*1 was not of such danger to “Where the conclude that reason for a ceases, rule entry was magnitude a warrantless the rule should also cease —a familiar justified. carrying special maxim force here. For applying here the the rule is one cost Moreover, majori- accepts even if one paid very in coin minted from the core of ty’s exigent conclusion that circumstances factfinding process, our cost of hold- exist, did the evidence should be ing trials at which the truth is deliberate- suppressed. majority The result of the ly knowingly suppressed and witness- opinion is relating that evidence to five es, oaths, in contravention of their aggravated robbery a crime of cases and forbidden tell the whole truth and involving violence this same defendant has they high price do. This is a censured if been be suppressed and will not available at trial. one probative ought This loss of indeed and never be evidence is too great a price pay, where, social under the facts reason, no deterrence is called case, most, for what is at can hind- and none in fact be had. Such sight, good judgment faith mistake in continued wooden rule police exigent beyond as whether proper circum- ambit to situations that stances existed which step- warranted their its purposes cannot serve fair to de- bids ping across the threshold of the stroy entirely long defendant’s run.” the rule home protect themselves. 622 F.2d at 847. Here police officers had to make a I would ruling reverse the of the trial

quick They decision. acted as reasonably court. prudent officers in good faith belief lawful, their conduct was they HODGES, J., joins C. in this dissent. a reasonable basis for this belief. facts this case present the court an opportunity to consider the rationale for

the exclusionary rule. It “a judge-made

rule crafted to enforce constitutional re- quirements, justified in illegal search context only its deterrence of future police misconduct.” United States v. Wil- liams, 830, 622 F.2d 841-42 Hull, Ronald W. HULL and Delores A. The majority opinion applies a rule of Plaintiffs-Appellants, exclusion which will have or little no effect on police when, conduct. For police believe dangerous pre- themselves in a or CORPORATION, BOWEST carious position, they prevent will act Defendant-Appellee. harm to themselves. If their at a later time No. 79CA0756. is called into and evi- question excluded, dence I do not this will believe Appeals, Colorado Court of deter a response similar the future. A Div. III. good faith dangerousness mistake about the 1982. exigencies which at moment existed 1982. Rehearing time April should not Denied require exclusion evidence found in the search. July Certiorari Granted 1982. I am persuaded expressed that the views by a majority the court in United States

v. Williams, supra, concerning the exclu- sionary good rule the reasonable faith exception thereto are sound and should be

applied in this case. the court There said: *2 effect

fered placing the amount the Hulls had in escrow with a release of the deed of trust and withdraw- sale. al of notice election and demand offer, however, This rejected.

