to a consumer based on the consumer's collateral without regard to the consumer's repayment ability, including the consumer's current and expected income, current
obligations, and employment.
(II) There is a presumption that a creditor has violated this paragraph (b) if the creditor engages in a pattern or practice of making loans subject to 12 CFR 226.32 without verifying and documenting consumers' repayment abilities.
(III) (A) In the case of a stated income loan, the reasonable basis for believing that there are sufficient funds to support the covered loan may not be based solely on the income stated by the obligor, but may include other information in the possession of the lender after the solicitation of all information that the lender customarily solicits in connection with stated income loans. A lender shall not knowingly or willfully originate a covered loan as a stated income loan with the intent of evading this subparagraph (III).
(B) A person who willfully and knowingly gives false or inaccurate information or fails to provide information that the person is required to disclose pursuant to applicable law may have violated and may be subject to penalties established in 15 U.S.C. sec. 1611.
- Refinancing within a one-year period. Within one year after having extended credit subject to this article, no lender shall refinance any covered loan to the same obligor into another covered loan unless the refinancing is in the obligor's interest. An assignee holding or servicing an extension of mortgage credit subject to this article shall not, for the remainder of the one-year period following the date of origination of the credit, refinance any covered loan to the same obligor into another covered loan unless the refinancing is in the obligor's interest. A creditor or assignee shall not engage in acts or practices to evade this paragraph (c), including a pattern or practice of arranging for the refinancing of its own loans by affiliated or unaffiliated creditors, or modifying a loan agreement, regardless of whether the existing loan is satisfied and replaced by the new loan, and charging a fee.
- No refinancing certain low-rate loans. A lender shall not replace or consolidate a zero interest rate, or other low-rate, loan made by a governmental or nonprofit lender with a covered loan within the first ten years after the low-rate loan was made unless the current holder of the loan consents in writing to the refinancing. For purposes of this paragraph (d), a "low-rate" loan is a loan that carries a current interest rate two percentage points or more below the current yield on United States department of the treasury securities with a comparable maturity. If the loan's current interest rate is either a discounted introductory rate or a rate that automatically steps up over time, then the fully-indexed rate or the fully stepped-up rate, as appropriate, should be used in lieu of the current rate to determine whether a loan is a low-rate loan.
- Restrictions on covered loan proceeds to pay home improvement contracts. A lender shall not pay a contractor under a home-improvement contract from the proceeds of a covered loan other than by an instrument payable to the obligor or jointly to the obligor and the contractor or, at the election of the obligor, through a third-party escrow agent in accordance with terms established in a written agreement signed by the obligor, the lender, and the contractor prior to the disbursement of funds to the contractor.
- No financing of credit insurance. No covered loan may include, directly or indirectly, financing of any premiums for any credit life, credit disability, credit property, or credit unemployment insurance, any other life or health insurance products, or any payments for any debt cancellation or suspension agreement or contracts; except that calculated insurance premiums or debt cancellation or suspension fees paid on a monthly basis shall not be considered to have been financed by the lender for purposes of this paragraph (f).
- No recommending default. No lender shall recommend or encourage default on an existing loan or other debt prior to and in connection with the closing or planned closing of a covered loan that refinances all or any portion of such existing loan or debt.
- No fee for payoff quote. No creditor may charge a fee for informing or transmitting to any person the balance due to pay off a covered loan or to provide a release upon prepayment. A creditor shall provide a payoff balance within a reasonable time after a request, but in any event not more than five business days after a written request.
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No lending without cautionary notice. (I) A lender may not make a covered loan unless the lender or a mortgage broker has given the following notice, or a substantially similar notice, in writing to the obligor within a reasonable period of time after
determining that the loan would result in a covered loan, but no later than the time by which the notice is required under the notice provision contained in 12 CFR 226.31 (c), as amended:
CONSUMER CAUTION
If you obtain this loan, the lender will have a mortgage in Colorado; this is a deed of trust on your home. You could lose your home, and any money you have put into it, if you do not meet your obligations under the loan. Mortgage loan rates and closing costs and fees vary based on many factors, including your particular credit and financial circumstances, your earnings history, the loan-to-value requested, and the type of property that will secure your loan. The loan rate and fees could vary based on which lender or broker you select. You are not required to complete any loan agreement merely because you have received these disclosures or have signed a loan application. If you proceed with this mortgage loan, you should also remember that you may face serious financial risks if you use this loan to pay off credit card debts and other debts in connection with this transaction and then later incur significant new credit card charges or other debts. If you continue to accumulate debt after this loan is closed and then experience financial difficulties, you could lose your home and any equity you have in it if you do not meet your mortgage loan obligations. Property taxes and homeowner's insurance are your responsibility. Not all lenders provide escrow services for these payments. You should ask your lender about these services. Your payments on existing debts contribute to your credit ratings. You should not accept any advice to ignore your regular payments to your existing creditors.
Source: L. 2002: Entire article added, p. 1597, § 1, effective June 7. L. 2003: (1)(c) amended, p. 1894, § 10, effective July 1.
5-3.5-104. Reporting to credit bureaus.
A lender or its servicer shall report at least quarterly both the favorable and unfavorable payment history information of the obligor on payments due to the lender on a covered loan to a nationally recognized consumer credit reporting agency. This section shall not prevent a lender or its servicer from agreeing with the obligor not to report specified payment history information in the event of a resolved or unresolved dispute with an obligor, and shall not apply to covered loans held or serviced by a lender for less than ninety days.
Source: L. 2002: Entire article added, p. 1600, § 1, effective June 7.
PART 2 ENFORCEMENT AND LIABILITY
5-3.5-201. Enforcement - liability.
The attorney general and any obligor of a covered loan may enforce this article with respect to such covered loan in the manner provided for violations of the federal "Home Ownership and Equity Protection Act of 1994", 15 U.S.C. sec. 1639, and regulations adopted pursuant thereto by the federal reserve board, including, without limitation, 12 CFR 226.32, as set forth in the federal "Truth in Lending Act", 15 U.S.C. sec. 1640, and regulations adopted pursuant thereto by the federal reserve board, including the provisions on civil liability, class actions, rescission, correction, and bona fide error. Persons engaged in the purchase, sale, assignment, securitization, or servicing of covered loans shall be liable under this article for the action or inaction of persons originating such loans only in the manner and to the extent provided for violation of the federal "Home Ownership and Equity Protection Act of 1994" and the federal "Truth in Lending Act", 15 U.S.C. sec. 1641, and regulations adopted pursuant thereto by the federal reserve board.
Source: L. 2002: Entire article added, p. 1600, § 1, effective June 7.
PART 3 MISCELLANEOUS PROVISIONS
5-3.5-301. Effective date - applicability.
Section 5-3.5-303 is intended to restate and confirm the existing law of this state, namely that the laws of this state relating to the financial and lending activities are to be applied on a uniform, statewide basis. Parts 1 and 2 of this article shall take effect January 1, 2003. This part 3 shall take effect upon passage. This article shall apply to covered loans offered or entered into on or after January 1, 2003.
Source: L. 2002: Entire article added, p. 1601, § 1, effective June 7.
5-3.5-302. Severability.
The provisions of this article are severable and if any of its provisions are held unconstitutional, the decision of the court shall not affect or impair any of the remaining provisions of this article. It is hereby declared to be the legislative intent that this article would have been adopted if the unconstitutional provisions had not been included.
Source: L. 2002: Entire article added, p. 1601, § 1, effective June 7.
5-3.5-303. Relationship to other laws.
- General rule. All political subdivisions of this state, including municipalities, shall be prohibited from enacting and enforcing ordinances, resolutions, and regulations pertaining to lending activities.
- Preemption. Any provision of this article preempted by federal law with respect to a national bank or federal savings association shall also, to the same extent, not apply to an operating subsidiary of a national bank or federal savings association that satisfies the requirements for operating subsidiaries established in 12 CFR 5.34, relating to operating subsidiaries, or 12 CFR 559.3, relating to the characteristics of and requirements for subordinate organizations of federal savings associations, nor to a bank chartered under the laws of Colorado or any operating subsidiary of such a state chartered bank.
- Interpretation. The provisions of this article shall be interpreted and applied to the fullest extent practical in a manner consistent with applicable federal laws and regulations, and shall not be deemed to constitute an attempt to override federal law.
Source: L. 2002: Entire article added, p. 1601, § 1, effective June 7.
ARTICLE 3.7 CONSUMER CREDIT SOLICITATION PROTECTION
Section
5-3.7-101. Consumer credit solicitation protection - definitions.
- A solicitor that makes a firm offer of credit for a lender credit card or a seller credit card to a consumer by mail solicitation and receives an acceptance of that offer that lists the address of the consumer accepting the offer as different from the address to which the offer was sent shall, prior to issuing or directing issuances of the lender credit card or seller credit card, verify that the consumer accepting the offer is the same consumer to whom the offer was sent.
-
As used in this section, unless the context otherwise requires:
- "Firm offer of credit" shall have the same meaning as set forth in 15 U.S.C. sec. 1681a (l).
- "Solicitor" means the person making the offer by mail solicitation and does not include a card issuer or other creditor when that creditor or card issuer relies on an independent third party to provide the services.
-
"Verify" means the use of commercially reasonable efforts to ascertain that the consumer responding to a mail solicitation is the same consumer to whom the solicitation was directed. For the purposes of this article, a solicitor shall be deemed to verify
that the consumer accepting a mail solicitation is the same consumer to whom the solicitation was directed if:
- A consumer responding at a telephone number appearing in a publicly available directory or database as the telephone number of the consumer to whom the solicitation was mailed identifies himself or herself as the consumer to whom the solicitation was mailed and acknowledges the consumer's acceptance of the solicitation; or
- A consumer presents the solicitor, including presentation by facsimile transmission or mail, the original or a copy of one or more documents, including a driver's license, social security card, passport, or any other identification document issued by a state or federal governmental agency, that, on the face of the document or documents, appears to confirm such consumer's identity as the consumer to whom a solicitation was mailed and the consumer acknowledges acceptance of the solicitation; or
- The solicitor verified, by any means adopted in federal regulations, that the consumer accepting the solicitation is the consumer to whom the solicitation was directed; or
- The solicitor verified by any other means, that under the standards and practices of the industry in which the solicitor is engaged would be deemed sufficient, that the consumer accepting the solicitation is the same consumer to whom the solicitation was sent.
Source: L. 2004: Entire article added, p. 657, § 1, effective July 1.
ARTICLE 4 INSURANCE
Editor's note: This article was numbered as article 4 of chapter 73, C.R.S. 1963. This title was repealed and reenacted in 1971, and this article was subsequently repealed and reenacted in 2000, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 2000, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume and the editor's note following the title heading. Former C.R.S. section numbers are shown in editor's notes following those sections that were relocated. For a detailed comparison of this article, see the comparative tables located in the back of the index.
Section
PART 1 INSURANCE IN GENERAL
5-4-101. Short title.
This article shall be known and may be cited as "Uniform Consumer Credit Code - Insurance".
Source: L. 2000: Entire article R&RE, p. 1225, § 1, effective July 1.
Editor's note: This section is similar to former § 5-4-101, as it existed prior to 2000.
5-4-102. Scope - relation to credit insurance act - applicability to parties.
- This article applies to insurance provided or to be provided in relation to a consumer credit transaction.
- This article supplements and does not repeal the "Credit Insurance Act", article 10 of title 10, C.R.S. The provisions of this code concerning administrative controls, liabilities, and penalties do not apply to persons acting as insurers, and the similar provisions of the "Credit Insurance Act" do not apply to creditors and consumers.
Source: L. 2000: Entire article R&RE, p. 1225, § 1, effective July 1.
Editor's note: This section is similar to former § 5-4-102, as it existed prior to 2000.
5-4-103. Definitions - "consumer credit insurance" - "Credit Insurance Act".
As used in this code, unless the context otherwise requires:
-
"Consumer credit insurance" means insurance, other than insurance on property, by which the satisfaction of debt in whole or in part is a benefit provided but does not include:
- Insurance, as to which a finance charge is imposed and provided in relation to a credit transaction in which a payment is scheduled more than ten years after the extension of credit;
- Insurance issued as an isolated transaction on the part of the insurer not related to an agreement or plan for insuring consumers of the creditor; or
- Insurance indemnifying the creditor against loss due to the consumer's default.
- "Credit Insurance Act" means the "Credit Insurance Act", article 10 of title 10, C.R.S.
Source: L. 2000: Entire article R&RE, p. 1225, § 1, effective July 1.
Editor's note: This section is similar to former § 5-4-103, as it existed prior to 2000.
5-4-104. Creditor's provision of and charge for insurance - excess amount of charge.
- Except as otherwise provided in this article and subject to the provisions on additional charges contained in section 5-2-202 and maximum charges contained in section 5-2-201, a creditor may agree to provide insurance and may contract for and receive a charge for insurance separate from and in addition to other charges. A creditor need not make a separate charge for insurance provided or required by the creditor. This code does not authorize the issuance of any insurance prohibited under any statute, or rule thereunder, governing the business of insurance.
-
The excess amount of a charge for insurance provided for in agreements in violation of this article is an excess charge for the purposes of:
- The provisions on remedies and penalties contained in article 5 of this title as to effect of violations on rights of parties under section 5-5-201; and
- The provisions on administration contained in article 6 of this title as to civil actions by the administrator under section 5-6-114.
Source: L. 2000: Entire article R&RE, p. 1225, § 1, effective July 1.
Editor's note: This section is similar to former § 5-4-104, as it existed prior to 2000.
5-4-105. Conditions applying to insurance to be provided by creditor.
-
If a creditor agrees with a consumer to provide insurance:
- The insurance shall be evidenced by an individual policy or certificate of insurance delivered to the consumer or sent to the consumer at his or her address as stated by the consumer within thirty days after the term of the insurance commences under the agreement between the creditor and consumer; or
- The creditor shall promptly notify the consumer of any failure or delay in providing the insurance.
Source: L. 2000: Entire article R&RE, p. 1226, § 1, effective July 1.
Editor's note: This section is similar to former § 5-4-105, as it existed prior to 2000.
5-4-106. Unconscionability.
-
In applying the provisions of this code on unconscionability contained in sections 5-5-109 and 5-6-112 to a separate charge for insurance, consideration shall be given, among other factors, to:
- Potential benefits to the consumer including the satisfaction of the consumer's obligations;
- The creditor's need for the protection provided by the insurance; and
- The relation between the amount and terms of credit granted and the insurance benefits provided.
- If consumer credit insurance otherwise complies with this article and other applicable law, neither the amount nor the term of the insurance nor the amount of a charge therefor is in itself unconscionable.
Source: L. 2000: Entire article R&RE, p. 1226, § 1, effective July 1.
Editor's note: This section is similar to former § 5-4-106, as it existed prior to 2000.
5-4-107. Maximum charge by creditor for insurance.
- Except as provided in subsection (2) of this section, if a creditor contracts for or receives a separate charge for insurance, the amount charged to the consumer for the insurance may not exceed the premium to be charged by the insurer as computed at the time the charge to the consumer is determined conforming to any rate filings required by law and made by the insurer with the commissioner of insurance.
-
A creditor who provides consumer credit insurance in relation to a revolving credit account may calculate the charge to the consumer in each billing cycle by applying the current premium rate to:
- The average daily unpaid balance of the debt in the cycle;
- The unpaid balance of the debt or a median amount within a specified range of unpaid balances of debt on approximately the same day of the cycle. The day of the cycle need not be the day used in calculating the finance charge, but the specified range shall be the range used for that purpose; or
- The unpaid balances of the amount financed calculated according to the actuarial method.
Source: L. 2000: Entire article R&RE, p. 1227, § 1, effective July 1.
Editor's note: This section is similar to former § 5-4-107, as it existed prior to 2000.
5-4-108. Refund or credit required - amount.
-
-
Except as provided in subsection (3) of this section, an appropriate refund or credit of unearned premiums shall be made to the person entitled thereto with respect to any separate charge made to the consumer for insurance if:
- The insurance is not provided or is provided for a shorter term than that for which the charge to the consumer for insurance was computed; or
- The insurance terminates prior to the end of the term for which it was written because of prepayment in full of the indebtedness or the insurance terminates for any other reason.
- All consumer credit insurance shall terminate upon prepayment in full of the indebtedness.
-
Except as provided in subsection (3) of this section, an appropriate refund or credit of unearned premiums shall be made to the person entitled thereto with respect to any separate charge made to the consumer for insurance if:
-
If a refund or credit of unearned premiums is required pursuant to the provisions of subsection (1) of this section:
- The original creditor, if he or she is the holder of the indebtedness at the time of prepayment, shall either promptly make the appropriate refund or credit or shall promptly notify the consumer and the insurer in writing that a refund or credit is due. Upon the receipt of notice that a refund or credit is due, the insurer shall promptly make an appropriate refund or credit of unearned premiums pursuant to the provisions of section 10-10-110 (2), C.R.S. For purposes of this section, "original creditor" means the person to whom the indebtedness was initially payable, and "insurer" means every person engaged as principal, indemnitor, surety, or contractor in the business of making contracts of insurance, excluding any licensed insurance agent.
-
- The assignee, if the indebtedness has been assigned, shall either promptly make the appropriate refund or credit or shall promptly notify the consumer, the original creditor, and the insurer, if known, in writing that a refund or credit is due. For the purposes of this section, "assignee" means a person other than the original creditor who at the time of prepayment holds the indebtedness.
- The original creditor, upon receipt of notice pursuant to subparagraph (I) of this paragraph (b), shall either promptly make the appropriate refund or credit or shall promptly notify the insurer in writing that a refund or credit of unearned premiums is due.
- The insurer, upon the receipt of notice that a refund or credit is due pursuant to paragraph (a) or (b) of this subsection (2), shall make an appropriate refund or credit of unearned premiums pursuant to the provisions of section 10-10-110 (2), C.R.S., and subsection (1) of this section.
- An assignee or original creditor gives notice pursuant to this section upon delivery or mailing of the notice to the last address provided to him or her. Once an original creditor or an assignee has notified the appropriate party, as provided in paragraphs (a) and (b) of this subsection (2), the original creditor and the assignee shall have no further obligations.
-
This article does not require a refund or credit of unearned premiums if:
- All refunds and credits due to the debtor under this article amount to less than one dollar; or
- The charge for insurance is computed from time to time on the outstanding balance of the indebtedness and the charge relates to only one premium period.
-
Except as otherwise required, a refund or credit is not required because:
- The insurance is terminated by payment of proceeds under the policy; or
- The original creditor or assignee pays or accounts for premiums to the insurer in the amounts and at the times determined by the agreement between them; or
- The original creditor or assignee receives directly or indirectly under any policy of insurance a gain or advantage not prohibited by law.
- If a single type of insurance is terminated by the payment of proceeds under the policy pursuant to paragraph (a) of subsection (4) of this section, a refund or credit of unearned premiums for all other types of consumer credit insurance issued on the same indebtedness shall be made if so required by the provisions of this section and section 10-10-110 (2), C.R.S.
- A refund or credit required by subsection (1) of this section is appropriate as to amount if it is computed according to a method prescribed or approved by the commissioner of insurance or a formula filed by the insurer with the commissioner of insurance at least thirty days before the consumer's right to a refund or credit becomes determinable unless the method or formula is employed after the commissioner of insurance notifies the insurer that he or she disapproves it.
Source: L. 2000: Entire article R&RE, p. 1227, § 1, effective July 1.
Editor's note: This section is similar to former § 5-4-108, as it existed prior to 2000.
5-4-109. Existing insurance - choice of insurer.
If a creditor requires insurance, upon notice to the creditor the consumer shall have the option of providing the required insurance through an existing policy of insurance owned or controlled by the consumer or through a policy to be obtained and paid for by the consumer, but the creditor may for reasonable cause decline the insurance provided by the consumer.
Source: L. 2000: Entire article R&RE, p. 1229, § 1, effective July 1.
Editor's note: This section is similar to former § 5-4-109, as it existed prior to 2000.
5-4-110. Charge for insurance in connection with a deferral, refinancing, or consolidation - duplicate charges.
-
A creditor may not contract for or receive a separate charge for insurance in connection with a deferral described in section 5-2-204, a refinancing described in section 5-2-205, or a consolidation described in section 5-2-206 unless:
- The consumer agrees at or before the time of the deferral, refinancing, or consolidation that the charge may be made;
- The consumer is or is to be provided with insurance for an amount or a term, or insurance of a kind, in addition to that to which the consumer would have been entitled had there been no deferral, refinancing, or consolidation;
- The consumer receives a refund or credit on account of any unexpired term of existing insurance in the amount that would be required if the insurance were terminated under section 5-4-108; and
- The charge does not exceed the amount permitted under section 5-4-107.
- A creditor may not contract for or receive a separate charge for insurance that duplicates insurance with respect to which the creditor has previously contracted for or received a separate charge.
Source: L. 2000: Entire article R&RE, p. 1229, § 1, effective July 1.
Editor's note: This section is similar to former § 5-4-110, as it existed prior to 2000.
5-4-111. Cooperation between administrator and commissioner of insurance.
The administrator and the commissioner of insurance are authorized and directed to consult and assist one another in maintaining compliance with this article. They may jointly pursue investigations, prosecute suits, and take other official action, as may seem to them appropriate, if either of them is otherwise empowered to take the action. If the administrator is informed of a violation or suspected violation by an insurer of this article or of the insurance laws, rules, and regulations of this state, the administrator shall advise the commissioner of insurance of the circumstances.
Source: L. 2000: Entire article R&RE, p. 1229, § 1, effective July 1.
Editor's note: This section is similar to former § 5-4-111, as it existed prior to 2000.
5-4-112. Administrative action of commissioner of insurance.
- To the extent that the commissioner's responsibility under this article requires, the commissioner of insurance shall promulgate rules in accordance with article 4 of title 24, C.R.S., with respect to insurers, and with respect to refunds described in section 5-4-108, and, in case of violation, may make an order for compliance.
- Sections 24-4-102 to 24-4-106, C.R.S., apply to and govern all administrative action taken by the commissioner of insurance pursuant to this section.
Source: L. 2000: Entire article R&RE, p. 1230, § 1, effective July 1. L. 2003: (1) amended, p. 1895, § 11, effective July 1.
Editor's note: This section is similar to former § 5-4-112, as it existed prior to 2000.
PART 2 CONSUMER CREDIT INSURANCE
5-4-201. Term of insurance.
-
Consumer credit insurance provided by a creditor may be subject to the furnishing of evidence of insurability satisfactory to the insurer. Whether or not such evidence is required, the term of the insurance shall commence no later than when the consumer
becomes obligated to the creditor or when the consumer applies for the insurance, whichever is later, except as follows:
- If any required evidence of insurability is not furnished until more than thirty days after the term would otherwise commence, the term may commence on the date when the insurer determines the evidence to be satisfactory; or
- If the creditor provides insurance not previously provided covering debts previously created, the term may commence on the effective date of the policy.
-
The originally scheduled term of the insurance shall extend at least until the due date of the last scheduled payment of the debt except as follows:
- If the insurance relates to a revolving credit account, the term need extend only until the payment of the debt under the account and may be sooner terminated after at least thirty days' notice to the consumer; or
- If the consumer is advised in writing that the insurance will be written for a specified shorter time, the term need extend only until the end of the specified time.
- The term of the insurance shall not extend more than thirty days after the originally scheduled due date of the last scheduled payment of the debt unless it is extended without additional cost to the consumer or as an incident to a deferral, refinancing, or consolidation.
Source: L. 2000: Entire article R&RE, p. 1230, § 1, effective July 1.
Editor's note: This section is similar to former § 5-4-201, as it existed prior to 2000.
5-4-202. Amount of insurance.
-
Except as provided in subsection (2) of this section:
- In the case of consumer credit insurance providing life coverage, the amount of insurance may not initially exceed the debt and, if the debt is payable in installments, may not at any time exceed the greater of the scheduled or actual amount of the debt; or
- In the case of any other consumer credit insurance, the total amount of periodic benefits payable may not exceed the total of scheduled unpaid installments of the debt, and the amount of any periodic benefit may not exceed the original amount of debt divided by the number of periodic installments in which it is payable.
- If consumer credit insurance is provided in connection with a revolving credit account, the amounts payable as insurance benefits may be reasonably commensurate with the amount of debt as it exists from time to time. If consumer credit insurance is provided in connection with a commitment to grant credit in the future, the amounts payable as insurance benefits may be reasonably commensurate with the total from time to time of the amount of debt and the amount of the commitment.
Source: L. 2000: Entire article R&RE, p. 1231, § 1, effective July 1.
Editor's note: This section is similar to former § 5-4-202, as it existed prior to 2000.
5-4-203. Filing and approval of rates and forms.
- A creditor may not use a form or charge in connection with credit insurance that does not comply with section 10-10-109, C.R.S.
- and (3) (Deleted by amendment, L. 2003, p. 1895 , § 12, effective July 1, 2003.)
Source: L. 2000: Entire article R&RE, p. 1231, § 1, effective July 1. L. 2001: (2) amended, p. 894, § 5, effective June 1. L. 2003: Entire section amended, p. 1895, § 12, effective July 1.
Editor's note: This section is similar to former § 5-4-203, as it existed prior to 2000.
PART 3 PROPERTY AND LIABILITY INSURANCE
5-4-301. Property insurance.
-
A creditor may not contract for or receive a separate charge for insurance against loss of or damage to property unless:
- The insurance covers a substantial risk of loss of or damage to property related to the credit transaction;
- The amount, terms, and conditions of the insurance are reasonable in relation to the character and value of the property insured or to be insured; and
- The term of the insurance is reasonable in relation to the terms of credit.
- The term of the insurance is reasonable if it is customary and does not extend substantially beyond a scheduled maturity.
- A creditor may not contract for or receive a separate charge for insurance against loss of or damage to property unless the amount financed exclusive of charges for the insurance is one thousand dollars or more and the value of the property is one thousand dollars or more.
Source: L. 2000: Entire article R&RE, p. 1232, § 1, effective July 1.
Editor's note: This section is similar to former § 5-4-301, as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "The Revolution in Consumer Credit Legislation", see 45 Den. L.J. 679 (1968).
5-4-302. Insurance on creditor's interest only.
If a creditor contracts for or receives a separate charge for insurance against loss of or damage to property, the risk of loss or damage not willfully caused by the consumer is on the consumer only to the extent of any deficiency in the effective coverage of the insurance even though the insurance covers only the interest of the creditor.
Source: L. 2000: Entire article R&RE, p. 1232, § 1, effective July 1.
Editor's note: This section is similar to former § 5-4-302, as it existed prior to 2000.
ANNOTATION
A creditor named as a beneficiary in a policy on the debtor's life is entitled out of the proceeds only to the amount of the actual debt, together with interest. Where the sole purpose to be accomplished in the issuance of an insurance policy upon the life of a debtor is to secure the payment of a debt to the creditor, or where the same single purpose is accomplished by a change in beneficiary, the creditor's right to the proceeds of the policy on the death of a debtor extends no further than indemnity. Under such circumstances all proceeds from the policy beyond the debt owed the creditor plus interest and premiums paid by him, are payable to the legal representatives of the deceased debtor. Forster v. Franklin Life Ins. Co., 135 Colo. 383 , 311 P.2d 700 (1957) (decided under repealed § 73-5-1, CRS 53).
5-4-303. Liability insurance.
A creditor may not contract for or receive a separate charge for insurance against liability unless the insurance covers a substantial risk of liability arising out of the ownership or use of property related to the credit transaction.
Source: L. 2000: Entire article R&RE, p. 1232, § 1, effective July 1.
Editor's note: This section is similar to former § 5-4-303, as it existed prior to 2000.
5-4-304. Cancellation by creditor.
This section does not apply to an insurance premium loan. A creditor shall not request cancellation of a policy of property or liability insurance except after the consumer's default or in accordance with a written authorization by the consumer, and in either case the cancellation does not take effect until written notice is delivered to the consumer or mailed to the consumer at his or her address as stated by the consumer. The notice shall state that the policy may be canceled on a date not less than ten days after the notice is delivered or, if the notice is mailed, not less than thirteen days after it is mailed.
Source: L. 2000: Entire article R&RE, p. 1233, § 1, effective July 1.
Editor's note: This section is similar to former § 5-4-304, as it existed prior to 2000.
ARTICLE 5 REMEDIES AND PENALTIES
Editor's note: This article was numbered as article 5 of chapter 73, C.R.S. 1963. This title was repealed and reenacted in 1971, and this article was subsequently repealed and reenacted in 2000, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 2000, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume and the editor's note following the title heading. Former C.R.S. section numbers are shown in editor's notes following those sections that were relocated. For a detailed comparison of this article, see the comparative tables located in the back of the index.
Section
PART 1 LIMITATIONS ON CREDITORS' REMEDIES
5-5-101. Short title.
This article shall be known and may be cited as the "Uniform Consumer Credit Code - Remedies and Penalties".
Source: L. 2000: Entire article R&RE, p. 1233, § 1, effective July 1.
Editor's note: This section is similar to former § 5-5-101, as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "Legislative Overview of the Uniform Consumer Credit Code: A 1971 Perspective", see 48 Den. L.J. 27 (1971).
5-5-102. Scope.
This part 1 applies to actions or other proceedings to enforce rights arising from consumer credit transactions.
Source: L. 2000: Entire article R&RE, p. 1233, § 1, effective July 1.
Editor's note: This section is similar to former § 5-5-102, as it existed prior to 2000.
5-5-103. Restrictions on deficiency judgments in consumer credit sales.
- This section applies to a consumer credit sale of goods or services. A consumer is not liable for a deficiency unless the creditor has disposed of the goods in accordance with the provisions on the disposition of collateral of the "Uniform Commercial Code" contained in part 6 of article 9 of title 4, C.R.S.
- If the creditor repossesses, with or without the aid of judicial process, or voluntarily accepts surrender of goods that were the subject of the sale and in which the creditor has a security interest, the parties obligated are not personally liable to the creditor for the unpaid balance of the debt arising from the sale of a commercial unit of goods of which the cash sale price was three thousand dollars or less, and the creditor's duty to dispose of the collateral is governed by the provisions on the disposition of collateral of the "Uniform Commercial Code" contained in part 6 of article 9 of title 4, C.R.S.
- If the creditor repossesses, with or without the aid of judicial process, or voluntarily accepts surrender of goods that were not the subject of the sale but in which the creditor has a security interest to secure a debt arising from a sale of goods or services or a combined sale of goods and services and the cash price of the sale was three thousand dollars or less, the parties obligated are not personally liable to the creditor for the unpaid balance of the debt arising from the sale, and the creditor's duty to dispose of the collateral is governed by the provisions on disposition of collateral of the "Uniform Commercial Code" contained in part 6 of article 9 of title 4, C.R.S.
- For the purpose of determining the unpaid balance of consolidated debts or debts pursuant to revolving credit accounts, the allocation of payments to a debt shall be determined in the same manner as provided for determining the amount of debts secured by various security interests under sections 5-3-202 and 5-3-203.
- The consumer may be liable in damages to the creditor if the consumer has misused, abused, or wrongfully damaged the collateral or if, after default and demand in writing, the consumer has wrongfully failed to make the collateral available to the creditor. Nothing in this section shall limit or restrict the remedies of the holders of a security interest for damage to the collateral because of conversion, destruction, or other wrongful acts.
-
If the creditor elects to bring an action against the consumer for a debt arising from a consumer credit sale of goods or services, when under this section the creditor would not be entitled to a deficiency judgment if the creditor took possession of
the collateral, and obtains judgment:
- The creditor may not take possession of the collateral; and
- The collateral is not subject to levy or sale on execution or similar proceedings pursuant to the judgment.
Source: L. 2000: Entire article R&RE, p. 1233, § 1, effective July 1. L. 2001: (1), (2), and (3) amended, p. 1444, § 36, effective July 1. L. 2003: (3) amended, p. 1896, § 13, effective July 1.
Editor's note: This section is similar to former § 5-5-103, as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "State Variations of the Uniform Consumer Credit Code: The Case for Legislative Restraint", see 48 Den. L.J. 239 (1971).
5-5-104. Insecurity and impaired collateral.
-
If a creditor takes possession of any collateral because the creditor deems himself or herself insecure or because the creditor feels his or her collateral is impaired, and the creditor fails to prove that, at the time possession was taken, the creditor,
in good faith, had reasonable cause to believe that he or she was insecure or that his or her collateral was impaired:
- The creditor shall be liable to the consumer for court costs and attorney fees as determined by the court; and
- The consumer shall not be liable for any finance charge incurred during the period the consumer is without use of the collateral.
Source: L. 2000: Entire article R&RE, p. 1234, § 1, effective July 1.
Editor's note: This section is similar to former § 5-5-103.5, as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "Secured Transactions -- Part II: Default, Foreclosure and Bankruptcy", see 12 Colo. Law. 13 (1983).
5-5-105. No garnishment before judgment.
Prior to entry of judgment in an action against the consumer for debt arising from a consumer credit transaction, the creditor may not replevin goods, except motor vehicles, of the consumer with the use of force from a dwelling upon an ex parte order of court or attach unpaid earnings of the consumer by garnishment or like proceedings.
Source: L. 2000: Entire article R&RE, p. 1234, § 1, effective July 1.
Editor's note: This section is similar to former § 5-5-104, as it existed prior to 2000.
ANNOTATION
Shares of common stock debtor purchased through an employee stock purchase plan are not exempt earnings pursuant to this section and § 13-54-104. In re Kramer, 339 B.R. 761 (Bankr. D. Colo. 2006).
5-5-106. Limitation on garnishment - definitions.
-
For the purposes of this part 1:
- "Disposable earnings" means that part of the earnings of an individual remaining after the deduction from those earnings of amounts required by law to be withheld.
- "Garnishment" means any legal or equitable procedure through which the earnings of an individual are required to be withheld for payment of a debt.
-
-
The maximum part of the aggregate disposable earnings of an individual for any workweek that is subjected to garnishment to enforce payment of a judgment arising from a consumer credit transaction may not exceed the lesser of:
- Twenty-five percent of the individual's disposable earnings for that week; or
- The amount by which the individual's disposable earnings for that week exceed thirty times the federal minimum hourly wage prescribed by section 206 (a)(1) of the "Fair Labor Standards Act of 1938", 29 U.S.C. sec. 201 et seq., in effect at the time the earnings are payable; or
- The amount by which the individual's disposable earnings for that week exceed thirty times the state minimum hourly wage pursuant to section 15 of article XVIII of the state constitution in effect at the time the earnings are payable.
- In the case of earnings for a pay period other than a week, the administrator may prescribe by rule a multiple of the federal minimum hourly wage or the state minimum hourly wage, equivalent in effect to that set forth in subparagraphs (II) or (III) of paragraph (a) of this subsection (2).
-
The maximum part of the aggregate disposable earnings of an individual for any workweek that is subjected to garnishment to enforce payment of a judgment arising from a consumer credit transaction may not exceed the lesser of:
- No court may make, execute, or enforce an order or process in violation of this section.
- It shall not be necessary for any individual to claim the exemptions for that portion of the aggregate disposable earnings that are not subject to garnishment as set forth in subsection (2) of this section, and such exemption from garnishment shall be self-executing in any garnishment procedure.
- This section does not repeal, alter, or affect other statutes of this state prohibiting garnishments or providing for larger exemptions from garnishments than are allowed under this section.
Source: L. 2000: Entire article R&RE, p. 1234, § 1, effective July 1. L. 2007: (2) amended, p. 878, § 6, effective July 1.
Editor's note: This section is similar to former § 5-5-105, as it existed prior to 2000.
Cross references: For the legislative declaration contained in the 2007 act amending subsection (2), see section 1 of chapter 226, Session Laws of Colorado 2007.
ANNOTATION
Annotator's note. Since § 5-5-106 is similar to § 5-5-105 as it existed prior to the 2000 repeal and reenactment of articles 1 to 3 and 4 to 6 of this title, relevant cases construing that provision have been included in the annotations to this section.
This section is substantially similar to the federal wage garnishment law. First Nat'l Bank v. Columbia Credit Corp., 179 Colo. 242 , 499 P.2d 1163 (1972).
Consequently, garnishments may be exempted from federal act. The secretary of labor may exempt from the garnishment provisions of the federal act garnishments under the law of any state which are substantially similar to those provided in the federal wage garnishment law. First Nat'l Bank v. Columbia Credit Corp., 179 Colo. 242 , 499 P.2d 1163 (1972).
The federal wage garnishment law does not annul, alter, affect, or exempt any person from complying with state laws which prohibit garnishment, or which provide for more limited garnishments than are permitted under federal law. First Nat'l Bank v. Columbia Credit Corp., 179 Colo. 242 , 499 P.2d 1163 (1972).
Whichever law is the more restrictive and results in the smaller garnishment is the one which must be applied in any given situation. First Nat'l Bank v. Columbia Credit Corp., 179 Colo. 242 , 499 P.2d 1163 (1972).
Limitation inapplicable to child support obligations. The limitation contained in subsection (2) is inapplicable to an order of assignment of wages to enforce child support obligations. In re McCue, 645 P.2d 854 (Colo. App. 1982).
Applied in Bernstein v. Richardson, 34 B.R. 611 (Bankr. D. Colo. 1983).
5-5-107. No discharge from employment for garnishment.
No employer shall discharge an employee for the reason that a creditor of the employee has subjected or attempted to subject unpaid earnings of the employee to garnishment or like proceedings directed to the employer for the purpose of paying a judgment arising from a consumer credit transaction.
Source: L. 2000: Entire article R&RE, p. 1235, § 1, effective July 1.
Editor's note: This section is similar to former § 5-5-106, as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "Punitive Damages in Wrongful Discharge Cases", see 15 Colo. Law. 658 (1986).
5-5-108. Extortionate extensions of credit.
- If it is the understanding of the creditor and the consumer at the time an extension of credit is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person, the repayment of the extension of credit is unenforceable through civil judicial processes against the consumer.
- If it is shown that an extension of credit was made at an annual percentage rate exceeding forty-five percent calculated according to the actuarial method and that the creditor then had a reputation for the use or threat of use of violence or other criminal means to cause harm to the person, reputation, or property of any person to collect extensions of credit or to punish the nonpayment thereof, there is prima facie evidence that the extension of credit was unenforceable under subsection (1) of this section.
Source: L. 2000: Entire article R&RE, p. 1235, § 1, effective July 1.
Editor's note: This section is similar to former § 5-5-107, as it existed prior to 2000.
5-5-109. Unconscionability - inducement by unconscionable conduct - unconscionable debt collection.
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With respect to a transaction that is, gives rise to, or leads the consumer to believe will give rise to a consumer credit transaction, if the court as a matter of law finds:
- The agreement or transaction to have been unconscionable at the time it was made, or to have been induced by unconscionable conduct, the court may refuse to enforce the agreement; or
- Any term or part of the agreement or transaction to have been unconscionable at the time it was made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable term or part, or so limit the application of any unconscionable term or part as to avoid any unconscionable result.
