Equity Skimming Of Real Property in Colorado

Print Friendly

Statute for 18 – 5 – 802 – Equity Skimming Of Real Property

StatuteHere is the charge you are facing:

18-5-802. Equity skimming of real property

(1) A person commits the crime of equity skimming of real property if the person knowingly:

(a) Acquires an interest in real property that is encumbered by a loan secured by a mortgage or deed of trust and the loan is in arrears at the time the person acquires the interest or is placed in default within eighteen months after the person acquires the interest; and

(b) Either:

(I) Fails to apply all rent derived from the person’s interest in the real property first toward the satisfaction of all outstanding payments due on the loan and second toward any fees due to any association of real property owners that charges such fees for the upkeep of the housing facility, or common area including buildings and grounds thereof, of which the real property is a part before appropriating the remainder of such rent or any part thereof for any other purpose except for the purpose of repairs necessary to prevent waste of the real property; or

(II) After a foreclosure in which title has vested pursuant to section 38-38-501, C.R.S., collects rent on behalf of any person other than the owner of the real property.

(2) Repealed.

(3) Equity skimming of real property is a class 5 felony.

(4) It shall be an affirmative defense to this section:

(a) That all deficiencies in all underlying encumbrances at the time of acquisition have been fully satisfied and brought current and that, in addition, any regular payments on the underlying encumbrances during the succeeding nine months after the date of acquisition have been timely paid in full; except that this shall not be an affirmative defense to a crime that includes the element set forth in subparagraph (II) of paragraph (b) of subsection (1) of this section;

(b) That any fees due to an association of real property owners for the upkeep of the housing facility, or common area including buildings and grounds thereof, of which the real property is a part have been paid in full.

(5) The provisions of this section shall not apply to any bona fide lender who accepts a deed in lieu of foreclosure or who forecloses upon the real property.

(6) The provisions of this section shall not apply to any bona fide purchaser who acquires fee title in any real property without agreeing to pay all underlying encumbrances and takes fee title subject to all underlying encumbrances, if the following written, verbatim warning was provided to the seller in capital letters of no less than ten-point, bold-faced type and acknowledged by the seller’s signature:

WARNING: PURCHASER,_____________, WILL NOT ASSUME OR PAY ANY PRESENT MORTGAGE, DEEDS OF TRUST, OR OTHER LIENS OR ENCUMBRANCES AGAINST THE PROPERTY. THE SELLER,__________________, UNDERSTANDS HE/SHE WILL REMAIN RESPONSIBLE FOR ALL PAYMENTS DUE ON SUCH MORTGAGES, DEEDS OF TRUST, OR OTHER LIENS OR ENCUMBRANCES AND FOR ANY DEFICIENCY JUDGMENT UPON FORECLOSURE.

I HAVE HAD THE FOREGOING READ TO ME AND UNDERSTAND THE PURCHASER,_____________,WILL NOT ASSUME ANY PRESENT MORTGAGES, DEEDS OF TRUST, OR OTHER LIENS OR ENCUMBRANCES AGAINST THE PROPERTY DESCRIBED AS__________.

DATE________________ SELLER__________________

Case Law

When you look at the Statute, you may have questions about definitions of certain words or how the Colorado Court will interpret certain phrases.  To answer these questions, Defense Attorney turn to "case law."  That is, lawyers look at previous cases to determine how these words and phrases should be defined and interpreted. The best way to locate caselaw for free is to go to google scholar and search for legal opinions involving your charges from Colorado courts. Remember to talk to your attorney about any issues in your case and how the lawyer believes that the issues should be handled.


Colorado Penalties for Equity Skimming Of Real Property

Penalties

The charge of Equity Skimming Of Real Property, is categorized as a:

F5

Click here to find out how much jail time is associated with this penalty.

How to Use This Information

After you have hired a CO Defense Attorney, you will need to sit down with him to talk about the strengths and weaknesses of your case.  To begin this process, you should think about what the prosecutor will attempt to show in order to say that you are guilty. This involves analyzing the statute language above as well as the jury instructions (which is the set of instructions that the jury will use to understand the law). This will allow you to get a better idea of how you can attack the prosecutor’s case and build your own case. So to begin, you should understand that the prosecutor will need to prove certain things beyond a reasonable doubt for you to be found guilty.  These things are called “elements”.

The jury will be notified of the elements through a set of instructions called “Jury Instructions.” The Jury Instructions will be crafted by your attorney and the prosecutor. Your CO Defense Attorney will mold the jury instructions to your case, adding facts that are specific to the case and omitting unnecessary parts of the instructions.

Please find the model jury instruction for Equity Skimming Of Real Property below. These will be adapted by your CO Attorney for your case.

The elements of the crime of equity skimming of real property are: 1. That the defendant, 2. in the State of Colorado, at or about the date and place charged, 3. acquired an interest in real property which is encumbered by a loan secured by a mortgage or deed of trust and the loan [is in arrears at the time s/he acquired the interest] [is placed in default within eighteen months after the acquisition of such interest in the real property], and 4. failed to apply all rent derived from his/her interest in the real property first toward the satisfaction of all outstanding payments due on the loan and second toward any fees due any association of real property owners which charges such fees for the upkeep of the housing facility or common area including buildings and grounds thereof, of which the real property is a part before appropriating the remainder of such rent or any part thereof for any other purpose except the purpose of repairs necessary to prevent waste of the real property. 5. [without the affirmative defense in instruction number _____.] After considering all the evidence, if you decide the prosecution has proven each of the elements beyond a reasonable doubt, you should find the defendant guilty of equity skimming of real property. After considering all the evidence, if you decide the prosecution has failed to prove any one or more of the elements beyond a reasonable doubt, you should find the defendant not guilty of equity skimming of real property. NOTES ON USE Delete inapplicable bracketed material. When this instruction is given, the applicable definitions of ?real property?, ?rent? and ?security interest? must be given. Affirmative defenses are contained in ? 18-5-802(4)(a) and (b), C.R.S.

To begin the process of analyzing your case, think about your case from the perspective of the prosecutor.  Think about the facts that the prosecutor will have to prove to establish each element. Next, sit down with your Colorado Defense Attorney and talk about some of the legal ways that you can use to counter the prosecutor’s evidence.  Talk to your attorney about whether he thinks any of the prosecutor’s evidence can be kept out of court.  For example, if you were illegally searched, your attorney may be able to keep the things that were found, as a result of that illegal search, out of court.  Additionally, talk to your attorney about whether you have any defenses to Equity Skimming Of Real Property.

Important Notes:

Don’t Forget about Immigration:

If you are not a U.S. citizen, be sure to ask your attorney whether your charges will trigger deportation if you are found guilty or plea to the charge.

Good Luck!

The information in this post is for informational purposes only and should not be construed as legal advice or as the creation of an attorney-client relationship. For legal advice, please contact an Attorney.

Written by

Nathaniel has worked in criminal law on both sides of the aisle spending time working for the prosecution as well as the defense. Most recently Nathaniel has represented individuals in violent felonies and drug cases. Prior to this work, Nathaniel handled DWIs, Domestic Violence Cases, Property Crimes, and White Collar Crimes. On the prosecutorial side, Nathaniel has most notably worked in Bosnia helping to prosecute individuals who committed war crimes and crimes against humanity in the Bosnian War from 1993-1995. In particular, Nathaniel helped in the prosecution of military leaders who arranged for the organized murders and rapes of innocent civilians in various towns in Bosnia. Nathaniel is a graduate of the University of Texas School of Law, Northwestern University, and Phillips Exeter Academy. Google Profile: Nathaniel Baca