The Hulls contend the court that trial erred condition granting the rescission on princi- unpaid repay the Hulls first Bowest re- pal balance on before ar- leased its Hulls security interest. The gue TILA 1635(b) § does them impose any obligations on security until in- after Bowest its releases Karet, Ira Springs, M. for Glenwood terest, any on the Hulls obligation imposed plaintiffs-appellants. to return balance unpaid principal could Towey Zak, Silverman, & William S. Ed- arise, thus, never and decree conditional Denver, ward Towey, defendant-ap- B. of rescission was inconsistent with pellee. 1635(b) agree. § of the TILA. We do not PIERCE, Judge. question Since this governed is inter- In federal TILA the federal judiciary’s this action to rescind real estate mortgage pursuant pretation transaction to 15 act persuasive. U.S. 1635(b) (West Lombardi, C.A. Supp. 1975-80) of the § 156 Colorado & Southern Ry. v. Truth-in-Lending (TILA), Federal Act Colo. 400 428 P.2d plaintiffs Ronald and Dolores Hull appeal TILA, every con- 1635(a) Under § from a decree which rescission conditioned inter- sumer pledges debtor who on the unpaid principal Hulls’ tender est be real must property residential balance. We affirm. given a the right notice of of rescission. The following findings supported by The notice must inform the debtor that he $145,000 to the record. The Hulls borrowed has consummation following three assign- refinance their home from Bowest’s within which to rescind or, ex- Mortgage Company. Affiliated In credit transaction. 15 U.S.C.A. change, they gave promissory Affiliated (West 1635(a) 1975-80). Supp. § note secured a deed of trust. Affiliated assigned servicing right then to Bowest trial err here The court did not Corporation gave the Hulls notice also right to re holding that the notice of the assignment. of that closing After the adequately scission did not inform required payments. Hulls made three was consum right. of that The transaction default, obtained Based on the Bowest 5, 1975, mated on June notice judicial The authorization to foreclose. 30, 1975, that the May dated Bow- public was sold at auction to 4, 1975, June midnight Hulls had until est and the Hulls did redeem. al Consequently, exercise that right. complied with though the notice otherwise The brought Hulls to set action be regulations, it defective federal alleged- sale of an foreclosure aside because therein. cause of dates stated ly inadequate price and to enforce sales (S.D. F.Supp. 1099 right. their TILA After Palmer v. Bowest grounds, Cal.1973), of rescission vacated on other received the Hulls’ notice TILA, pursuant of- 1635(a) F.2d 860 § 612(a)(4), to re (1980) (codifies § Hulls’ notice of election Stat. 175 eq- was given to Bowest the man scind within uitable conditional rescission by adding datory statutory period. 15 U.S.C.A. 1635(b) “procedures proscribed 1635(f) Thus, (West Supp. 1975-80). subsection shall apply other- except when trial court Hulls correctly held wise a court.”) Accordingly, ordered were entitled to transac rescind the credit rescis- propriety of the decree 1635(b). tion sion depends upon the equities present case, particular as well as a considera- then in of the TILA ef- Section tion of policy full disclosure pertinent part: fect stated underlies the Palmer, supra. TILA. See obligor “When an his exercises (a) he rescind subsection ... is not for any charge, liable finance or other harsh consequence of the forfei- creditor’s *4 any security by and the given interest ture of restitution for failing to obligor ... upon becomes void such a 1635(b) Fite, as invoked in v. Sosa rescission. Within receipt ten after (5th 498 F.2d v. 1974) 114 Cir. and Strader rescission, of notice of a the creditor shall Co., 551 Beneficial Finance 191 Colo. obligor money return to the any prop- or (1976), P.2d the 720 occurred because erty given downpay- as earnest money, equities involved each case. In both ment, otherwise, or take any and shall accompa- cases the notice of rescission was necessary action or to reflect appropriate by nied the express debtor’s offer to return any security the termination of interest Thus, property. the creditor’s the debtor’s created under the .... the obligation to restore the creditor Upon performance the creditor’s status was tender. quo discharged by the obligations section, obligor the Bank, 575 v. Gerasta Hibernia State tender the property shall to the creditor (5th 1978). F.2d Cir. was 580 tender Such the pay

evidence that debtor intended to Moreover, interpret the creditor back. the language We mean that creditors the creditor is to remove its lien were noted in both and Sosa Strader prior to tender v. by egregious the debtor. Rudisell have been involved in continuous Bank, (6th conduct, Fifth Third 622 F.2d 243 Cir. there appropriate equita- the Inc., 1980); Ljepava Properties, v. M.L.S.C. ble result was cancellation of the debt (9th 1975). 511 F.2d 935 Cir. necessity repayment. without the contemplated by The rescission Here, egregious since there no 1635(b) TILA, however, has been part conduct on the of Bowest and since as Rachbach equitable treated an remedy. Hulls, we Bowest equities favor over the 1976). Cogswell, (10th 547 F.2d 502 Cir. its trial hold that court not abuse did in equity The court restore the attempts to on rescission conditioning discretion parties to the status v. John quo. LaGrone proceeds. repayment the Hulls’ 1976). Hence, son, (9th Cir. literally applied, If had been fashioning remedy of re equitable scission, it would have never been is within discre Bowest not the trial court’s involved, its tion, it would have forfeited depending upon repaid but also equities found, on on the The trial security to condition interest. court evidence, in- ample debtor’s tender of the loan ad the Hulls did not proceeds by outstanding vanced the creditor creditor tend to debt. Accord- before the See, e.g., its Bus security releases interest. decree. ingly, it entered im- Furthermore, & Loan Savings judgment tamante First Federal lien had been Ass’n, 1980); 619 if (5th F.2d 360 La Hulls’ so that posed property, Cir. on the Grone, conditional, 502 supra; Palmer v. F.2d rescission had not been made (9th 1974). Truth-in-Lending 860 Cir. Cf. have Bowest would become subordinate 96-221, Therefore, Act Public Law No. lien. unlike the debtors 338 deficiency judgment did not make could not be entered the Hulls