- With respect to a consumer credit transaction, if the court as a matter of law finds that a person has engaged in, is engaging in, or is likely to engage in unconscionable conduct in collecting a debt arising from that transaction, the court may grant an injunction and award the consumer any actual damages the consumer has sustained.
- If it is claimed or appears to the court that the agreement or transaction or any term or part thereof may be unconscionable or that a person has engaged in, is engaging in, or is likely to engage in unconscionable conduct in collecting a debt, the parties shall be afforded a reasonable opportunity to present evidence as to the setting, purpose, and effect of the agreement or transaction or term or part thereof or of the conduct to aid the court in making the determination.
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In applying subsection (2) of this section, consideration shall be given to each of the following factors, among others, as applicable:
- Using or threatening to use force or violence against the consumer or members of the consumer's family;
- Communicating with the consumer or a member of the consumer's family at frequent intervals or at unusual hours or under other circumstances so that it is a reasonable inference that the primary purpose of the communication was to harass the consumer;
- Using fraudulent, deceptive, or misleading representations such as a communication that simulates legal process or that gives the appearance of being authorized, issued, or approved by a government, governmental agency, or attorney at law when it is not or threatening or attempting to enforce a right with knowledge or reason to know that the right does not exist;
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Causing or threatening to cause injury to the consumer's reputation or economic status by:
- Disclosing information affecting the consumer's reputation for credit worthiness with knowledge or reason to know that the information is false;
- Communicating with the consumer's employer before obtaining a final judgment against the debtor, except, as permitted by statute, to verify the consumer's employment, to ascertain the consumer's whereabouts, or to request that the consumer contact the creditor;
- Disclosing to a person, with knowledge or reason to know that the person does not have a legitimate business need for the information, or in any way prohibited by statute, information affecting the consumer's credit or other reputation; or
- Disclosing information concerning the existence of a debt known to be disputed by the consumer without disclosing that fact;
- Engaging in conduct with knowledge that like conduct has been restrained or enjoined by a court in a civil action by the administrator against any person pursuant to the provisions on injunctions against fraudulent or unconscionable agreements or conduct contained in section 5-6-112.
- If, in an action in which unconscionability is claimed, the court finds unconscionability pursuant to subsection (1) or (2) of this section, the court may award reasonable fees to the attorney for the consumer. If the court does not find unconscionability and the consumer claiming unconscionability has brought or maintained an action the consumer knew to be groundless, the court may award reasonable fees to the attorney for the party against whom the claim is made. In determining attorney fees, the amount of the recovery on behalf of the consumer is not controlling.
- The remedies of this section are in addition to remedies otherwise available for the same conduct under laws other than this code, but double recovery of actual damages may not be had.
- For the purpose of this section, a charge or practice expressly permitted by this code is not in itself unconscionable.
Source: L. 2000: Entire article R&RE, p. 1236, § 1, effective July 1.
Editor's note: This section is similar to former § 5-5-108, as it existed prior to 2000.
Cross references: For the "Colorado Fair Debt Collection Practices Act", see article 16 of title 5.
ANNOTATION
Law reviews. For article, "Secured Transactions -- Part II: Default, Foreclosure and Bankruptcy", see 12 Colo. Law. 13 (1983). For article, "Default Judgments Against Consumers: Has the System Failed?", see 67 Den. U. L. Rev. 357 (1990).
Annotator's note. Since § 5-5-109 is similar to § 5-5-108 as it existed prior to the 2000 repeal and reenactment of articles 1 to 3 and 4 to 6 of this title, relevant cases construing that provision have been included in the annotations to this section.
Section 1681h(e) of the Fair Credit Reporting Act does not furnish defendant immunity from a statutory claim under this section since nothing in this section is inconsistent with the regulatory provisions of the Act and since an action under this section is to enforce a statutory right, and is not an action in the nature of defamation or invasion of privacy. Conley v. Greenwood Trust Co., 923 P.2d 307 (Colo. App. 1996), aff'd in part and rev'd in part on other grounds, 938 P.2d 1141 ( Colo. 1997 ).
Claim that bank failed to report mortgagee's debt to credit reporting agencies as disputed is preempted by the federal Fair Credit Reporting Act, 15 U.S.C. § 1681t(b)(a)(F). Collins v. BAC Home Loans Servicing LP, 912 F. Supp. 2d 997 (D. Colo. 2012).
Liability under this section is not dependent upon proof demonstrating that the plaintiff was legally indebted to defendant. Once the purported creditor treats another party as a debtor, that party will be recognized as such for purposes of this section. Conley v. Greenwood Trust Co., 923 P.2d 307 (Colo. App. 1996).
This section applies to consumer credit, lease, or loan transactions and does not apply to a loan made by a person who was not in the business of making loans; therefore, even though 50% interest rate on note was usurious, realtor who made loan was entitled to maximum legal rate of 45% interest on note. Brown v. Fenner, 757 P.2d 184 (Colo. App. 1988).
5-5-110. Notice of right to cure.
- With respect to a consumer credit transaction, after a consumer has been in default for ten days for failure to make a required payment and has not voluntarily surrendered possession of goods or the mobile home that are collateral, a creditor may give the consumer the notice described in this section. A creditor gives notice to the consumer pursuant to this section when the creditor delivers the notice to the consumer or mails the notice to the consumer at the consumer's residence, as defined in section 5-1-201 (6).
- Except as provided in subsection (3) of this section, the notice shall be in writing and conspicuously state: The name, address, and telephone number of the creditor to which payment is to be made, a brief identification of the credit transaction, the right to cure the default, and the amount of payment and date by which payment must be made to cure the default. A notice in substantially the following form complies with this subsection (2):
-
If the consumer credit transaction is a consumer insurance premium loan, the notice shall conform to the requirements of subsection (2) of this section, and a notice in substantially the form specified in subsection (2) of this section shall be deemed
compliance with this subsection (3) except for the following:
- In lieu of a brief identification of the credit transaction, the notice shall identify the transaction as a consumer insurance premium loan and shall identify each policy or contract that may be canceled;
- In lieu of the statement in the form of notice specified in subsection (2) of this section that the creditor may exercise its rights under law, a statement shall be included that each policy or contract identified in the notice may be canceled; and
- The last paragraph of the form of notice specified in subsection (2) of this section shall be omitted.
- A notice of right to cure delivered or mailed to a cosigner pursuant to this section shall be modified to state that the consumer is late in making his or her payment, include the consumer's name, and that if the amount now due is not paid by the last date for payment, the creditor may exercise its rights against the consumer, cosigner, or both.
(Name, address, and telephone number of creditor) (Account number, if any) (Brief identification of credit transaction)
(Date) is the LAST DATE FOR PAYMENT. (Amount) is the AMOUNT NOW DUE. You are late in making your payment(s). If you pay the AMOUNT NOW DUE (above) by the LAST DAY FOR PAYMENT (above), you may continue with the contract as though you were not late. If you do not pay by this date, we may exercise our rights under the law. If you are late again in making your payments, we may exercise our rights without sending you another notice like this one. If you have questions, write or telephone the creditor promptly.
Source: L. 2000: Entire article R&RE, p. 1237, § 1, effective July 1.
Editor's note:
- This section is similar to former § 5-5-111, as it existed prior to 2000.
- Although this section was effective on July 1, 2000, section 5 of chapter 265, Session Laws of Colorado 2000, provides that the disclosures described in subsection (4) are effective January 1, 2001.
ANNOTATION
Law reviews. For article, "Mechanic's Liens -- The 'Intent' Provisions Explored", see 11 Colo. Law. 1492 (1982). For article, "Secured Transactions -- Part II: Default, Foreclosure and Bankruptcy", see 12 Colo. Law. 13 (1983). For article, "Setoff and Security Interests In Deposit Accounts", see 17 Colo. Law. 2108 (1988). For article, "Default Judgments Against Consumers: Has the System Failed?", see 67 Den. U. L. Rev. 357 (1990).
Annotator's note. Since § 5-5-110 is similar to § 5-5-111 as it existed prior to the 2000 repeal and reenactment of articles 1 to 3 and 4 to 6 of this title, relevant cases construing that provision have been included in the annotations to this section.
Buyer may also be entitled to redeem. In addition to the right to cure, as provided by this section and § 5-5-112, a buyer may be entitled to redeem, but only if the trial court determines that the equities so warrant. Woods v. Monticello Dev. Co., 656 P.2d 1324 (Colo. App. 1982).
Creditor choosing not to effect actual delivery must use method of mail likely to insure that the notice is actually delivered to the debtors' residence. Aetna Fin. Co. v. Summers, 44 Colo. App. 491, 618 P.2d 726 (1980), aff'd, 642 P.2d 926 ( Colo. 1982 ).
Mailing by certified mail return receipt requested does not per se constitute notice to the debtor under subsection (1). Aetna Fin. Co. v. Summers, 44 Colo. App. 491, 618 P.2d 726 (1980), aff'd, 642 P.2d 926 ( Colo. 1982 ).
Statutory notice method required when debtor had knowledge alternate method failed. Once the creditor has actual knowledge that the debtor has not received a notice mailed by certified mail, return receipt requested, it was incumbent upon creditor to satisfy the statutory notice requirement by personal service or by sending the notice by regular mail to debtor's home. Aetna Fin. Co. v. Summers, 642 P.2d 926 (Colo. 1982).
5-5-111. Cure of default.
- With respect to a consumer credit transaction, except as provided in subsection (2) of this section, after a default consisting only of the consumer's failure to make a required payment, a creditor, because of that default, may neither accelerate maturity of the unpaid balance of the obligation nor take possession of or otherwise enforce a security interest in the goods or the mobile home that are collateral until twenty days after giving the consumer a notice of right to cure described in section 5-5-110. Until the expiration of the minimum applicable period after the notice is given, all defaults consisting of a failure to make the required payment may be cured by tendering to the creditor the amount of all unpaid sums due at the time of the tender, without acceleration, plus any unpaid delinquency or deferral charges. Cure restores the consumer to his or her rights under the agreement as though the defaults had not occurred.
- With respect to defaults on the same obligation, other than defaults on an obligation secured by a mobile home, after a creditor has once given the consumer a notice of right to cure described in section 5-5-110, this section gives no right to cure and imposes no limitation on the creditor's right to proceed against the consumer or goods that are collateral with respect to any subsequent default that occurs within twelve months of such notice. With respect to defaults on the same obligation that is secured by a mobile home, this section gives no right to cure and imposes no limitation on the creditor's right to proceed against the consumer or goods that are collateral with respect to any third default that occurs within twelve months of such notice. For the purpose of this section, in connection with revolving credit accounts, the obligation is the consumer's account, and there is no right to cure and no limitation on the creditor's rights with respect to any default that occurs within twelve months after an earlier default as to which a creditor has given the consumer notice of right to cure.
- Unless a creditor has provided the cosignor on a consumer credit transaction with a notice of right to cure that complies with section 5-5-110 and this section, in addition to the notice of right to cure provided to the consumer, the creditor may neither accelerate maturity of the unpaid balance of the obligation as to the cosignor nor report that amount on the cosignor's consumer report with a consumer reporting agency, as defined in section 5-18-103 and 15 U.S.C. sec. 1681a.
- This section and the provisions on waiver, agreements to forego rights, and settlement of claims do not prohibit a consumer from voluntarily surrendering possession of goods that are collateral and the creditor from thereafter enforcing its security interest in the goods at any time after default.
- This section shall not apply to consumer credit transactions that are payable in four or fewer installments.
Source: L. 2000: Entire article R&RE, p. 1239, § 1, effective July 1. L. 2017: (3) amended, (HB 17-1238), ch. 260, p. 1170, § 8, effective August 9.
Editor's note:
- This section is similar to former § 5-5-112, as it existed prior to 2000.
- Although this section was effective on July 1, 2000, section 5 of chapter 265, Session Laws of Colorado 2000, provides that the disclosures described in subsection (3) are effective January 1, 2001.
ANNOTATION
Law reviews. For article, "Secured Transactions -- Part II: Default, Foreclosure and Bankruptcy", see 12 Colo. Law. 13 (1983).
Annotator's note. Since § 5-5-111 is similar to § 5-5-112 as it existed prior to the 2000 repeal and reenactment of articles 1 to 3 and 4 to 6 of this title, relevant cases construing that provision have been included in the annotations to this section.
Buyer may also be entitled to redeem. In addition to the right to cure, as provided by this section and § 5-5-111, a buyer may be entitled to redeem, but only if the trial court determines that the equities so warrant. Woods v. Monticello Dev. Co., 656 P.2d 1324 (Colo. App. 1982).
Penalty for violation. An appropriate penalty for the violation of this section is the penalty imposed by § 4-9-507 (1). D.E.B. Adjustment Co. v. Cawthorne, 623 P.2d 82 (Colo. App. 1981).
A lender must strictly comply with notice provisions of the UCCC before it can accelerate a loan and repossess collateral. This section permits acceleration only after a notice of a debtor's right to cure is given. Accelerating a loan prior to the giving of notice as required by this section is improper. First Nat. Bank v. Union Tavern Corp., 794 P.2d 261 (Colo. App. 1990).
This section prohibits a lender from charging default interest against a debtor prior to giving notice of default as required by this section. First Nat. Bank v. Union Tavern Corp., 794 P.2d 261 (Colo. App. 1990).
This section and next section preclude a creditor under a consumer credit transaction from pursuing a replevin remedy prior to the expiration of the 20-day notice period set forth in this section. Green Tree Fin. v. Short, 10 P.3d 721 (Colo. App. 2000).
Applied in Aetna Fin. Co. v. Summers, 642 P.2d 926 (Colo. 1982).
5-5-112. Attorney fees.
- With respect to a consumer credit transaction, the agreement may provide for the payment by the consumer of reasonable attorney fees not in excess of fifteen percent of the unpaid debt after default and referral to an attorney not a salaried employee of the creditor or such additional fee as may be directed by the court. A provision in violation of this section is unenforceable.
- This section does not authorize the imposition of attorney fees for preparation of a notice of right to cure if the consumer cures the default pursuant to sections 5-5-110 and 5-5-111.
Source: L. 2000: Entire article R&RE, p. 1240, § 1, effective July 1.
Editor's note: This section is similar to former §§ 5-2-413, 5-3-404, and 5-3-514, as they existed prior to 2000.
ANNOTATION
Law reviews. For article, "State Variations of the Uniform Consumer Credit Code: The Case for Legislative Restraint", see 48 Den. L.J. 239 (1971).
Where litigation involved an installment sale contract entered into prior to October 1, 1971, this section did not apply. John Deere Co. v. Catalano, 186 Colo. 101 , 525 P.2d 1153 (1974) (decided under law in effect prior to the 2000 repeal and reenactment).
Applied in Nat'l City Bank of Denver v. Sather, 677 P.2d 432 (Colo. App. 1983) (decided under law in effect prior to the 2000 repeal and reenactment).
PART 2 CONSUMERS' REMEDIES
5-5-201. Effect of violations on rights of parties.
- If a creditor has violated the provisions of this code applying to limitations on the schedule of payments or loan term for supervised loans contained in section 5-2-308 or authority to make supervised loans contained in section 5-2-301, the consumer is not obligated to pay the finance charge and has a right to recover from the person violating this code or from an assignee of that person's rights who undertakes direct collection of payments or enforcement of rights arising from the debt a penalty in an amount determined by the court not in excess of three times the amount of the finance charge. With respect to violations arising from consumer credit transactions made pursuant to revolving credit accounts, no action pursuant to this subsection (1) may be brought more than two years after the violation occurred. With respect to violations arising from other consumer credit transactions, no action pursuant to this subsection (1) may be brought more than one year after the due date of the last scheduled payment of the agreement with respect to which the violation occurred.
- A consumer is not obligated to pay a charge in excess of that allowed by this code, and if a consumer has paid an excess charge he or she has a right to a refund. A refund may be made by reducing the consumer's obligation by the amount of the excess charge. If the consumer has paid an amount in excess of the lawful obligation under the agreement, the consumer may recover the excess amount from the person who made the excess charge or from an assignee of that person's rights who undertakes direct collection of payments from or enforcement of rights against consumers arising from the debt.
- If a consumer is entitled to a refund and a person liable to the consumer refuses to make a refund within a reasonable time after demand, the consumer may recover from that person a penalty in an amount determined by a court not exceeding the greater of either the amount of the finance charge or ten times the amount of the excess charge. If the creditor has made an excess charge in deliberate violation of or in reckless disregard for this code, the penalty may be recovered even though the creditor has refunded the excess charge. No penalty pursuant to this subsection (3) may be recovered if a court has ordered a similar penalty assessed against the same person in a civil action by the administrator described in section 5-6-114. With respect to excess charges arising from revolving credit accounts, no action pursuant to this subsection (3) may be brought more than two years after the time the excess charge was made. With respect to excess charges arising from other consumer credit transactions, no action pursuant to this subsection (3) may be brought more than one year after the due date of the last scheduled payment of the agreement pursuant to which the charge was made.
- Except as otherwise provided, no violation of this code impairs rights on a debt.
- If an employer discharges an employee in violation of the provisions prohibiting discharge contained in section 5-5-107, the employee may within ninety days bring a civil action for recovery of wages lost as a result of the violation and for an order requiring the reinstatement of the employee. Damages recoverable shall not exceed lost wages for six weeks.
- If the creditor establishes by a preponderance of evidence that a violation is unintentional or the result of a bona fide error, notwithstanding the maintenance of procedures reasonably adopted to avoid the error, no liability is imposed under subsections (1) and (3) of this section, and the validity of the transaction is not affected.
- In any case in which it is found that a creditor has violated this code, the court may award reasonable attorney fees incurred by the consumer.
- If a creditor repeatedly fails to provide a consumer with a statement of an annual percentage rate or finance charge as and to the extent required by the provisions on disclosure contained in section 5-3-101 of this code and has received written notice from the administrator of such repeated failure, any such subsequent failure by the creditor shall relieve any consumer receiving such defective disclosure from any obligation to pay any finance charge in connection with such consumer credit transaction.
Source: L. 2000: Entire article R&RE, p. 1240, § 1, effective July 1.
Editor's note: This section is similar to former § 5-5-202, as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "Colorado Usury", see 11 Colo. Law. 2557 (1982).
Annotator's note. Since § 5-5-201 is similar to § 5-5-202 as it existed prior to the 2000 repeal and reenactment of articles 1 to 3 and 4 to 6 of this title, relevant cases construing that provision have been included in the annotations to this section.
Section 5-5-204(2) is interpreted to be as "otherwise provided" under subsection (5) of this section, which states that "except as otherwise provided, no violation of this code impairs rights on a debt". Strader v. Beneficial Fin. Co., 191 Colo. 206 , 551 P.2d 720 (1976).
Section 521 of the Depository Institutions Deregulation and Monetary Control Act of 1980 preempted plaintiff's claims against a Delaware bank that the bank's late charges violated this section and § 5-5-203. Stoorman v. Greenwood Trust Co., 888 P.2d 289 (Colo. App. 1994).
"Interest" under § 521 of the Depository Institutions Deregulation and Monetary Control Act of 1980 includes late fees and, therefore, Colorado law is preempted by the federal law with respect to late charges. Stoorman v. Greenwood Trust Co., 888 P.2d 289 (Colo. App. 1994).
Plaintiff's common law challenges were preempted by § 521 of the Depository Institutions Deregulation and Monetary Control Act of 1980 since that law creates an exclusive federal remedy and an exclusive federal remedy is inconsistent with the idea that a plaintiff can seek relief under state common law theories. Stoorman v. Greenwood Trust Co., 888 P.2d 289 (Colo. App. 1994).
Applied in Greeley Nat. Bank v. Sloan, 677 P.2d 409 (Colo. App. 1983).
5-5-202. Civil liability for violation of disclosure provisions.
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Except as otherwise provided in this section, a creditor who, in violation of the provisions on disclosure contained in section 5-3-101, other than the provisions on advertising, fails to disclose information to a person entitled to the information under
this code is liable to that person in an amount equal to the sum of:
- Twice the amount of the finance charge in connection with the transaction, but the liability pursuant to this paragraph (a) shall be not less than one hundred dollars nor more than one thousand dollars; and
- In the case of a successful action to enforce the liability under paragraph (a) of this subsection (1), the costs of the action together with reasonable attorney fees as determined by the court.
- A creditor has no liability under this section if, within sixty days after discovering an error and prior to the institution of an action under this section or the receipt of written notice of the error, the creditor notifies the person concerned of the error and makes whatever adjustments in the appropriate account are necessary to assure that the person will not be required to pay a finance charge in excess of the amount or percentage rate actually disclosed.
- A creditor may not be held liable in any action brought under this section for a violation of this code if the creditor shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid the error.
- Any action that may be brought under this section against the original creditor in any credit transaction involving a security interest in land may be maintained against any subsequent assignee of the original creditor where the assignee, its subsidiaries, or affiliates were in a continuing business relationship with the original creditor either at the time the credit was extended or at the time of the assignment unless the assignment was involuntary or the assignee shows by a preponderance of evidence that it did not have reasonable grounds to believe that the original creditor was engaged in violations of this code and that it maintained procedures reasonably adapted to apprise it of the existence of the violations.
- No action pursuant to this section may be brought more than one year after the date of the occurrence of the violation.
- In this section, creditor includes a person who in the ordinary course of business regularly extends or arranges for the extension of credit or offers to arrange for the extension of credit.
- No provision of this section or section 5-5-201 imposing any liability shall apply to any act done or omitted in good faith in conformity with any rule, regulation, interpretation, or written response to a person pursuant to a written request on behalf of such identified person by the administrator or the board of governors of the federal reserve system pursuant to the federal "Truth in Lending Act" or federal "Consumer Leasing Act", notwithstanding that, after such act or omission has occurred, such rule, regulation, interpretation, or written response is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.
- The multiple failure to disclose to any person any information required under this code to be disclosed in connection with a single account under a revolving credit account, other single consumer credit sale, consumer loan, or other extension of consumer credit shall entitle the person to a single recovery under this section, but continued failure to disclose after recovery has been granted shall give rise to rights to additional recoveries.
Source: L. 2000: Entire article R&RE, p. 1241, § 1, effective July 1.
Editor's note: This section is similar to former § 5-5-203, as it existed prior to 2000.
Cross references: For the definitions and federal statutory cites of the "Truth in Lending Act" and the "Consumer Leasing Act", see § 5-1-302.
ANNOTATION
Annotator's note. Since § 5-5-202 is similar to § 5-5-203 as it existed prior to the 2000 repeal and reenactment of articles 1 to 3 and 4 to 6 of this title, relevant cases construing that provision have been included in the annotations to this section.
This section specifically authorized the award of reasonable attorney's fees "as determined by the court". Rachbach v. Cogswell, 547 F.2d 502 (10th Cir. 1976).
In an action under the Truth in Lending Act (15 U.S.C. § 1601 et seq.), even if the Colorado law were applicable to the issue of attorney's fees, where the record contained no showing of what were reasonable fees, the federal circuit court could not determine whether the trial court abused its discretion in denying those fees. Rachbach v. Cogswell, 547 F.2d 502 (10th Cir. 1976).
Borrowers not barred in demand for attorneys' fees. Where, by its continued breach of its duty, even after being ordered to take corrective action by the Colorado uniform consumer credit code administration, a lender delayed the borrowers' knowledge of the true 19.07 percent interest rate on the loan for a period of five and one-half months, to permit the lender to raise the statute of limitations to bar the borrowers would be unjust, and, therefore, the borrowers were not barred by the statute of limitations in their demand for attorneys' fees. Strader v. Beneficial Fin. Co., 191 Colo. 206 , 551 P.2d 720 (1976).
Applied in Hull v. Bowest Corp., 649 P.2d 334 (Colo. App. 1982).
5-5-203. Consumer's right to rescind certain transactions.
In the case of a consumer credit transaction with respect to which a security interest is retained or acquired in any property that is used as the principal dwelling of the person to whom credit is extended, the consumer shall have the same right to rescind the transaction as provided in the federal "Truth in Lending Act" and regulations thereunder. In order to comply with this code, a creditor shall comply with those provisions on the right of rescission of certain transactions.
Source: L. 2000: Entire article R&RE, p. 1243, § 1, effective July 1.
Editor's note: This section is similar to former § 5-5-204, as it existed prior to 2000.
Cross references: For the definition and federal statutory cite of the "Truth in Lending Act", see § 5-1-302.
ANNOTATION
Law reviews. For case note, "Consequences of the Creditor's Failure to Acknowledge Rescission by the Debtor Under Strader v. Beneficial Fin. Co.", see 48 U. Colo. L. Rev. 437 (1977). For article, "An Overview of Home Equity as Security for a Line of Credit", see 14 Colo. Law. 226 (1985).
Annotator's note. Since § 5-5-203 is similar to § 5-5-204 as it existed prior to the 2000 repeal and reenactment of articles 1 to 3 and 4 to 6 of this title, relevant cases construing that provision have been included in the annotations to this section.
This section expressly applies to consumer credit sales and consumer loans. Strader v. Beneficial Fin. Co., 191 Colo. 206 , 551 P.2d 720 (1976).
The consumer borrower and the consumer buyer are to be treated the same under this section. Strader v. Beneficial Fin. Co., 191 Colo. 206 , 551 P.2d 720 (1976).
Subsection (2) is interpreted to be as "otherwise provided" under § 5-5-202(5) , which states that "except as otherwise provided, no violation of this code impairs rights on a debt". Strader v. Beneficial Fin. Co., 191 Colo. 206 , 551 P.2d 720 (1976).
The requirement of tender arises only after the security interest is released. Strader v. Beneficial Fin. Co., 191 Colo. 206 , 551 P.2d 720 (1976).
The creditor is specifically obligated to take any action necessary or appropriate to reflect the termination of the security interest within 10 days after receipt of the notice of rescission and no duty is imposed upon the debtor until after the performance of the creditor's obligations. Strader v. Beneficial Fin. Co., 191 Colo. 206 , 551 P.2d 720 (1976).
When debtor relieved of obligation to tender. If the security interest is not released within the 10 days following notice of rescission, the debtor is relieved of the obligation to tender and the property vests in the debtor. Strader v. Beneficial Fin. Co., 191 Colo. 206 , 551 P.2d 720 (1976).
Effect of failure to take possession of property tendered. After tender by the debtor, if the creditor fails to take possession of the property tendered, "ownership of the property vests in the debtor without obligation to pay . . . ". This statutory provision is intended as an impetus for the creditor to take immediate action to clear title and to fulfill its obligations. Strader v. Beneficial Fin. Co., 191 Colo. 206 , 551 P.2d 720 (1976).
Applied in Griffin v. United Bank, 40 Colo. App. 513, 580 P.2d 818 (1978); Griffin v. United Bank, 198 Colo. 239 , 599 P.2d 866 (1979); Varady v. White, 42 Colo. App. 389, 595 P.2d 272 (1979); Varady v. White, 661 P.2d 284 (Colo. App. 1982); Campbell v. Commercial Credit Plan, Inc., 670 P.2d 813 (Colo. App. 1983).
5-5-204. Interests in land.
For purposes of the provisions on civil liability for violation of the disclosure provisions contained in section 5-5-202 and on a consumer's right to rescind certain transactions contained in section 5-5-203, "consumer credit transaction" includes a transaction primarily secured by an interest in land without regard to the rate of the finance charge if the transaction is otherwise a consumer credit transaction.
Source: L. 2000: Entire article R&RE, p. 1243, § 1, effective July 1.
Editor's note: This section is similar to former § 5-5-201, as it existed prior to 2000.
5-5-205. Refunds and penalties as set-off to obligation.
Refunds or penalties to which the consumer is entitled pursuant to this part 2 may be set off against the consumer obligation and may be raised as a defense to a suit on the obligation without regard to the time limitations prescribed by said sections.
Source: L. 2000: Entire article R&RE, p. 1243, § 1, effective July 1.
Editor's note: This section is similar to former § 5-5-205, as it existed prior to 2000.
5-5-206. Civil liability for discrimination.
If a person has failed to comply with section 5-3-210, the person aggrieved by such failure to comply has a right to recover actual damages from such person but in no event less than one hundred dollars for actual and exemplary damages nor more than one thousand dollars for actual and exemplary damages. In the case of a successful action to enforce such right of recovery, the aggrieved person shall recover the costs of the action together with reasonable attorney fees as determined by the court.
Source: L. 2000: Entire article R&RE, p. 1243, § 1, effective July 1.
Editor's note: This section is similar to former § 5-5-206, as it existed prior to 2000.
Cross references: For discrimination, see article 34 of title 24.
PART 3 CRIMINAL PENALTIES
5-5-301. Willful violations.
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[ Editor's note: This version of subsection (1) is effective until March 1, 2022.] A supervised lender who willfully makes charges in excess of those permitted by the provisions of this code is guilty of a misdemeanor and, upon conviction thereof, shall
be punished by a fine of not more than five thousand dollars, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment.
(1) [ Editor's note: This version of subsection (1) is effective March 1, 2022. ] A supervised lender who willfully makes charges in excess of those permitted by the provisions of this code commits a class 2 misdemeanor.
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[ Editor's note: This version of subsection (2) is effective until March 1, 2022.] A person, other than a supervised financial organization, who willfully engages in the business of making supervised loans without a license in violation of the provisions
of this code applying to the authority to make supervised loans described in section 5-2-301 is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than five thousand dollars, or by imprisonment
in the county jail for not more than one year, or by both such fine and imprisonment.
(2) [ Editor's note: This version of subsection (2) is effective March 1, 2022. ] A person, other than a supervised financial organization, who willfully engages in the business of making supervised loans without a license in violation of the provisions of this code applying to the authority to make supervised loans described in section 5-2-301 commits a class 2 misdemeanor.
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[ Editor's note: This version of subsection (3) is effective until March 1, 2022.] A person who willfully engages in the business of making consumer credit transactions or of taking assignments of rights against consumers arising therefrom and undertakes
direct collection of payments or enforcement of these rights without complying with the provisions of this code concerning notification contained in section 5-6-202 or payment of fees contained in section 5-6-203 is guilty of a
misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than one thousand dollars.
(3) [ Editor's note: This version of subsection (3) is effective March 1, 2022. ] A person who willfully engages in the business of making consumer credit transactions or of taking assignments of rights against consumers arising therefrom and undertakes direct collection of payments or enforcement of these rights without complying with the provisions of this code concerning notification contained in section 5-6-202 or payment of fees contained in section 5-6-203 commits a class 2 misdemeanor.
- Any person who violates the provisions of this section and by the same act or acts violates the provisions of section 18-15-104 or 18-15-107, C.R.S., or both, shall be prosecuted for the violation of either or both of said sections and not for a violation of this section.
Source: L. 2000: Entire article R&RE, p. 1243, § 1, effective July 1. L. 2021: (1), (2), and (3) amended, (SB 21-271), ch. 462, p. 3133, § 54, effective March 1, 2022.
Editor's note:
- This section is similar to former § 5-5-301, as it existed prior to 2000.
- Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.
ANNOTATION
Law reviews. For article, "Criminal Prosecutions under the Colorado Securities Act", see 47 U. Colo. L. Rev. 233 (1976).
5-5-302. Disclosure violations.
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[ Editor's note: This version of the introductory portion to subsection (1) is effective until March 1, 2022.] A person is guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not more than five thousand dollars, or by
imprisonment in the county jail for not more than one year, or by both such fine and imprisonment if such person willfully and knowingly:
(1) [ Editor's note: This version of the introductory portion to subsection (1) is effective March 1, 2022. ] A person commits a class 2 misdemeanor if such person willfully and knowingly:
- Gives false or inaccurate information or fails to provide information that such person is required to disclose under the provisions of this code on disclosure and advertising or of any related rule of the administrator adopted pursuant to this code;
- Uses any rate table or chart in a manner which consistently understates the annual percentage rate determined according to those provisions; or
- Otherwise fails to comply with any requirement of the provisions of this code on disclosure and advertising or of any related rule of the administrator adopted pursuant to this code.
Source: L. 2000: Entire article R&RE, p. 1244, § 1, effective July 1. L. 2021: IP(1) amended, (SB 21-271), ch. 462, p. 3133, § 55, effective March 1, 2022.
Editor's note:
- This section is similar to former § 5-5-302, as it existed prior to 2000.
- Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.
ARTICLE 6 ADMINISTRATION
Editor's note: This article was numbered as article 6 of chapter 73, C.R.S. 1963. This title was repealed and reenacted in 1971, and this article was subsequently repealed and reenacted in 2000, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this article prior to 2000, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume and the editor's note following the title heading. Former C.R.S. section numbers are shown in editor's notes following those sections that were relocated. For a detailed comparison of this article, see the comparative tables located in the back of the index.
Section
PART 1 POWERS AND FUNCTIONS OF ADMINISTRATOR
5-6-101. Short title.
This article shall be known and may be cited as "Uniform Consumer Credit Code - Administration".
Source: L. 2000: Entire article R&RE, p. 1244, § 1, effective July 1.
Editor's note: This section is similar to former § 5-6-101, as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "Legislative Overview of the Uniform Consumer Credit Code: A 1971 Perspective", see 48 Den. L.J. 27 (1971).
5-6-102. Applicability.
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This part 1 applies to persons who in this state:
- Make or solicit consumer credit transactions; or
- Directly collect payments from or enforce rights against consumers arising from sales, leases, or loans specified in paragraph (a) of this subsection (1) wherever they are made.
Source: L. 2000: Entire article R&RE, p. 1244, § 1, effective July 1.
Editor's note: This section is similar to former § 5-6-102, as it existed prior to 2000.
5-6-103. Definitions - "administrator".
"Administrator" means the assistant attorney general to be designated by the attorney general. Any district attorney may, with the consent of the administrator, exercise the powers and perform the duties of the administrator as provided in section 5-6-104 (1)(a) and (1)(b) and sections 5-6-105 to 5-6-116.
Source: L. 2000: Entire article R&RE, p. 1245, § 1, effective July 1.
Editor's note: This section is similar to former § 5-6-103, as it existed prior to 2000.
5-6-104. Powers of administrator - harmony with federal regulations - reliance on rules.
-
In addition to other powers granted by this code, the administrator, within the limitations provided by law, may:
- Receive and act on complaints, take action designed to obtain voluntary compliance with this code, or commence proceedings on his or her own initiative;
- Counsel persons and groups on their rights and duties under this code;
- Establish programs for the education of consumers with respect to credit practices and problems;
- Make studies appropriate to effectuate the purposes and policies of this code and make the results available to the public;
- With approval of the council of advisors on consumer credit subcommittee, adopt, amend, and repeal substantive rules and regulations to carry out the specific provisions of this code, but not with respect to unconscionable agreements or fraudulent or unconscionable conduct, and adopt, amend, and repeal procedural rules to carry out the provisions of this code;
- Maintain offices within this state;
- Enforce the provisions of article 19 of this title 5;
- Employ administrative law judges from the office of administrative courts in the department of personnel to conduct hearings on any matter within the administrator's jurisdiction;
- License and regulate collection agencies pursuant to article 16 of this title 5; and
- Exchange information with another governmental agency or official that has regulatory authority comparable to that of the administrator, subject to an appropriate confidentiality agreement between the administrator and the other agency or official or as otherwise permitted by law. This paragraph (j) shall not be construed to allow the exchange of information with lenders or creditors.
- The administrator may adopt rules not inconsistent with the federal "Truth in Lending Act" and federal "Consumer Leasing Act" to assure a meaningful disclosure of credit terms so that a prospective consumer will be able to compare more readily the various credit terms available to him or her and to avoid the uninformed use of credit. Such rules shall supersede any provisions of this code that are inconsistent with the federal "Truth in Lending Act" and federal "Consumer Leasing Act", may contain classifications, differentiations, or other provisions, and may provide for adjustments and exceptions for any class of transactions subject to this code that, in the judgment of the administrator, are necessary or proper to effectuate the purposes of, or to prevent circumvention or evasion of, or to facilitate compliance with, the provisions of this code relating to disclosure of credit terms.
-
To keep the administrator's rules in harmony with the federal "Truth in Lending Act" and the federal "Consumer Leasing Act" and the regulations prescribed from time to time pursuant to that act by the board of governors of the federal reserve system and
with the rules of administrators in other jurisdictions that enact the "Uniform Consumer Credit Code", the administrator, so far as is consistent with the purposes, policies, and provisions of this code, shall:
- Before adopting, amending, and repealing rules and regulations, advise and consult with administrators in other jurisdictions that enact the "Uniform Consumer Credit Code"; and
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In adopting, amending, and repealing rules and regulations, take into consideration:
- The regulations so prescribed by the board of governors of the federal reserve system; and
- The rules of administrators in other jurisdictions that enact the "Uniform Consumer Credit Code".
- Except for a refund of an excess charge, no liability is imposed under this code for an act done or omitted in good faith in conformity with a rule, regulation, interpretation, or written response to a person pursuant to a written request on behalf of such identified person by the administrator, notwithstanding that after the act or omission the rule, regulation, interpretation, or written response may be amended or repealed or be determined by judicial or other authority to be invalid for any reason.
Source: L. 2000: Entire article R&RE, p. 1245, § 1, effective July 1; (1)(i) added, p. 945, § 26, effective July 1. L. 2003: (1)(j) added, p. 1896, § 14, effective July 1. L. 2005: (1)(h) amended, p. 853, § 7, effective June 1. L. 2017: (1)(g) and (1)(i) amended, (HB 17-1238), ch. 260, p. 1171, § 9, effective August 9.
Editor's note:
- This section is similar to former § 5-6-104, as it existed prior to 2000.
- Subsection (1)(h) from House Bill 00-1182 was harmonized with House Bill 00-1185 and renumbered as subsection (1)(i).
Cross references: For the definitions and federal statutory cites of the "Truth in Lending Act" and the "Consumer Leasing Act", see § 5-1-302.
ANNOTATION
Law reviews. For article, "Colorado Usury", see 11 Colo. Law. 2557 (1982).
5-6-105. Administrative powers with respect to supervised financial organizations.
- With respect to supervised financial organizations, the powers of examination and investigation described in sections 5-2-305 and 5-6-106 and administrative enforcement described in section 5-6-108 shall be exercised by the official or agency to whose supervision the organization is subject. All other powers of the administrator under this code may be exercised by the administrator with respect to a supervised financial organization.
- If the administrator receives a complaint or other information concerning noncompliance with this code by a supervised financial organization, the administrator shall inform the official or agency having supervisory authority over the organization concerned. The administrator may request information about supervised financial organizations from the officials or agencies supervising them.
- The administrator and any official or agency of this state having supervisory authority over a supervised financial organization are authorized and directed to consult and assist one another in maintaining compliance with this code. They may jointly pursue investigations, prosecute suits, and take other official action, as they deem appropriate, if either of them otherwise is empowered to take the action. The administrator may recover from a supervised financial organization the administrator's reasonable costs incurred in such investigation, suit, or other official action as part of any relief granted the administrator by a court of competent jurisdiction.
Source: L. 2000: Entire article R&RE, p. 1246, § 1, effective July 1.
