Bank of America v. Adamson

This opinion is subject to revision before final
publication in the Pacific Reporter
2017 UT 2
IN THE
SUPREME COURT OF THE STATE OF UTAH
BANK OF AMERICA,
Appellant,
v.
SAMUEL D. ADAMSON and
COURTNEY D. ADAMSON,
Appellees.
No. 20140861
Filed January 11, 2017
On Direct Appeal
Fifth District, St. George Dep’t
The Honorable Jeffrey C. Wilcox
No. 14050067
Attorneys:
Robert H. Scott, Salt Lake City, UT, Amy Miller, Washington D.C.,
Brian E. Pumphrey, Richmond, VA, for appellant
John Christian Barlow, St. George, UT, for appellees
JUSTICE DURHAM authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUDGE LAWRENCE joined.
Having been recused, JUSTICE PEARCE does not participate herein;
DISTRICT JUDGE BARRY G. LAWRENCE sat.
JUSTICE DURHAM, opinion of the Court:
INTRODUCTION
¶1 This case involves a nonjudicial foreclosure sale conducted
in violation of Utah Code section 57-1-21, which requires the trustee
of the sale to maintain a physical office location within the state.
Today we answer the question left open in Federal National Mortgage
Association v. Sundquist, 2013 UT 45, 311 P.3d 1004, as to the
appropriate remedy for this violation. Because we conclude, under
BANK OF AMERICA v. ADAMSONS
Opinion of the Court
the circumstances of this case, that the violation did not result in a
void or voidable trustee’s deed, we hold that the district court erred
in dismissing the unlawful detainer action in favor of the Adamsons.
We thus reverse and remand for further proceedings consistent with
this opinion.
BACKGROUND
¶2 Samuel D. Adamson refinanced his home in 2007 through a
deed of trust. 1 Mr. Adamson defaulted on the loan in December
2008. Bank of America appointed ReconTrust as the successor
trustee, which then executed and recorded a notice of default and
election to sell on June 25, 2009. The notice included a phone number
to reach ReconTrust with any questions.
¶3 Although Mr. Adamson had notice of the default and
upcoming trustee sale date, he never contacted ReconTrust before
the scheduled sale date, and did not attend the sale. 2 Neither did
Mr. Adamson seek an injunction or file a lawsuit prior to the sale. On
January 14, 2010, ReconTrust sold the property in a nonjudicial
foreclosure sale to BAC Home Loans Services, LP. BAC Home Loans
Services eventually merged with Bank of America, which then sold
the property to Distressed Asset on December 18, 2013.
Mr. Adamson and his wife, Courtney D. Adamson, have lived
continuously on the property since the sale, and have not made a
loan payment or paid property taxes since December 2008.
¶4 In 2014, Distressed Asset filed an unlawful detainer action
against the Adamsons. At trial, the Adamsons argued that the
trustee’s sale was defective because ReconTrust did not meet the
qualifications to serve as trustee under Utah Code section 57-1-21,
which required ReconTrust to maintain a physical office location in
Utah. Id. § 57-1-21(1)(a). The Adamsons argued that this defect
rendered the sale void.
¶5 The district court noted that in Federal National Mortgage
Association v. Sundquist, 2013 UT 45, ¶ 13, 311 P.3d 1004, we held that
“ReconTrust is neither a member of the Utah State Bar nor a title
insurance company or agency with an office in the State of Utah.
ReconTrust was therefore not a qualified trustee with the power of
sale under Utah Code sections 57-1-21 and 57-1-23.” However, the
1 Mr. Adamson originally refinanced through Guild Mortgage,
which sold the debt to Countrywide Home Loan Servicing LP, which
in turn sold to Bank of America.
2 Mr. Adamson was in contact with Bank of America at the time,
trying to get a loan modification.
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district court also noted that “the Sundquist court expressly declined
to decide what effect, if any, its determination that ReconTrust did
not qualify as a trustee with the power of sale would have on the
validity of the sale and resulting trust deed.” See id. ¶ 50.