Sosa express payment. an Con- offer to tender the absence of original promissory note. relin- gress did not intend that the creditor 4-3-804, Section C.R.S.1973, trial allows the debtors, quish its interest when court, discretion, deficiency in its grant prepared are not do not intend or in the absence of tender of borrowed. to tender restitution of the funds original note. The trial court found Levin, F.2d 1216 Powers v. & Sims sufficient evidence established amount to Bowest the note’s awarded finding supported terms. This part on the of Bow- only wrongdoing evidence and will not be disturbed. by supported est found the trial court and Hanson, P.2d Linley v. Colo. that, assignee the record was as an Affiliated, as to the inquire failed to re- propriety of the notice of the As to the amount calculated notice, however, only de- scission. The counterclaim, trial court on the amount there- fective dates owed note to the any Nothing in. in the record established trust deed of were added and the other of Bowest. wrongdoing part on the amount Bowest received from the foreclo Moreover, the Hulls re- Bowest offered to sure sale and Veteran’s Administration through arrangement. scission an escrow restoring were subtracted. This method of Hulls, however, rejected that offer. parties quo to the status was not erro *5 Therefore, in unlike the creditors Sosa and neous. in egre- Bowest was not involved gious conduct. III. incorrectly argue they Hulls also that The Hulls’ final that contention is severely prejudiced

were trial court’s by the claim disallowing trial court erred in their failure to decree non-conditional rescission do attorney’s for fees under We that, title, the TILA. had the court cleared their agree. they would have had to borrow against pay to back order Rachbach, court held supra, In any make loan. We doubt that it would the federal courts apply must difference to a whether lending institution Rule American for fees attorney’s they the Hulls had clear title or if had the Pipeline v. Wilder Alyeska to Service Co. conditional decree here. entered Society, 421 ness U.S. S.Ct. Therefore, since attor L.Ed.2d II. ney’s specifically provided fees are not argue The Hulls also the trial court 1635(b), they are not recoverable. § granting