Editor's note: This section is similar to former § 5-6-105, as it existed prior to 2000.
5-6-106. Investigatory powers.
- If the administrator has reasonable cause to believe that a person has engaged in an act that is subject to action by the administrator, the administrator may make an investigation to determine if the act has been committed, and, to the extent necessary for this purpose, may administer oaths or affirmations, and, upon his or her own motion or upon request of any party, may subpoena witnesses, compel their attendance, adduce evidence, and require the production of any matter that is relevant to the investigation, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts, or any other matter reasonably calculated to lead to the discovery of admissible evidence. In any civil action brought by the administrator as a result of such an investigation, the administrator may recover the reasonable costs of making the investigation if the administrator prevails in the action.
- If the person's records are located outside this state, the person at his or her option shall either make them available to the administrator at a convenient location within this state or pay the reasonable and necessary expenses for the administrator or the administrator's representative to examine them at the place where they are maintained. The administrator may designate representatives, including comparable officials of the state in which the records are located, to inspect them on the administrator's behalf.
- Upon failure without lawful excuse to obey a subpoena or to give testimony, the administrator may apply to the district court for an order compelling compliance.
- The administrator shall not make public the name or identity of a person whose acts or conduct he or she investigates pursuant to this section or the facts disclosed in the investigation, but this subsection (4) does not apply to disclosures in actions or enforcement proceedings pursuant to this code.
Source: L. 2000: Entire article R&RE, p. 1247, § 1, effective July 1.
Editor's note: This section is similar to former § 5-6-106, as it existed prior to 2000.
ANNOTATION
Absent a waiver of immunity, an Indian tribe is immune from any action --criminal, civil, or injunctive--the attorney general may bring in a court to enforce the Uniform Consumer Credit Code. State ex rel. Suthers v. Cash Ad. & Pref., 205 P.3d 389 (Colo. App. 2008), aff'd on other grounds sub nom. Cash Advance & Pref. Cash Loans v. State, 242 P.3d 1099 ( Colo. 2010 ).
Tribal sovereign immunity does not prevent the enforcement of the attorney general's subpoenas for information relevant to the determination by the trial court of whether sovereign immunity applies to a business affiliated with the tribe. State ex rel. Suthers v. Cash Ad. & Pref., 205 P.3d 389 (Colo. App. 2008), aff'd on other grounds sub nom. Cash Advance & Pref. Cash Loans v. State, 242 P.3d 1099 ( Colo. 2010 ).
Under this section the state has investigative authority to subpoena records from out-of-state nontribal entities, and state courts have authority to enforce those subpoenas. State ex rel. Suthers v. Tulips Invs., LLC, 2012 COA 206 , 343 P.3d 977, aff'd, 2015 CO 1, 340 P.3d 1126.
5-6-107. Application of administrative procedures - provisions.
Except as otherwise provided, the provisions of sections 24-4-102 to 24-4-106, C.R.S., apply to and govern all rules promulgated and all administrative action taken by the administrator pursuant to this article or the provisions on supervised loans contained in part 3 of article 2 of this title; except that section 24-4-104 (3), C.R.S., shall not apply to any such action.
Source: L. 2000: Entire article R&RE, p. 1247, § 1, effective July 1.
Editor's note: This section is similar to former § 5-6-107, as it existed prior to 2000.
5-6-108. Judicial review.
Any person aggrieved by any final action or order of the administrator and affected thereby is entitled to a review thereof by the Colorado court of appeals by appropriate proceedings under section 24-4-106 (11), C.R.S.
Source: L. 2000: Entire article R&RE, p. 1247, § 1, effective July 1.
Editor's note: This section is similar to former § 5-6-108, as it existed prior to 2000.
5-6-109. Administrative enforcement orders.
- After notice and hearing, the administrator may order a creditor or a person acting in the creditor's behalf to cease and desist from engaging in violations of this code or any rule or order lawfully made pursuant to this code. The order issued by the administrator may also require the creditor or person to make refunds to consumers of excess charges under this code and pay a penalty up to a maximum of one thousand dollars for each violation, all or part of which may be specifically designated for consumer and creditor educational purposes.
- A respondent aggrieved by an order of the administrator may obtain judicial review of the order in the Colorado court of appeals. The administrator may obtain an order of the court for enforcement of the administrator's order in the district court under section 24-4-106, C.R.S. All proceedings under this section shall be governed by sections 24-4-105 and 24-4-106, C.R.S.
- With respect to unconscionable agreements or fraudulent or unconscionable conduct by the respondent, the administrator may not issue an order pursuant to this section but may bring a civil action for an injunction under section 5-6-112.
Source: L. 2000: Entire article R&RE, p. 1248, § 1, effective July 1.
Editor's note: This section is similar to former § 5-6-108, as it existed prior to 2000.
5-6-110. Assurance of discontinuance.
If it is claimed that a person has engaged in conduct subject to an order by the administrator described in section 5-6-108 or by a court described in sections 5-6-111 to 5-6-113, the administrator may accept an assurance in writing that the person will not engage in the conduct in the future. The assurance may also require the person to make refunds to consumers of excess charges under this code, pay a penalty up to a maximum of one thousand dollars for each violation, all or part of which may be specifically designated for consumer and creditor educational purposes, and reimburse the administrator for the administrator's reasonable costs incurred in investigating the conduct. If a person giving an assurance of discontinuance fails to comply with its terms, the assurance is evidence that prior to the assurance such person engaged in the conduct described in the assurance.
Source: L. 2000: Entire article R&RE, p. 1248, § 1, effective July 1.
Editor's note: This section is similar to former § 5-6-109, as it existed prior to 2000.
5-6-111. Injunctions against violations of code.
The administrator may bring a civil action to restrain a person from violating this code or rules or regulations promulgated thereunder and for other appropriate relief.
Source: L. 2000: Entire article R&RE, p. 1248, § 1, effective July 1.
Editor's note: This section is similar to former § 5-6-110, as it existed prior to 2000.
Cross references: For injunctions, see C.R.C.P. 65.
5-6-112. Injunctions against unconscionable agreements and fraudulent or unconscionable conduct.
-
The administrator may bring a civil action to restrain a creditor or a person acting in the creditor's behalf from engaging in a course of:
- Making or enforcing unconscionable terms or provisions of consumer credit transactions;
- Fraudulent or unconscionable conduct in inducing consumers to enter into consumer credit transactions;
- Conduct of any of the types specified in paragraph (a) or (b) of this subsection (1) with respect to transactions that give rise to or lead persons to believe they will give rise to consumer credit transactions; or
- Fraudulent or unconscionable conduct in the collection of debts arising from consumer credit transactions.
-
In an action brought pursuant to this section, the court may grant relief only if it finds:
- That the respondent has made unconscionable agreements or has engaged or is likely to engage in a course of fraudulent or unconscionable conduct;
- That the agreements or conduct of the respondent has caused or is likely to cause injury to consumers; and
- That the respondent has been able to cause or will be able to cause the injury primarily because the transactions involved are credit transactions.
-
In applying this section, consideration shall be given to each of the following factors, among others:
- Whether the creditor should have reasonably believed at the time consumer credit transactions were made that, according to the credit terms or schedule of payments, there was no reasonable probability of payment in full of the obligation by the consumer;
- Whether the creditor reasonably should have known, at the time of the transaction, of the inability of the consumer to receive substantial benefits from the transaction;
- Gross disparity between the price of the transaction and its value measured by the price at which similar transactions are readily obtainable by like consumers;
- The fact that the creditor contracted for or received separate charges for insurance with respect to consumer credit transactions with the effect of making the transactions, considered as a whole, unconscionable;
- The fact that the respondent has knowingly taken advantage of the inability of the consumer reasonably to protect his or her interests by reason of physical or mental infirmities, ignorance, illiteracy, or inability to understand the language of the agreement, or similar factors; and
- Any of the factors set forth in section 5-5-109 (4).
-
The administrator may bring a civil action to restrain a creditor or a person acting in the creditor's behalf from engaging in a course of making or arranging consumer loans to enable consumers to buy or lease from a particular seller or lessor goods
or services, a principal purpose of which course of action is to avoid giving the consumers those rights that they would have had if the transactions were entered into as a consumer credit sale if:
- The lender is a person related to the seller or lessor unless the relationship is remote or is not a factor in the transaction;
- The seller or lessor guarantees the loans or otherwise assumes the risk of loss by the lender upon the loans;
- The loans are conditioned upon the consumer's purchase or lease of the goods or services from the particular seller or lessor, but the lender's payment of proceeds of the loan to the seller or lessor does not in itself establish that the loan was so conditioned; or
- The lender, before the lender makes the consumer loan, has knowledge or, from the lender's course of dealing with the particular seller or lessor or from the lender's records, notice of substantial complaints by other consumers of the particular seller's or lessor's failure or refusal to perform his or her contracts with them and of the particular seller's or lessor's failure to remedy his or her defaults within a reasonable time after notice to him or her of the complaints.
- In an action brought pursuant to this code, a charge or practice expressly permitted by this code is not in itself unconscionable.
Source: L. 2000: Entire article R&RE, p. 1248, § 1, effective July 1.
Editor's note: This section is similar to former § 5-6-111, as it existed prior to 2000.
ANNOTATION
Probability of repayment factor. Subsection (3)(a) requires a court examining the probability of repayment factor to look at both the terms of the loan and the circumstances of the consumer. State ex rel. Weiser v. Ctr. for Excellence, 2021 COA 117 , __ P.3d __ [published August 26, 2021].
Law reviews. For article, "Default Judgments Against Consumers: Has the System Failed?", see 67 Den. U. L. Rev. 357 (1990).
5-6-113. Temporary relief.
With respect to an action brought to enjoin violations of this code under section 5-6-111 or unconscionable agreements or fraudulent or unconscionable conduct under section 5-6-112, the administrator may apply to the court for a temporary restraining order or a preliminary injunction against a respondent pending final determination of proceedings. If the court finds after a hearing that there is reasonable cause to believe that the respondent is engaging in or is likely to engage in conduct sought to be restrained, it may grant any such temporary restraining order or preliminary injunction it deems appropriate. The court may also issue such orders or judgments as may be necessary to completely compensate or restore to his or her original position any consumer affected by such violation, agreement, or conduct or if there is reasonable cause to believe funds to make refunds of excess charges under this code will not be available at a future date. No bond or other security is required of the administrator before relief under this section may be granted.
Source: L. 2000: Entire article R&RE, p. 1250, § 1, effective July 1.
Editor's note: This section is similar to former § 5-6-112, as it existed prior to 2000.
5-6-114. Civil actions by administrator.
-
- The administrator may bring a civil action against a creditor for making or collecting charges in excess of those permitted by this code, violating any of the provisions of this code applying to limitations on the schedule of payments or loan term for supervised loans or authority to make supervised loans, or for disclosure violations. An action may relate to transactions with more than one consumer. If it is found that an excess charge has been made, the court shall order the respondent to refund to the consumer the amount of the excess charge and to pay a penalty to the consumer as provided in sections 5-5-201 and 5-5-202. In addition, the court may assess a civil penalty of up to one thousand dollars for each violation of this code.
- If a creditor has made an excess charge in deliberate violation of or in reckless disregard for this code or if a creditor has refused to refund an excess charge within a reasonable time after demand by the consumer or the administrator, the court may also order the respondent to pay to the consumers a civil penalty in an amount determined by the court not in excess of the greater of either the amount of the finance charge or ten times the amount of the excess charge. Refunds and penalties to which the consumer is entitled pursuant to this subsection (1) may be set off against the consumer's obligation.
- If a consumer brings an action against a creditor to recover an excess charge or civil penalty, an action by the administrator to recover for the same excess charge or civil penalty shall be stayed while the consumer's action is pending and shall be dismissed if the consumer's action is dismissed with prejudice or results in a final judgment granting or denying the consumer's claim. There shall be no double recovery for refunds of excess charges or a penalty payable to the consumer.
- With respect to excess charges arising from revolving accounts, no action pursuant to this subsection (1) may be brought more than four years after the time the excess charge was made. With respect to excess charges arising from other consumer credit transactions, no action pursuant to this subsection (1) may be brought more than four years after the due date of the last scheduled payment of the agreement pursuant to which the charge was made.
- If the creditor establishes by a preponderance of evidence that a violation is unintentional or the result of a bona fide error, no liability to pay a penalty shall be imposed under this subsection (1).
- The administrator may bring a civil action against a creditor or a person acting in the creditor's behalf to recover a civil penalty for willfully violating this code, and, if the court finds that the defendant has engaged in a course of repeated and willful violations of this code, it may assess a civil penalty of no more than five thousand dollars. All or part of the penalty under this subsection (2) may be specifically designated for consumer and creditor education. No civil penalty pursuant to this subsection (2) may be imposed for violations of this code occurring more than four years before the action is brought or for making unconscionable agreements or engaging in a course of fraudulent or unconscionable conduct.
- If the administrator prevails in an action brought under this section, the administrator may recover his or her reasonable costs in investigating and bringing the action and request an order for reimbursement of his or her reasonable attorney fees.
Source: L. 2000: Entire article R&RE, p. 1250, § 1, effective July 1. L. 2011: (1)(a) amended, (HB 11-1221), ch. 121, p. 381, § 3, effective July 1.
Editor's note: This section is similar to former § 5-6-113, as it existed prior to 2000.
5-6-115. Jury trial.
In an action brought by the administrator under this code, the administrator has no right to trial by jury, but this will not prevent a defendant from requesting a jury trial under the Colorado rules of civil procedure.
Source: L. 2000: Entire article R&RE, p. 1252, § 1, effective July 1.
Editor's note: This section is similar to former § 5-6-114, as it existed prior to 2000.
Cross references: For jury trials, see C.R.C.P. 38.
5-6-116. Consumers' remedies not affected.
The grant of powers to the administrator in this article does not affect remedies available to consumers under this code or under other principles of law or equity.
Source: L. 2000: Entire article R&RE, p. 1252, § 1, effective July 1.
Editor's note: This section is similar to former § 5-6-115, as it existed prior to 2000.
PART 2 NOTIFICATION AND FEES
5-6-201. Applicability.
-
Except as provided in subsections (2) and (3) of this section, this part 2 applies if a person:
- Makes consumer credit sales and charges or collects a finance charge, or makes consumer leases; or
- Takes assignments of and undertakes direct collection of payments from, or enforcement of rights against, consumers arising from consumer credit sales or consumer leases.
- This part 2 does not apply to supervised lenders described in section 5-1-301 (46), persons making consumer loans described in section 5-1-301 (15), or to persons licensed as collection agencies pursuant to article 16 of this title 5.
- Sections 5-6-203 (5) and 5-6-204 of this part 2 apply to all fees collected under this code.
Source: L. 2000: Entire article R&RE, p. 1252, § 1, effective July 1. L. 2009: (1)(a) amended, (HB 09-1141), ch. 41, p. 158, § 4, effective January 1, 2010. L. 2017: (2) amended, (HB 17-1238), ch. 260, p. 1171, § 10, effective August 9.
Editor's note: This section is similar to former § 5-6-201, as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "Colorado Usury", see 11 Colo. Law. 2557 (1982).
5-6-202. Notification.
-
Persons subject to this part 2 shall file notification with, and pay the fee prescribed in section 5-6-203 to, the administrator within thirty days after commencing business in this state and, thereafter, on or before January 31 of each year. The notification
shall state:
- Name of the person;
- Name in which business is transacted if different from paragraph (a) of this subsection (1);
- Address of principal office, which may be outside this state;
- Address of all offices or retail stores, if any, in this state at which consumer credit sales or consumer leases are made or, in the case of a person taking assignments of obligations, the offices or places of business within this state at which business is transacted;
- If consumer credit sales or consumer leases are made otherwise than at an office or retail store in this state, a brief description of the manner in which they are made;
- Address of designated agent upon whom service of process may be made in this state described in section 5-1-203; and
- Whether supervised loans are made.
- If information in a notification becomes inaccurate after filing, no further notification is required until the following January 31.
Source: L. 2000: Entire article R&RE, p. 1252, § 1, effective July 1.
Editor's note: This section is similar to former § 5-6-202, as it existed prior to 2000.
ANNOTATION
Law reviews. For article, "Colorado Usury", see 11 Colo. Law. 2557 (1982).
5-6-203. Fees.
- A person required to file notification shall, with the first notification and on or before January 31 of each year thereafter, pay to the administrator a nonrefundable annual notification fee. The administrator is entitled to examine the loans, business, and records of such person without issuance of a subpoena.
- (Deleted by amendment, L. 2009, (HB 09-1141), ch. 41, p. 158, § 5, effective January 1, 2010.)
- Persons required to file notification who are assignees of consumer credit sales or consumer leases shall pay an additional nonrefundable annual volume fee on or before January 31 of each year for each one hundred thousand dollars, or part thereof, of the unpaid balances at the time of the assignment of obligations arising from consumer credit sales or consumer leases made in this state and taken by assignment during the preceding calendar year.
- A penalty of five dollars per day shall be imposed on any person failing to comply with this section; except that, if the fees required by this section are paid on or before March 1 of each year, no penalty shall be imposed. If a person required to file notification and pay a notification fee fails to do so, the consumer shall have no obligation to pay the finance charge due under the consumer credit transaction, and any finance charges paid shall be refunded to the consumer. In addition, if the administrator examines the loans, business, or records of such person, the person shall pay the reasonable and necessary examination expenses of the administrator.
-
- The administrator shall determine the amount of the notification, volume, and license fees required in this section and in section 5-2-302 and may periodically reduce or increase the amount of one or more of the fees if necessary pursuant to section 24-75-402 (3) and (4), C.R.S., to reduce the uncommitted reserves of the uniform consumer credit code cash fund created in section 5-6-204 to which all or any portion of one or more of the fees is credited.
- In accordance with section 24-75-402 (3)(c), C.R.S., for fiscal years prior to July 1, 2018, the uniform consumer credit code cash fund is subject to an alternative maximum reserve of one-third of the amount expended during the previous fiscal year. For fiscal years that begin on or after July 1, 2018, the fund is subject to the maximum reserve established in section 24-75-402, C.R.S.
Source: L. 2000: Entire article R&RE, p. 1253, § 1, effective July 1. L. 2009: Entire section amended, (HB 09-1141), ch. 41, p. 158, § 5, effective January 1, 2010. L. 2010: (5) amended, (HB 10-1422), ch. 419, p. 2063, § 7, effective August 11. L. 2015: (5) amended, (HB 15-1261), ch. 322, p. 1312, § 2, effective June 5.
Editor's note: This section is similar to former § 5-6-203, as it existed prior to 2000.
5-6-204. Cash fund created.
- All fees collected under this code and under article 10 of this title 5 shall be credited to the uniform consumer credit code cash fund, which is created and referred to in this section as the "fund", and all money credited to the fund shall be used for the administration and enforcement of this code, article 10 of this title 5, and article 19 of this title 5. Interest earned on the fund shall be credited to the fund. The general assembly shall make annual appropriations out of the fund for the administration and enforcement of this code, article 10 of this title 5, and article 19 of this title 5; except that expenditures by the administrator for consumer and creditor education resulting from the penalties provided in sections 5-2-303 (7)(f), 5-6-109 (1), 5-6-110, and 5-6-114 (2) shall not require appropriation by the general assembly if the expenditures do not exceed twenty-five thousand dollars per fiscal year and do not include the hiring of any full-time equivalents.
- Repealed.
- Notwithstanding subsection (1) of this section, the state treasurer shall transfer the penalties collected pursuant to section 5-6-114 (1)(a) to the general fund.
Source: L. 2000: Entire article R&RE, p. 1254, § 1, effective July 1. L. 2001: Entire section amended, p. 30, § 14, effective March 9. L. 2002: Entire section amended, p. 150, § 1, effective March 27. L. 2003: (3) added, p. 454, § 1, effective March 5. L. 2011: (4) added, (HB 11-1221), ch. 121, p. 382, § 4, effective July 1. L. 2015: (2) and (3) repealed, (SB 15-264), ch. 259, p. 941, § 6, effective August 5. L. 2017: (1) amended, (HB 17-1238), ch. 260, p. 1171, § 11, effective August 9.
Editor's note: This section is similar to former § 5-6-204, as it existed prior to 2000.
PART 3 COUNCIL OF ADVISORS ON CONSUMER CREDIT
5-6-301. Council of advisors on consumer credit.
- There is hereby created the council of advisors on consumer credit consisting of nine members who shall be appointed by the governor. One of the advisors shall be designated by the governor as chairperson. In appointing members of the council, the governor shall seek to achieve a fair representation from the various segments of the consumer credit industry and public.
- The term of office of each member of the council is three years. A member chosen to fill a vacancy arising otherwise than by expiration of a term shall be appointed for the unexpired term of the member whom he or she is to succeed. A member of the council is eligible for reappointment.
- Members of the council shall serve without compensation but are entitled to reimbursement of actual and necessary expenses incurred in the performance of their duties.
Source: L. 2000: Entire article R&RE, p. 1254, § 1, effective July 1.
Editor's note: This section is similar to former § 5-6-301, as it existed prior to 2000.
5-6-302. Function of council - conflict of interest.
- The council shall advise and consult with the administrator concerning the exercise of the administrator's powers under this code and may make recommendations to the administrator. Members of the council may assist the administrator in obtaining compliance with this code. Since it is an objective of this part 3 to obtain competent representatives of creditors and the public to serve on the council and to assist and cooperate with the administrator in achieving the objectives of this code, service on the council shall not in itself constitute a conflict of interest regardless of the occupations or associations of the members.
-
- There is hereby created a subcommittee of the council of advisors on consumer credit for the purpose specified in paragraph (b) of this subsection (2). The subcommittee shall consist of the attorney general, the chairperson of the council, and three members of the council appointed by such chairperson. Of the subcommittee members who are also members of the council, two shall be representatives of the consumer credit industry and two shall be representatives of the public. Any action taken by a majority of the subcommittee shall constitute action by the council.
- The subcommittee may review, repeal, amend, or modify any rule promulgated by the administrator pursuant to section 5-6-104 (1)(e).
Source: L. 2000: Entire article R&RE, p. 1254, § 1, effective July 1.
Editor's note: This section is similar to former § 5-6-302, as it existed prior to 2000.
ARTICLE 7 INSURANCE PREMIUM FINANCING
5-7-101 to 5-7-103. (Repealed)
Source: L. 2001: Entire article repealed, p. 30, § 15, effective March 9.
Editor's note: This article was added in 1977. For amendments to this article prior to its repeal in 2001, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume.
ARTICLE 9 EFFECTIVE DATE
Editor's note: This title was repealed and reenacted in 1971. This article was numbered as article 9 of chapter 73, C.R.S. 1963. For historical information concerning the repeal and reenactment of this title in 1971, see the editor's note immediately following the title heading for this title.
Section
5-9-101. Time of taking effect prior to June 30, 2000 - provisions for transition.
- Except as otherwise provided in this section, this code as it existed prior to the enactment of House Bill 00-1185, as enacted at the second regular session of the sixty-second general assembly, took effect at 12:01 a.m. on October 1, 1971, and was in effect through June 30, 2000.
- To the extent appropriate to permit the administrator to prepare for operation of this code as it existed prior to the enactment of House Bill 00-1185, as enacted at the second regular session of the sixty-second general assembly, when it took effect and to act on applications for licenses to make supervised loans under this code as it existed prior to the enactment of House Bill 00-1185, as enacted at the second regular session of the sixty-second general assembly, (subsection (1) of section 5-3-503), the provisions on supervised loans (part 5) of the article on loans (article 3 of this title) and of the article on administration (article 6 of this title) took effect on July 1, 1971, and were in effect through June 30, 2000.
-
Transactions entered into before October 1, 1971, and the rights, duties, and interests flowing from them thereafter, may be terminated, completed, consummated, or enforced as required or permitted by any statute, rule of law, or other law amended, repealed,
or modified by this code as though the repeal, amendment, or modification had not occurred, but this code, as it existed prior to the enactment of House Bill 00-1185, as enacted at the second regular session of the sixty-second
general assembly, applies to:
- Refinancings, consolidations, and deferrals made on or after October 1, 1971, and before July 1, 2000, concerning sales, leases, and loans whenever made;
- Sales or loans made on or after October 1, 1971, and before July 1, 2000, pursuant to revolving charge accounts (section 5-2-108) and revolving loan accounts (section 5-3-108) entered into, arranged, or contracted for before October 1, 1971; and
- All credit transactions made before October 1, 1971, insofar as the article on remedies and penalties (article 5 of this title) limits the remedies of creditors.
- With respect to revolving charge accounts (section 5-2-108) and revolving loan accounts (section 5-3-108) entered into, arranged, or contracted for before October 1, 1971, disclosure pursuant to the provisions on disclosure (section 5-2-310 and section 5-3-309), shall be made not later than thirty days after October 1, 1971.
Source: L. 71: R&RE, p. 851, § 1. C.R.S. 1963: § 73-9-101. L. 2000: (1), (2), (3)(a), and (3)(b) amended, p. 1255, § 2, effective July 1.
Editor's note: The provisions referenced in this section reflect the provisions as they existed prior to the repeal and reenactment of articles 2 and 3 of this title in 2000. For the referenced provisions, see the 1999 Colorado Revised Statutes.
OFFICIAL COMMENT
The 30-day period in subsection (4) is derived from CCPA Section 127 (c) [15 U.S.C.A. Section 1637(c)].
COLORADO COMMENT
Subsection (3)(c) makes the remedies and penalties provisions of this Code prospectively applicable to creditors under credit transactions entered into prior to October 1, 1971.
5-9-101.5. Time of taking effect - provisions for transition.
- Except as otherwise provided in this section, this code as it exists following the repeal and reenactment contained in House Bill 00-1185, as enacted at the second regular session of the sixty-second general assembly, takes effect at 12:01 a.m. on July 1, 2000.
-
Transactions entered into before July 1, 2000, and the rights, duties, and interests flowing from them thereafter, may be terminated, completed, consummated, or enforced as required or permitted by any statute, rule of law, or other law amended, repealed,
or modified by this code as though the repeal, amendment, or modification had not occurred, but this code applies to:
- Refinancings, consolidations, and deferrals made on or after July 1, 2000, concerning sales, leases, and loans whenever made;
- Sales or loans made on or after July 1, 2000, pursuant to revolving credit accounts entered into, arranged, or contracted for before July 1, 2000; and
- All credit transactions made before July 1, 2000, insofar as article 5 of this title limits the remedies of creditors. Notwithstanding anything to the contrary, the disclosures described in sections 5-3-105 (5), 5-3-106, 5-5-110 (4), and 5-5-111 (3) of this code take effect January 1, 2001.
Source: L. 2000: Entire section added, p. 1256, § 4, effective July 1.
5-9-102. Continuation of licensing prior to July 1, 2000.
Notwithstanding the repeal and reenactment of articles 2 and 3 of chapter 73, C.R.S. 1963, by this code, all persons licensed or otherwise authorized under the provisions of articles 2 or 3 of chapter 73, C.R.S. 1963, immediately prior to October 1, 1971, are licensed to make supervised loans under this code as it existed prior to the enactment of House Bill 00-1185, as enacted at the second regular session of the sixty-second general assembly, pursuant to the provisions on supervised loans of the article on loans (part 5 of article 3 of this title) in effect on and after October 1, 1971, but before July 1, 2000, and all provisions of said sections apply to the persons so previously licensed or authorized. The administrator may, but is not required to, deliver evidence of licensing to the persons so previously licensed or authorized.
Source: L. 71: R&RE, p. 851, § 1. C.R.S. 1963: § 73-9-102. L. 2000: Entire section amended, p. 1256, § 3, effective July 1.
OFFICIAL COMMENT
This section provides automatic licensing under Article 3, Part 5 [Section 5-3-501 et seq.] for all lenders previously licensed under the State's licensed lender statutes prior to the effective date. No application or administrative action is required and the formal license under the prior statute, which will be repealed, will be a license under Part 5 of Article 3. The Administrator, at such time as his new duties under the Code permit him an opportunity, may substitute new licenses for those in the lenders' possession, but this is entirely a ministerial act.
5-9-102.5. Continuation of licensing after July 1, 2000.
Notwithstanding the repeal and reenactment of part 5 of article 3 of this title by House Bill 00-1185, as enacted at the second regular session of the sixty-second general assembly, all persons licensed or otherwise authorized under the provisions of part 5 of article 3 immediately prior to July 1, 2000, are licensed to make supervised loans under this code pursuant to the provisions on supervised loans contained in part 3 of article 2 of this title, and all provisions of said part 3 apply to the persons so previously licensed or authorized. The administrator may, but is not required to, deliver evidence of licensing to the persons so previously licensed or authorized.
Source: L. 2000: Entire section added, p. 1256, § 4, effective July 1.
5-9-103. (Reserved)
REFUND ANTICIPATION LOANS
ARTICLE 9.5 REFUND ANTICIPATION LOANS
Editor's note: Section 5-9.5-109 (1) provides for the termination of this article 9.5, effective September 1, 2019. However, the provisions are printed in the statutes for an additional year to accommodate the one-year period for winding up the affairs of this article 9.5 in accordance with § 24-34-104.
5-9.5-101 to 5-9.5-109. (Repealed)
Editor's note:
- This article 9.5 was added in 2010. For amendments to this article prior to its repeal in 2019, consult the 2019 Colorado Revised Statutes and the Colorado statutory research explanatory note beginning on page vii in the front of this volume.
- Section 5-9.5-109 (1) provided for the repeal of this article, effective September 1, 2019.
RENTAL PURCHASE
ARTICLE 10 RENTAL PURCHASE AGREEMENTS
Section
PART 1 GENERAL PROVISIONS
5-10-101. Short title.
This article shall be known and may be cited as the "Colorado Rental Purchase Agreement Act".
Source: L. 90: Entire article added, p. 366, § 1, effective January 1, 1991.
5-10-102. Legislative declaration.
- This article shall be liberally construed and applied to promote its underlying purposes and policies.
-
The underlying purposes and policies of this article are to:
- Simplify, clarify, and modernize the law governing rental purchase agreements;
- Provide certain disclosures to consumers who enter into rental purchase agreements and to promote consumer understanding of the terms of rental purchase agreements;
- To protect consumers against unfair practices by some rental purchase dealers, having due regard for the interest of legitimate and scrupulous rental dealers; and
- To permit and encourage the development of fair and economically sound rental purchase practices.
Source: L. 90: Entire article added, p. 366, § 1, effective January 1, 1991.
5-10-103. Waiver - agreement to forego rights - prohibited.
Except as otherwise provided in this article, a lessor or lessee, as those terms are defined in section 5-10-301, may not waive or agree to forego rights or benefits under this article, and any attempt to waive or agree to forego such rights or benefits is void.
Source: L. 90: Entire article added, p. 367, § 1, effective January 1, 1991.
5-10-104. Effective date.
Notwithstanding the provisions of section 5-9-101, this article shall take effect January 1, 1991.
Source: L. 90: Entire article added, p. 367, § 1, effective January 1, 1991.
5-10-105. Supplementary general principles of law applicable.
Unless displaced by the particular provisions of this article, the "Uniform Commercial Code" and the principles of law and equity, including the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause, supplement the provisions of this article.
Source: L. 90: Entire article added, p. 367, § 1, effective January 1, 1991.
Cross references: For the "Uniform Commercial Code", see title 4.
PART 2 SCOPE OF ARTICLE
5-10-201. Application.
-
This article shall apply to a rental purchase agreement, or acts, practices, or conduct relating to a rental purchase agreement if:
- The rental purchase agreement is entered into in this state; or
- The lessee is a resident of this state at the time the lessor offering the rental purchase agreement solicits the rental purchase agreement or modification thereof, whether such solicitation is made personally, by mail, or by telephone.
- For the purposes of this article, the residence of the lessee is the address given by the lessee as the lessee's residence in any writing signed by the lessee in connection with the rental purchase agreement. Unless the lessee notifies the lessor in writing of a new or different residence address, the given residence address is presumed to be unchanged.
Source: L. 90: Entire article added, p. 367, § 1, effective January 1, 1991.
5-10-202. Exclusions.
-
This article shall not apply to, and an agreement that complies with this article is not governed by the provision relating to:
- A "consumer credit sale" as that term is defined in section 5-1-301 (11);
- A "consumer lease" as that term is defined in section 5-1-301 (14);
- A "consumer loan" as that term is defined in section 5-1-301 (15);
- Repealed.
- A "home solicitation sale" as that term is defined in section 5-3-401;
- A "sale of goods" as that term is defined in section 5-1-301 (39);
- A "security interest" as that term is defined in section 4-1-201 (b)(35), C.R.S.;
- Any lease for agricultural, business, or commercial purposes;
- Any lease of money or intangible personal property.
Source: L. 90: Entire article added, p. 367, § 1, effective January 1, 1991. L. 96: (1)(d) and (1)(e) repealed, p. 407, § 11, effective July 1. L. 2000: IP(1), (1)(a), (1)(b), (1)(c), (1)(f), and (1)(g) amended, p. 1870, § 101, effective August 2. L. 2006: (1)(h) amended, p. 503, § 45, effective September 1.
PART 3 DEFINITIONS
5-10-301. Definitions.
-
As used in this article, unless otherwise required by the context:
- "Administrator" means the administrator designated in section 5-6-103.
- "Advertisement" means a commercial message in any medium that aids, promotes, or assists, directly or indirectly, a rental purchase agreement.
- "Cash price" means the price at which a lessor in the ordinary course of business would offer the property that is the subject of a rental purchase agreement to the lessee for cash on the date of the execution of the rental purchase agreement.
- "Consummate" means the act of the lessee in entering into a rental purchase agreement.
- "Lessee" means a natural person who rents personal property under a rental purchase agreement.
- "Lessor" means a person, firm, or corporation who in the ordinary course of business, regularly leases, offers to lease, or arranges for the leasing of property under a rental purchase agreement.
- "Liability damage waiver" means a contract or contractual provision, whether separate from or a part of a rental purchase agreement, whereby the lessor agrees, for a charge, to waive any and all claims against the lessee for any damages to, or loss of, the property which is the subject of the rental purchase agreement during the term of the rental agreement.
- "Period" means a day, week, month, or other subdivision of the year.
- "Personal property" means any property which is made available for a rental purchase agreement and which is not considered real property under the laws of this state.
- "Rental purchase agreement" means an agreement for the use of personal property by an individual primarily for personal, family, or household purposes, for an initial period of four months or less, whether or not there is any obligation beyond the initial period, that is automatically renewable with each payment and that permits the lessee to become the owner of the property.
Source: L. 90: Entire article added, p. 368, § 1, effective January 1, 1991.
PART 4 DISCLOSURES AND FORM OF WRITING
5-10-401. Disclosures.
-
A lessor shall disclose to a lessee in a rental purchase agreement the information required either by this part 4 or by the provisions of the federal "Consumer Credit Protection Act" if the federal "Consumer Credit Protection Act" is amended to cover
disclosure in a rental purchase agreement. In a rental purchase agreement, the lessor shall disclose the following:
- A brief description of the leased property, sufficient to identify the property to the lessee and lessor;
- The total number of payments and the total amount of such payments necessary to acquire ownership;
- The number, amount, and timing of each payment, including taxes paid to or through the lessor;
- A statement that the lessee will not own the property until the lessee has made the total number of payments and the total amount of such payments necessary to acquire ownership;
- A statement of all other charges which the lessee may have to pay together with the amount of any such charge and the conditions under which any such charge shall be incurred;
- If applicable, a statement that the lessee is responsible for the fair market value of the property if and as of the time it is lost, stolen, damaged, or destroyed;
- A statement indicating whether the property is new or used; except that it is not a violation of this paragraph (g) to indicate that the property is used if it is actually new;
- A statement that, at any time after the first lease payment is made, the lessee may acquire ownership of the property, and a brief explanation of the price, formula, or other method for determining the price at which the property may be purchased;
- A brief explanation of the lessee's right to reinstate, and a description of the amount, or method of determining the amount, of any penalty or other charge for reinstatement as established in section 5-10-602;
- The cash price of the property subject to the rental purchase agreement; and
- A statement of the maintenance services, if any, the lessor will provide with respect to the property subject to the rental purchase agreement.
- In addition to the disclosures required pursuant to subsection (1) of this section, the lessor shall also make the following disclosure:
NOTICE TO LESSEE -- READ BEFORE SIGNING
(1) DO NOT SIGN THIS BEFORE YOU READ THE ENTIRE AGREEMENT INCLUDING ANY WRITING ON THE REVERSE SIDE, EVEN IF OTHERWISE ADVISED. (2) DO NOT SIGN THIS IF IT CONTAINS ANY BLANK SPACES. (3) YOU ARE ENTITLED TO AN EXACT COPY OF ANY AGREEMENT YOU SIGN. (4) YOU HAVE THE RIGHT TO EXERCISE ANY EARLY BUY-OUT OPTION AS PROVIDED IN THIS AGREEMENT. EXERCISE OF THIS OPTION MAY RESULT IN A REDUCTION OF YOUR TOTAL COST TO ACQUIRE OWNERSHIP UNDER THIS AGREEMENT. (5) IF YOU ELECT TO MAKE WEEKLY RATHER THAN MONTHLY PAYMENTS AND EXERCISE YOUR PURCHASE OPTION, YOU MAY PAY MORE FOR THE LEASED PROPERTY.
Source: L. 90: Entire article added, p. 368, § 1, effective January 1, 1991.
Cross references: For the federal "Consumer Credit Protection Act", see Pub.L. 90-321.
5-10-402. Form requirements.
-
The information required by this part 4:
- Shall be disclosed in writing in a rental purchase agreement;
- Shall be set forth clearly and conspicuously, in not less than eight point standard type;
- Shall be set apart and not contain any information not directly related to the disclosures;
- Shall be stated using words and phrases of common meaning;
- Need not be contained in a single writing or made in the order set forth in this part 4; and
- May be supplemented by additional information or explanations supplied by the lessor, so long as the additional information is not stated, utilized, or placed in a manner which will confuse the lessee or contradict, obscure, or distract attention from the required information. The additional information or explanations shall not have the effect of circumventing, evading, or unduly complicating the information required to be disclosed.
- The lessor shall disclose all information required by this part 4 before the rental purchase agreement is consummated.
- Before any payment is due, the lessor shall furnish the lessee with an exact copy of the rental purchase agreement, which shall be signed by the lessee and which shall evidence the lessee's agreement. If there is more than one lessee in a rental purchase agreement, delivery of a copy of the rental purchase agreement to one of the lessees constitutes compliance with this subsection (3).
Source: L. 90: Entire article added, p. 370, § 1, effective January 1, 1991.
5-10-403. Receipts.
The lessor shall furnish the lessee a written receipt for each payment made in cash or by any other method of payment that does not provide evidence of payment when any such payment is delivered in person during normal working hours.
Source: L. 90: Entire article added, p. 370, § 1, effective January 1, 1991.
