Is Colorado's Foreclosure Process Unconstitutional?

December 13 2010, 1:00 PM

If you think the nation's foreclosure crisis is easing, you might want to check in with Rick Sharga, a senior vice president at RealtyTrac, an online marketplace for properties. He tells The Wall Street Journal the number of foreclosures is expected to increase in 2011 (2010 will end with about 1.2 million bank repossessions, and 2009 closed with roughly 900,000). 

But tens of thousands of foreclosures next year in Colorado may be delayed or halted thanks to Denver attorney John Prater, who on Friday filed suit in federal court against the state, alleging that, under the U.S. Constitution, lenders are not allowed to seize properties without due process. Under the current system, lenders in Colorado can foreclose even if a fraudulent origination contributed to the delinquency of payment, or while promising loan modifications that never come, writes The Denver Post.

Moreover, foreclosures can take place without any proof of legal standing before a judge, according to the suit. The state's use of governor-appointed trustees and limited hearings is unique in the nation, and some, like Robert Sagel, the Morgan County treasurer and a public trustee, defend it. "We are a disinterested party," he says. The foreclosure process in Colorado tends also to be faster, roughly 110 to 125 days, compared with states that have judicial foreclosures. New York, where judges preside over foreclosures, takes 445 days on average—the longest in the nation. But consumer advocates say homeowners are at a disadvantage in Colorado. "Borrowers don't even have their hands up to block the punches. They don't even see the punches coming," says Andrew O'Connor, a spokesman from the Prater law firm.