erred in on conditional That counterclaim Bowest’s counterclaim. Rachbach, supra, also The court in that, stated in the absence of Hulls’ rescis- that, Alyeska, supra, any noted because of sion, deficiency Bowest was entitled to a Sosa, reliance, Hulls on do judgment because of the recovery attorney’s fees supra, for the and the amount on the foreclosure Ad misplaced. action would be § Additionally, they argue sale. Rachbach, noted that ditionally, the court amount calculated on the counterclaim was Strader, recovery of at supra, allowed the either agree incorrect. We do not fees, they were but torney’s contention. 5-5-203(l)(b), C.R. by allowed specifically brought to rescind failed Since the Hulls have S.1973. Since decree, within the terms of the and since action under the federal TILA they were still liable on re any may the note and claim the Hulls have sponsible deficiency. foreclosure a statute 1640 of the TILA was barred limitations, There is no merit to statuto- argument their applicable there is no ry performance provision that allows their recovery of by Beneficial. Hence, attorney’s fees. the trial However, court did this subsection does provide not err in denying recovery the Hulls’ that Beneficial forfeits repay- attorney’s fees. ment of the failure principal balance for obligations statutory with its We are not Varady unmindful of au- days. Further, within 10 no we find - - White, (No. 81CA0027, Colo.App. thority to sustain position Straders’ 11, 1982). Although Announced March this is what To legislature intended. similar, very Varady statutes the contrary, legislature mandated provisions decided under 5- pro- that except as otherwise specifically seq., 1-101 et C.R.S.1973. The result UCCC, vided in the a creditor’s violation reached in that case is not consistent with obligations his does not affect the interpretations placed federal debt. 5-5-202(5).” See § courts on 15 seq. U.S.C.A. et Rach- equally plain It is “equita- me that this bach, supra; Wilson, supra. Palmer v. ble” of the statute explicit- alleged We have examined the other er- ly rejected by Supreme the Colorado Court rors Hulls and find them to on certiorari review. be without merit. “We simply interpret 5-5-204(2) section The judgment is affirmed. to be provided.’ as ‘otherwise We further note that there is a split authority SMITH, J., concurs. regard, but think holding here is the better light view in of the purposes KELLY, J., dissents. Contra, policies of the UCCC. Palm- er 1974).” KELLY, Judge, dissenting. Supreme purposes Court’s view of the I respectfully dissent. policies be served UCCC While the majority acknowledges unmistakeable: similarity between 15 U.S.C.A. § *6 “The creditor is to remove cloud 5-5-204(2), C.R.S.1973, neverthe- on the title of the with- debtor’s residence less follows a line of federal cases which days. only in ten Then and then is the apply equitable principles fashioning obligated to debtor tender. After tender remedy course which I believe to be —a debtor, if the creditor fails to take foreclosed Supreme Colorado Court’s possession property of the tendered ‘own- interpretation of the statute in v. Strader ership of the vests in the debtor Co., Beneficial Finance 191 Colo. obligation pay. without ...’ We hold (1976). White, P.2d 720 also v. Varady statutory provision this is intended - - 81CA0027, (No. an- Colo.App. impetus as an for the creditor to take 11, 1982). I Neither do nounced immediate action to clear title and to Supreme majority with the agree obligations. interpreted fulfill its If not it did reached the result Court Strader way, in this there is no for the stimulus the case. equities of the statutory pro- creditor to with the requiring visions him to release the secur- It me, seems evident upon examination ity period.” interests within the day ten of Appeals’ Court version Strader added) (emphasis v. Co., Colo.App. Beneficial Finance (1975), 534 P.2d court was of policy, Consistent this statement attempting apply an rule when equitable Supreme Court held: it said: Sosa, “. . . as supra, did the court in [Sosa Fite, 1974)

“Since Beneficial proceed did not as re- ] quired by 5-5-204(2), requirement of tender arises af- were Straders ‘possession’ entitled to retain the prin- ter the security interest is released. If it cipal balance of the loan pending is not released within the ten follow- rescission, is re- the debtor ing notice of obligation

lieved of the to tender used, in the As property vests debtor. balance unpaid principal is the ‘property’ loan, have no and the Straders obligation unpaid principal.” Note, Consequences of the Creditor’s Acknowledge Rescission Failure to Finance Debtor Under v. Beneficial Strader Co., 48 U.Colo.L.Rev. 437 regard language support-

I do not Court, in ing the Supreme view that equities was moved inter- case. Neither is there room for one and another pretation of the federal statute Application state statute. egre- sliding creditor’s conduct of a scale rule giousness is my idea of a workable of law. Colorado,

The PEOPLE of the State Plaintiff-Appellee, MacFarlane, Gen., J. D. F. Atty. Richard Hennessey, Gen,, Mary J. Deputy Atty. Ricketson, Mullarkey, Gen., Mary Sol. E. KUNZELMAN, Frederick Gen., Denver, Atty. plaintiff-ap- Asst. Defendant-Appellant. pellee. No. 79CA0573. Walta, J. Gregory Colorado Public State Colorado Court of Appeals, *7 Defender, Theis, Deputy Jody Sorenson Div. I. Defender, Denver, Public for defend- State ant-appellant. 1982. 15, 1982. April Rehearing Denied SMITH, Judge. Aug. Certiorari Denied 1982. Defendant, Kunzelman, ap- Frederick

peals his conviction of fraud check. We affirm. 16,1977, Wallace,

On November Ronald dealer, salesman for an automobile ar- Kunzelman, ranged for defendant one of his customers, a tire purchase tires from dealer at the automobile dealer discount repre- gave rate. Wallace tire dealer employer’s purchase sentative one of his up numbers, picked order and defendant