PART 5 LIMITATION ON AGREEMENTS AND PRACTICES
5-10-501. Acquiring ownership.
At any time after the first lease payment is made, the lessee may acquire ownership of the property under the terms specified in the rental purchase agreement.
Source: L. 90: Entire article added, p. 370, § 1, effective January 1, 1991.
5-10-502. Prohibited provisions.
-
A rental purchase agreement shall not contain a provision requiring any of the following:
- Assignment of earnings. No lessor shall accept an assignment of earnings from the lessee for payment or as security for payment of a charge arising out of a rental purchase agreement. An assignment of earnings in violation of this paragraph (a) is unenforceable by the assignee of the earnings and revocable by the lessee. This paragraph (a) shall not prohibit a lessee from voluntarily authorizing deductions from his earnings if the authorization is revocable and otherwise permitted by law.
- Authorization to confess judgment. No lessor shall take or accept a power of attorney or other authorization from the lessee, or other person acting on his behalf, to confess judgment.
- Waivers. No lessor may require a lessee to waive service of process or to waive any defense, counterclaim, or right of action against the lessor, or a person acting on the lessor's behalf as the lessor's agent in collection of payments under the lease or in the repossession of the lease property.
- Breach of the peace. No lessor may require a lessee to authorize the lessor or a person acting on the lessor's behalf to enter unlawfully upon the lessee's premises or to commit any breach of the peace in the repossession of the lease property.
- Garnishment of wages. No lessor may require a lessee to authorize a prejudgment garnishment of the lessee's wages.
Source: L. 90: Entire article added, p. 370, § 1, effective January 1, 1991.
5-10-503. Balloon payments.
A lessee shall not be required to make a payment in addition to regular lease payments in order to acquire ownership of the lease property, nor shall the lessee be required to pay lease payments totaling more than the cost to acquire ownership, as provided in section 5-10-401 (1)(b).
Source: L. 90: Entire article added, p. 371, § 1, effective January 1, 1991.
5-10-504. Prohibited charges.
-
A lessor shall not contract for or receive charges for any of the following:
- The purchase of insurance by the lessee from the lessor;
- A penalty for early termination of a rental purchase agreement or for the return of an item at any point, except for those charges authorized by sections 5-10-601 and 5-10-602; or
- A payment by a co-signer of the rental purchase agreement for any fees or charges which could not be imposed upon the lessee as part of the rental purchase agreement.
- No payment or obligation on the part of the lessee shall accrue when the property is being repaired or replaced unless a loaner is provided to the lessee.
Source: L. 90: Entire article added, p. 371, § 1, effective January 1, 1991.
PART 6 LIMITATIONS ON CHARGES
5-10-601. Additional charges.
- A lessor may contract for and receive an initial nonrefundable fee not to exceed ten dollars per contract. Should any security deposit be required by the lessor, the amount of such deposit and the conditions under which it will be returned shall be disclosed with the disclosures required by section 5-10-401.
- A lessor may contract for and receive an initial delivery charge per contract not to exceed fifteen dollars in the case of a rental purchase agreement covering five or fewer items and a delivery charge not to exceed forty-five dollars in the case of a rental purchase agreement covering more than five items, if, in either case, the lessor actually delivers the items to the lessee's dwelling and the delivery charge is disclosed with the disclosures required by section 5-10-401. Said delivery charge shall be assessed in lieu of and not in addition to the initial charge in subsection (1) of this section. A lessor may not contract for or receive a delivery charge on property redelivered after repair or maintenance.
- A lessor may contract for and receive a charge for picking up late payments from the lessee if the lessor is required to do so pursuant to the rental purchase agreement or is requested to visit the lessee to pick up a payment. In a rental purchase agreement with payment or renewal dates which are on a monthly basis, this charge may not be assessed more than three times in any six-month period. In rental purchase agreements with payments or renewal options on a weekly or biweekly basis, this charge may not be assessed more than six times in any six-month period. No charge assessed pursuant to this subsection (3) may exceed ten dollars. A pickup fee may be assessed pursuant to this subsection (3) only in lieu of and not in addition to any late charge assessed pursuant to subsection (4) of this section.
-
-
The parties may contract for late charges as follows:
- For rental purchase agreements with monthly renewal dates, a late charge not exceeding five dollars may be assessed on any payment not made within five days after payment is due, or return of the property is required.
- For rental purchase agreements with weekly or bi-weekly renewal dates, a late charge not exceeding three dollars may be assessed on any payments not made within three days after payment is due, or return of the property is required.
- A late charge on a rental purchase agreement may be collected only once on any accrued payment, no matter how long it remains unpaid. A late charge may be collected at the time it accrues or at any time thereafter. A lessor may elect to waive imposition of a late charge due on an accrued payment in accordance with the terms of the rental purchase agreement; except that, such waiver shall be in writing and, once a late charge is waived for a specific payment, the lessor may not thereafter seek to impose a late fee for the accrued payment in question. No late charge may be assessed against a payment that is timely made, even though an earlier late charge has not been paid in full.
-
The parties may contract for late charges as follows:
Source: L. 90: Entire article added, p. 371, § 1, effective January 1, 1991.
5-10-602. Reinstatement fees.
A reinstatement fee as provided for in section 5-10-701 shall equal the outstanding balance of any accrued missed payments and late charges plus an additional fee not to exceed five dollars.
Source: L. 90: Entire article added, p. 372, § 1, effective January 1, 1991.
5-10-603. Liability damage waivers - fees.
-
In addition to the other charges permitted by this part 6, the parties may contract for a liability waiver fee not to exceed the greater of ten percent of any periodic lease payment due or two dollars in the case of any rental purchase agreement with
weekly or biweekly renewal dates, and not to exceed the greater of ten percent of any periodic lease payment due or five dollars in the case of any rental purchase agreement with monthly renewal dates. The selling or offering for
sale of a liability damage waiver pursuant to this article is subject to the following prohibitions and requirements:
- A lessor may not sell or offer to sell a liability damage waiver unless all restrictions, conditions, and exclusions are printed in the rental purchase agreement, or in a separate agreement, in eight-point type, or larger, or written in pen and ink or typewritten in or on the face of the rental purchase agreement in a blank space provided therefor. The liability damage waiver may exclude only loss or damage to the property which is the subject of the rental purchase agreement due to moisture, scratches, mysterious disappearance, vandalism, abandonment of the property, or due to any other damages caused intentionally by the lessee or which result from the lessee's willful or wanton misconduct.
- The liability damage waiver agreement must include a statement of the total charge for the liability damage waiver. The liability damage waiver agreement must display in eight-point boldface type the following notice:
- The restrictions, conditions, and exclusions of the liability damage waiver must be disclosed on a separate agreement, sheet, or handout given to the lessee prior to entering into the rental purchase agreement. The separate contract, sheet, or handout must be signed, or otherwise acknowledged by the lessee as being received prior to entering into the rental purchase agreement.
NOTICE: THIS CONTRACT OFFERS, FOR AN ADDITIONAL CHARGE, A LIABILITY DAMAGE WAIVER TO COVER YOUR RESPONSIBILITY FOR DAMAGE TO THE PROPERTY. BEFORE DECIDING WHETHER TO PURCHASE THE LIABILITY DAMAGE WAIVER, YOU MAY WISH TO DETERMINE WHETHER YOUR OWN HOMEOWNERS OR CASUALTY INSURANCE AFFORDS YOU COVERAGE FOR DAMAGE TO THE RENTAL PROPERTY, AND THE AMOUNT OF THE DEDUCTIBLE UNDER YOUR OWN INSURANCE COVERAGE. THE PURCHASE OF THIS LIABILITY DAMAGE WAIVER IS NOT MANDATORY AND MAY BE DECLINED.
Source: L. 90: Entire article added, p. 372, § 1, effective January 1, 1991.
5-10-604. Taxes.
In addition to those charges allowable by this part 6, the lessor may require the lessee to pay all applicable state sales and use taxes levied in connection with the rental purchase agreement.
Source: L. 90: Entire article added, p. 373, § 1, effective January 1, 1991.
PART 7 REMEDIES
5-10-701. Lessee's remedies - reinstatement.
-
A lessee who breaches any rental purchase agreement, including but not limited to the failure to make timely rental payments, has the right to reinstate the original rental purchase agreement without losing any rights or options previously acquired under
the rental purchase agreement if both of the following apply:
- Subsequent to having failed to make a timely rental payment, the lessee has promptly surrendered the property to the lessor, in the manner as set forth in the rental purchase agreement, and if and when requested by lessor; and
- Not more than sixty days have passed since the lessee returned the lease property; except that if the lessee has made more than sixty percent of the total number of payments required under the rental purchase agreement to acquire ownership, such sixty-day period shall be extended to a one-hundred-twenty-day period.
- As a condition precedent to reinstatement of the rental purchase agreement, a lessor may collect a reinstatement fee as set forth in section 5-10-602, plus delivery charges allowable by section 5-10-601 (2) if redelivery of the item is necessary.
- If reinstatement occurs pursuant to this section, the lessor shall provide the lessee with either the same item leased by the lessee prior to reinstatement or a substitute item of equivalent quality and condition. If a substitute item is provided, the lessor shall provide the lessee with all the information required by section 5-10-401.
Source: L. 90: Entire article added, p. 373, § 1, effective January 1, 1991.
5-10-702. Limitations on lessor's remedies.
With respect to a debt arising from a rental purchase agreement, regardless of where made, the lessor may not attach unpaid earnings of the debtor by garnishment or like proceedings prior to the entry of judgment in an action against the lessee arising from the said rental purchase agreement.
Source: L. 90: Entire article added, p. 374, § 1, effective January 1, 1991.
5-10-703. Assignee liability.
- With respect to a rental purchase agreement, an assignee of the rights of the lessor is subject to all claims and defenses of the lessee against the lessor arising from the lease of property or services, notwithstanding that the assignee is the holder in due course of a negotiable instrument issued in violation of the provisions prohibiting certain negotiable instruments.
- A claim or defense of a lessee specified in subsection (1) of this section may be asserted against the assignee under this section only to the extent of the amount owing and paid to the assignee and assignor.
- An agreement may not limit or waive the claims or defenses of a lessee under this section.
Source: L. 90: Entire article added, p. 374, § 1, effective January 1, 1991.
5-10-704. Notice of assignment.
The lessee is authorized to pay the original lessor until the lessee receives written notification that the rights to payment pursuant to a rental purchase agreement have been assigned to an assignee and that payment is to be made to the assignee. A notification which does not reasonably identify the rights assigned shall be ineffective. If requested by the lessee, the assignee shall furnish reasonable proof that the assignment has been made, and, unless he does so, the lessee may pay the lessor.
Source: L. 90: Entire article added, p. 374, § 1, effective January 1, 1991.
PART 8 ENFORCEMENT
5-10-801. Administrator responsibility.
-
The administrator shall enforce this article. To carry out this responsibility, the administrator shall be authorized to:
- Receive and act on complaints, take action designed to obtain voluntary compliance with this article, or commence proceedings on the administrator's own initiative;
- Issue and enforce cease and desist or other administrative enforcement orders in the same manner as set forth in section 5-6-109;
- Make investigations; issue subpoenas to require the attendance of witnesses or the production of documents, which subpoenas may be issued to any person, whether located in this state or elsewhere, who has engaged in or is engaging in any violation of this article; administer oaths; conduct hearings in aid of any investigation or inquiry necessary to administer the provisions of this article; and apply to the appropriate court for an appropriate order to effect the purposes of this article;
- Counsel persons and groups on their rights and duties under this article;
- Establish programs for the education of consumers with respect to rental purchase agreement practices and problems;
- Bring a civil action to restrain a person from violating this article and for other appropriate relief in the same manner as set forth in sections 5-6-111 to 5-6-114 and for a civil penalty of up to one thousand dollars per violation; and
- Use any of his enforcement powers to restrain or take other action against any person found to be making or enforcing rental purchase agreements which contain any unconscionable provisions or clauses.
Source: L. 90: Entire article added, p. 374, § 1, effective January 1, 1991. L. 2000: (1)(b) and (1)(e) amended, p. 1870, § 102, effective August 2. L. 2011: (1)(e) amended, (HB 11-1221), ch. 121, p. 381, § 2, effective July 1. L. 2013: (1) amended, (SB 13-248), ch. 270, p. 1418, § 4, effective July 1.
5-10-802. Lessor's records and investigations.
- In administering this article and in order to determine compliance with this article, the administrator may examine the books and records of persons subject to the article and may make investigations of persons necessary to determine compliance. For this purpose, the administrator may administer oaths or affirmations, and, upon the administrator's own motion or upon request of any party, may subpoena witnesses, compel their attendance, compel testimony, and require the production of any matter that is relevant to the investigation, including the existence, description, nature, custody, condition, and location of, any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts, or any other matter reasonably calculated to lead to the discovery of admissible evidence. If the administrator prevails in any civil action brought as a result of such an investigation, the court shall award the administrator costs and a reasonable attorney fee.
- If the person's records are located outside Colorado, the person shall, at the person's option, either make them available to the administrator at a convenient location in Colorado, or pay the reasonable and necessary expenses for the administrator or the administrator's representative to examine them at the place where they are maintained. The administrator may designate representatives, including comparable officials of the state in which the records are located, to inspect them on the administrator's behalf.
- Upon failure without lawful excuse to obey a subpoena or to give testimony and upon reasonable notice to all persons affected thereby, the administrator may apply to a court for an order compelling compliance.
- The administrator may not make public the name or identity of a person whose acts or conduct the administrator investigates under this section or the facts disclosed in the investigation, but this subsection (4) shall not apply to disclosures in actions or enforcement proceedings under this article.
Source: L. 90: Entire article added, p. 375, § 1, effective January 1, 1991.
5-10-803. Assurance of discontinuance.
If it is claimed that a person has engaged in conduct subject to an order by the administrator or by a court under this article, the administrator may accept an assurance in writing that the person will not engage in the conduct in the future. If a person giving an assurance of discontinuance fails to comply with its terms, the assurance shall be evidence that before the assurance the person engaged in the conduct described in the assurance.
Source: L. 90: Entire article added, p. 375, § 1, effective January 1, 1991.
5-10-804. Notification by lessors - contents.
-
A lessor shall file a notification as prescribed in subsection (2) of this section with the administrator:
- Within thirty days after soliciting or entering into a rental purchase agreement subject to this article; and
- Before February 1 in each subsequent year that the lessor solicits or enters into a rental purchase agreement subject to this article.
-
The notification required under subsection (1) of this section shall state the following:
- The name of the lessor and, if different, the name in which business is transacted;
- The address of the lessor's principal office, which may be outside Colorado;
- The address of all offices or stores, if any, in Colorado at which rental purchase agreements are made;
- If rental purchase agreements are made in a place other than an office or store in Colorado, a brief description of the place and manner in which they are made; and
- The address of the registered agent upon whom service of process may be made in Colorado.
- If information in a notification becomes inaccurate after filing, no further notification is required until the lessor is required to file a subsequent notification pursuant to subsection (1) of this section.
Source: L. 90: Entire article added, p. 376, § 1, effective January 1, 1991.
5-10-805. Fees.
-
A lessor required to file a notification with the administrator under section 5-10-804 shall pay to the administrator the following fees:
- Fifty dollars for each address listed in section 5-10-804 (2)(c) paid at the time of the filing of the initial notification with the administrator;
- Twenty-five dollars for each address listed in section 5-10-804 (2)(c) paid at the time of the filing of each annual notification subsequently filed with the administrator.
- In addition to the fees required under subsection (1) of this section, if the administrator examines the books and records of the lessor, the lessor shall pay to the administrator a fee of two hundred dollars for each day required for the administrator or the administrator's representative to conduct the examination. However, the sum of all fees collected from a lessor under this subsection (2) may not exceed one thousand dollars in any calendar year.
- Notwithstanding the amount specified for any fee in this section, the administrator by rule or as otherwise provided by law may reduce the amount of one or more of the fees if necessary pursuant to section 24-75-402 (3), C.R.S., to reduce the uncommitted reserves of the fund to which all or any portion of one or more of the fees is credited. After the uncommitted reserves of the fund are sufficiently reduced, the administrator by rule or as otherwise provided by law may increase the amount of one or more of the fees as provided in section 24-75-402 (4), C.R.S.
Source: L. 90: Entire article added, p. 376, § 1, effective January 1, 1991. L. 98: (3) added, p. 1320, § 12, effective June 1.
PART 9 VIOLATIONS AND PENALTIES
5-10-901. Unlawful acts - fines - deceptive trade practice.
- Any person who willfully and intentionally violates any provision of this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not to exceed five hundred dollars.
- Any intentional violation of the provisions of this article shall constitute a deceptive trade practice and shall be subject to the provisions of article 1 of title 6, C.R.S.
Source: L. 90: Entire article added, p. 376, § 1, effective January 1, 1991.
5-10-902. Remedies of lessee.
- In case of a violation by a lessor of any provision of this article with respect to any rental purchase agreement, the lessee in such agreement may bring a suit in any court of competent jurisdiction to recover from such lessor or may set off or counterclaim in any action by such lessor actual damages. If the court finds that any such violation has occurred, it shall award a minimum recovery of two hundred fifty dollars or twenty-five percent of the total cost to acquire ownership under the rental purchase agreement, whichever is greater.
- The remedies specified in subsection (1) of this section are in addition to, and not in limitation of, any other remedies provided by law.
- In any action brought pursuant to this section, the court shall award the prevailing party the costs of the action and a reasonable attorney fee.
Source: L. 90: Entire article added, p. 377, § 1, effective January 1, 1991.
5-10-903. Unconscionability.
- With respect to a rental purchase transaction, if the court as a matter of law finds the transaction, the agreement, or any clause of the agreement to have been unconscionable at the time it was made, the court may refuse to enforce the agreement or it may enforce the remainder of the agreement without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.
- If it is claimed or appears to the court that the transaction, the agreement, or any clause thereof may be unconscionable, the parties shall be afforded a reasonable opportunity to present evidence as to its setting, purpose, and effect to aid the court in making any such determination related to unconscionability.
- If, in an action in which unconscionability is claimed, the court finds unconscionability pursuant to this section, the court may award the costs of the action and a reasonable attorney fee to the lessee. If the court does not find unconscionability and does find that the lessee claiming unconscionability brought or maintained an action he knew to be groundless, the court may award the costs of the action and a reasonable attorney fee to the party against whom the claim was made. In determining such attorney fee, the amount of recovery claimed on behalf of the lessee shall not be controlling.
- The remedies of this section are in addition to remedies otherwise available for the same conduct authorized under law other than in this article, but double recovery of actual damages may not be had.
- For the purpose of this section, a charge or practice expressly permitted by this article is not in itself unconscionable.
Source: L. 90: Entire article added, p. 377, § 1, effective January 1, 1991.
5-10-904. Effect of correction.
Notwithstanding sections 5-10-801 and 5-10-902, any failure to comply with any provisions of this article resulting from a bona fide or clerical error may be corrected by the lessor within sixty days after discovering an error and prior to the institution of any action under this article, or within sixty days of the receipt of written notice of the error after the date of execution of the rental purchase agreement by the lessee. If so corrected, neither the lessor nor any holder is subject to penalty under this section. A copy of any rental purchase agreement to which such a correction is made shall be promptly sent to the lessee.
Source: L. 90: Entire article added, p. 377, § 1, effective January 1, 1991.
5-10-905. Statute of limitations.
No action shall be brought by a lessee under this article more than three years after the lessee knew or should have known of the occurrence of the alleged violation. This section does not bar a person from asserting a violation of this article in any action to collect the debt which was brought more than three years from the date of the occurrence of the violation as a matter of defense by recoupment or setoff in such action.
Source: L. 90: Entire article added, p. 378, § 1, effective January 1, 1991.
Cross references: For statutes of limitations generally, see article 80 of title 13.
PART 10 ADVERTISING
5-10-1001. Advertising.
- An advertisement for a rental purchase agreement shall not state or imply that a specific item is available at specific amounts or terms unless the lessor usually and customarily offers or will offer that item at those amounts or terms.
-
If any advertisement for a rental purchase agreement refers to or states the amount of any payment or the right to acquire ownership for a specific item, the advertisement must also clearly and conspicuously state the following terms as applicable:
- That the transaction is a rental purchase agreement or rent-to-own agreement;
- The total number of payments and amount of such payments necessary to acquire ownership; and
- That the lessee will not own the property until the total of such payments is paid in full or is paid by prepayment.
- Advertising which complies with the "Federal Consumer Credit Protection Act" does not violate this section.
- With the exception of the lessor, this section imposes no liability on the owner or personnel of any medium in which an advertisement appears or through which it is disseminated.
Source: L. 90: Entire article added, p. 378, § 1, effective January 1, 1991.
INTEREST RATES
ARTICLE 12 INTEREST - GENERAL PROVISIONS
Editor's note: This title was repealed and reenacted in 1971. This article was numbered as article 12 of chapter 73, C.R.S. 1963. For historical information concerning the repeal and reenactment of this title in 1971, see the editor's note immediately following the title heading for this title.
Section
5-12-101. Legal rate of interest.
If there is no agreement or provision of law for a different rate, the interest on money shall be at the rate of eight percent per annum, compounded annually.
Source: L. 71: R&RE, p. 852, § 1. C.R.S. 1963: § 73-12-101. L. 75: Entire section amended, p. 257, § 1, effective July 1. L. 79: Entire section amended, p. 315, § 1, effective June 20.
Cross references: For interest on damages for personal injuries, see § 13-21-101.
COLORADO COMMENT
The provisions of this Article 12 are derived in part from Article 1 of Chapter 73, C.R.S. 1963, in effect prior to this Code.
ANNOTATION
Law reviews. For article, "Notice to Attorneys", see 12 Dicta 196 (1935). For article, "A Decade of Colorado Law: Conflict of Laws, Security, Colorado Interest Law", see 34 Dicta 398 (1957). For article, "The Revolution in Consumer Credit Legislation", see 45 Den. L.J. 679 (1968). For article, "Collecting Pre- and Post-Judgment Interest in Colorado: A Primer", see 15 Colo. Law. 753 (1986). For article, "An Update of Appendices from Collecting Pre- and Post-Judgment Interest in Colorado", see 15 Colo. Law. 990 (1986). For article, "Recovery of Interest: Parts I and II", see 18 Colo. Law. 1063 and 1307 (1989).
Annotator's note. Since § 5-12-101 is similar to repealed § 73-1-1, C.R.S. 1963, CSA, C. 88, § 1, and laws antecedent to CSA, C. 88, § 1, relevant cases construing those provisions have been included in the annotations to this section.
Change in legal rate does not affect preexisting contracts. Salazar v. Taylor, 18 Colo. 538 , 33 P. 369 (1893); Bankers Trust Co. v. Int'l Trust Co., 108 Colo. 15 , 113 P.2d 656 (1941).
Interest awarded. M.L.G. Corp. v. Davis, 672 P.2d 1019 (Colo. App. 1983).
This section does not apply to a situation covered by the prompt payment statute. To the extent there is a conflict, the more specific prompt payment statute prevails over this section. New Design Constr. Co. v. Hamon Contractors, Inc., 215 P.3d 1163 (Colo. App. 2008).
Applied in Farmers State Bank v. Klein, 159 Colo. 165 , 410 P.2d 632 (1966); Equal Emp. Opportunity Comm'n v. Safeway Stores, Inc., 634 F.2d 1273 (10th Cir. 1980); Martinez v. Cont'l Enters., 730 P.2d 308 ( Colo. 1986 ); Hansen v. Lederman, 759 P.2d 810 (Colo. App. 1988); Colo. Springs v. Timberlane Assoc., 807 P.2d 1177 (Colo. App. 1990).
5-12-102. Statutory interest.
-
Except as provided in section 13-21-101, C.R.S., when there is no agreement as to the rate thereof, creditors shall receive interest as follows:
- When money or property has been wrongfully withheld, interest shall be an amount which fully recognizes the gain or benefit realized by the person withholding such money or property from the date of wrongful withholding to the date of payment or to the date judgment is entered, whichever first occurs; or, at the election of the claimant,
- Interest shall be at the rate of eight percent per annum compounded annually for all moneys or the value of all property after they are wrongfully withheld or after they become due to the date of payment or to the date judgment is entered, whichever first occurs.
- When there is no agreement as to the rate thereof, creditors shall be allowed to receive interest at the rate of eight percent per annum compounded annually for all moneys after they become due on any bill, bond, promissory note, or other instrument of writing, or money due on mutual settlement of accounts from the date of such settlement and on money due on account from the date when the same became due.
- Interest shall be allowed as provided in subsection (1) of this section even if the amount is unliquidated at the time of wrongful withholding or at the time when due.
-
Except as provided in section 5-12-106, creditors shall be allowed to receive interest on any judgment recovered before any court authorized to enter the same within this state from the date of entering said judgment until satisfaction thereof is made
either:
- At the rate specified in a contract or instrument in writing which provides for payment of interest at a specified rate until the obligation is paid; except that if the contract or instrument provides for a variable rate, at the rate in effect under the contract or instrument on the date judgment enters; or
- In all other cases where no rate is specified, at the rate of eight percent per annum compounded annually.
Source: L. 71: R&RE, p. 852, § 1. C.R.S. 1963: § 73-12-102. L. 75: Entire section amended, p. 257, § 2, effective July 1. L. 79: Entire section R&RE, p. 315, § 2, effective June 20. L. 82: (4) amended, p. 227, § 2, effective January 1, 1983. L. 83: (4) amended, p. 394, § 1, effective July 1. L. 84: (4)(a) amended, p. 286, § 1, effective July 1.
ANNOTATION
Analysis
- I. General Consideration.
- II. Allowance of Interest.
- III. Nonallowance of Interest.
- IV. Notice or Demand.
- V. Computation.
I. GENERAL CONSIDERATION.
Law reviews. For note, "Curious Origin of the Compound Interest Rule in Colorado", see 1 Rocky Mt. L. Rev. 148 (1929). For note, "Interest as Damages in Colorado", see 16 Rocky Mt. L. Rev. 162 (1944). For note, "Interest as Damages in Colorado", see 28 Dicta 285 (1951). For note, "Colorado Interest Law", see 34 Dicta 398 (1957). For article, "One Year Review of Contracts", see 36 Dicta 19 (1959). For article, "One Year Review of Contracts", see 37 Dicta 1 (1960). For article, "One Year Review of Contracts", see 39 Dicta 161 (1962). For article, "A Creditor's Right to Interest in Colorado", see 35 U. Colo. L. Rev. 190 (1963). For article, "The Revolution in Consumer Credit Legislation", see 45 Den. L.J. 679 (1968). For article, "Rates of Interest on State and Federal Court Judgments: An Update", see 12 Colo. Law. 446 (1983). For article, "Colorado's Prejudgment Interest Statute: Potential for Market Rate Interest", see 12 Colo. Law. 1605 (1983). For article, "Collecting Pre- and Post-Judgment Interest in Colorado: A Primer", see 15 Colo. Law. 753 (1986). For article, "An Update of Appendices from Collecting Pre- and Post-Judgment Interest in Colorado", see 15 Colo. Law. 990 (1986). For article, "Let the Builder-Vendor Beware: Defenses and Damages in Home Builder Litigation -- Part II", see 16 Colo. Law. 629 (1987). For article, "Recovery of Interest: Parts I and II", see 18 Colo. Law. 1063 and 1307 (1989). For article, "Prejudgment Interest for Wrongful Withholding in Constructive Trust Remedy Actions", see 23 Colo. Law. 351 (1994).
Annotator's note. Since § 5-12-102 is similar to repealed § 73-1-2, C.R.S. 1963, § 73-1-2, CRS 53, CSA, C. 88, § 2, and laws antecedent to CSA, C. 88, § 2, relevant cases construing those provisions have been included in the annotations to this section.
Interest is a compensation for the use of money for its detention. City of Denver v. Barber Asphalt Paving Co., 141 F. 69 (8th Cir. 1905).
Recovery of that compensation may be pursued as prejudgment interest in accordance with the terms of this section, or in circumstances in which statutory interest would not be available, it may be sought as moratory interest which recognizes interest as a part of compensatory damages. Scognamillo v. Olsen, 795 P.2d 1357 (Colo. App. 1990).
In historical perspective. The exaction or taking of interest or compensation for the use of money was regarded as usurious, whether moderate or excessive, both in biblical times and by the early common law prior to the reign of Henry VIII. It seems to have been held by the church that the taking of interest was actually sinful as against the laws of God and morality and by the courts that it was unlawful on the theory of the classical and medieval economists from the time of Aristotle that money was only a medium of exchange and naturally barren and unproductive. By the 16th century the gap between religious theory and commercial practice had been further narrowed, and the new protestant ethics regarded only excessive exactions as usury. In the United States, the courts have always viewed the allowance of interest with greater favor than have the courts in England. The English common law has never been suited to the conditions existing in this country, and the American courts have never doubted the right to interest where it has been expressly contracted for, or where an undertaking to pay interest may be implied from the usages of trade. Stone v. Currigan, 138 Colo. 442 , 334 P.2d 740 (1959).
In Colorado. Interest having become recognized as lawful and just compensation for the use of money rightfully belonging to another, the first session of the general assembly of the territory of Colorado adopted an interest statute, which, with only slight changes, now appears as § 5-12-102 . Stone v. Currigan, 138 Colo. 442 , 334 P.2d 740 (1959).
Hence, interest is a creature of statute. Hendrie v. Bd. of County Comm'rs, 153 Colo. 432 , 387 P.2d 266 (1963).
When there is no applicable federal law regarding prejudgment interest, it is appropriate to look to state law as a matter of convenience and practicality. In re Sun, 535 B.R. 358 (10th Cir. 2015).
Where no agreement. Interest, when there is no agreement therefor, is a matter of statute. In re Estate of Granberry, 30 Colo. App. 590, 498 P.2d 960 (1972).
The right to interest, absent an independent agreement, is statutory and is limited to those circumstances enumerated in the statute. Messler v. Phillips, 867 P.2d 128 (Colo. App. 1993); Indian Mtn. Metro. Recreation & Park Dist. v. J.P. Campbell & Assocs., 921 P.2d 65 (Colo. App. 1996); Bd. of County Comm'rs of Dolores County v. Shell W. E & P, Inc., 12 P.3d 1219 (Colo. App. 2000).
Where there is no "judgment" entered in a "court" to which subsection (4) could apply, a claim for post-judgment interest pursuant to subsection (4) is properly rejected. Bd. of County Comm'rs of Dolores County v. Shell W. E & P, Inc., 12 P.3d 1219 (Colo. App. 2000).
Interest is the compensation allowed by law, or fixed by the parties, for the use, detention, or forbearance of money or its equivalent. Stone v. Currigan, 138 Colo. 442 , 334 P.2d 740 (1959).
This section is intended to provide for award of interest from the time plaintiffs were wronged. Combined Com. Corp. v. Pub. Serv. Co., 865 P.2d 893 (Colo. App. 1993); Porter Constr. Servs. v. Ehrhardt, Keefe, Steiner, & Hottman, P.C., 131 P.3d 1115 (Colo. App. 2005).
Purpose of statutory interest is to discourage delaying payment of a claim. Mesa Sand & Gravel v. Landfill, Inc., 776 P.2d 362 ( Colo. 1989 ); Michaelson v. Michaelson, 884 P.2d 695 ( Colo. 1994 ); Stansbury v. Comm'r of Internal Rev., 102 F.3d 1088 (10th Cir. 1996); Scott v. Comm'r of Internal Rev., 236 F.3d 1239 (10th Cir. 2001); Ross v. Old Republic Ins. Co., 134 P.3d 505 (Colo. App. 2006), aff'd on other grounds, 180 P.3d 427 ( Colo. 2008 ).
This section to be strictly construed. Isbill Assocs., Inc. v. City & County of Denver, 666 P.2d 1117 (Colo. App. 1983); Mesa Sand & Gravel v. Landfill, Inc., 776 P.2d 362 ( Colo. 1989 ); Michaelson v. Michaelson, 884 P.2d 695 ( Colo. 1994 ).
The appellate court's authority to determine interest is exclusive. While the appellate court may, of course, remand to the trial court for a determination of the proper statutory interest, the trial court, without such an instruction, lacks jurisdiction to enter any amount of interest not stated in the mandate. Pet, Inc. v. Goldberg, 37 Colo. App. 257, 547 P.2d 943 (1975); Thompson v. United Sec. Alliance, 2016 COA 128 , 433 P.3d 50, rev'd on other grounds, 2018 CO 95, 431 P.3d 224.
The proper method of attacking an appellate court's instructions as to interest is to petition for amendment or recall of the mandate. Such a procedure is available in Colorado. Pet, Inc. v. Goldberg, 37 Colo. App. 257, 547 P.2d 943 (1975).
Relationship of section to C.A.R. 37. While this section states the circumstances wherein interest shall be allowed to a creditor or on a judgment, C.A.R. 37 requires and empowers the appellate court to make the determination of interest to be allowed, if any, and to include instructions concerning the entry of such interest in its mandate when a judgment is modified or reversed with directions for entry of a money judgment. Pet, Inc. v. Goldberg, 37 Colo. App. 257, 547 P.2d 943 (1975).
No conflict with § 38-1-116 . There is no conflict between § 38-1-116 , which provides for six percent interest in an eminent domain proceeding from the date of possession until the date the commission's award is filed with the court, and this section, pertaining to interest thereafter, since once the amount of the valuation award has been ascertained by the commission, the result is like any other judgment. Denver Urban Renewal Auth. v. Hayutin, 40 Colo. App. 559, 583 P.2d 296 (1978).
Interest questions in a suit on a contract brought in federal court are to be determined by state law, whether jurisdiction is founded on a federal question or diversity of citizenship. Rocky Mt. Tool & Mach. Co. v. Tecon Corp., 371 F.2d 589 (10th Cir. 1966).
This section affects rate of interest held not to be paid on the redemption of land. O'Mahoney v. People ex rel. Stone, 24 Colo. 524, 52 P. 796 (1898).
This section does not apply to the collection of interest on overdue taxes because there must be an agreement expressing mutuality of contract before this section applies, and a contractual relationship clearly is not involved in a claim for overdue taxes. State Farm Mut. Auto. Ins. Co. v. Temple, 176 Colo. 537 , 491 P.2d 1371 (1971).
For the "unreasonable and vexatious delay in payment" clause contained in earlier provision, see Craig v. Chandler, 6 Colo. 543 (1883); Corson v. Neatheny, 9 Colo. 212, 11 P. 82 (1886); Keys v. Morrison, 3 Colo. App. 441, 34 P. 259 (1893); Young v. Kimber, 44 Colo. 448, 98 P. 1132, 28 L.R.A. 626 (1909).
This section allows pre-judgment interest on a judgment against the state because nothing in this section precludes such interest. Plaintiff, a public officer, was, therefore, entitled to pre-judgment interest on the underpaid portion of his accumulated vacation leave. Wilkerson v. State, 830 P.2d 1121 (Colo. App. 1992).
Awarding interest is compensation for actual, pecuniary damage suffered by the victim incidental to the defendant's crime of fraudulently obtaining funds because the victim loses the use of the money involved. Interest is awarded as restitution to compensate the victim for such loss of use, it is not intended to reimburse the victim for interest that otherwise would have been earned on the funds. Valenzuela v. People, 893 P.2d 97 (Colo. 1995).
An insurer is liable for prejudgment interest pursuant to this section for underinsured motorist coverage from the date of the insurer's wrongful refusal or failure to pay, notwithstanding a policy provision that provided that liability and the amount of damages were to be determined by agreement of the parties or by arbitration. Bowen v. Farmers Ins. Exch., 929 P.2d 14 (Colo. App. 1996).
This section governs award of prejudgment interest in non-personal injury cases only. Liability of insurer in personal-injury case is normally governed by § 13-21-101 and case law under that section treating prejudgment interest as an element of compensatory damages, subject to limitations on coverage stated in policy. Award of prejudgment interest under this section is not appropriate unless insurer breached its contract with insured or otherwise wrongfully withheld amounts due. Old Republic Ins. Co. v. Ross, 180 P.3d 427 (Colo. 2008).
Plaintiff is entitled to recover prejudgment interest from date of injury until issuance of initial arbitration award but only to the limits of the uninsured motorist policy. Swan v. Am. Family Mut. Ins. Co., 8 P.3d 546 (Colo. App. 2000).
Applied in Big O Tire Dealers, Inc. v. Goodyear Tire & Rubber Co., 408 F. Supp. 1219 (D. Colo. 1976 ); Alexander Dawson, Inc. v. Sage Creek Canyon Co., 37 Colo. App. 339, 546 P.2d 969 (1976); Weather Eng'r & Mfg., Inc. v. Pinon Springs Condos., Inc., 192 Colo. 495 , 563 P.2d 346 (1977); Gundelach v. Gollehon, 42 Colo. App. 437, 598 P.2d 521 (1979); A-1 Plumbing & Heating Co. v. Thirteenth St. Corp., 44 Colo. App. 13, 616 P.2d 141 (Colo. App. 1980); M & T, Inc. v. Fuel Res. Dev. Co., 518 F. Supp. 285 (D. Colo. 1981 ); In re Lucas, 631 P.2d 1175 (Colo. App. 1981); Surplus Elecs. Corp. v. Gallin, 653 P.2d 752 (Colo. App. 1982); Acme Delivery Serv., Inc. v. Samsonite Corp., 663 P.2d 621 ( Colo. 1983 ); E. Larimer County Water v. Centric Corp., 693 P.2d 1019 (Colo. App. 1984); Weston v. Mincomp Corp., 698 P.2d 274 (Colo. App. 1985); Autocon Indus., Inc. v. W. States Constr. Co., Inc., 728 P.2d 374 (Colo. App. 1986); Nat'l Sur. Corp. v. Citizens State Bank, 734 P.2d 663 (Colo. App. 1986); Recreational Dev. Co. v. Am. Const., 749 P.2d 1002 (Colo. App. 1987); Britvar v. Schainuck, 791 P.2d 1183 (Colo. App. 1989); Arguelles v. Ridgeway, 827 P.2d 553 (Colo. App. 1991); Flexisystems, Inc. v. Am. Standards Testing Bureau, Inc., 847 P.2d 207 (Colo. App. 1992); Smith v. Mehaffy, 30 P.3d 727 (Colo. App. 2000); Atmel Corp. v. Vitesse Semiconductor Corp., 160 P.3d 347 (Colo. App. 2007); In re Weaver, 579 B.R. 865 (Bankr. D. Colo. 2017 ).
II. ALLOWANCE OF INTEREST.
A. In General.
The right to interest, independent of an agreement to pay it, is statutory. Weaver v. First Nat'l Bank, 138 Colo. 83 , 330 P.2d 142 (1958); York Plumbing & Heating Co. v. Groussman Inv. Co., 166 Colo. 382 , 443 P.2d 986 (1968).
The subject of interest is governed by statute, and in no case where interest is not so provided is it recoverable, unless specially contracted for, except in the nature of damages, where a refusal to pay has been wilful, wrongful, fraudulent, or without reasonable cause. Since this section points out in detail and especially enumerates the cases in which interest is allowable, assuming to cover the whole field, it is not recoverable in any case not thus expressly enumerated, or included by fair implication. When the general assembly assumed to declare in what cases interest could be allowed, under the rule that the expression of the one is the exclusion of another, no interest can be allowed in any case not specified. Cobb v. Stratton's Estate, 56 Colo. 278, 138 P. 35 (1914).
The right to interest, independent of an agreement to pay it, is statutory; it is not given by the common law. However, there has always been a statute providing for interest, enumerating the cases in which it might be allowed and this section is substantially the same as the older statutes. Greeley, S. L. & Pac. Ry. v. Yount, 7 Colo. App. 189, 42 P. 1023 (1895); Bd. of Comm'rs v. Wheeler, 39 Colo. 207 , 89 P. 50 (1907); Bankers Trust Co. v. Int'l Trust Co., 108 Colo. 15 , 113 P.2d 656 (1941).
In the absence of agreement, interest can be recovered only in the cases mentioned in this section. Keys v. Morrison, 3 Colo. App. 441, 34 P. 259 (1893); Hanauer v. Bartels, 2 Colo. 514 (1875); Greeley, S. L. & Pac. Ry. v. Yount, 7 Colo. App. 189, 42 P. 1023 (1895), distinguishing Machette v. Wanless, 2 Colo. 169 (1873); Omaha & Grant Smelting amp; Ref. Co. v. Tabor, 13 Colo. 41 , 21 P. 925 (1889) (recovery allowed as damages and not as interest, the legal rate of interest being merely used as a convenient way of arriving at their amount); Morris v. Redak, 124 Colo. 27 , 234 P.2d 908 (1951); Mitton v. Granite State Fire Ins. Co., 196 F.2d 988 (10th Cir. 1952); Hunter v. Wilson, 147 Colo. 36 , 362 P.2d 553 (1961).
In the absence of any contractual provision, prejudgment interest can only be recovered in the cases enumerated in this section. Denver Ass'n for Retarded Children v. Sch. Dist. No. 1, 188 Colo. 310 , 535 P.2d 200 (1975).
This section enumerates the cases in which interest may be awarded. Weaver v. First Nat'l Bank, 138 Colo. 83 , 330 P.2d 142 (1958).
This section allows interest on money which is due and owing, regardless of whether the money was wrongfully withheld. In re Tri Sys. Consulting & Design, Inc., 115 B.R. 279 (Bankr. D. Colo. 1990).
The right to recover interest is purely a legal one, and in no sense an equitable right. Denver, S. P. & P. R. R. v. Conway, 8 Colo. 1, 5 P. 142 (1884); DeRemer v. Parker, 19 Colo. 242, 34 P. 980 (1893); Pettit v. Thalheimer, 3 Colo. App. 355, 33 P. 277 (1893); Patten v. Am. Nat'l Bank, 15 Colo. App. 479, 63 P. 424 (1900).
1979 amendment applicable to judgments entered after effective date. Subsection (1)(a), which became effective July 1, 1979, applies to any judgments entered after that date, even where the withholding of the property in question was prior to the effective date of the amendment. Great W. Sugar Co. v. N. Natural Gas Co., 661 P.2d 684 (Colo. App. 1982), aff'd sub nom. KN Energy, Inc. v. Great W. Sugar, Co., 698 P.2d 769 ( Colo. 1985 ), cert. denied, 472 U.S. 1022, 105 S. Ct. 3489, 87 L. Ed. 2d 623 (1985).
The intent of subsection (1)(a) was to correct the situation in which a wrongdoer would stall settlement or judgment in order to reap the benefit of having use of money or property which was producing more profit for him than the statutory interest rate he would eventually have to pay. Any benefit resulting from the wrongful withholding was intended to be enjoyed not by the wrongdoer, but by the injured party. Great W. Sugar Co. v. KN Energy, Inc., 778 P.2d 272 (Colo. App. 1989).
A subsection (1)(a) award of interest above the statutory rate is allowed only to the extent of the defendant's actual gain or benefit realized on the wrongfully withheld money. Patterson v. BP Am. Prod. Co., 2015 COA 28 , 360 P.3d 211.
Section requires an award of prejudgment interest in a rescission action, regardless of whether the issue was raised at trial or evidence was presented on the issue. Kennedy v. Gillam Dev. Corp., 80 P.3d 927 (Colo. App. 2003).
Prejudgment and postjudgment interest should have been awarded in homeowner's successful action against tenants for past-due rent and damage to premises. Butler v. Lembeck, 182 P.3d 1185 (Colo. App. 2007).
A wrongful withholding need not involve actual fraud or be tortious in nature. Section 38-10-117 provides that any conveyance made with the intent to hinder, delay, or defraud creditors is fraudulent. Stansbury v. Comm'r of Internal Rev., 102 F.3d 1088 (10th Cir. 1996).
Corporate executive of insolvent company liable as a transferee of assets for unpaid income taxes and the interest that accrued since the taxes became due. Transferee liable under § 38-10-117 (1) because conveyance was made with the intent to hinder, delay, or defraud creditors, in this case, the internal revenue service. While structuring the sale of the assets of the insolvent company, corporate executive (transferee) obtained multiple opinions on the foreseeable tax consequences. Informed by those opinions and his corporate acumen, executive knowingly chose to take a calculated risk. Scott v. Comm'r of Internal Rev., 236 F.3d 1239 (10th Cir. 2001).
A wrongful withholding only requires the failure to pay or deliver money or property when there is an obligation to do so. Therefore an insurer's failure to pay uninsured motorist benefits need not be tortious or in bad faith to be a wrongful withholding for purposes of this section. Peterman v. State Farm Mut. Auto. Ins. Co., 8 P.3d 549 (Colo. App. 2000).
There are judicially created exceptions to the general rule that the allowance of interest is a creature of statute. Davis Cattle Co. v. Great W. Sugar Co., 544 F.2d 436 (10th Cir. 1976), cert. denied, 429 U.S. 1094, 97 S. Ct. 1109, 51 L. Ed. 2d 541 (1977).
A plaintiff is not entitled to prejudgment interest on all compensatory damages flowing from a wrongful withholding of property. Rather, a proper award of prejudgment interest applies only to that part of the compensatory damages awarded for money or property wrongfully withheld. Dillen v. HealthOne, L.L.C., 108 P.3d 297 (Colo. App. 2004).
Prejudgment interest under subsection (1) is recoverable in an insurer's equitable contribution action under former § 10-4-707 (3) of the Colorado no-fault insurance act. Safeco Ins. Co. v. Westport Ins. Corp., 214 P.3d 1078 (Colo. App. 2009).
Moratory interest. As a matter of state law, Colorado recognizes moratory interest or the allowance of interest as damages. Moratory interest has been allowed in Colorado for more than 100 years. Davis Cattle Co. v. Great W. Sugar Co., 393 F. Supp. 1165 (D. Colo. 1975), aff'd, 544 F.2d 436 (10th Cir. 1976), cert. denied, 429 U.S. 1094, 97 S. Ct. 1109, 51 L. Ed. 2d 541 (1977).
Under Colorado law statutory interest cannot be awarded on an unliquidated claim but such does not preclude the awarding of moratory interest, i.e., interest by way of damages and not as a creature of statute. Davis Cattle Co. v. Great W. Sugar Co., 544 F.2d 436 (10th Cir. 1976), cert. denied, 429 U.S. 1094, 97 S. Ct. 1109, 511 L. Ed. 2d 541 (1977).
In allowing prejudgment interest, it is recognized that just compensation for the victim is a fundamental principle of damages, and that where money has been wrongfully withheld, it is only fair that the victim receive interest on the money thus withheld. Davis Cattle Co. v. Great W. Sugar Co., 544 F.2d 436 (10th Cir. 1976), cert. denied, 429 U.S. 1094, 97 S. Ct. 1109, 51 L. Ed. 2d 541 (1977); Robb v. Universal Constructors, Inc., 665 F.2d 998 (10th Cir. 1981).
A judgment awarding interest on damages when entered falls under this section, and as to the statutory rate. The rate of statutory interest, as distinguished from the rate of moratory interest, is fixed and mandatory. Davis Cattle Co. v. Great W. Sugar Co., 393 F. Supp. 1165 (D. Colo. 1975), aff'd, 544 F.2d 436 (10th Cir. 1976), cert. denied, 429 U.S. 1094, 975 S. Ct. 1109, 51 L. Ed. 2d 541 (1977).
In the absence of any proof as to the guilty party's gain, the statutory rate of interest for transactions entered into at that time should be awarded as damages. Alfred Brown Co. v. Johnson-Gibbons & Reed, 695 P.2d 746 (Colo. App. 1984).
The court does not err when it awards interest on a wrongfully withheld sum even though the exact amount is unliquidated until the date of judgment. Jasken v. Sheehy Constr. Co., 642 P.2d 58 (Colo. App. 1982).
Interest award on spouse's elective share of augmented estate and exempt property allowance is one of moratory interest which may run from date court finds elective share and allowance rather than from date of death of spouse. Matter of Estate of Smith, 718 P.2d 1069 (Colo. App. 1986).
For discussion of moratory interest award, see E.B. Jones Constr. Co. v. Denver, 717 P.2d 1009 (Colo. App. 1986).
Buyer entitled to interest where bank failed to deliver to the buyers a warranty deed as required by the contract, and trial court properly found that the bank wrongfully withheld the property. Cooper v. Peoples Bank & Trust Co., 725 P.2d 78 (Colo. App. 1986).
Trial court acted properly in finding that the defendants had wrongfully withheld funds from plaintiffs and in awarding such plaintiffs pre-judgment interest. Colo. Performance v. Mariposa Assoc., 754 P.2d 401 (Colo. App. 1987).
A claim for damages for lost market value stemming from stock not being registered together with interest measured by a percentage of that loss would have been one for prejudgment interest subject to the limitations of Colorado law. United Telecomms., Inc. v. Am. Television & Commc'ns Corp., 536 F.2d 1310 (10th Cir. 1976).
The Colorado interest statute does not deal with interest charges which arise from an independent debt owed by the plaintiff to a third party. United Telecomms., Inc. v. Am. Television & Commc'ns Corp., 536 F.2d 1310 (10th Cir. 1976).
Interest which appellant was obligated to pay on money which it was required to borrow as a result of appellee's unwarranted delays and manipulations is not regulated by this section. United Telecomms., Inc. v. Am. Television & Commc'ns Corp., 536 F.2d 1310 (10th Cir. 1976).
Brokerage commission due under oral contract falls within this section and interest is due on the commission from the date that it was due and payable. Hayes v. N. Table Mt. Corp., 43 Colo. App. 467, 608 P.2d 830 (1979).
Broker's commission became due as a matter of law when the broker produced a buyer ready, willing, and able to purchase the property, and interest at the statutory rate began to accrue at that time. Mack v. McKanna, 687 P.2d 1326 (Colo. App. 1984).
Interest from date of filing of complaint. Where all of the transactions involving the secret profit made by the real estate agent in sale of building in violation of agent's fiduciary duty were completed on December 18, 1972, the principal would have been entitled to interest at the legal rate on the judgment from that date. However, since in the complaint the principal asked for interest only from the date of filing the complaint, interest from that period shall be part of the judgment. Lestoque v. M.R. Mansfield Realty, Inc., 36 Colo. App. 32, 536 P.2d 1146 (1975).
A debtor cannot avoid the payment of interest by disputing an account, and when the account or any portion thereof is found due, the creditor is entitled to interest on the amount due. Quad Constr., Inc. v. Wm. A. Smith Contracting Co., 534 F.2d 1391 (10th Cir. 1976).
Award of prejudgment interest appropriate where money was wrongfully withheld pursuant to a statute which conflicted with the constitutional provision of article XXI, section 4. Passarelli v. Schoettler, 742 P.2d 867 (Colo. 1987).
An award of prejudgment interest in a judgment against the state is not prohibited even though the general assembly did not expressly provide for an award nor is governmental immunity a bar to such an award. Passarelli v. Schoettler, 742 P.2d 867 (Colo. 1987).
Prejudgment interest may be awarded in property damage cases, as the legislative history clearly indicates that all cases are to be treated equally regarding the time that interest begins to accrue. Isbill Assocs. v. City & County of Denver, 666 P.2d 1117 (Colo. App. 1983); La Fond v. Basham, 683 P.2d 367 (Colo. App. 1984); Mesa Sand & Gravel v. Landfill, Inc., 776 P.2d 362 ( Colo. 1989 ); Lowell Staats Min. Co. v. Pioneer Uravan, Inc., 878 F.2d 1259 (10th Cir. 1989); Teilhaber Mfg. v. Unarco Materials, 791 P.2d 1164 (Colo. App. 1989).
Prejudgment interest may be awarded in breach of construction contract case even if amount is unliquidated at time of wrongful withholding. Hott v. Tillotson-Lewis Const. Co., 682 P.2d 1220 (Colo. App. 1983); Teilhaber Mfg. v. Unarco Materials, 791 P.2d 1164 (Colo. App. 1989); cert. denied, 803 P.2d 517 ( Colo. 1991 ).
Prejudgment interest may be awarded in intentional interference with contract case, as subsection (1)(b) is to be given a broad liberal construction to effectuate the general assembly's purpose of compensating parties for the loss of money or property to which they are entitled. Westfield Dev. v. Rifle Inv. Assoc., 786 P.2d 1112 (Colo. 1990).
Prejudgment interest is permitted on the amount of compensatory damages that an insured would have received under the insurance contract from the time of the insurer's wrongful withholding. Herod v. Colo. Farm Bureau Mut. Ins., 928 P.2d 834 (Colo. App. 1996).
Prejudgment interest is permitted on the amount of wages for "comp time" employee earned while working for employer. Because employee was not paid those wages when he or she left the company, employer's withholding was wrongful. Thus, employee is entitled to an award of prejudgment interest calculated on his or her award from the effective date of resignation to the date of final judgment. Remote Switch Sys. v. Delangis, 126 P.3d 269 (Colo. App. 2005).
Nothing in the statute requires that a judgment creditor establish tortious conduct by a debtor to support award of prejudgment interest. Benham v. Mfrs. Wholesalers Indem. Exch., 685 P.2d 249 (Colo. App. 1984); Cooper v. Peoples Bank & Trust Co., 725 P.2d 78 (Colo. App. 1986).
Being the more specific statute, the plain terms of § 8-41-203 control over this section and, therefore, insurer is limited pursuant to subrogation agreement for workers' compensation to recover only the amount which it paid to the injured employee and cannot collect any interest on amount. Husson v. Meeker, 812 P.2d 731 (Colo. App. 1991).
This section contains no requirement that town request statutory interest in its pleadings for court to award interest pursuant to C.R.C.P. 54(c). Town of Breckenridge v. Golforce, Inc., 851 P.2d 214 (Colo. App. 1992).
But, plaintiff not entitled to prejudgment interest in case of award of damages for emotional distress. Purpose of prejudgment interest is to discourage a person responsible for payment of a claim from delaying payment until judgment or settlement. Award of emotional distress damages are not intended to compensate for wrongful delay in obtaining money or property. Allabashi v. Lincoln Nat'l Sales Corp., 824 P.2d 1 (Colo. App. 1990).
Injuries properly determined as "personal" and not "property" in case where toxic contamination to property caused homeowners inconvenience and loss of peace of mind based on their fear that contaminants could be present in portions of their homes and the perceived stigma attached to homes in the neighborhood. Therefore, the trial court was correct in awarding prejudgment interest on damages at the rate allowed for cases involving "personal injuries". Antolovich v. Brown Group Retail, Inc., 183 P.3d 582 (Colo. App. 2007).
Trial court erred in awarding post-judgment interest to accrue at 8% per annum when promissory note provided for interest to accrue at 13% per annum until paid in full. Dikeou v. Dikeou, 916 P.2d 601 (Colo. App. 1995), rev'd on other grounds, 928 P.2d 1286 ( Colo. 1996 ).
Trial court erred in denying plaintiff an award of prejudgment interest on disputed portion of settlement funds that had been placed in a money market account pending the outcome of the trial. Fasing v. LaFond, 944 P.2d 608 (Colo. App. 1997).
Trial court erred in setting off the settlement payment before statutory prejudgment interest accrued on the jury verdict. Marso v. Homeowners Realty, 2018 COA 15 M, 418 P.3d 542.
Creditor defendant entitled to post-judgment interest during its appeal under subsection (4). Post-judgment interest continues to accrue until the judgment is satisfied. Indian Mtn. v. J.P. Campbell & Assocs., 921 P.2d 65 (Colo. App. 1996).
The inquiry under this section is whether the money or property was wrongfully withheld from the nonbreaching party, and not whether the nature of the conduct of the breaching party brings him or her within the ambit of the statute. Rodgers v. Colo. Dept. of Human Servs., 39 P.3d 1232 (Colo. App. 2001).
Where one party withholds money from another party in reliance on an administrative order that is subsequently reversed, the party withholding the money was not entitled to the money; therefore, the party that was deprived of the use of the money is entitled to an award of interest on the amount of money that was wrongfully withheld. Rodgers v. Colo. Dept. of Human Servs., 39 P.3d 1232 (Colo. App. 2001).
B. Bonds.
Interest upon the penalty of a bond is allowed, and the penalty in a bond is the amount which the obligors agree to pay, if the whole penalty be needed to satisfy the damages sustained by the obligee by a breach of the bond, and is due as soon as the breach occurs. Mass. Bonding & Ins. Co. v. State ex rel. Mallin, 141 Colo. 259 , 347 P.2d 507 (1959).
An amount becomes due on a performance bond when the bills for costs are submitted to the surety. A dispute as to the amount due does not remove the claim from this section. Asphalt Paving Co. v. United States Fid. & Guar. Co., 671 P.2d 1013 (Colo. App. 1983).
The fact that the amount of the judgment, together with interest, exceeds the penalty of a bond does not preclude the collection of principal and interest. Mass. Bonding & Ins. Co. v. State ex rel. Mallin, 141 Colo. 259 , 347 P.2d 507 (1959).
The fact that a judgment was not satisfied, in due course, and that, as a consequence, the amount of that judgment together with accrued interest now exceeds the penalty of a bond does not preclude the collection of principal and interest. Key Sav. & Loan Ass'n v. Travelers Indem. Co., 32 Colo. App. 358, 513 P.2d 737 (1973).
C. Promissory Notes.
Note may provide for payment of interest. Under this section a promissory note which provides that upon failure to pay the principal when due interest shall be payable from date of note is a good contract, and the interest is recoverable. McKay's Estate v. Belknap Sav. Bank, 27 Colo. 50, 59 P. 745 (1899).
Upon a guaranty indorsed on a promissory note, both the principal and the interest specified in the note may be recovered. Martin v. Hazzard Powder Co., 2 Colo. 596 (1875).
Only statutory rate of interest allowed. Where judgment is procured upon a note, only statutory interest as allowed by this section can be recovered, notwithstanding the note provides for higher interest on amounts not paid when due. Hiller v. Matheny, 81 Colo. 459, 256 P. 10 (1927).
In an action to recover the amount paid for notes where the purchase is rescinded for fraud, the basis of recovery is the benefit to the defendant, and where there is an absence of proof as to the interest rate which would produce an amount equal to such benefit the statutory legal rate should be adopted. Bankers Trust Co. v. Int'l Trust Co., 108 Colo. 15 , 113 P.2d 656 (1941).
Where the rate of interest is left blank on a promissory note, the legal rate, as provided by this section, is six percent, and the insertion of a higher rate of interest by the holder constitutes a material alteration which renders the note invalid. Farmers State Bank v. Klein, 159 Colo. 165 , 410 P.2d 632 (1966).
If the person executing a preprinted form note which provides a blank for interest does not want to be bound to such, then the provision should be stricken or the word "none" should be inserted in the blank; otherwise interest at the statutory rate is due. Fin. Mgmt. Task Force, Inc. v. Altberger, 807 P.2d 1230 (Colo. App. 1990).
D. Other Instruments of Writing.
The "other instrument of writing" as used in this section is one based on contractual relations, an instrument importing mutuality, one which implies an obligation to pay for a consideration rendered. Cobb v. Stratton's Estate, 56 Colo. 278, 138 P. 35 (1914).
A will is not such an instrument. Cobb v. Stratton's Estate, 56 Colo. 278, 138 P. 35 (1914).
Interest in a legacy is not allowable. Cobb v. Stratton's Estate, 56 Colo. 278, 138 P. 35 (1914).
The term "instrument of writing" has a definite legal meaning which excludes a verdict as something essentially different. Hawley v. Barker, 5 Colo. 118 (1879); Cobb v. Stratton's Estate, 56 Colo. 278, 138 P. 35 (1914).
An instrument of writing implies an agreement or contract which it contains and of which it is the memorial. Hawley v. Barker, 5 Colo. 118 (1879); Cobb v. Stratton's Estate, 56 Colo. 278, 138 P. 35 (1914).
This definition is in effect a declaration that such "other instrument of writing" must be one having the characteristics of a bond, bill, or promissory note and may not be something essentially different. Cobb v. Stratton's Estate, 56 Colo. 278, 138 P. 35 (1914).
A policy of insurance is a contract and is within the meaning of "other instrument of writing". Bloom v. Wolfe, 37 Colo. App. 407, 547 P.2d 934 (1976).
Coupons from municipal bonds, being issued by the municipality in its business, rather than its governmental function, are "promissory notes" or "other instruments of writing" within the meaning of this section and bear interest from their maturity as therein provided. Bd. of Comm'rs v. Geer, 108 F. 478 (8th Cir. 1901).
Where leased property is thrown into the hands of a receiver and the landlord directs the tenant to pay no rent to anyone, on which direction he so acts, this does not, under this section, relieve him from liability for interest on payments so withheld. Lamar Cold Storage Co. v. Union Ice & Storage Co., 77 Colo. 556, 238 P. 42 (1925).
E. Judgments.
A judgment creditor who has a claim which falls within the clearly expressed wording of this section is entitled to interest on such claim from the date and at the rate specified in the statute. Stone v. Currigan, 138 Colo. 442 , 334 P.2d 740 (1959).
This section authorizes interest at the legal rate on the amount of a judgment from and after entry thereof. Denver-Albuquerque Motor Transp., Inc. v. Galligan, 145 Colo. 71 , 358 P.2d 28 (1960).
Interest on a judgment is specifically authorized by this section. Sec. Ins. Co. v. Houser, 191 Colo. 189 , 552 P.2d 308 (1976).
Pursuant to this section, interest is recoverable from the date the amount becomes due. Flight Sys. v. Elgood-Mayo Corp., 660 P.2d 909 (Colo. App. 1982).
Where the insurance contract does not specify a rate of interest, the general statutory rate of eight percent governs the recovery of postjudgment interest. Church v. Am. Standard Ins. Co., 764 P.2d 405 (Colo. App. 1988); Loza v. State Farm Mut. Auto. Ins. Co., 971 P.2d 251 (Colo. App. 1998).
Although an underinsured motorist policy is a contract and therefore would fall under this section, which dictates interest to accrue at eight percent, the claim under that policy may be premised upon a tort claim for bodily injury and therefore accrue interest at the higher rate dictated by § 13-21-101 . Here, plaintiff's underinsured motorist claim was for damages resulting from the tort of another person, even though it also involved the contract with his insurer; therefore, he was entitled to the higher interest rate of § 13-21-101 . Parker v. USAA, 216 P.3d 7 (Colo. App. 2007), aff'd, 200 P.3d 350 ( Colo. 2009 ).
The postjudgment interest rate authorized by this section serves as the interest rate for judgments involving personal injury protection benefits. If the interest rate under § 10-4-708 were to serve as the prejudgment and the postjudgment interest rate, an inconsistency would exist between this section and § 10-4-708, which establishes the prejudgment interest rate in personal injury protection benefit cases. Loza v. State Farm Mut. Auto. Ins. Co., 971 P.2d 251 (Colo. App. 1998).
A trial court errs in awarding interest from the date of filing the complaint. Denver-Albuquerque Motor Transp., Inc. v. Galligan, 145 Colo. 71 , 358 P.2d 28 (1960).
Allowing interest from date of arbitration award is not error. Columbine Valley Constr. Co. v. Bd. of Dirs., 626 P.2d 686 (Colo. 1981).
Interest accrues from the date of the wrong, not from the date of the judgment. Isbill Assocs., Inc. v. Denver, 666 P.2d 1117 (Colo. App. 1983); Bassett v. Eagle Telecomms., 750 P.2d 73 (Colo. App. 1987); Colo. Performance Corp. v. Mariposa Assocs., 754 P.2d 401 (Colo. App. 1987).
Interest on property damage award accrues from the time the cause of action accrued, that is, from the date on which the injured party was wronged. Federal Ins. Co. v. Ferrellgas, Inc., 961 P.2d 511 (Colo. App. 1997).
Interest on damage award in an ADA claim accrues from the date of judgment and not from the date of the jury verdict. Fail v. Cmty. Hosp., 946 P.2d 573 (Colo. App. 1997).
When attorney fees are awarded, not as damages but to shift the burden of litigation, interest on the award runs from the date of the final order quantifying the amount of fees and not from any earlier judgment or order that might have established a party's right to recover damages or fees without specifying an amount. Kennedy v. King Soopers Inc., 148 P.3d 385 (Colo. App. 2006).
Under this section fixing the rate of interest at six percent, a judgment fixing the rate of interest in such case higher is erroneous. Bd. of County Comm'rs v. Bd. of County Comm'rs, 15 Colo. 320, 25 P. 508 (1890).
After judgment is entered, this section is applicable in regard to collection of interest on judgment. Schoenfeld v. Neher, 453 F.2d 896 (10th Cir. 1972).
Insurer cannot owe postjudgment interest in absence of an enforceable judgment. Old Republic Ins. Co. v. Ross, 180 P.3d 427 (Colo. 2008).
A plaintiff on the entry of a judgment becomes a creditor as contemplated by this section; he becomes a judgment creditor and clearly comes within the statutory purview of those entitled to recover interest. Stone v. Currigan, 138 Colo. 442 , 334 P.2d 740 (1959).
Where a judgment is entered "nunc pro tunc", plaintiff should have interest on the amount to be found due as of the date it is considered reduced to judgment since, except as to the rights of third persons, a judgment "nunc pro tunc" is retrospective and has the same force and effect, to all intents and purposes, as though it had been entered at the time when the judgment was originally rendered. Stone v. Currigan, 138 Colo. 442 , 334 P.2d 740 (1959).
Similarly, where the court orders claims to be restored "with legal interest", such claims duly allowed are of like significance, and bear the same interest as entered judgments under this section. Myers v. Colo. Pulp & Paper Co., 95 Colo. 328 , 35 P.2d 1020 (1934).
A verdict for the full amount due under a contract of sale is tantamount to a determination that plaintiffs substantially complied with the terms of the contract, and that the sums provided therein became due and payable according to its tenor; this being so, they are entitled to statutory interest after maturity. Baer Bros. Land & Cattle Co. v. Reed, 197 F.2d 569 (10th Cir. 1952).
Where a motion for a new trial is overruled and thereafter a trial court computes interest on the verdict and orders judgment in the amount of the verdict and interest, this concludes the trial court's action relative to the judgment, and it becomes the final judgment. Green v. Jones, 134 Colo. 208 , 304 P.2d 901 (1956).
In a suit on a foreign judgment, it is proper to allow interest on the original judgment and make the sum of principal and interest the principal amount of the judgment, which will also draw interest. Bruckman v. Taussig, 7 Colo. 561, 5 P. 152 (1884).
Judgment awarding prejudgment interest is not final until the amount of such interest is reduced to a sum certain. Grand County Custom Homebuilding, LLC v. Bell, 148 P.3d 398 (Colo. App. 2006).
Garnishor is entitled to postjudgment interest on a garnishment amount based on the garnishee's unreasonable delay in paying the sums due. There is no basis to treat a garnishee against whom a judgment is entered differently from a defendant against whom another judgment is entered. Thompson v. Catlin Ins. Co. (UK) Ltd., 2018 CO 95, 431 P.3d 224.
F. Accounts and Money Due on Account.
This section provides that interest shall be allowed upon all moneys after they become due. Peterson v. Shaffer, 143 Colo. 138 , 352 P.2d 281 (1960).
Any creditor who can bring himself within the terms of this section is entitled to interest from his debtor. Stone v. Currigan, 138 Colo. 442 , 334 P.2d 740 (1959); Mass. Bonding & Ins. Co. v. State ex rel. Mallin, 141 Colo. 259 , 347 P.2d 507 (1959).
While this section does not say who shall pay interest, it necessarily follows that if a creditor is entitled to receive interest, his debtor must be charged with the payment thereof; if a judgment creditor is entitled to recover interest then the judgment debtor must be the one to pay it, since this section does not expressly or by implication exclude or except any judgment creditor or judgment debtor. Stone v. Currigan, 138 Colo. 442 , 334 P.2d 740 (1959).
This section is clear and concise with reference to judgement creditors. Stone v. Currigan, 138 Colo. 442 , 334 P.2d 740 (1959).
This section, because it imposes upon the debtor an additional burden in the way of damages for the withholding of money after it becomes due on account, should be strictly construed. Patten v. Am. Nat'l Bank, 15 Colo. App. 479, 63 P. 424 (1900); Smith-McCord-Townsend Co. v. Camenga, 104 Colo. 7 , 87 P.2d 751 (1939); Hunter v. Wilson, 147 Colo. 36 , 362 P.2d 553 (1961).
Meaning of word "account". The word "account", when used alone, as in this section, without words of limitation, extension, qualification, or explanation is sometimes equivalent to the word "claim" or "demand" when referring to an indebtedness arising out of contract or some fiduciary relation. Donley v. Bailey, 48 Colo. 373, 110 P. 65 (1910).
"Money due on account" includes fixed commission. As this section does not limit or qualify the meaning of the word "account", the phrase "money due on account", must include the claim of one who by procuring a lease of lands for another earns a fixed sum as a commission, and he is entitled to interest from the time the claim became due, it being liquidated. Donley v. Bailey, 48 Colo. 373, 110 P. 65 (1910); Harvey v. Denver & R. G. R. R., 56 Colo. 570, 139 P. 1098 (1914).
The award of interest on commissions from the dates of the deeds, based on the reasonable determination that the commissions are due at such times, is proper. Manufacturer's Nat'l Bank v. Hartmeister, 411 F.2d 173 (10th Cir. 1969).
Interest may be recovered on a liquidated sum admitted to be due and payable on a day certain. Higgins v. Armstrong, 9 Colo. 38, 10 P. 232 (1886); Harvey v. Denver & R. G. R. R., 56 Colo. 570, 139 P. 1098 (1914).
This section in its present form has been carried over into the law of Colorado from early time, and the Colorado courts have traditionally required the allowance of interest on liquidated claims. N. Drive-In Theatre Corp. v. Park-In Theatres, Inc., 248 F.2d 232 (10th Cir. 1957).
The federal courts have given the statute a like construction. N. Drive-In Theatre Corp. v. Park-In Theatres, Inc., 248 F.2d 232 (10th Cir. 1957).
So where the amount payable under a contract is a liquidated amount, it falls within the definitions contained in the statute. York Plumbing & Heating Co. v. Groussman Inv. Co., 166 Colo. 382 , 443 P.2d 986 (1968).
A liability fixed by law is a liquidated liability. T. & M. Transp. Co. v. Shattuck Chem. Co., 158 F.2d 909 (10th Cir. 1947).
For interest recovered by carrier under interstate commerce act, see T. & M. Transp. Co. v. Shattuck Chem. Co., 158 F.2d 909 (10th Cir. 1947).
State entitled to interest on taxes not paid to treasurer by state auditor. Where the state auditor keeps an account of the money received by him for taxes, which is due within 30 days after he receives it -- that is, the statute requires him to pay it into the treasury within the 30 days -- on each payment of taxes not paid over to the treasurer the state is entitled to interest under this section from the expiration of 30 days after its receipt by the auditor. Am. Bonding Co. v. People, 53 Colo. 512, 127 P. 941 (1912).
As towns and cities in business transactions are liable for interest, in the absence of statute, the same as private corporations or individuals, despite the conclusion reached by this court in Bd. of Comm'rs v. Wheeler, 39 Colo. 207, 89 P. 50 (1907), which was but dicta in that case. City of Golden v. W. Lumber & Pole Co., 60 Colo. 382, 154 P. 95 (1916).
In entering into a contract for services, a city lays aside its attributes of sovereignty and becomes liable just as an individual would be liable, including for interest. City & County of Denver v. Thomas, 176 Colo. 483 , 491 P.2d 573 (1971).
A city which refuses or neglects payment of a just demand is liable for interest thereon. City of Golden v. W. Lumber & Pole Co., 60 Colo. 382, 154 P. 95 (1916).
Additionally, interest is allowable on mechanics' lien claims as an incident to the debt against the property. Buerger Inv. Co. v. Salzer Lumber Co., 77 Colo. 401, 237 P. 162 (1925).
Interest is allowed upon a balance due for work performed. Donley v. Bailey, 48 Colo. 373, 110 P. 65 (1910); Idaho Gold Coin Mining & Milling Co. v. Colo. Iron Works Co., 49 Colo. 66, 111 P. 553 (1910); Wells v. Crawford, 23 Colo. App. 103, 127 P. 914 (1912).
An unliquidated claim does not come within the statute as to allowance of interest. Hunter v. Wilson, 147 Colo. 36 , 362 P.2d 553 (1961).
Where a claim for damages has never been settled, it is unliquidated, and therefore this section is not applicable. Credit Inv. & Loan Co. v. Guar. Bank & Trust Co., 166 Colo. 471 , 444 P.2d 633 (1968).
Where the claim for damages for breach of warranty is unliquidated, such does not fall within the types of debts enumerated by the statute. York Plumbing & Heating Co. v. Groussman Inv. Co., 166 Colo. 382 , 443 P.2d 986 (1968).
The mere fact that claims are in dispute does not preclude the recovery of interest thereon. N. Drive-In Theatre Corp. v. Park-In Theatres, Inc., 248 F.2d 232 (10th Cir. 1957).
The mere fact that one disputes the amount due on a bill does not render an account unliquidated; hence, one is therefore entitled to interest from the date he rendered his bill, at which time the account became due and payable. W. Oil Fields, Inc. v. Coit, 29 Colo. App. 567, 487 P.2d 562 (1971).
There is no requirement that the arbitration award be a monetary judgment before interest is awarded. Subsection (3) provides that interest shall be allowed even if the amount is unliquidated at the time of the wrongful withholding. Wilson v. Estate of Lawrence, 910 P.2d 67 (Colo. App. 1995).
A debtor cannot avoid the payment of interest by disputing the account, and when at the trial the account or any portion of it is established, the creditor is entitled to interest upon the amount found to be due. Florence & Cripple Creek R. R. v. Tennant, 32 Colo. 71 , 75 P. 410 (1904); York Plumbing & Heating Co. v. Groussman Inv. Co., 166 Colo. 382 , 443 P.2d 986 (1968).
Claiming unliquidated setoff against whole debt. A debtor cannot defeat the running of interest against him for the part of a debt which he admits that he owes, and which would otherwise draw interest, by simply making a claim of an unliquidated setoff against the whole debt. York Plumbing & Heating Co. v. Groussman Inv. Co., 166 Colo. 382 , 443 P.2d 986 (1968).
Interest allowed only on balance due. Where a claim under an agreement is certain and liquidated, but is reduced because of the allowance of an unliquidated setoff or counterclaim, interest may be allowed only on the balance due. York Plumbing & Heating Co. v. Groussman Inv. Co., 166 Colo. 382 , 443 P.2d 986 (1968).
Setoff should be at time due. The claim of the debtor not bearing interest should be set off against that of the creditor drawing interest as of the date of the time it became due and owing. York Plumbing & Heating Co. v. Groussman Inv. Co., 166 Colo. 382 , 443 P.2d 986 (1968).
For the interest on "money due on settlement of an account from the day of the last just entry made on account" under earlier provision, see Bergundthal v. Bailey, 15 Colo. 257, 25 P. 86 (1890).
G. Money Fraudulently Converted.
Interest for tortious taking or detention of money or property. By distinguishing between interest as such and interest as damages the equivalent of interest in the way of damages for the tortious taking and detention of money or property is allowed, even when interest is not recoverable under the statute. Where interest is allowed as damages and there is an absence of proof as to the rate which would produce the amount the statutory legal rate should be adopted. Bankers Trust Co. v. Int'l Trust Co., 108 Colo. 15 , 113 P.2d 656 (1941).
Where record does not disclose that amounts charged against a fiduciary were levied because of a fraudulent taking, there is no reversible abuse of discretion by the trial court in refusing interest on such amounts. Latta v. Henry, 28 Colo. App. 220, 472 P.2d 690 (1970).
III. NONALLOWANCE OF INTEREST.
There is no provision for interest upon damages resulting from the wrongful taking of property, and without statutory authority, it is not recoverable. Greeley, S. L. & Pac. Ry. v. Yount, 7 Colo. App. 189, 42 P. 1023 (1895); Banker's Trust Co. v. Int'l Trust Co., 108 Colo. 15 , 113 P.2d 656 (1941).
Damages to property arising from the wrong or negligence of a defendant is not one of the enumerated cases. Denver, S. P. & P. R. R. v. Conway, 8 Colo. 1, 5 P. 142, 54 Am. R. 537 (1884).
An action in damage for a breach of warranty is not one of the enumerated cases. Weaver v. First Nat'l Bank, 138 Colo. 83 , 330 P.2d 142 (1958).
Also, interest is not recoverable upon an unliquidated demand, for under all the authorities, even where interest is recoverable upon an unliquidated claim, it does not begin to run until the date of the demand, and the beginning of a suit is deemed equivalent to a demand. Denver, S. P. & P. R. R. v. Moynahan, 8 Colo. 56, 5 P. 811 (1884); Dexter v. Collins, 21 Colo. 455, 42 P. 664 (1895); T. & M. Transp. Co. v. Shattuck Chem. Co., 158 F.2d 909 (10th Cir. 1947); Schlottman v. Pressey, 195 F.2d 343 (10th Cir. 1952).
Interest cannot be allowed on unliquidated claims. Yeager Garden Acres, Inc. v. Summit Constr. Co., 32 Colo. App. 242, 513 P.2d 458 (1973); I.M.A., Inc. v. Rocky Mtn. Airways, Inc., 713 P.2d 882 ( Colo. 1986 ) (decided under former law).
In Colorado statutory interest cannot be awarded under this section on an unliquidated claim, but this does not end the matter. Statutory interest is one thing, but there is another kind of interest -- moratory interest or interest by way of damages. Davis Cattle Co. v. Great W. Sugar Co., 393 F. Supp. 1165 (D. Colo. 1975), aff'd, 544 F.2d 436 (10th Cir. 1976), cert. denied, 429 U.S. 1094, 97 S. Ct. 1109, 51 L. Ed. 2d 541 (1977).
Interest is not allowable upon a balance due for work. Hurlburt v. Dusenbery, 26 Colo. 240, 57 P. 860 (1899).
Nothing contained in this section can be construed to authorize the recovery of interest in an action for damages for fraud and deceit. Clark v. Giacomini, 85 Colo. 530, 277 P. 306 (1929).
Interest is not recoverable on the amount of a verdict, although a substantial period of time (e.g., two years) has elapsed from the date of its rendition up to the time of the entry of judgment thereon. Hawley v. Barker, 5 Colo. 118 (1879).
County acting in governmental purpose not within this section. A county, being essentially an agency of the state for general governmental purposes, is not within the purview of this section regulating the rate and payment of interest upon money due or to become due from it. Roberts v. Bd. of County Comm'rs, 94 Colo. 149 , 28 P.2d 813 (1934).
It was not the intention of the general assembly to allow interest upon claims against counties by virtue of this section, because § 5-12-104 provides that county orders and warrants and other like evidences or certificates of indebtedness shall bear interest at the rate of six percent. If it was intended that obligations of the county other than those mentioned in § 5-12-104 should draw interest, as provided in this section, the enactment of this section would have been idle, because it provides for the allowance of interest "on any bond, bill, promissory note or other instrument of writing", which expressions are broad enough to include county orders and warrants and other like evidences of municipal indebtedness. The rule being that counties may not have liabilities imposed upon them in the absence of a statute, and the fact that the general assembly provided that county orders, warrants and other like evidences of municipal indebtedness shall bear interest, it must have intended to exclude all obligations other than those mentioned, expressio unius est exclusio alterius. Bd. of County Comm'rs v. Wheeler, 39 Colo. 207, 89 P. 50 (1907); City of Golden v. W. Lumber & Pole Co., 60 Colo. 382, 154 P. 95 (1916).
Interest is not recoverable against a municipal corporation on claims arising out of its actions in a governmental capacity. Police Pension & Relief Bd. v. Behnke, 143 Colo. 365 , 353 P.2d 370 (1960).
Where the rights and duties of the parties are adjudicated and determined, then where plaintiffs have a money judgment, they are entitled to statutory interest thereon. Police Pension & Relief Bd. v. Behnke, 143 Colo. 365 , 353 P.2d 370 (1960).
This section does not authorize the awarding of interest on overdue interest. It may be true that interest, when it has become payable, is "money become due", but a fair construction of this section will allow the language to cover only interest upon the principal, within the legislative intent, especially in view of the provision of § 5-12-103 allowing any rate to be agreed upon. So, this statute does not authorize the awarding of interest on overdue interest. Denver Brick, etc., Co. v. McAllister, 6 Colo. 261 (1882); Bd. of County Comm'rs v. Linn, 29 Colo. 446, 68 P. 839 (1902).
Where interest is claimed as damages and principal is accepted without interest right to interest is extinguished. Where interest is claimed as damages by virtue of the nonpayment of a debt when due, and for that reason is allowed by law, it is then considered not an integral part of a debt, but merely as an incident to the debt, and in such cases when the principal is paid and accepted without interest, the right to interest is extinguished. Bassick Gold Mine Co. v. Beardsley, 49 Colo. 275, 112 P. 770 (1911).
A protest for the nonpayment of the interest does not change this rule. Bassick Gold Mine Co. v. Beardsley, 49 Colo. 275, 112 P. 770 (1911).
Similarly, a receipt "in payment of above account" is a complete settlement, barring fraud or mistake, and precludes a subsequent claim of interest on the grounds that the amount was not paid promptly at its maturity. Bassick Gold Mine Co. v. Beardsley, 49 Colo. 275, 112 P. 770 (1911).
Section not applicable to judgment determining rights to funds paid into court. This statute, which allows judgment creditors to receive interest, does not apply to a judgment determining the right to funds paid into court, especially in an interpleader action, where the judgment is against the fund, not against the other parties. Ritter v. Wysowatcky, 32 Colo. App. 410, 514 P.2d 333 (1973).
Prejudgment interest cannot apply to punitive damage awards. Coale v. Dow Chem. Co., 701 P.2d 885 (Colo. App. 1985).
If there is a specific agreement for interest, but the right to interest has been waived, this section is not applicable. Ebrahimi v. E.F. Hutton & Co., Inc., 794 P.2d 1015 (Colo. App. 1989).
Where demand for payment under a performance bond was not made before suit was filed, interest on the judgment should be awarded to plaintiff only from the date the complaint was filed. Riva Ridge Apts. v. Robert G. Fisher Co., 745 P.2d 1034 (Colo. App. 1987).
Subsection (1) affords plaintiff no basis for recovery when the plaintiff's claim for interest arises from a personal injury and not as a creditor or a party to a contract. Subsection (1) generally pertains to post-judgment interest that applies to debt, contract, and property damage cases. Schnacker v. State Farm Mut. Auto. Ins. Co., 843 P.2d 102 (Colo. App. 1992).
Future wages and benefits are not "due" within meaning of this section. Therefore, prejudgment interest should not have been awarded on the portion of a judgment representing lost future wages and benefits. Shannon v. Colo. Sch. of Mines, 847 P.2d 210 (Colo. App. 1992); Dillen v. HealthOne, L.L.C., 108 P.3d 297 (Colo. App. 2004).
Prejudgment interest may not be awarded for future damages. Life Care Ctrs. v. E. Hampden Assoc., 903 P.2d 1180 (Colo. App. 1995).
Prejudgment interest, under a theory of wrongful withholding, is not available on an award for attorney fees to compensate plaintiffs for the loss of use of their money. Roget v. Grand Pontiac, Inc., 5 P.3d 341 (Colo. App. 1999).
Consequential damages resulting from a wrongful withholding are not subject to prejudgment interest. Only the amounts actually withheld may draw interest under this section. S. Park Aggregates, Inc. v. Nw. Nat. Ins. Co., 847 P.2d 218 (Colo. App. 1992).
Section is inapplicable when another party absconded with the plaintiff's money. Defendant was not the party wrongfully withholding the money and did not realize a gain or benefit by retaining it. Messler v. Phillips, 867 P.2d 128 (Colo. App. 1993).
Prejudgment interest may not be awarded by trial court upon confirmation of arbitration award where such interest was not requested during the arbitration. Duncan v. Nat'l Home Ins. Co., 36 P.3d 191 (Colo. App. 2001).
Where an award of attorneys fees was properly characterized as analogous to costs rather than damages, the court abused its discretion by awarding moratory interest on the fees. Farmers Reservoir & Irrigation Co. v. City of Golden, 113 P.3d 119 (Colo. 2005).
An award of postjudgment interest is not proper when the award of wages to employee is used to set off the greater amount that employee owes employer for the special master's fee. Remote Switch Sys. v. Delangis, 126 P.3d 269 (Colo. App. 2005).
In the absence of any Colorado authority applying subsection (1) to an insurer's recoupment claim, and in light of the parties' plausible conflicting arguments about the statute's applicability, federal court of appeals was unable to conclude that insurers met their burden of establishing that Colorado law requires an award of prejudgment interest under the circumstances. Valley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd., 616 F.3d 1086 (10th Cir. 2010).
IV. NOTICE OR DEMAND.
Some kind of notice must be given debtor before creditor can recover interest. The only reasonable construction of this section is that even though a debtor may be unable to pay, and a demand therefor be excusable to that extent, still there must be some notice to him of some kind, either by the institution of a suit, or otherwise, of the creditor's intention to terminate the relation of debtor and creditor by declaring the maturity of a debt, or some act of the creditor evidencing such desire and intention, before he can be allowed to recover interest. Patten v. Am. Nat'l Bank, 15 Colo. App. 479, 63 P. 424 (1900).
The relation between a bank and its depositor is that of debtor and creditor, the debt becoming due and payable on demand, and even though a bank may be unable to pay, and a demand therefore be excusable to that extent, still there must be some notice by the depositor of his intention of terminating the relation of debtor and creditor by declaring the maturity of the debt before he can recover interest on his deposit under this section. Patten v. Am. Nat'l Bank, 15 Colo. App. 479, 63 P. 424 (1900).
Hence, no interest on bank account until demand is made. In cases of general deposits in a bank, unless there be some agreement or usage to the contrary, the undertaking of the bank is only to repay upon demand. Such an account, therefore, does not become due under this section until demand is made for it, and the bank is not in default, or liable to respond in damages, until such demand and refusal. Hence, under this general rule, a plaintiff is not entitled to receive interest on his deposit, unless the circumstances were such as to legally excuse him from making a demand prior to the time when he did make it. Patten v. Am. Nat'l Bank, 15 Colo. App. 479, 63 P. 424 (1900).
The fact that a bank is temporarily suspended and its assets are temporarily in the hands of a receiver appointed by the government does not excuse a depositor from making demand so as to render the account due and cause it to draw interest without demand. Patten v. Am. Nat'l Bank, 15 Colo. App. 479, 63 P. 424 (1900).
Interest, whether as damages or under this section, must be given from the date of the demand of payment for labor performed and materials furnished. In an action at law on a contract for work done and materials furnished, this section, respecting the allowance of interest, is mandatory. It leaves no discretion in the court to take into consideration, as in equity cases, the laches of the demandant in bringing the suit. City of Denver v. Barber Asphalt Paving Co., 141 F. 69 (8th Cir. 1905).
Absent any agreement by the parties on interest, interest becomes due after payment at the statutory rate on the unpaid balance of the principal from the date that demand for payment is made. Knisley v. Parsons, 172 Colo. 533 , 474 P.2d 599 (1970).
Where money is to be paid if third party does not, it is unnecessary to make a demand. Where a contract provides that the parties of the first part will pay the party of the second part a certain sum of money if the sum is not paid by a third party within a specified time, and such third party fails to do so, then it is not necessary to either make a demand upon such third party for payment or to notify the parties of the first part of such failure in order to mature the obligation so as to draw interest in accordance with this section, as the money becomes due upon the failure to pay at the expiration of the specified time and the allowance of interest from the date of the commencement of the suit does not constitute prejudicial error. Doyle v. Nesting, 37 Colo. 522, 88 P. 862 (1907), distinguishing Dexter v. Collins, 21 Colo. 455, 42 P. 664 (1895).
In the context of determining when payment of debt is wrongfully withheld, either formal demand or circumstances demonstrating a reasonable expectation of payment renders nonpayment wrongful. A letter from an accounting firm satisfied the need for a formal demand for payment, under the theory of wrongful withholding. The parties had retained the firm to examine their mutual accounts and determine their respective obligations. The firm determined the amount of each party's debt and communicated the amounts in a letter to each party. The letter established a present expectation of payment of which both parties were aware. Thus the letter satisfied the need for a formal demand for payment. Karg v. Mitchek, 983 P.2d 21 (Colo. App. 1998).
V. COMPUTATION.
Interest should start to run from the date of the entry of a judgment. Weaver v. First Nat'l Bank, 138 Colo. 83 , 330 P.2d 142 (1958).
At six percent. Under this section, upon execution or satisfaction of judgments, interest should be collected at six percent per annum from the date of each judgment. Davies v. Craig, 70 Colo. 473, 203 P. 267 (1921).
Prejudgment interest award must be based on the final judgment of the court and not the amount of damages initially awarded by the jury, which the court subsequently reduced. Top Rail Ranch Estates, LLC v. Walker, 2014 COA 9 , 327 P.3d 321.
Interest should begin accruing on the date the defendant began wrongfully withholding the joint venture funds. The defendant had a reasonable time in which to wind up the joint venture. The trial court found that he willfully failed to do so, and accordingly, pursuant to the statute, interest should have been awarded from date the willful delay began. Wilson v. Estate of Lawrence, 910 P.2d 67 (Colo. App. 1995).
One who is damaged by a breach of duty may recover prejudgment interest from the date of the breach, since it is the breach itself that makes the conduct wrongful. Porter Constr. Servs. v. Ehrhardt, Keefe, Steiner, & Hottman, P.C., 131 P.3d 1115 (Colo. App. 2005).
Thus, a judgment against a local government bears interest from the date of its entry. Stone v. Currigan, 138 Colo. 442 , 334 P.2d 740 (1959).
Interest allowed from date of filing complaint. This section concerning interest on damage claims is mandatory to the end that a trial judge shall compute and enter interest on any verdict or judgment calculated from the date of the filing of the complaint. Green v. Jones, 134 Colo. 208 , 304 P.2d 901 (1956); Denver-Albuquerque Motor Transp., Inc. v. Galligan, 145 Colo. 71 , 358 P.2d 28 (1960).
A trustee in bankruptcy who sues for the value of stock issued by an insolvent corporation is entitled to interest from the date of commencing his action. Feiring v. Gano, 114 Colo. 567 , 168 P.2d 901 (1946).
Interest computed from date of performance on plaintiff's part. Where there was a balance due plaintiffs under a written contract which had on plaintiff's part been fully performed prior to a certain date, this date is the date from which interest should be computed, if allowed, and the amount being due on a written instrument, plaintiffs are entitled to interest under this section, unless there had been a tender made by defendant. And a deposit of the amount due in court "payable to the plaintiff on demand" is not a tender. Harvey v. Denver & R. G. R. R., 56 Colo. 570, 139 P. 1098 (1914).
Money not turned over by treasurer to successor draws interest from date latter assumed office. Money in the hands of a county treasurer belonging to a county and not turned over to his successor at the time the latter assumed the duties of the office would draw interest under this section at the legal rate from that date, and the sureties on his official bond are liable to the county for such money with interest. Gartley v. People ex rel. Pueblo County, 28 Colo. 227, 64 P. 208 (1901).
Agent who converts principal's money is liable for interest from date of transaction. An agent, who being employed to lend the money of his principal converts it to his own use is liable either in assumpsit or in an action ex delicto for the interest upon the money under this section, from the date of the transaction. Boyle v. Poor, 62 Colo. 337, 163 P. 967 (1916).
Interest allowed on account when due. Where in an action containing three counts, the first upon a stated account, the second upon an open book account, and the third for money had and received, plaintiff is entitled to interest on the first count from the date the account was stated, and on the second count from the date the account became due and payable, but disallowed interest on the third. Mine & Smelter Supply Co. v. Parke & Lacy Co., 107 F. 881 (8th Cir. 1901).
Under this section, a party furnishing supplies to a corporation pursuant to a written contract providing that the amount furnished in each calendar month shall be paid for on a day certain in the succeeding month is to be allowed interest on each monthly amount from the day it matures until payment made. Florence Oil & Ref. Co. v. McRae, 40 Colo. 303, 90 P. 507 (1907); Bassick Gold Mine Co. v. Beardsley, 49 Colo. 275, 112 P. 770 (1911).
Similarly, interest from due date of rent is allowed. In an action for money due for rent by virtue of a written lease, the claim sued on is clearly included in this section, and the plaintiff is entitled to interest from the due date of the installments of rent to the date of judgment. Wells v. Crawford, 23 Colo. App. 103, 127 P. 914 (1912); Lamar Cold Storage Co. v. Union Ice & Storage Co., 77 Colo. 556, 238 P. 42 (1925); Macaluso v. Easely, 81 Colo. 50, 253 P. 397 (1927).
The fact that the court does not at the time of the entry of judgment compute the amount of the interest accrued to that date is not material; the computation can be made at any time. Mass. Bonding & Ins. Co. v. State ex rel. Mallin, 141 Colo. 259 , 347 P.2d 507 (1959).
When no authority for interest from date of executor's sale. Where an executor contends that the trial court erred in awarding interest on the amount received from the property from the date of sale, rather than only from the date of judgment, then, where there has been no showing and no finding on the part of the trial court that the money received was held without the owner's consent, there is no authority for the award of interest from the date of sale. In re Estate of Granberry, 30 Colo. App. 590, 498 P.2d 960 (1972).
Where a partnership is dissolved by one partner selling to his co-partners his interest at a fixed cash sum, an unpaid balance of the purchase price under this section will draw interest at the legal rate from the date of the transaction. Cobb v. Benedict, 27 Colo. 342, 62 P. 222 (1900).
In an action for an accounting where a joint venturer seeks to recover his share of the profits, he is entitled to the legal rate of interest from the date of demand to the date of filing of the master's report. Pepper v. Hyman, 117 Colo. 365 , 189 P.2d 155 (1947).
The offset of an unliquidated claim against a liquidated claim before the computation of interest is permitted, at least in situations in which the two claims arise out of the same general transaction. York Plumbing & Heating Co. v. Groussman Inv. Co., 166 Colo. 382 , 443 P.2d 986 (1968).
Where the claims do not arise out of the same general transaction, the offset of an unliquidated claim against a liquidated claim before computation of interest is not permitted. Karg v. Mitchek, 983 P.2d 21 (Colo. App. 1998).
Under the terms of an agreement with a bank, the amount which an armored motor service was obligated to pay the bank as a result of a robbery from their truck became due the day the bank's money disappeared from the truck. Accordingly, the bank was entitled to interest on that obligation, arising under the instrument of writing, from and after that date. Jefferson County Bank v. Armored Motors Serv., 148 Colo. 343 , 366 P.2d 134 (1961).
Where a note is made payable "with interest", without specifying the rate, or the time from which the interest is to be computed, the general rule is that the note carries interest from the date of its execution at the legal rate fixed by law. Salazar v. Taylor, 18 Colo. 538, 33 P. 369 (1893).
Where the stated rate on a note is unintelligible, this rule likewise applies, and the legal rate fixed by this section would govern. Salazar v. Taylor, 18 Colo. 538, 33 P. 369 (1893).
Compound interest may not be recovered. Denver Brick & Mfg. Co. v. McAllister, 6 Colo. 261 (1882).
This rule does not apply to unpaid coupons of municipal bonds. The rule that compound interest may not be recovered does not apply to unpaid coupons belonging to or cut from municipal bonds; interest may be recovered on overdue coupons on county bonds. Bd. of Comm'rs v. Linn, 29 Colo. 446, 68 P. 839 (1902).
Such coupons draw interest after maturity. City of Cripple Creek v. Adams, 36 Colo. 320, 85 P. 184 (1906).
Mode of determining property value for services and consumption. Where the property is domestic animals, valuable for service only, the value of the use of the animal is the measure of compensation, and where the article is intended for consumption, interest upon the value of it would seem to be the true compensation. Thus, if the owner of goods should ask to obtain the like quantity, he must purchase in the market at current rates, and he would be deprived of the use of the money thus invested, the best estimate of a loss that can be made is interest upon the amount of money which he would for that purpose be compelled to pay out. Ark. Valley Land & Cattle Co. v. Mann, 130 U.S. 69, 9 S. Ct. 458, 32 L. Ed. 854 (1899).
Interest upon the cost of a silver mill might be taken by a jury as its fair rental value, in the absence of other evidence concerning that value. N.Y. & Colo. Mining Syndicate & Co. v. Fraser, 130 U.S. 611, 9 S. Ct. 665, 23 L. Ed. 1031 (1889).
Interest on damages for injuries to property or torts commences on date of judgment. The Colorado statute dealing with interest on damages provides that in personal injury cases interest commences as of the date of the filing of the complaint. No mention is made of property injuries or torts. Inasmuch as these are unliquidated, the general rule is that the interest commences to run as of the date of judgment. Westric Battery Co. v. Standard Elec. Co., 482 F.2d 1307 (10th Cir. 1973).
Interest allowed from date defective product was installed, since product was defective at the time of installation. Loughridge v. Goodyear Tire & Rubber Co., 281 F. Supp. 2d 1252 (D. Colo. 2003), aff'd, 431 F.3d 1268 (10th Cir. 2005).
Interest awarded on breach of contract judgment from time money due. The court concluded there was a binding contract between the parties; thus the judgment was based upon breach of contract rather than quantum meruit and interest was properly awarded from the time the money was due. Warde v. Davis, 494 F.2d 655 (10th Cir. 1974); Danburg v. Realties, Inc., 677 P.2d 439 (Colo. App. 1984).
Interest from date of filing of counterclaim. Subsections (1)(b) and (3) provide that interest shall be from the time moneys were wrongfully withheld or became due and where there is no evidence of any wrongful withholding or demand or expectation of payment by claimant prior to the filing of the counterclaim, trial court was correct in awarding prejudgment interest from such date. W.H. Woolley & Co. v. Bear Creek Manors, 735 P.2d 910 (Colo. App. 1986).
Plaintiff is entitled to interest from the time his action accrues. Action for rescission arose when plaintiff amended his complaint and first requested rescission. Prior to that demand, there was no wrongful withholding of the money paid for the house. Wall v. Foster Petroleum Corp., 791 P.2d 1148 (Colo. App. 1989).
No exception for mandamus action. Under this section, the trial court is required to assess interest at the rate of eight percent on any judgment rendered to run from the date of the judgment, and no exception is made for a mandamus action. Denver Ass'n for Retarded Children v. Sch. Dist. No. 1, 188 Colo. 310 , 535 P.2d 200 (1975).
Where judgment in favor of plaintiff was affirmed on appeal but case was remanded for a new trial on the issue of damages, and trial court on remand determined damages and entered judgment thereupon, plaintiff was entitled to interest on that amount only from the date the later judgment was entered. Yeager Garden Acres, Inc. v. Summit Const. Co., 32 Colo. App. 242, 513 P.2d 458 (1973).
Prejudgment interest awarded from date of judgment quieting title to disputed property. Prejudgment interest on royalties from oil and gas extraction from disputed property awarded only from the date plaintiff won judgment quieting title in the property and not from earlier date on which plaintiff asserted an ownership claim to the property. Royalty payments could not be considered to be wrongfully withheld until plaintiff's ownership of the property was no longer in dispute. Beaver Creek Ranch v. Gordman Leverich Ltd., 226 P.3d 1155 (Colo. App. 2009).
Insurer paid interest from date judgment entered to date liability was paid. An insurer was obligated to pay all interest accruing on a judgment from the date of its entry to the date on which it paid the amount of its liability under the policy. Houser v. Eckhardt, 35 Colo. App. 155, 532 P.2d 54 (1974), aff'd, 191 Colo. 189 , 552 P.2d 308 (1976).
To award a buyer the additional cost of cover as well as the entire benefit realized by the seller would be duplicative in the calculation of moratory interest in the case of a seller's wrongful withholding of property by breaching a sales contract. Great W. Sugar Co. v. KN Energy, Inc., 778 P.2d 272 (Colo. App. 1989).
Section requires that prejudgment interest be awarded where money is wrongfully withheld. Because rescission is an equitable remedy, the court has discretion is determining the appropriate relief for the parties and such an award of prejudgment interest must be incorporated in the court's assessment of the equities. Wall v. Foster Petroleum Corp., 791 P.2d 1148 (Colo. App. 1989).
Interest should be awarded when money is wrongfully withheld. Only the portion of the fees in dispute are required to be kept in a separate account until the dispute is resolved. If a larger amount is withheld, interest should be awarded. Scott R. Larson, P.C. v. Grinnan, 2017 COA 85 , __ P.3d __.
Fact that amount due is disputed or unclear does not render a claim unliquidated for purposes of awarding interest under subsection (4). Montgomery Ward & Co. v. State, Dept. of Rev., 675 P.2d 318 (Colo. App. 1983).
Interest awarded on judgment against natural gas pipeline company for refusal to honor contract to sell natural gas to buyer at a reduced, industrial rate may properly be calculated using "gas husbanding model", the equation being seller's return on rate base, plus seller's excess profits, minus seller's operating profit credit. Great W. Sugar Co. v. KN Energy, Inc., 778 P.2d 272 (Colo. App. 1989).
To the extent that an award made under the statute provides double compensation for the same wrong, it cannot stand. The wording and legislative history of subsection (1)(a) and the commitment to fairness underlying the doctrine of moratory interest leads to the conclusion that the statute may not be used to impose double or other punitive damages. Great W. Sugar Co. v. KN Energy, Inc., 778 P.2d 272 (Colo. App. 1989).
Interest from the time the action accrues is proper in a case where demand for payment is not an element of the plaintiff's case. Deacon v. Am. Plant Food Corp., 782 P.2d 861 (Colo. App. 1989), rev'd on other grounds sub nom. Stone's Farm Supply, Inc. v. Deacon, 805 P.2d 1109 ( Colo. 1991 ).
Wife is entitled to statutory interest from date of closing on her share of proceeds from home sale ordered as part of property division in a marital dissolution action. Such interest is proper to enforce the judgment. In re Schutte, 721 P.2d 160 (Colo. App. 1986); In re Connell, 831 P.2d 913 (Colo. App. 1992).
Without proof of defendant's gain, the statutory rate of interest applies. Ballow v. PHICO Ins. Co., 878 P.2d 672 (Colo. 1994).
Standard applied in Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138 (10th Cir. 2000).
When jury's award does not distinguish between past and future wages, it still may be possible to apportion award based on a number of available formulas. Shannon v. Colo. Sch. of Mines, 847 P.2d 210 (Colo. App. 1992).
Date when a claim accrues for statute of limitations purposes is independent from the date of the wrongful withholding for the purpose of awarding interest. Eads v. Dearing, 874 P.2d 474 (Colo. App. 1993; Loughridge v. Goodyear Tire & Rubber Co., 281 F. Supp. 2d 1252 (D. Colo. 2003), aff'd, 431 F.3d 1268 (10th Cir. 2005).
Where trial court found that wrongful withholding occurred in 1980, even though plaintiff did not discover the wrongful withholding until 1989, court correctly awarded interest from 1980. Eads v. Dearing, 874 P.2d 474 (Colo. App. 1993).
District court erred in awarding prejudgment interest from the time of the initial breach of express warranty since there were consequential damages that had not yet been incurred. Court should calculate prejudgment interest on each portion of the damages from the time each element of consequential damages was incurred. Pegasus Helicopters, Inc. v. United Techs. Corp., 35 F.3d 507 (10th Cir. 1994).
Prejudgment interest awarded from date of breach of fiduciary duty, not date royalties would have been received. Vento v. Colo. Nat'l Bank-Pueblo, 907 P.2d 642 (Colo. App. 1995).
Prejudgement interest awarded from date embezzlement occurred, not the date employees discovered the financial problems caused by the embezzlement or date of discovery of negligence. Porter Constr. Servs. v. Ehrhardt, Keefe, Steiner, and Hottman, P.C., 131 P.3d 1115 (Colo. App. 2005).
Prejudgment interest awarded from the date the money is wrongfully withheld or becomes due. In determining when payment is wrongfully withheld, formal demand or circumstances demonstrating a reasonable expectation of payment render the nonpayment wrongful. Paratransit Risk Retention Group Ins. Co. v. Kamins, 160 P.3d 307 (Colo. App. 2007).
Under subsection (1)(b), wrongful withholding of replacement cost damages occurs when plaintiff actually undertakes replacement expenditures. Prejudgment interest therefore begins to accrue on that date and not on the earlier date when the wrong subsequently remedied by the replacement expenditures actually occurred. Goodyear Tire & Rubber Co. v. Holmes, 193 P.3d 821 ( Colo. 2008 ); Ferrellgas, Inc. v. Yeiser, 247 P.3d 1022 ( Colo. 2011 ).
Interest payable for fraudulently obtained food stamps accrues from the time the state reimburses the federal government for the fraudulently obtained food stamps. Interest should accrue only from the time of the actual injury and the state suffers actual loss only when it reimburses the federal government. Valenzuela v. People, 893 P.2d 97 (Colo. 1995).
In breach of contract cases, action accrues when breach and damages occur, and prejudgment interest accrues from the time of the breach, not from the entry of judgment. Bd. of County Comm'rs of Adams County v. City & County of Denver, 40 P.3d 25 (Colo. App. 2001).
Appeals court will review de novo the calculation of prejudgment interest under this section. Top Rail Ranch Estates, LLC v. Walker, 2014 COA 9 , 327 P.3d 321.
5-12-103. Greater rate may be stipulated.
- The parties to any bond, bill, promissory note, or other instrument of writing may stipulate therein for the payment of a greater or higher rate of interest than eight percent per annum, but not exceeding forty-five percent per annum, and any such stipulation may be enforced in any court of competent jurisdiction in the state, except as otherwise provided in articles 1 to 6 of this title. The rate of interest shall be deemed to be excessive of the limit under this section only if it could have been determined at the time of the stipulation by mathematical computation that such rate would exceed an annual rate of forty-five percent when the rate of interest was calculated on the unpaid balances of the debt on the assumption that the debt is to be paid according to its terms and will not be paid before the end of the agreed term.
- The term "interest" as used in this section means the sum of all charges payable directly or indirectly by a debtor and imposed directly or indirectly by a lender as an incident to or as a condition of the extension of credit to the debtor, whether paid or payable by the debtor, the lender, or any other person on behalf of the debtor to the lender or to a third party.
- The public policy of this state does not limit or prohibit contracting, agreeing, or stipulating in advance for the payment of interest on interest or compound interest.
- No law or public policy of this state limiting interest on interest, the adding of deferred interest to principal, or the compounding of interest shall apply to any promissory note secured by any mortgage or deed of trust or to one secured by a mortgage or deed of trust where periodic disbursement of part of the loan proceeds is made by a lender over a period of time as established by the mortgage or deed of trust, or over an expressed period of time, or ending with the death of the debtor, including, but not limited to, promissory notes secured by mortgages or deeds of trust having provisions for adding deferred interest to principal or otherwise providing for the charging of interest on interest.
- This section shall not apply to a commercial credit plan as defined in section 5-12-107 (8) and extensions of credit made pursuant thereto, unless the bond, bill, promissory note, instrument, or other written agreement evidencing the plan expressly states that it is subject to this section.
Source: L. 71: R&RE, p. 852, § 1. C.R.S. 1963: § 73-12-103. L. 72: p. 292, § 6. L. 75: (1) amended, p. 257, § 3, effective July 1. L. 79: (2) amended and (3) and (4) added, p. 317, § 1, effective July 1. L. 81: (4) amended, p. 396, § 33, effective June 8. L. 96: (5) added, p. 407, § 12, effective July 1.
COLORADO COMMENT
This section was amended to correspond to the usury limitations of Section 18-15-104 of the Colorado Criminal Code. This section now provides for a ceiling on interest of forty-five percent. (This same ceiling was added to Section 5-3-605.)
ANNOTATION
Law reviews. For note, "Colorado Interest Law", see 34 Dicta 398 (1957). For article, "The Revolution in Consumer Credit Legislation", see 45 Den. L.J. 679 (1968). For article, "Colorado Usury", see 11 Colo. Law. 2557 (1982). For article, "Collecting Pre- and Post-Judgment Interest in Colorado: A Primer", see 15 Colo. Law. 753 (1986). For article, "An Update of Appendices from Collecting Pre- and Post-Judgment Interest in Colorado", see 15 Colo. Law. 990 (1986). For article, "Colorado Usury: The Sequel - Parts I and II", see 23 Colo. Law. 565 and 829 (1994).
Annotator's note. Since § 5-12-103 is similar to repealed § 73-1-3, C.R.S. 1963, § 73-1-3, CRS 53, CSA, C. 88, § 3, and laws antecedent to CSA, C. 88, § 3, relevant cases construing those provisions have been included in the annotations to this section.
There is no question regarding the authority of the general assembly to make the provision in this section that a rate of interest is a matter of contract which parties may evidence in writing. Wigton v. Elliott, 49 Colo. 115, 111 P. 713 (1910).
This section does not operate to preclude the general assembly from subsequently restricting interest rates by legislation. Waddell v. Traylor, 99 Colo. 576 , 64 P.2d 1273 (1937).
Parties are at liberty under this section to stipulate for such rate of interest as they may see fit. McKay's Estate v. Belknap Sav. Bank, 27 Colo. 50, 59 P. 745 (1899).
National banks in Colorado have equal rights with others to collect interest upon loans at any agreed rate. Rockwell v. Farmers' Nat'l Bank, 4 Colo. App. 562, 36 P. 905 (1894).
National banks may make the rate dependent upon the happening of a contingency, if they so elect. McKay's Estate v. Belknap Sav. Bank, 27 Colo. 50, 59 P. 745 (1899).
Contingent amounts of interest cannot be considered when determining whether a contractual rate of interest is usurious. Beeler v. H & R Block of Colo., Inc., 487 P.2d 569 (1971); Uniwest Mortg. Co. v. Dadecor Condos., Inc., 877 F.2d 431 (5th Cir. 1989).
Nonpayment of principal or interest when due. It is competent for the parties to agree upon an increased rate contingent upon nonpayment of either principal or interest when due. McKay's Estate v. Belknap Sav. Bank, 27 Colo. 50, 59 P. 745 (1899); In Re Wood Family Interests, Ltd., 135 B.R. 407 (Bankr. D. Colo. 1989).
Usurious interest rate enforceable at maximum allowable rate. If a note has a higher interest rate than is allowed by this section, it will be invalid to the extent that the interest rate is usurious, but it will still be enforced at the maximum allowable rate. Becker v. Mktg. & Research Consultants, Inc., 526 F. Supp. 166 (D. Colo. 1981 ); Brown v. Fenner, 757 P.2d 184 (Colo. App. 1988); Concord Realty v. Cont'l Funding, 776 P.2d 1114 ( Colo. 1989 ).
Parties to contract are free to set rate of interest by mutual agreement. Martinez v. Cont'l Entrs., 730 P.2d 308 (Colo. 1986).
The parties to a note unquestionably have the right to stipulate that a larger rate should be paid upon the failure to pay a smaller one when due; such stipulation may be enforced in any court of competent jurisdiction. McKay's Estate v. Belknap Sav. Bank, 27 Colo. 50, 59 P. 745 (1899); In Re Wood Family Interests, Ltd., 135 B.R. 407 (Bankr. D. Colo. 1989).
Stipulation in a promissory note of an increased rate of interest after maturity is not a penalty. Godsmark v. Bennett's Estate, 52 Colo. 198, 120 P. 151 (1912).
Rather, a stipulation for interest after maturity of a note is regarded as damages for breach of contract. Browne v. Steck, 2 Colo. 70 (1873).
The parties may stipulate that a larger rate be paid so long as the rate bears a reasonable relation to the current rate of interest. Browne v. Steck, 2 Colo. 70 (1873).
The rate of interest agreed upon in writing must be allowed according to the terms of an agreement until the entry of judgment. McKay's Estate v. Belknap Sav. Bank, 27 Colo. 50, 59 P. 745 (1899).
When, at the place of contract, the rate of interest differs from that of the place of payment, the parties may stipulate for either rate, and the contract will govern, the parties having the right of election as to the law of which place their contract is to be governed. McKay's Estate v. Belknap Sav. Bank, 27 Colo. 50, 59 P. 745 (1899).
Where no evidence is introduced of the current rate of interest, the party's stipulation may be accepted. Browne v. Steck, 2 Colo. 70 (1873).
If rate specified greatly exceeds the real value of money it will be disallowed as a penalty. Under this section the parties may determine the value of the use of money before it falls due, and their estimate of its value, after it falls due, is the true measure of damages, until it is shown to be incorrect. Since the law seeks to indemnify the plaintiff for the loss he has suffered by the breach of contract, the rate fixed by the parties affords a just rule of indemnity. If, however, the rate of interest specified in the contract greatly exceeds the real value of the money, it is a penalty for the nonpayment of the principal sum, rather than a just recompense for detaining it, and will not be allowed. Browne v. Steck, 2 Colo. 70 (1873).
Such a provision is waived by the acceptance of interest at the original rate after maturity. Godsmark v. Bennett's Estate, 52 Colo. 198, 120 P. 151 (1912).
Furthermore, when interest becomes due it represents an indebtedness which the interested parties may then make the subject of a new contract by stipulating in writing when and how it shall be paid and what rate of interest it shall bear until paid, inasmuch as after interest becomes due, it may, by agreement, be turned into principal and bear interest. Hochmark v. Richler, 16 Colo. 263, 26 P. 818 (1891); Wigton v. Elliott, 49 Colo. 115, 111 P. 713 (1910), distinguishing Denver Brick & Mfg. Co. v. McAllister, 6 Colo. 261 (1882).
Such an arrangement is not compounding interest. Wigton v. Elliott, 49 Colo. 115, 111 P. 713 (1910).
Compound interest contracted for in advance is, in general, not recoverable. Hochmark v. Richler, 16 Colo. 263, 26 P. 818 (1891).
Such a contract is per se unlawful. Hochmark v. Richler, 16 Colo. 263, 26 P. 818 (1891).
The fact that compound interest is provided for does not, however, render the entire contract usurious and void; rather upon grounds of public policy, simply decline to enforce payment of the interest upon interest. Hochmark v. Richler, 16 Colo. 263, 26 P. 818 (1891).
A promise for such made after interest has accrued is legal. A promise to pay compound interest made after instead of before the interest to be compounded has accrued is legal and enforceable. Hochmark v. Richler, 16 Colo. 263, 26 P. 818 (1891).
Though compound interest is allowable only when there is a definite agreement for such. Tarabino Real Estate Co. v. Tarabino, 109 Colo. 425 , 126 P.2d 859 (1942).
Moreover, "instrument of writing" must express mutuality of contract. This section clearly implies that the "instrument of writing" referred to must be one expressing mutuality of contract. Cobb v. Stratton's Estate, 56 Colo. 278, 138 P. 35 (1914).
A will is not within section. A will does not rest on contract relations, and is therefore not an instrument into which a stipulation between the parties for interest, as contemplated by this section, could be injected. Cobb v. Stratton's Estate, 56 Colo. 278, 138 P. 35 (1914).
Hence, no interest is allowed on legacies. Since there is nothing in this section, either express or implied, providing for interest on legacies, none is allowable. Cobb v. Stratton's Estate, 56 Colo. 278, 138 P. 35 (1914).
To compute the effective interest rate for the purpose of this section, the rate must be calculated by determining the total per annum rate of interest that a borrower is subjected to during a given extension of credit. A forbearance must be totaled then annualized using only that time frame as the annualization period. Such includable interest must then be combined with any interest that continued to accrue pursuant to the original loan terms to determine the effective rate of interest subject to the 45 percent ceiling. Blooming Terrace No. 1, LLC v. KH Blake St., 2019 CO 58, 444 P.3d 749.
5-12-104. Warrants to bear six percent.
County orders and warrants, town and city and school orders and warrants, and other like evidences or certificates of municipal indebtedness, shall bear interest at the rate of six percent per annum from the date of the presentation thereof for payment at the treasury where the same may be payable, until there is money in the treasury for the payment thereof, except when otherwise specially provided by law. Every county treasurer, town treasurer, and city treasurer to whom any such county, town, city, or school order or warrant is presented for payment, and who shall not have on hand the funds to pay the same, shall endorse thereon the rate of interest said order or warrant will draw, and the date of such presentation, and subscribe such endorsement with his official signature; however, all such orders and warrants may be made to bear a lower rate of interest than above specified, by special agreement between such counties, towns, and cities issuing the same, and the person to whom such orders or warrants are issued.
Source: L. 71: R&RE, p. 852, § 1. C.R.S. 1963: § 73-12-104.
ANNOTATION
Annotator's note. Since § 5-12-104 is similar to repealed laws antecedent to CSA, C. 88, § 4, relevant cases construing those provisions have been included in the annotations to this section.
The evident intent of this section is first, to place a uniform rate of interest upon a specific class of obligations, and second, to make it impossible for county, town, city, or school district officials to agree, as otherwise under § 5-12-103 they might do, to pay a higher rate of interest upon such securities than that fixed by statute. That it was the intention of the general assembly to preclude the recovery of interest, except by express agreement, on all other county, city, town, or school district indebtedness is clear. City of Golden v. W. Lumber & Pole Co., 60 Colo. 382, 154 P. 95 (1916).
This section in no manner limits, qualifies, or changes the effect and purpose of § 5-12-102, except as to a particular class of securities; by that section creditors are entitled to interest on claims therein mentioned at the rate of six percent per annum from all debtors. The conclusion reached in Bd. of Comm'rs v. Wheeler, 39 Colo. 207, 89 P. 50 (1907), which appears to be contra, therefore, has no bearing upon the question of the liability of towns and cities for interest. Any other holding would have the effect to exempt cities and towns from the payment of interest on judgments against them. Section 5-12-104 plainly applies to cities and towns, and gives a creditor the right to recover interest upon claims growing out of business transactions with them, whenever, under like circumstances, he might lawfully do so from a private corporation or individual. City of Golden v. W. Lumber & Pole Co., 60 Colo. 382, 154 P. 95 (1916).
Thus, towns and cities in business transactions are liable for interest the same as private corporations or individuals. City of Golden v. Western Lumber & Pole Co., 60 Colo. 382, 154 P. 95 (1916), distinguishing Bd. of Comm'rs v. Wheeler, 39 Colo. 207, 89 P. 50 (1907) (applied to a county as an involuntary organization).
So counties are liable for interest on interest coupons the same as individuals. Since the evident purpose of this section is to place counties practically upon the same plane as individuals with respect to the payment of interest upon their written evidences of indebtedness, with a limitation as to rate, counties are liable for interest on interest coupons the same as individuals. Bd. of Comm'rs v. Linn, 29 Colo. 446, 68 P. 839 (1902).
Municipal corporation not liable for interest for services rendered. Under this section municipal corporations cannot in any manner be made liable for or legally pay interest upon an account for services rendered. City of Colo. Springs v. Coray, 25 Colo. App. 460, 139 P. 1031 (1913).
5-12-105. Interest upon foreclosure.
In all cases where real estate shall be sold under execution or by virtue of the foreclosure of any mortgage, deed of trust, or other lien, the indebtedness and costs for which any certificate of purchase may issue shall bear interest at the rate specified in the original instrument.
Source: L. 71: R&RE, p. 852, § 1. C.R.S. 1963: § 73-12-105.
ANNOTATION
Law reviews. For article, "Forms Committee Presents Additional Standard Pleading Samples for Use in Foreclosures Through Public Trustee", see 29 Dicta 1 (1952).
5-12-106. Rate of interest on judgments which are appealed.
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Except as provided in section 13-21-101, C.R.S., where there is no written agreement as to the rate of interest, creditors shall receive interest as follows:
- If a judgment for money in a civil case is appealed by a judgment debtor and the judgment is affirmed, interest, as set out in subsections (2) and (3) of this section, shall be payable from the date of entry of judgment in the trial court until satisfaction of the judgment and shall include compounding of interest annually.
- If a judgment for money in a civil case is appealed by a judgment debtor and the judgment is modified or reversed with a direction that a judgment for money be entered in the trial court, interest, as set out in subsections (2) and (3) of this section, shall be payable from the date a judgment was first entered in the trial court until the judgment is satisfied and shall include compounding of interest annually. This interest shall be payable on the amount of the final judgment.
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- The rate of interest shall be certified on each January 1 by the secretary of state to be two percentage points above the discount rate, which discount rate shall be the rate of interest a commercial bank pays to the federal reserve bank of Kansas City using a government bond or other eligible paper as security, and shall be rounded to the nearest full percent. Such annual rate of interest shall be so established as of December 31, 1982, to become effective January 1, 1983. Thereafter, as of December 31 of each year, the annual rate of interest shall be established in the same manner, to become effective on January 1 of the following year.
- Notwithstanding any other provision of this subsection (2), the rate of interest shall be no lower than the percentage authorized in section 5-12-102 (4)(b).
- The rate at which interest shall accrue during each year shall be the rate which the secretary of state has certified as the annual interest rate under subsection (2) of this section.
Source: L. 82: Entire section added, p. 226, § 1, effective January 1, 1983. L. 84: (1) and (2) amended, p. 287, § 1, effective July 1.
ANNOTATION
Law reviews. For article, "Rates of Interest on State and Federal Court Judgments: An Update", see 12 Colo. Law. 446 (1983). For article, "Collecting Pre- and Post-Judgment Interest in Colorado: A Primer", see 15 Colo. Law. 753 (1986). For article, "An Update of Appendices from Collecting Pre- and Post-Judgment Interest in Colorado", see 15 Colo. Law. 990 (1986). For article, "Recovery of Interest: Parts I and II", see 18 Colo. Law. 1063 and 1307 (1989).
The right to interest, absent an agreement to pay it, is purely statutory, and is limited to those circumstances set forth in the statute. Indian Mtn. Metro. Recreation & Park Dist. v. J.P. Campbell & Assoc., 921 P.2d 65 (Colo. App. 1996); Bd. of County Comm'rs of Dolores County v. Shell W. E & P, Inc., 12 P.3d 1219 (Colo. App. 2000).
Where there is no "judgment" entered in a "trial court" to which subsection (1) could apply, a claim for post-judgment interest pursuant to subsection (1) is properly rejected. Bd. of County Comm'rs of Dolores County v. Shell W. E & P, Inc., 12 P.3d 1219 (Colo. App. 2000).
Claim for postjudgment interest on attorney fees was properly rejected where the attorney fees were paid voluntarily and accepted before a judgment or court order could be entered because there was no judgment upon which interest could accrue. Sinclair Transp. Co. v. Sandberg, 2014 COA 75 M, 350 P.3d 915.
Court cannot divide a single unsatisfied judgment into two or more parts for the purpose of computing interest. Bassett v. Eagle Telecomms., 750 P.2d 73 (Colo. App. 1987).
Interest is payable upon that portion of the judgment that is ultimately affirmed by the appellate court. Bassett v. Eagle Telecomms., 750 P.2d 73 (Colo. App. 1987); In re Gutfreund, 148 P.3d 136 ( Colo. 2006 ).
A judgment confirming an arbitration award is enforceable in the same manner as any other judgment. Therefore, the district court did not err in ordering post-judgment interest on the unpaid portion of the judgment. Barrett v. Inv. Mgmt. Consultants, 190 P.3d 800 (Colo. App. 2008).
An appealing judgment debtor must pay post-judgment interest when the appeal is affirmed and the funds are inaccessible to the creditor; further, there is no requirement that interest must be specifically requested. This section makes no exception for attorney fees; post-judgment interest on attorney fees is required when the judgment is affirmed on appeal. Furthermore, it is of no import whether the judgment award for attorney fees is made directly to the attorney or to the party. In re Gutfreund, 148 P.3d 136 (Colo. 2006).
While the statute does not define "satisfaction", a party satisfies a debt when the creditor has been paid and the debtor is no longer obligated to pay that portion of the amount due. Thus, if debtor deposits the funds in a court registry, the judgment is not satisfied until the funds are accessible to the creditor, and only at that point does the obligation to pay interest terminate. In re Gutfreund, 148 P.3d 136 (Colo. 2006).
Appeal of judgment debtor is considered a single unsuccessful appeal for purposes of this section where judgment debtor insurer prevailed on appeal at the court of appeals but trial court's judgment was subsequently reinstated by the supreme court on appeal by the insured. Accordingly, insurer was required to pay post-judgment interest from the date of the original judgment in the trial court. Peterman v. State Farm Mut. Auto. Ins. Co., 8 P.3d 549 (Colo. App. 2000).
Because the trial court's failure to include an award of post-judgment interest was due to an oversight, it could amend the judgment at any time to add the award. Jennings v. Ibarra, 921 P.2d 62 (Colo. App. 1996).
An order entered by the public utilities commission is equivalent to a judgment by a trial court, and the interest on the award accrues from the date of entry of the commission order not the judgment of the district court. Lake Durango Water Co. v. Pub. Utils. Comm'n, 67 P.3d 12 (Colo. 2003).
This section does not apply to a situation covered by the prompt payment statute. To the extent there is a conflict, the more specific prompt payment statute prevails over this section. New Design Constr. Co. v. Hamon Contractors, Inc., 215 P.3d 1163 (Colo. App. 2008).
Applied in Weston v. Mincomp Corp., 698 P.2d 274 (Colo. App. 1985).
5-12-107. Commercial credit plans - definitions.
- Any creditor may offer and extend credit to the debtor under a commercial credit plan. Without limitation, credit may be extended under a commercial credit plan by the creditor's acquisition of obligations including, without limitation, obligations arising out of the honoring by a seller or another person of a credit device made available to the debtor under a commercial credit plan. A creditor may take such security in connection with a commercial credit plan as may be acceptable to the creditor and may, if the agreement governing the commercial credit plan allows, establish separate accounts for different types of purchases or loans, or both, and impose different terms for credit extended with respect to each account.
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A creditor may charge and collect periodic interest under a commercial credit plan on the outstanding unpaid indebtedness at a periodic percentage rate or rates not exceeding forty-five percent per annum. If the applicable periodic percentage rate under
the agreement governing the plan is other than daily, periodic interest may be calculated on an amount not in excess of the average outstanding unpaid indebtedness for the applicable billing period. If the applicable
periodic percentage rate under the agreement governing the plan is daily, periodic interest may be calculated for each day in the billing period on an amount not in excess of either:
- The outstanding unpaid indebtedness on that day; or
- The average outstanding unpaid indebtedness for the applicable billing period. If the applicable periodic percentage rate under the agreement governing the plan is monthly, a billing period shall be deemed to be a month or monthly if the last day of each billing period is on the same day of each month or does not vary by more than four days therefrom.
- The rate limitation established by this subsection (2) for periodic interest shall not apply to the additional interest charges authorized by subsection (3) of this section regardless of whether such additional interest charges are imposed in addition to or in lieu of periodic interest.
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A creditor may charge and collect periodic interest under a commercial credit plan on the outstanding unpaid indebtedness at a periodic percentage rate or rates not exceeding forty-five percent per annum. If the applicable periodic percentage rate under
the agreement governing the plan is other than daily, periodic interest may be calculated on an amount not in excess of the average outstanding unpaid indebtedness for the applicable billing period. If the applicable
periodic percentage rate under the agreement governing the plan is daily, periodic interest may be calculated for each day in the billing period on an amount not in excess of either:
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In addition to or in lieu of interest at a periodic rate or rates, a creditor may, if the agreement governing the commercial credit plan so provides, either initially or pursuant to a change in the terms of the agreement made in the manner prescribed
by subsection (5) of this section, charge and collect, in such manner, form, percentages, or amounts as the agreement governing the plan may provide, one or more of the following fees or charges:
- A fee for participation in the commercial credit plan, whether assessed on an annual or other periodic basis;
- A transaction charge for each separate purchase or loan under the plan;
- An automated teller machine charge or similar electronic or interchange fee or charge;
- A minimum charge for each scheduled billing period under the commercial credit plan during any portion of which there is an outstanding unpaid indebtedness;
- A late payment charge for each required payment not made on or before its scheduled due date;
- Fees for services rendered or for reimbursement of expenses incurred by the creditor or other persons in connection with the commercial credit plan, or other fees incidental to the application, opening, administration, maintenance, or termination of a commercial credit plan;
- Returned payment charges;
- Documentary evidence charges including without limitation charges for furnishing copies of sales slips, invoices, monthly statements, or other documents; and
- Any similar fees or charges provided for in the agreement governing the commercial credit plan, whether initially or pursuant to a change in the terms of the agreement made in the manner prescribed by subsection (5) of this section; except that in no event shall this authorization to charge and collect any similar fees or charges be construed to authorize the imposition of periodic interest on the outstanding unpaid indebtedness in addition to the periodic interest authorized by subsection (2) of this section.
- Notwithstanding the fact that they are not subject to the rate limitation established by subsection (2) of this section for periodic interest, all of the fees and charges permitted by this subsection (3) are interest.
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In addition to or in lieu of interest at a periodic rate or rates, a creditor may, if the agreement governing the commercial credit plan so provides, either initially or pursuant to a change in the terms of the agreement made in the manner prescribed
by subsection (5) of this section, charge and collect, in such manner, form, percentages, or amounts as the agreement governing the plan may provide, one or more of the following fees or charges:
- The agreement governing a commercial credit plan may provide for the payment by the debtor of reasonable attorney's fees of the creditor if the account of the debtor is referred for collection to an attorney not a salaried employee of the creditor. The agreement also may provide for the payment by the debtor of all court and other collection costs actually incurred by the debtor.
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- Upon written notice furnished at least fifteen days prior to the effective date of the change, a creditor may change the terms of the agreement governing the commercial credit plan including, without limitation, periodic interest and additional interest charges so long as the debtor does not, prior to the effective date of the change set forth in the notice, furnish written notice to the creditor that the debtor does not agree to abide by the change. The change may be made effective with respect to existing balances if so provided in the written notice.
- Upon receipt by the creditor of a timely written notice stating that the debtor does not agree to abide by the change, the debtor shall have the remainder of the time under the existing terms in which to pay all sums owed to the creditor as of the effective date of the change set forth in the notice. If there is an authorized charge to the account on or after the effective date of the change set forth in the notice, the debtor shall be deemed to have accepted the new terms even if the debtor previously submitted to the creditor a timely written notice stating that the debtor does not agree to abide by the change.
- All terms, conditions, and other provisions of and relating to a commercial credit plan as contained in this section or in the agreement governing such plan, other than those fees and charges that are interest under this section, shall be and hereby are deemed to be material to the determination of interest applicable to a commercial credit plan under Colorado law, under the most favored lender doctrine, and under the "National Bank Act", 12 U.S.C. sec. 85 or section 521, 522, or 523 of the "Depository Institutions Deregulation and Monetary Control Act of 1980", 12 U.S.C. secs. 1463 (g), 1785 (g), and 1831d.
- A commercial credit plan established by a creditor and the extensions of credit made pursuant thereto shall be governed by Colorado law. Unless the agreement governing the commercial credit plan expressly states that it is subject to another law of this state, a commercial credit plan shall be governed exclusively by this section and shall not be subject to any other law of this state that otherwise would apply to the commercial credit plan including, but not limited to, laws limiting the amount or duration of credit or the rate or amount of interest or other charges that may be charged, taken, collected, received, or reserved.
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As used in this section:
- "Average outstanding unpaid indebtedness" means the amount determined by dividing the total of the amounts of the outstanding unpaid indebtedness for each day in the applicable billing period by the number of days in the billing period.
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"Commercial credit plan" or "plan" means a plan contemplating the extension of credit pursuant to an account governed by an agreement between a creditor and a debtor, whether or not providing for a security interest, pursuant to which:
- A creditor permits the debtor and, if allowed by a creditor, persons acting on behalf of or with authorization from the debtor, from time to time to make purchases on credit or obtain loans, or both, whether or not by use of a credit device;
- The purchases on credit are made or the loans are obtained primarily for business, commercial, investment, or agricultural purposes;
- The indebtedness of the debtor arising from such purchases or loans, or both, and other charges provided for in this section are debited to the account; and
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- The debtor undertakes an obligation to pay the outstanding unpaid indebtedness at one time; or
- The debtor has the privilege of paying the outstanding unpaid indebtedness in one or more installments.
- "Credit" means the right granted by a creditor to the debtor to defer payment of debt or to incur debt and defer its payment.
- "Credit device" means any card, check, identification code, account number, or other means of identification contemplated by the agreement governing the plan.
- "Creditor" means any seller or any lender located or maintaining a place of business in this state that enters into a commercial credit plan agreement with a debtor wherever located, including, without limitation, sellers of goods or services, small loan companies, licensed lenders, commercial banks and trust companies, savings and loan associations, and savings banks. The term "creditor" includes any transferee, whether such transferee acquires its interest by assignment or otherwise.
- "Debtor" means any natural person or individual or any corporation, partnership, cooperative, association, government or governmental subdivision or agency, trust, estate, or other entity.
- "Interest" includes both periodic interest authorized by subsection (2) of this section and additional interest charges authorized by subsection (3) of this section.
- "Loans" means cash advances or loans to be paid to or for the account of the debtor.
- "Outstanding unpaid indebtedness" means on any day an amount not in excess of the total amount of purchases, loans, and other debits charged to the debtor's account under the plan that is outstanding and unpaid at the end of the day, after adding the aggregate amount of any new purchases, loans, and other debits charged to the account as of that day, including, without limitation, the amount of any periodic interest, additional interest charges, and other charges permitted by this section that have accrued, or been charged, to the account as of that day, and deducting the aggregate amount of any payments and other credits applied to that indebtedness as of that day.
- "Purchases" means payment obligations for property of whatever nature, real or personal, tangible or intangible, and payment obligations for services including, without limitation, insurance, licenses, taxes, official fees, fines, private or governmental obligations, or any other thing of value.
Source: L. 96: Entire section added, p. 407, § 13, effective July 1. L. 2013: (8)(e) amended, (SB 13-154), ch. 282, p. 1468, § 21, effective July 1.
ANNOTATION
Under federal law, a late payment fee is a form of "interest". Copeland v. MBNA Am. Bank, N.A., 907 P.2d 87 ( Colo. 1995 ); Richardson v. Citibank (S.D.), N.A., 908 P.2d 532 ( Colo. 1995 ); Smiley v. Citibank (S.D.), 517 U.S. 735, 116 S. Ct. 1730, 135 L. Ed. 2d 25 (1996).
ARTICLE 13 FEDERAL PREEMPTION OF USURY LAWS - STATE OVERRIDE
Law reviews: For article, "An Update of Appendices from Collecting Pre- and Post-Judgment Interest in Colorado", see 15 Colo. Law. 990 (1986); for article, "Colorado Usury: The Sequel - Part I", see 23 Colo. Law. 565 (1994).
Section
5-13-101. Mortgages.
In accordance with section 501 (b)(2) of Public Law 96-221, it is declared that the state of Colorado does not want the provisions of subsection 501 (a)(1) of Public Law 96-221 removing the limits on the rate or amount of interest, discount points, finance charges, or other charges which may be charged, taken, received, or reserved with respect to loans, mortgages, credit sales, and advances made to apply in this state. The rates established in articles 1 to 9 of this title shall control consumer credit transactions in the state of Colorado.
Source: L. 81: Entire article added, p. 399, § 1, effective July 1.
5-13-102. Business and agricultural loans.
In accordance with section 512 of Public Law 96-221, it is declared that the state of Colorado does not want the provisions of section 511 of Public Law 96-221 setting interest rates and preempting state interest rates on business and agricultural loans to apply in this state. The rates established in articles 1 to 9 of this title shall control consumer credit transactions in the state of Colorado.
Source: L. 81: Entire article added, p. 399, § 1, effective July 1.
5-13-103. Small business loans.
In accordance with section 524 of Public Law 96-221, it is declared that the state of Colorado does not want the amendments to the "Small Business Investment Act" made by section 524 of Public Law 96-221 prescribing interest rates for small business loans to apply in this state. The rates established in articles 1 to 9 of this title shall control consumer credit transactions in the state of Colorado.
Source: L. 81: Entire article added, p. 399, § 1, effective July 1.
5-13-104. Other loans. (Repealed)
Source: L. 81: Entire article added, p. 400, § 1, effective July 1. L. 94: Entire section repealed, p. 1612, § 12, effective July 1.
5-13-105. General override. (Repealed)
Source: L. 81: Entire article added, p. 400, § 1, effective July 1. L. 94: Entire section repealed, p. 1613, § 13, effective July 1.
DEBT MANAGEMENT
ARTICLE 16 COLORADO FAIR DEBT COLLECTION PRACTICES ACT
Editor's note: This article was added with relocations in 2017. Former C.R.S. section numbers are shown in editor's notes following those sections that were relocated. For a detailed comparison of this article, see the comparative tables located in the back of the index.
Law reviews: For article, "Fair Debt Collection: What Every Lawyer Should Know", see 17 Colo. Law. 453 (1988); for article, "The Impact of the Fair Debt Collection Practices Act on Foreclosures", see 17 Colo. Law. 2361 (1988); for article, "Default Judgments Against Consumers: Has the System Failed?", see 67 Den. U. L. Rev. 357 (1990).
Section
5-16-101. Short title.
The short title of this article 16 is the "Colorado Fair Debt Collection Practices Act".
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1079, § 1, effective August 9.
Editor's note: This section is similar to former § 12-14-101 as it existed prior to 2017.
5-16-102. Scope of article.
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This article 16 shall apply to any collection agency, solicitor, or debt collector that has a place of business located:
- Within this state;
- Outside this state and collects or attempts to collect from consumers who reside within this state for a creditor with a place of business located within this state;
- Outside this state and regularly collects or attempts to collect from consumers who reside within this state for a creditor with a place of business located outside this state; or
- Outside this state and solicits or attempts to solicit debts for collection from a creditor with a place of business located within this state.
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1079, § 1, effective August 9.
Editor's note: This section is similar to former § 12-14-102 as it existed prior to 2017.
ANNOTATION
For purposes of the federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 to 1692o, if an attorney fits the definition of debt collectors found in the first sentence of § 1692a(6), they are debt collectors and therefore subject to the regulations contained in the federal act. Shapiro & Meinhold v. Zartman, 823 P.2d 120 (Colo. 1992) (decided under former law).
5-16-103. Definitions.
As used in this article 16, unless the context otherwise requires:
- "Administrator" means the administrator of the "Uniform Consumer Credit Code", articles 1 to 9 of this title 5, whose office is created in the department of law in section 5-6-103.
- Repealed.
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"Collection agency" means any:
- Person who engages in a business the principal purpose of which is the collection of debts; or
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Person who:
- Regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another;
- Takes assignment of debts for collection purposes;
- Directly or indirectly solicits for collection debts owed or due or asserted to be owed or due another;
- Collects debt for the department of personnel, but only for the purposes specified in subsection (3)(d) of this section;
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"Collection agency" does not include:
- Any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor;
- Any person while acting as a collection agency for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a collection agency does so only for creditors to whom it is so related or affiliated and if the principal business of the person is not the collection of debts;
- Any officer or employee of the United States or any state to the extent that collecting or attempting to collect any debt is in the performance of the officer's or employee's official duties, except as otherwise provided in subsection (9) of this section;
- Any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt;
- Any debt-management services provider operating in compliance with or exempt from the "Uniform Debt-Management Services Act", part 2 of article 19 of this title 5;
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Any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent that:
- The activity is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement;
- The activity concerns a debt that was extended by the person;
- The activity concerns a debt that was not in default at the time it was obtained by the person; or
- The activity concerns a debt obtained by the person as a secured party in a commercial credit transaction involving the creditor;
- Any person whose principal business is the making of loans or the servicing of debt not in default and who acts as a loan correspondent, or seller and servicer for the owner, or holder of a debt which is secured by a deed of trust on real property whether or not the debt is also secured by an interest in personal property;
- A limited gaming or racing licensee acting pursuant to article 33 of title 44.
- Notwithstanding the provisions of subsection (3)(b)(VI) of this section, "collection agency" includes any person who, in the process of collecting his or her own debts, uses another name which would indicate that a third person is collecting or attempting to collect such debts.
- For the purposes of section 5-16-108 (1)(f), "collection agency" includes any person engaged in any business the principal purpose of which is the enforcement of security interests. For purposes of sections 5-16-104, 5-16-105, 5-16-106, 5-16-107, 5-16-108, and 5-16-109 only, "collection agency" includes a debt collector for the department of personnel.
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Notwithstanding subsection (3)(b) of this section, "collection agency" includes any person who engages in any of the following activities; except that the person shall be exempt from provisions of this article 16 that concern licensing and licensees:
- Is an attorney-at-law and regularly engages in the collection or attempted collection of debts in this state;
- Is a person located outside this state whose collection activities are limited to collecting debts not incurred in this state from consumers located in this state and whose collection activities are conducted by means of interstate communications, including telephone, mail, or facsimile transmission, and who is located in another state that regulates and licenses collection agencies but does not require Colorado collection agencies to obtain a license to collect debts in their state if the agencies' collection activities are limited in the same manner.
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"Collection agency" means any:
- "Communication" means conveying information regarding a debt in written or oral form, directly or indirectly, to any person through any medium.
- "Consumer" means any natural person obligated or allegedly obligated to pay any debt.
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- "Consumer reporting agency" means any person that, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties.
- "Consumer reporting agency" shall not include any business entity that provides check verification or check guarantee services only.
- "Consumer reporting agency" shall include any persons defined in 15 U.S.C. sec. 1681a (f) or section 5-18-103 (4).
- "Creditor" means any person who offers or extends credit creating a debt or to which a debt is owed, but "creditor" does not include any person to the extent the person receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of the debt for another.
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- "Debt" means any obligation or alleged obligation of a consumer to pay money arising out of a transaction, whether or not the obligation has been reduced to judgment.
- "Debt" does not include a debt for business, investment, commercial, or agricultural purposes or a debt incurred by a business.
(8.5) "Debt buyer" means a person who engages in the business of purchasing delinquent or defaulted debt for collection purposes, whether it collects the debt itself, hires a third party for collection, or hires an attorney for litigation in order to collect the debt. Debt buyers are collection agencies for the purposes of this article 16.
- "Debt collector" means any person employed or engaged by a collection agency to perform the collection of debts owed or due or asserted to be owed or due to another, and includes any person employed by the department of personnel, or any division of that department, when collecting debts due to the state on behalf of another state agency.
- "Location information" means a consumer's place of abode and his or her telephone number at such place or his or her place of employment.
- "Person" means a natural person, firm, corporation, limited liability company, or partnership.
- "Principal" means any individual having a position of responsibility in a collection agency, including but not limited to any manager, director, officer, partner, owner, or shareholder owning ten percent or more of the stock.
- "Solicitor" means any person employed or engaged by a collection agency who solicits or attempts to solicit debts for collection by the person or any other person.
- "State" means any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any political subdivision of any of them.
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1080, § 1, effective August 9; IP amended, (2) repealed, and (8.5) added, (SB 17-216), ch. 285, p. 1578, § 3, effective January 1, 2018. L. 2018: (3)(b)(VIII) amended, (HB 18-1375), ch. 274, p. 1725, § 91, effective October 1.
Editor's note:
- This section is similar to former § 12-14-103 as it existed prior to 2017.
- The introductory portion of this section was amended in SB 17-216, effective January 1, 2018. Those amendments were superseded by the amendment of the introductory portion in HB 17-1238.
- Subsections (2) and (8.5) were numbered as § 12-14-103 (1.5) and (6.5), respectively, in SB 17-216 (see L. 2017, p. 1578 ). Those provisions were harmonized with this section as it appears in HB 17-1238, effective January 1, 2018.
ANNOTATION
Annotator's note. Since § 5-16-103 is similar to former § 12-14-103 and laws antecedent to that section, relevant cases construing those provisions have been included in the annotations to this section.
Entity which originally extends credit to a debtor is not subject to the provisions of this Act but a collection agency which takes a complete assignment of such a debt which is in default is subject to the provisions of this act even though the entity which made such assignment retains no further rights. Debt is still "owed or due another" for purposes of this act. Commercial Serv. v. Fitzgerald, 856 P.2d 58 (Colo. App. 1993).
When an obligation arises outside the scope of a consumer transaction, the obligation is not a "debt" under this article. The regulation of metered parking is an exercise of a city's police power not a rendering of a service to consumers. Rector v. City & County of Denver, 122 P.3d 1010 (Colo. App. 2005).
A subrogation claim arising from tortious conduct is not "debt" under this article because it does not arise from a transaction. Ybarra v. Greenberg & Sada, P.C., 2016 COA 116 , __ P.3d __, aff'd, 2018 CO 81, 429 P.3d 839.
"Debt collector" includes a person who is regularly engaged to solicit information from a debtor to aid a debt collector. Defendant mailed the debtor a telegram notification that invited the debtor to call a number. Upon making such call, the debtor's phone number was electronically captured and sold to a debt collector. This practice was sufficient to qualify as a "debt collector" under the Colorado Fair Debt Collection Practices Act. Udis v. Universal Commc'ns Co., 56 P.3d 1177 (Colo. App. 2002).
A person who collects a debt that is not in default is not a "collection agency". Therefore, a person who purchases a debt before it is in default is not acting as a collection agency when attempting to collect the debt. PurCo Fleet Servs., Inc. v. Koenig, 240 P.3d 435 (Colo. App. 2010), aff'd on other grounds, 2012 CO 56, 285 P.3d 979.
Applied in B.C. Inv. Co. v. Throm, 650 P.2d 1333 (Colo. App. 1982) (decided under former § 12-14-101).
5-16-104. Location information - acquisition.
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Any debt collector or collection agency communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall:
- Identify himself or herself, state that he or she is confirming or correcting location information concerning the consumer, and, only if expressly requested, identify his or her employer;
- Not state that the consumer owes any debt;
- Not communicate with any person more than once unless requested to do so by the person or unless the debt collector or collection agency reasonably believes that the person's earlier response is erroneous or incomplete and that the person now has correct or complete location information;
- Not communicate by postcard;
- Not use any language or symbol on any envelope or in the contents of any communication effected by the mails or telegram that indicates that the debtor collector or collection agency is in the debt collection business or that the communication relates to the collection of a debt; and
- After the debt collector or collection agency knows the consumer is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, the attorney's name and address, not communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time, not less than thirty days, to communication from the debt collector or collection agency.
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1083, § 1, effective August 9.
Editor's note: This section is similar to former § 12-14-104 as it existed prior to 2017.
5-16-105. Communication in connection with debt collection - definition.
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Without the prior consent of the consumer given directly to the debt collector or collection agency or the express permission of a court of competent jurisdiction, a debt collector or collection agency shall not communicate with a consumer in connection
with the collection of any debt:
- At any unusual time, place, or manner known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a debt collector or collection agency shall assume that the convenient time for communicating with a consumer is after 8 a.m. and before 9 p.m. local time at the consumer's location.
- If the debt collector or collection agency knows the consumer is represented by an attorney with respect to the debt and has knowledge of, or can readily ascertain, the attorney's name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or collection agency or unless the attorney consents to direct communication with the consumer; or
- At the consumer's place of employment if the debt collector or collection agency knows or has reason to know that the consumer's employer prohibits the consumer from receiving such communication.
- Except as provided in section 5-16-104, without the prior consent of the consumer given directly to the debt collector or collection agency or the express permission of a court of competent jurisdiction or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector or collection agency shall not communicate, in connection with the collection of any debt, with any person other than the consumer, his or her attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the collection agency.
-
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If a consumer notifies a debt collector or collection agency in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector or collection agency to cease further communication with the consumer, the debt collector or
collection agency shall not communicate further with the consumer with respect to the debt, except to:
- Advise the consumer that the debt collector's or collection agency's further efforts are being terminated;
- Notify the consumer that the collection agency or creditor may invoke specified remedies that are ordinarily invoked by the collection agency or creditor; or
- Notify the consumer that the collection agency or creditor intends to invoke a specified remedy.
- If the notice from the consumer is made by mail, notification shall be complete upon receipt.
- In its initial written communication to a consumer, a collection agency shall include the following statement: "FOR INFORMATION ABOUT THE COLORADO FAIR DEBT COLLECTION PRACTICES ACT, SEE HTTPS://COAG.GOV/OFFICE-SECTIONS/CONSUMER-PROTECTION/CONSUMER-CREDIT-UNIT/COLLECTION-AGENCY-REGULATION/." If the website address is changed, the notification shall be corrected to contain the correct address. If the notification is placed on the back of the written communication, there shall be a statement on the front notifying the consumer of such fact.
- In its initial written communication to a consumer, a collection agency shall include the following statement: "A consumer has the right to request in writing that a debt collector or collection agency cease further communication with the consumer. A written request to cease communication will not prohibit the debt collector or collection agency from taking any other action authorized by law to collect the debt." If the notification is placed on the back of the written communication, there shall be a statement on the front notifying the consumer of such fact.
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If a consumer notifies a debt collector or collection agency in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector or collection agency to cease further communication with the consumer, the debt collector or
collection agency shall not communicate further with the consumer with respect to the debt, except to:
- For the purpose of this section, "consumer" includes the consumer's spouse, parent (if the consumer is a minor), guardian, executor, or administrator.
- It shall be an affirmative defense to any action based upon failure of a debt collector or collection agency to comply with this section that the debt collector or collection agency believed, in good faith, that the debtor was other than a natural person.
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1083, § 1, effective August 9. L. 2020: (3)(c) amended, (HB 20-1402), ch. 216, p. 1040, § 2, effective June 30.
Editor's note: This section is similar to former § 12-14-105 as it existed prior to 2017.
ANNOTATION
Use of automated mailing service not prohibited as third party communication. The intention of the prohibition against communicating with a third party is to protect a consumer's reputation and privacy. The highly automated mailing system did not threaten to coerce or embarrass the consumer. Flood v. Mercantile Adjustment Bureau, LLC, 176 P.3d 769 (Colo. 2008) (decided under former law).
5-16-106. Harassment or abuse.
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A debt collector or collection agency shall not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt, including, but not limited to, the following conduct:
- The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person;
- The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader;
- The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting the requirements of 15 U.S.C. sec. 1681b (a)(3) and section 5-18-104 (1)(c);
- The advertisement for sale of any debt to coerce payment of the debt or agreeing to do so for the purpose of solicitation of claims;
- Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number;
- Except as provided in section 5-16-104, the placement of telephone calls without meaningful disclosure of the caller's identity within the first sixty seconds after the other party to the call is identified as the debtor.
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1085, § 1, effective August 9.
Editor's note: This section is similar to former § 12-14-106 as it existed prior to 2017.
5-16-107. False or misleading representations.
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A debt collector or collection agency shall not use any false, deceptive, or misleading representation or means in connection with the collection of any debt, including, but not limited to, the following conduct:
- The false representation or implication that the debt collector or collection agency is vouched for, bonded by, or affiliated with the United States government or any state government, including the use of any misleading name, badge, uniform, or facsimile thereof;
-
The false representation of:
- The character, amount, or legal status of any debt; or
- Any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt;
- The false representation or implication that any individual is an attorney or that any communication is from an attorney;
- The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or in the seizure, garnishment, attachment, or sale of any property or wages of any person unless the action is lawful and the debt collector, collection agency, or creditor intends to take such action;
- The threat to take any action that cannot legally be taken or that is not intended to be taken;
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The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to:
- Lose any claim or defense to payment of the debt; or
- Become subject to any practice prohibited by this article 16;
- The false representation or implication that the consumer committed any crime;
- The false representation or implication that the consumer has engaged in any disgraceful conduct;
- Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed;
- The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any state or which creates a false or misleading impression as to its source, authorization, or approval;
- The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer;
- Except as otherwise provided for communications to acquire location information under section 5-16-104, the failure to disclose clearly, in the initial written communication made to collect a debt or obtain information about a consumer and also, if the initial communication with the consumer is oral, in the initial oral communication, that the debt collector or collection agency is attempting to collect a debt and that any information obtained will be used for that purpose, and, in subsequent communications, that the communication is from a debt collector or collection agency; except that this subsection (1)(l) shall not apply to a formal pleading made in connection with a legal action;
- The false representation or implication that accounts have been turned over to innocent purchasers for value;
- The false representation or implication that documents are legal process;
- The use of any business, company, or organization name other than the true name of the collection agency's business, company, or organization;
- The false representation or implication that documents are not legal process forms or do not require action by the consumer;
- The false representation or implication that a debt collector or collection agency operates or is employed by a consumer reporting agency.
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1085, § 1, effective August 9.
Editor's note: This section is similar to former § 12-14-107 as it existed prior to 2017.
5-16-108. Unfair practices.
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A debt collector or collection agency shall not use unfair or unconscionable means to collect or attempt to collect any debt, including, but not limited to, the following conduct:
- The collection of any amount, including any interest, fee, charge, or expense incidental to the principal obligation, unless the amount is expressly authorized by the agreement creating the debt or permitted by law;
- The acceptance by a debt collector or collection agency from any person of a check or other payment instrument postdated by more than five days unless the person is notified in writing of the debt collector's or collection agency's intent to deposit the check or instrument not more than ten nor less than three business days prior to the deposit;
- The solicitation by a debt collector or collection agency of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution;
- Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on the check or instrument;
- Causing charges to be made to any person for communications by concealment of the true purpose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.
-
Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if:
- There is no present right to possession of the property claimed as collateral through an enforceable security interest;
- There is no present intention to take possession of the property; or
- The property is exempt by law from such dispossession or disablement;
- Communicating with a consumer regarding a debt by postcard;
- Using any language or symbol, other than the debt collector's or collection agency's address, on any envelope when communicating with a consumer by use of the mails or by telegram; except that a debt collector or collection agency may use his business name if the name does not indicate that he or she is in the debt collection business;
- Failing to comply with the provisions of section 13-21-109 regarding the collection of checks, drafts, or orders not paid upon presentment;
- Communicating credit information to a consumer reporting agency earlier than thirty days after the initial notice to the consumer has been mailed, unless the consumer's last-known address is known to be invalid. This subsection (1)(j) shall not apply to checks, negotiable instruments, or credit card drafts.
- An attempt to collect an amount in excess of the amounts permitted under section 13-54-102 or 13-54-104;
- An attempt to collect a debt that violates the provisions of section 6-20-203 (1), (2), (3)(b), (4)(a), (4)(b)(I), (4)(d), (4)(e), or (5)(a) to (5)(c).
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1087, § 1, effective August 9. L. 2020: (1)(k) added, (SB 20-211), ch. 140, p. 611, § 4, effective June 29. L. 2021: (1)(l) added, (HB 21-1198), ch. 435, p. 2881, § 2, effective September 7.
Editor's note: This section is similar to former § 12-14-108 as it existed prior to 2017.
Cross references: For the legislative declaration in SB 20-211, see section 1 of chapter 140, Session Laws of Colorado 2020.
5-16-109. Validation of debts.
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Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector or collection agency shall, unless the following information is contained in the initial communication or the consumer has
paid the debt, send the consumer a written notice with the disclosures specified in subsections (1)(a) to (1)(e) of this section. If the disclosures are placed on the back of the notice, the front of the notice shall contain
a statement notifying consumers of that fact. The disclosures shall state:
- The amount of the debt;
- The name of the creditor to whom the debt is owed;
- That, unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector or collection agency;
- That, if the consumer notifies the debt collector or collection agency in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector or collection agency will obtain verification of the debt or a copy of a judgment against the consumer and a copy of the verification or judgment will be mailed to the consumer by the debt collector or collection agency;
- That upon the consumer's written request within the thirty-day period, the debt collector or collection agency will provide the consumer with the name and address of the original creditor, if different from the current creditor.
- If the consumer notifies the debt collector or collection agency in writing within the thirty-day period described in subsection (1)(c) of this section that the debt, or any portion thereof, is disputed or that the consumer requests the name and address of the original creditor, the debt collector or collection agency shall cease collection of the debt, or any disputed portion thereof, until the debt collector or collection agency obtains verification of the debt or a copy of a judgment or the name and address of the original creditor and mails a copy of the verification or judgment or name and address of the original creditor to the consumer.
- The failure of a consumer to dispute the validity of a debt under this section shall not be construed by any court as an admission of liability by the consumer.
- It shall be an affirmative defense to any action based upon failure of a debt collector or collection agency to comply with this section that the debt collector or collection agency believed, in good faith, that the debtor was other than a natural person.
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1088, § 1, effective August 9.
Editor's note: This section is similar to former § 12-14-109 as it existed prior to 2017.
ANNOTATION
The sufficiencies of the notice are judged under the least sophisticated consumer standard. Flood v. Mercantile Adjustment Bureau, LLC, 176 P.3d 769 (Colo. 2008) (decided under former law).
Notice insufficient because statement on the front of the letter appeared to conflict with the required notice. Flood v. Mercantile Adjustment Bureau, LLC, 176 P.3d 769 (Colo. 2008) (decided under former law).
Whether a validation notice is contradicted or overshadowed under the least sophisticated consumer standard is a question of law. Garrett v. Credit Bureau, 2018 COA 150 , 431 P.3d 698.
Notice of validation was contradicted or overshadowed when the debt collector sent a second notice with the statement "we cannot help you unless you call" in capitalized and bolded font that was larger than the rest of the notice. Because this statement was capable of being reasonably interpreted by the least sophisticated consumer as changing the manner in which the consumer was required by law to dispute the debt or its amount, it was, as a matter of law, deceptive or misleading. Garrett v. Credit Bureau, 2018 COA 150 , 431 P.3d 698.
5-16-110. Multiple debts.
If any consumer owes multiple debts and makes any single payment to any collection agency with respect to such debts, the collection agency shall not apply the payment to any debt which is disputed by the consumer and when so informed shall apply the payment in accordance with the consumer's directions.
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1089, § 1, effective August 9.
Editor's note: This section is similar to former § 12-14-110 as it existed prior to 2017.
5-16-111. Legal actions by collection agencies.
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Any debt collector or collection agency who brings any legal action on a debt against any consumer shall:
- In the case of an action to enforce an interest in real property securing the consumer's obligation, bring the action only in a judicial district or similar legal entity in which the real property is located; or
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In the case of an action not described in subsection (1)(a) of this section, bring the action only in the judicial district or similar legal entity in which:
- The consumer signed the contract sued upon;
- The consumer resides at the commencement of the action; or
- The action may be brought pursuant to article 13 or 13.5 of title 26, section 14-14-104, or article 4 or 6 of title 19, if the action is by a private collection agency acting on behalf of a delegate child support enforcement unit.
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A debt collector or collection agency who brings a legal action on a debt owned by a debt buyer shall attach the following materials to the complaint or form:
-
- A copy of the contract, account-holder agreement, or other writing from the original creditor or the consumer evidencing the consumer's agreement to the original debt;
- In the case of a medical debt, a copy of a redacted itemization of charges incurred;
- If a signed writing evidencing the original debt does not exist, a copy of the document provided to the consumer while the account was active, demonstrating that the debt was incurred by the consumer; or, for a credit card debt, the most recent monthly statement recording a purchase transaction, payment, or balance transfer; or
- If a claim is based on an electronic transaction for which a signed writing evidencing the original debt never existed, a copy of the records created during the transaction evidencing the consumer's agreement to the debt and recording the date and terms of the transaction and information provided by the consumer during the transaction; and
- A copy of the assignment or other writing establishing that the debt buyer is the owner of the debt. If the debt was assigned more than once, each assignment or other writing evidencing transfer of ownership must be attached to establish an unbroken chain of ownership, beginning with the original creditor to the first debt buyer and each subsequent sale.
-
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Prior to entry of a default judgment against a consumer in a legal action on a debt owned by a debt buyer, the plaintiff shall file with the court evidence that satisfies the requirements of rules 803(6) and 902(11) of the Colorado rules of evidence or
is otherwise authorized by law or rule that establishes the amount and nature of the debt and include:
- The original account number at charge-off;
- The original creditor at charge-off;
- The amount due at charge-off or, if the balance has not been charged off, an itemization of the amount claimed to be owed, including the principal, interest, fees, and other charges or reductions from payment made or other credits;
- An itemization of post charge-off additions, if any;
-
- The date of the last payment, if applicable; or
- The date of the last transaction; and
- If the account is not a revolving credit account, the date the debt was incurred.
- In the absence of evidence required by subsections (2)(a) or (2)(b) and (3) of this section, an affidavit does not satisfy the requirements of these subsections.
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1089, § 1, effective August 9; (2), (3), and (4) added, (SB 17-216), ch. 285, p. 1578, § 4, effective January 1, 2018.
Editor's note:
- This section is similar to former § 12-14-111 as it existed prior to 2017.
- Subsections (2), (3), and (4) were numbered as § 12-14-111 (2), (3), and (4), respectively, in SB 17-216 (see L. 2017, p. 1578 ). Those provisions were harmonized with this section as it appears in HB 17-1238, effective January 1, 2018.
5-16-111.5. Fees, costs, and costs of collection - limitation.
- Except as described in subsection (2) of this section, a private collection agency or privately retained attorney collecting on any debt arising from past-due orders, obligations, fines, or fees due to the state, or due to any political subdivision within the state, may add to the amount due that has been placed for collection all fees, costs, and costs of collection, including designated contractual attorney fees and costs that are awarded by a court of competent jurisdiction. Exclusive of the accrual of interest and court costs, any fees, costs, and costs of collection may not exceed eighteen percent in the aggregate unless additional reasonable attorney fees are awarded by a court of competent jurisdiction.
- Subsection (1) of this section does not apply if the state or political subdivision of the state has sold the debt to a third party.
- Notwithstanding section 24-1-136 (11)(a)(I), on or before January 1, 2023, and on or before January 1 every five years thereafter, the state auditor shall review the rate described in subsection (1) of this section and the fee described in section 24-30-202.4 (8)(a) and report the results of his or her review to the finance committees of the senate and the house of representatives or any successor committees. The report may include any recommendations of the state auditor regarding raising or lowering the rate or the fee.
Source: L. 2018: Entire section added, (HB 18-1057), ch. 314, p. 1895, § 1, effective July 1, 2019. L. 2021: (3) amended, (SB 21-055), ch. 12, p. 75, § 3, effective March 21.
5-16-112. Deceptive forms.
- It is unlawful for any person to design, compile, and furnish any form knowing that the form would be used to create the false belief in a consumer that a person other than the creditor of the consumer is participating in the collection or in the attempted collection of a debt that the consumer allegedly owes the creditor, when in fact the person is not so participating.
- Any person who violates this section shall be liable to the same extent and in the same manner as a debt collector or collection agency under section 5-16-113 for failure to comply with this article 16.
- This section shall apply if the person supplying or using the forms or the consumer receiving the forms is located within this state.
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1089, § 1, effective August 9.
Editor's note: This section is similar to former § 12-14-112 as it existed prior to 2017.
5-16-113. Civil liability.
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In addition to administrative enforcement pursuant to section 5-16-114 and subject to section 5-16-132 and the limitations provided by subsection (10) of this section, and except as otherwise provided by this section, any debt collector or collection
agency who fails to comply with any provision of this article 16 or private child support collector, as defined in section 5-17-102 (9), who fails to comply with any provision of this article 16 or article 17 of this title
5, with respect to a consumer is liable to the consumer in an amount equal to the sum of:
- Any actual damage sustained by the consumer as a result of the failure;
-
- In the case of any action by an individual, additional damages as the court may allow, but not to exceed one thousand dollars;
- In the case of a class action, the amount for each named plaintiff as could be recovered under subsection (1)(b)(I) of this section and the amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed five hundred thousand dollars or one percent of the net worth of the debt collector or collection agency, whichever is the lesser; and
- In the case of any successful action to enforce such liability, the costs of the action, together with reasonable attorney fees as may be determined by the court.
- In the case of any unsuccessful action brought under this section, the plaintiff shall be liable to each defendant in an amount equal to that defendant's cost incurred in defending the action, together with reasonable attorney fees as may be determined by the court.
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In determining the amount of liability in any action under subsection (1) of this section, the court shall consider, among other relevant factors:
- In any individual action under subsection (1)(b)(I) of this section, the frequency and persistence of noncompliance by the debt collector or collection agency, the nature of noncompliance, and the extent to which noncompliance was intentional;
- In any class action under subsection (1)(b)(II) of this section, the frequency and persistence of noncompliance by the debt collector or collection agency, the nature of the noncompliance, the resources of the debt collector or collection agency, the number of persons adversely affected, and the extent to which the debt collector's or collection agency's noncompliance was intentional.
- A debt collector, private child support collector, as defined in section 5-17-102 (9), or collection agency may not be held liable in any action brought pursuant to this section if the debt collector or collection agency shows by a preponderance of evidence that the violation was not intentional or grossly negligent and the violation resulted from a bona fide error, notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.
- A private action to enforce any liability created by this section must be brought in any court of competent jurisdiction within one year from the date on which the violation occurs.
- No provision of this section imposing any liability shall apply to any act done or omitted in good faith in conformity with any advisory opinion of the administrator, notwithstanding that, after the act or omission has occurred, the opinion is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.
- The policy of this state is not to award double damages under this article 16 and the federal "Fair Debt Collection Practices Act", 15 U.S.C. sec. 1692 et seq. No damages under this section shall be recovered if damages are recovered for a like provision of said federal act.
- Notwithstanding subsection (1) of this section, harassment of the employer or the family of a consumer shall be considered an invasion of privacy and a civil action may be brought which is not subject to the damage limitations of subsection (1) of this section.
- It shall be an affirmative defense to any action based upon failure of a debt collector, private child support collector, as defined in section 5-17-102 (9), or collection agency to comply with this section that the debt collector or collection agency believed, in good faith, that the debtor was other than a natural person.
- There shall be no private cause of action under this section for any alleged violation of section 5-16-125 (4)(a). Violations of section 5-16-125 (4)(a) may be prosecuted only through administrative enforcement pursuant to section 5-16-114.
-
- No provision of this section imposing any liability shall apply to any efforts by a state agency or state employee to recover money owed to the state as provided in section 24-30-202.4.
- Repealed.
Source: L. 2017: (4) and (5) amended, (SB 17-216), ch. 285, p. 1579, § 5, effective June 1; entire article added with relocations, (HB 17-1238), ch. 260, p. 1090, § 1, effective August 9. L. 2021: (11)(b) repealed, (SB 21-055), ch. 12, p. 75, § 4, effective March 21.
Editor's note:
- This section is similar to former § 12-14-113 as it existed prior to 2017.
- Subsections (4) and (5) were numbered as § 12-14-113 (3) and (4), respectively, in SB 17-216 (see L. 2017, p. 1579 ). Those provisions were harmonized with this section as it appears in HB 17-1238.
ANNOTATION
Exemplary damages may be awarded under this section where the underlying claim is one that existed at common law. Pursuant to former § 12-14-134, the general assembly expressly permits parties to pursue pre-existing common law remedies under this statutory scheme. Virdanco, Inc. v. MTS Int'l, 820 P.2d 352 (Colo. App. 1991) (decided under former law).
5-16-114. Administrative enforcement - rules.
Compliance with this article 16 shall be enforced by the administrator. The administrator may make reasonable rules for the administration and enforcement of this article 16, including standards of conduct for licensees and collection notices and forms.
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1092, § 1, effective August 9.
Editor's note: This section is similar to former § 12-14-114 as it existed prior to 2017.
5-16-115. License - registration - unlawful acts.
-
It is unlawful for any person to:
- Conduct the business of a collection agency or advertise or solicit, either in print, by letter, in person, or otherwise, the right to make collection or obtain payment of any debt on behalf of another without having obtained a license under this article 16; or
- Conduct the business of a collection agency under any name other than that under which licensed.
- It is unlawful for a person to act as a collections manager without having complied with sections 5-16-119 and 5-16-122.
- It is unlawful for any person to employ a person as a solicitor, collections manager, or debt collector under this article 16 without complying with this section.
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1092, § 1, effective August 9.
Editor's note: This section is similar to former § 12-14-115 as it existed prior to 2017.
ANNOTATION
Unlicensed collection agency is not lawfully entitled to bring suit against the maker of a note. B.C. Inv. Co. v. Throm, 650 P.2d 1333 (Colo. App. 1982) (decided under former law).
A person who collects a debt that is not in default is not a "collection agency". Therefore, a person who purchases a debt before it is in default is not required to be licensed under the Colorado Fair Debt Collection Practices Act to attempt to collect the debt or bring suit to collect a debt. PurCo Fleet Servs., Inc. v. Koenig, 240 P.3d 435 (Colo. App. 2010), aff'd on other grounds, 2012 CO 56, 285 P.3d 979 (decided under former § 12-14-115).
5-16-116. Collection agency board - created. (Repealed)
Source: L. 2017: Entire section repealed, (SB 17-216), ch. 285, p. 1579, § 6, effective June 1; entire article added with relocations, (HB 17-1238), ch. 260, p. 1092, § 1, effective August 9.
Editor's note: This section was numbered as § 12-14-116 in SB 17-216 (see L. 2017, p. 1579 ). The repeal of that provision was harmonized with this section as it appears in HB 17-1238.
5-16-117. Powers and duties of the administrator.
- Repealed.
- The administrator is authorized to approve or deny any application submitted pursuant to this article 16 and to issue any license authorized by this article 16.
- Any complaint received by the administrator regarding violations of this article 16 by an attorney shall be forwarded to the supreme court's attorney regulation counsel.
- The administrator shall enforce the provisions of article 17 of this title 5 pursuant to section 5-17-111.
- to (8) Repealed.
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1093, § 1, effective August 9; (1) repealed and (5), (6), (7), and (8) added, (SB 17-216), ch. 285, p. 1579, § 7, effective January 1, 2018.
Editor's note:
- This section is similar to former § 12-14-117 as it existed prior to 2017.
- Subsections (1), (5), (6), (7), and (8) were numbered as § 12-14-117 (1), (6), (7), (8), and (9), respectively, in SB 17-216 (see L. 2017, p. 1579 ). Those provisions were harmonized with this section as it appears in HB 17-1238, effective January 1, 2018.
5-16-118. Collection agency license - required.
Any person acting as a collection agency must possess a valid license issued by the administrator in accordance with this article 16 and any rules adopted pursuant thereto.
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1093, § 1, effective August 9.
Editor's note: This section is similar to former § 12-14-118 as it existed prior to 2017.
ANNOTATION
Corporation that is in the business of debt collection that takes a complete assignment of a debt owed to an entity located in Colorado is subject to the licensure provisions of this section even though the corporation is located outside of Colorado and the assignor of the debt retains no further rights in such debt. Commercial Serv. v. Fitzgerald, 856 P.2d 58 (Colo. App. 1993) (decided under former law).
5-16-119. Collection agency license - requirements - application - fee - expiration.
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As requisites for licensure, an applicant for a collection agency license shall:
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- Be owned by, or employ as collections manager or an executive officer of the agency, at least one individual who has been engaged in a responsible position in an established collection agency for a period of at least two years.
- Notwithstanding the requirements of subsection (1)(a)(I) of this section, the administrator may substitute other business experience for requirements where the business experience has provided comparable experience in collections.
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- Employ a collections manager who shall be responsible for the actions of the debt collectors in that office.
- The collections manager may be the same individual specified in subsection (1)(a) of this section if the collections manager also meets the qualifications of subsection (1)(a) of this section.
- File a bond in the amount and manner specified in section 5-16-124;
- If a foreign corporation, comply fully with the laws of this state to entitle it to do business within the state.
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Each applicant for a collection agency license shall submit an application providing all information in the form and manner the administrator shall designate, including, but not limited to:
- The location, ownership, and, if applicable, the previous history of the business and the name, address, age, and relevant debt-collection experience of each of the principals of the business;
- A duly verified financial statement for the previous year;
- If a corporation, the name of the shareholder and the number of shares held by any shareholder owning ten percent or more of the stock; and
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For the principals and the collections manager of the applicant:
- The conviction of any felony or the acceptance by a court of competent jurisdiction of a plea of guilty or nolo contendere to any felony;
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The denial, revocation, or suspension of any license issued to any collection agency that employed or was owned by such persons, in whole or in part, directly or indirectly, and a statement of their position and authority at the collection agency:
- For any license issued pursuant to this article 16; or
- For any comparable license issued by any other jurisdiction;
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The taking of any other disciplinary or adverse action or the existence of any outstanding complaints against any collection agency which employed or was owned in whole or in part, directly or indirectly, by such persons, and a statement of their position
and authority at the collection agency:
- For any license issued pursuant to this article 16; or
- When the action was taken by any other jurisdiction or the complaint exists in any other jurisdiction, whether or not a license was issued by that jurisdiction;
- The suspension or termination of approval of any collections manager under this article 16 or any other disciplinary or adverse action taken against the applicant, principal, or collections manager in any jurisdiction.
- At the time the application is submitted, the applicant shall pay a nonrefundable investigation fee in an amount to be determined by the administrator.
- When the administrator approves the application, the applicant shall pay a nonrefundable license fee in an amount to be determined by the administrator.
- The administrator shall establish procedures for the maintenance of license lists and the establishment of initial and renewal license fees and schedules. The administrator may change the renewal date of any license issued pursuant to this article 16 to the end that approximately the same number of licenses are scheduled for renewal in each month of the year. Where any renewal date is changed, the fee for the license shall be proportionately increased or decreased, as the case may be. Every licensee shall pay the administrator a license fee to be determined and collected pursuant to section 5-16-121 and subsection (4) of this section, and shall obtain a license certificate for the current license period. Notwithstanding any other provision of this section, a licensee, at any time, may voluntarily surrender the license to the administrator to be cancelled, but such surrender shall not affect the licensee's liability for violations of this article 16 that occurred prior to the date of surrender.
- A collection agency must obtain a license for its principal place of business, but its branch offices, if any, need not obtain separate licenses. A collection agency with branch offices must notify the administrator in writing of the location of each branch office within thirty days after the branch office commences business.
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1093, § 1, effective August 9.
Editor's note: This section is similar to former § 12-14-119 as it existed prior to 2017.
5-16-120. License - issuance - grounds for denial - appeal - contents.
- Upon the approval of the license application by the administrator and the satisfaction of all application requirements, the administrator shall issue the applicant a license to operate as a collection agency.
- The administrator may deny any application for a license or its renewal if any grounds exist that would justify disciplinary action under section 5-16-127, for failure to meet the requirements of section 5-16-119, or if the applicant, the applicant's principals, or the applicant's collections manager have fraudulently obtained or attempted to obtain a license.
- If any application for a license or its renewal is denied, the applicant may appeal the decision pursuant to section 24-4-104.
- The license shall state the name of the licensee, location by street and number or office building and room number, city, county, and state where the licensee has his or her principal place of business, together with the number and date of the license and the date of expiration of the license, and shall further state that it is issued pursuant to this article 16 and that the licensee is duly authorized under this article 16.
- The administrator may deny any application for a license or its renewal if the collection agency has failed to perform the duties enumerated in section 5-16-123.
- The administrator may deny any application for a license or its renewal if the collection agency does not have a positive net worth.
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1095, § 1, effective August 9.
Editor's note: This section is similar to former § 12-14-120 as it existed prior to 2017.
5-16-121. Collection agency license - renewals.
Each licensee shall make an application to renew its license in the form and manner prescribed by the administrator. The application shall be accompanied by a nonrefundable renewal fee in an amount determined by the administrator.
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1096, § 1, effective August 9.
Editor's note: This section is similar to former § 12-14-121 as it existed prior to 2017.
5-16-122. Collection agency license - notification of change and reapplication requirements.
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Upon any of the following changes, the licensee shall notify the administrator in writing of the change within thirty days after its occurrence:
- Change of business name or address;
- If a corporation or limited liability company, change in ownership of ten or more percent but less than fifty percent of the corporate stock or ownership interest.
- If the licensee fails to provide written notification, the license shall automatically expire on the thirtieth day following the change.
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Upon any of the following changes, the licensee shall notify the administrator in writing of the change within thirty days after its occurrence:
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- Upon any of the changes specified in subsection (2)(c) of this section, the licensee shall apply for a new license within thirty days of the change. The administrator shall have twenty-five days to review the application and issue or deny the new license. If the administrator denies the license, the administrator shall provide to the licensee a written statement stating why the application for the license was denied, and the licensee shall have fifteen days to cure any defects in the application. The administrator shall approve or deny the resubmitted application within fifteen days.
- If the licensee fails to file an application for a new license, the license shall expire on the thirtieth day following the change that necessitated the new license application. If the application is denied and the licensee fails to resubmit the application within fifteen days of the denial, the license shall expire on the fifteenth day following the denial.
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The changes that require a new license application are:
- In a sole proprietorship or partnership, any change in the persons owning the collection agency;
- In a corporation or limited liability company, any change of ownership of fifty percent or more of the stock or ownership interest in any one transaction or a cumulative change of ownership of fifty percent or more from the date of the issuance of the license or from the date of the latest renewal of the license;
- Any change of ownership structure, including but not limited to a change to or from a sole proprietorship, partnership, limited liability company, or corporation. No investigation fee shall be required in the event of a change and the application required may be more abbreviated than that required for an initial license, as determined by the administrator.
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- Upon a change of collections manager, the licensee shall notify the administrator in the form and manner designated by the administrator. The licensee shall appoint a new collections manager within thirty days of the change.
- The administrator, within fifteen days, shall approve or disapprove the qualifications of the new collections manager.
- The licensee may continue to operate as a collection agency unless and until the administrator disapproves the qualifications of the new collections manager.
- Any licensee which has submitted an application for a new license may continue to operate as a collection agency until the final decision of the administrator.
- The licensee may appeal the final decision of the administrator pursuant to section 24-4-104.
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1096, § 1, effective August 9.
Editor's note: This section is similar to former § 12-14-122 as it existed prior to 2017.
5-16-123. Duties of collection agencies.
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A licensee shall:
- Maintain, at all times, liquid assets in the form of deposit accounts in the total sum of not less than two thousand five hundred dollars more than all sums due and owing to all of its clients;
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- Maintain, at all times, an office within this state that is open to the public during normal business hours, is staffed by at least one full-time employee, keeps a record of all money collected and remitted by the agency for residents of Colorado, and accepts payments physically made at the office for any debt the agency is attempting to collect. (b) (I) (A) Maintain, at all times, an office within this state that is open to the public during normal business hours, is staffed by at least one full-time employee, keeps a record of all money collected and remitted by the agency for residents of Colorado, and accepts payments physically made at the office for any debt the agency is attempting to collect.
- Notify, in each written communication, the consumer from whom the agency is attempting to collect a debt of the address and telephone number of the local office required by this subsection (1)(b)(I).
- Maintain, at all times, a toll-free telephone number that shall be available to any consumer who needs to make a toll call to reach the licensee in connection with a debt.
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- Maintain, at all times, a trust account for the benefit of its clients that contains, at all times, sufficient funds to pay all sums due or owing to all of its clients. The licensee shall maintain the trust account in a commercial bank or savings and loan association account in this state or accessible in a branch in this state until disbursed to the creditor. The account must be clearly designated as a trust account and shall be used only for such purposes and not as an operating account. A deposit of all funds received to a trust account followed by a transfer of the agency share of the collection to an operating account is not a violation of this section.
- Within thirty days after the last day of the month in which any collections are made for a client, account to the client for all collections made during that month and remit to the client all money owed to the client pursuant to the agreement between the client and the collection agency;
- Upon written demand of the administrator, within five days of receipt of the demand, produce a complete set of all form notices or form letters used by the licensee in the collection of accounts;
- Be responsible, pursuant to this article 16, for violations of this article 16 caused by its collections manager, debt collectors, or solicitors.
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- No collection agency shall employ any collections manager, debt collector, or solicitor who has been convicted of or who has entered a plea of guilty or nolo contendere to any crime specified in part 4 of article 4, in part 1, 2, 3, 5, 7, or 9 of article 5, or in article 5.5 of title 18, or any similar crime under the jurisdiction of any federal court or court of another state.
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No collection agency shall be owned or operated by the following persons who have been convicted of or who have entered a plea of guilty or nolo contendere to any crime specified in part 4 of article 4, in part 1, 2, 3, 5, 7, or 9 of article 5, or in
article 5.5 of title 18, or any similar crime under the jurisdiction of any federal court or court of another state:
- The owner of a sole proprietorship;
- A partner of a partnership;
- A member of a limited liability company; or
- An officer or director of a corporation.
- Subsections (1)(a), (1)(c), and (1)(d) of this section do not apply to a person collecting or attempting to collect a debt owned by the person collecting or attempting to collect the debt.
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1097, § 1, effective August 9.
Editor's note: This section is similar to former § 12-14-123 as it existed prior to 2017.
5-16-124. Bond - definition.
- Each licensee shall maintain at all times and each applicant shall file, prior to the issuance of any license to the applicant, a bond in the sum of twelve thousand dollars plus an additional two thousand dollars for each ten thousand dollars or part thereof by which the average monthly sums remitted or owed to all of its clients during the previous year exceed fifteen thousand dollars; or, in the alternative, an applicant or licensee shall present evidence of a savings account, deposit, or certificate of deposit of the same sum and meeting the requirements of section 11-35-101. The total amount of the bond shall not exceed twenty thousand dollars and shall be in favor of the attorney general of the state of Colorado for use of the people of the state of Colorado and the administrator. The bond shall be executed by the applicant or licensee as principal and by a corporation that is licensed by the commissioner of insurance to transact the business of fidelity and surety insurance as surety. If any such surety, during the life of the bond, cancels the bond or reduces the penal sum of the bond, the surety immediately shall notify the administrator in writing. The administrator shall give notice to the licensee that the bond has been cancelled or reduced and that the licensee's license shall automatically expire unless a new or increased bond with proper sureties is filed within thirty days after the date the administrator received the notice, or on a later date as is stated in the surety's notice.
- The bond shall include a condition that the licensee shall, upon demand in writing made by the administrator, pay over to the administrator for the use of any client from whom any debt is taken or received for collection by the licensee the proceeds of the collection, less the charges for collection in accordance with the terms of the agreement made between the licensee and the client.
- A client may file with the administrator a duly verified claim as to money due the client for money collected by a licensee. If the administrator makes a preliminary determination that a claim meets the requirements of this section, the administrator shall make a demand for the amount claimed. The demand may be made on the licensee, the surety, or both.
- If a receiver has been appointed by any court of competent jurisdiction in the state of Colorado to take charge of the assets of any licensee, the receiver, upon the written consent of the administrator, may demand and receive payment on the bond from the surety and, upon order of the court, may bring suit upon the bond in the name of the receiver, without joining the administrator as a party to the action.
- If a client has filed a duly verified claim with the administrator, who has refused to make demand upon the licensee or surety, the client may bring suit against the licensee or surety on the bond for the recovery of money due from the licensee without assignment of the bond to the client. Nothing in this section shall preclude a client from making a demand on both the licensee and the surety.
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- The bond shall include a condition that the licensee shall, upon written demand, turn over to the client any and all notes, valuable papers, or evidence of indebtedness which may have been deposited with the licensee by the client, but the licensee shall not be required to return any such papers, notes, or evidence of indebtedness on debts in process of collection, unless reimbursed by the client for the services performed on the debt so evidenced.
- "Debts in process of collection" means any debts that have been in the licensee's hands for less than nine months, debts on which payments are being made, or on which payments have been promised, debts on which suit has been brought, and claims that have been forwarded to any other collection agency or attorney.
- The bond shall cover all matters placed with the licensee during the term of the license granted and any renewal, except as provided in this section. Such bond may be enforced in the manner described in this section, by a receiver appointed to take charge of the assets of any licensee, or by any client if the administrator refuses to act. The aggregate liability of the surety, for any and all claims that may arise under the bond, shall not exceed the penalty of the bond.
- Any licensee, at any time, may file a new bond with the administrator. Any surety may file with the administrator notice of withdrawal as surety on the bond of any licensee. Upon filing of a new bond or on expiration of thirty days after the filing of notice of withdrawal as surety by the surety, the liability of the former surety for all future acts of the licensee shall terminate, except as provided in subsection (9) of this section. The administrator shall cancel the bond given by any surety company upon being advised its license to transact the business of fidelity and surety insurance has been revoked by the commissioner of insurance and shall notify the licensee.
- No action shall be brought upon any bond required to be given and filed, after the expiration of two years from the surrender, revocation, or expiration of the license issued thereunder. After the expiration of two years, all liability of the surety upon the bond shall cease if no action has been commenced upon the bond before the expiration of the period.
- In lieu of an individual surety bond, the administrator may authorize a blanket bond covering qualifying licensees in the sum of two million dollars in favor of the attorney general of the state of Colorado for use of the people of the state of Colorado and the administrator. Each new and renewal applicant shall pay a fee in an amount determined by the administrator to offset the applicant's share of the blanket bond. Conditions and procedures regarding the bond shall be as set forth in this section for individual bonds.
- This section does not apply to a person collecting or attempting to collect a debt owned by the person collecting or attempting to collect the debt.
- A bond shall not be required of a debt buyer as long as the debt buyer does not also provide third-party debt collection.
Source: L. 2017: (12) added, (SB 17-216), ch. 285, p. 1581, § 8, effective June 1; entire article added with relocations, (HB 17-1238), ch. 260, p. 1098, § 1, effective August 9.
Editor's note:
- This section is similar to former § 12-14-124 as it existed prior to 2017.
- Subsection (12) was numbered as § 12-14-124 (12) in SB 17-216 (see L. 2017, p. 1581 ). That provision was harmonized with this section as it appears in HB 17-1238.
ANNOTATION
Annotator's note. Since § 5-16-124 is similar to former § 12-14-124, and laws antecedent to that section, relevant cases construing those provisions have been included in the annotations to this section.
Parties who pay money to a collection agency to be applied upon debts owing by them cannot recover on the bond of such agency given under the provisions of this section, on the ground that such money was not turned over to their creditors. Young v. Cox, 96 Colo. 205 , 40 P.2d 621 (1935).
The bond given by a collection agency under the provisions of this section does not cover failure of the agency to pay over to an assignee funds owing by the agency to the assignor on a deposit or money made by the assignor with the agency. Young v. Cox, 96 Colo. 205 , 40 P.2d 621 (1935).
Board's refusal to take any further action was tantamount to a denial and constituted a final order subject to judicial review. United Fin. Credit v. Colo. Collection Agency Bd., 892 P.2d 446 (Colo. App. 1995).
5-16-125. Unlawful acts.
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In addition to the unlawful acts specified in sections 5-16-112 and 5-16-115, it is unlawful and a violation of this article 16 for any person:
- To refuse or fail to comply with section 5-16-104, 5-16-105, 5-16-106, 5-16-107, 5-16-108, 5-16-109, 5-16-110, 5-16-118, 5-16-119 (1), or 5-16-123 (1)(b) to (1)(e) or (2);
- To aid or abet any person operating or attempting to operate in violation of this article 16, including but not limited to section 5-16-115; except that nothing in this article 16 shall prevent any licensed collection agency from accepting, as forwardee, claims for collection from any collection agency or attorney whose place of business is outside this state;
- To recover or attempt to recover treble damages for any check, draft, or order not paid on presentment without complying with the provisions of section 13-21-109.
- It is unlawful and a violation of this article 16 for any licensee or any attorney representing a licensee to invoke a cognovit clause in any note so as to confess judgment.
- It is unlawful and a violation of this article 16 for any licensee to render or to advertise that it will render legal services; except that a licensee may solicit claims for collection and take assignments and pursue the collection thereof subject to the provisions of law concerning the unauthorized practice of law.
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It is unlawful and a violation of this article 16 for any licensee, collections manager, debt collector, or solicitor to:
- Refuse or fail to comply with a rule adopted pursuant to this article 16 or any lawful order of the administrator; or
- Aid or abet any person in such refusal or failure.
- It is unlawful and a violation of this article 16 for any person to falsify any information or make any misleading statements in any application authorized under this article 16.
- Any officer or agent of a corporation who personally participates in any violation of this article 16 shall be subject to the penalties prescribed in section 5-16-126 for individuals.
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1100, § 1, effective August 9.
Editor's note: This section is similar to former § 12-14-128 as it existed prior to 2017.
5-16-125.5. Statute of limitations - actions by administrator.
An action or proceeding brought by the administrator pursuant to this article 16 or pursuant to any rule issued by the administrator under this article 16 must be brought within two years after the date on which the violation occurred.
Source: L. 2017: Entire section added, (SB 17-216), ch. 285, p. 1581, § 9, effective June 1.
Editor's note: This section was numbered as § 12-14-128.5 in SB 17-216 (see L. 2017, p. 1581 ). That provision was relocated and harmonized with this article as it appears in HB 17-1238.
5-16-126. Criminal penalties.
Any person who violates any provision of section 5-16-125 (1), (2), (3), or (4) commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501.
Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1101, § 1, effective August 9.
Editor's note: This section is similar to former § 12-14-129 as it existed prior to 2017.
5-16-127. Complaint - investigations - powers of administrator - sanctions.
- Upon filing with the administrator by any interested person a written complaint charging any person with a violation of this article 16, any rule adopted pursuant to this article 16, or any lawful order of the administrator, the administrator shall conduct an investigation.
- For reasonable cause, the administrator may, on its own motion, conduct an investigation of the conduct of any person concerning compliance with this article 16. The administrator may also issue subpoenas to require the attendance of witnesses or the production of documents. The subpoenas may be issued to any person, whether located in this state or elsewhere, who has engaged in or is engaging in any violation of this article 16. The administrator may also administer oaths; conduct hearings in aid of any investigation or inquiry necessary to administer the provisions of this article 16; and apply to the appropriate court for an appropriate order to effect the purposes of this article 16.
- If any licensee or one of its principals or collections managers is convicted of or enters a plea of guilty or nolo contendere to any crime specified in part 4 of article 4, in part 1, 2, 3, 5, 7, or 9 of article 5, or in article 5.5 of title 18, or any similar crime under the jurisdiction of any federal court or court of another state, the conviction or plea shall constitute grounds for disciplinary action under this section.
- In any proceeding held under this section, the administrator may accept as prima facie evidence of grounds for disciplinary or adverse action any disciplinary or adverse action taken against a licensee, the licensee's principals, debt collector, solicitor, or collections manager by another jurisdiction that issues professional, occupational, or business licenses, if the conduct that prompted the disciplinary or adverse action by that jurisdiction would be grounds for disciplinary action under this section.
- For reasonable cause, the administrator or the administrator's designee has the right, during normal business hours without resort to subpoena, to examine the books, records, and files of any licensee. If the books, records, and files are located outside Colorado, the licensee shall bear all expenses in making them available.
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- For reasonable cause, the administrator may require the making and filing, by any licensee, at any time, of a written, verified statement of the licensee's assets and liabilities, including, if requested, a detailed statement of amounts due claimants. The administrator may also require an audited statement when cause has been shown that an audited statement is needed.
- Any financial statement of any applicant or licensee required to be filed with the administrator shall not be a public record but may be introduced in evidence in any court action or in any administrative action involving the applicant or licensee.
- For the purpose of any proceeding under this article 16, the administrator may subpoena witnesses and compel them to give testimony under oath. If any subpoenaed witness fails or refuses to appear or testify, the subpoenaing authority may petition the district court, and, upon proper showing, the court may order the witness to appear and testify. Disobedience of the order of court may be punished as a contempt of court.
- The administrator may appoint an administrative law judge pursuant to part 10 of article 30 of title 24 to conduct any proceedings authorized under this article 16.
- If the administrator finds cause to believe a licensee or collections manager has violated this article 16, the rules adopted pursuant to this article 16, or any lawful order of the administrator, the administrator shall notify the licensee or collections manager and hold a hearing. Any proceedings conducted pursuant to this section shall be in accordance with article 4 of title 24.
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- If the administrator or the administrative law judge finds that the licensee or collections manager has violated this article 16, the rules adopted pursuant to this article 16, or any lawful order of the administrator, or if the licensee fraudulently obtained a license, the administrator may issue letters of admonition; deny, revoke, or suspend the license of the licensee or approval of the collections manager; place the licensee or collections manager on probation; or impose administrative fines in an amount up to one thousand five hundred dollars per violation on the licensee or collections manager.
- The administrator may issue letters of admonition pursuant to subsection (10)(a) of this section without a hearing; except that the licensee or collections manager receiving the letter of admonition may request a hearing before the administrator to appeal the issuance of the letter.
- A letter of admonition may be issued to a licensee or collections manager whether or not a license or approval has been surrendered prior to issuance.
- No person whose license has been revoked shall be licensed again under the terms of this article 16 for five years. No person hired as a collections manager whose approval has been terminated by the administrator for a violation of this article 16 shall be hired again as a collections manager for five years.
- The court of appeals shall have jurisdiction to review all final actions and orders that are subject to judicial review of the administrator. Proceedings shall be conducted in accordance with section 24-4-106 (11).
- The administrator, expert witnesses, and consultants are immune from civil suit when they perform in good faith any duties in connection with any proceedings authorized under this section. Any person who files a complaint in good faith under this section is immune from civil suit.
Source: L. 2017: (12) amended, (SB 17-216), ch. 285, p. 1581, § 10, effective June 1; entire article added with relocations, (HB 17-1238), ch. 260, p. 1101, § 1, effective August 9.
Editor's note:
- This section is similar to former § 12-14-130 as it existed prior to 2017.
- Subsection (12) was numbered as § 12-14-130 (12) in SB 17-216 (see L. 2017, p. 1581 ). That provision was harmonized with subsection (12) of this section as it appears in HB 17-1238.
ANNOTATION
Board's refusal to take any further action was tantamount to a denial and constituted a final order subject to judicial review. United Fin. Credit v. Colo. Collection Agency Bd., 892 P.2d 446 (Colo. App. 1995) (decided under former § 12-14-130).
Applied in B.C. Inv. Co. v. Throm, 650 P.2d 1333 (Colo. App. 1982) (decided under former law).
5-16-128. Debt collectors for the department of personnel - complaint - disciplinary procedures.
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Any interested person may file a written complaint with the executive director of the department of personnel charging a debt collector in the employ of the department of personnel with a violation of:
- This article 16 or a rule promulgated pursuant to this article 16;
- A lawful order of the state board of ethics; or
- The standards of conduct set forth in the code of conduct developed by the department of personnel for such debt collectors.
- Each complaint filed pursuant to this section shall be referred to the executive director of the department of personnel who shall conduct an investigation to determine if a violation of subsection (1) of this section occur