¶6 Although the district court found that Distressed Asset had
made out “a prima facie case for unlawful detainer,” it concluded
that the failure to satisfy Utah Code section 57-1-21 rendered the
trustee sale void ab initio, and dismissed the unlawful detainer
action. Distressed Asset appealed. We transferred the case to the
court of appeals. Distressed Asset then assigned its rights, title, and
interest in the property to Bank of America. After oral argument in
the court of appeals, but before that court issued an opinion, we
vacated our transfer order and recalled the case. We have
jurisdiction pursuant to Utah Code section 78A-3-102(3)(j).
STANDARD OF REVIEW
¶7 “We review questions of statutory interpretation for
correctness, affording no deference to the district court’s legal
conclusions.” Salt Lake City Corp. v. Evans Dev. Grp., LLC, 2016 UT 15,
¶ 9, 369 P.3d 1263 (citation omitted).
ANALYSIS
¶8 Bank of America advances two main arguments on appeal:
first, that we should overturn our decision in Federal National
Mortgage Association v. Sundquist, 2013 UT 45, 311 P.3d 1004, and
hold that the National Bank Act “preempts Utah law regarding a
national bank’s authority to exercise the power of sale;” and
second—even if we do not overturn Sundquist—that the district
court erred in finding the trustee sale void. We hold that Bank of
America has failed to meet its burden of persuasion on its first
argument because it was inadequately briefed, but we conclude the
district court erred in finding the trustee sale void and in dismissing
the unlawful detainer action.
I. WE DECLINE TO OVERRULE SUNDQUIST, AS BANK OF
AMERICA HAS NOT ADEQUATELY BRIEFED THIS ARGUMENT
¶9 Stare decisis is “a cornerstone of Anglo-American
jurisprudence.” State v. Guard, 2015 UT 96, ¶ 33, 371 P.3d 1 (citation
omitted). Therefore, “[t]hose asking us to overturn prior precedent
have a substantial burden of persuasion.” State v. Menzies, 889 P.2d
393, 398 (Utah 1994). In order to meet this burden, “we must be
‘clearly convinced that’ prior caselaw ‘was originally erroneous or is
no longer sound because of changing conditions.’” Scott v. Universal
Sales, Inc., 2015 UT 64, ¶ 23, 356 P.3d 1172 (citation omitted).
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Opinion of the Court
¶10 Bank of America does not mention this standard, nor does it
offer any arguments to explain why our decision was either
originally erroneous or no longer sound. Bank of America asserts
that “Sundquist was wrongly decided and should be overruled.” But
the only authority it cites as “significant legal developments” in
support of its assertion is an unpublished Tenth Circuit opinion 3 and
two amici curiae briefs from other cases. See Garrett v. ReconTrust Co.,
546 F. App’x 736 (10th Cir. 2013) (unpublished opinion); Office of the
Comptroller of the Currency’s Amicus Brief, Dutcher v. Matheson,
No. 12-4150 (10th Cir. July 15, 2013); U.S. Solicitor General’s Amicus
Brief, Fed. Nat’l Mortg. Ass’n v. Sundquist, No. 13-852 (U.S. Oct. 7,
2014). Bank of America devotes fewer than two pages of its brief to
this issue and does not develop any reasoned argument for
overturning our very recent precedent.
¶11 Utah Rule of Appellate Procedure 24(a)(9) requires an
appellant’s brief to “contain the contentions and reasons of the
appellant with respect to the issues presented . . . with citations to
the authorities, statutes, and parts of the record relied on.” We have
clarified this requirement by stating that “[a]n issue is inadequately
briefed if the argument ‘merely contains bald citations to authority
[without] development of that authority and reasoned analysis based
on that authority.’” State v. Timmerman, 2009 UT 58, ¶ 25 n.5, 218
P.3d 590 (second alteration in original) (citation omitted). We have,
at times, stated that inadequate briefing is an absolute bar to review
of an argument on appeal. See Johnson v. Johnson, 2014 UT 21, ¶ 20,
330 P.3d 704 (“We have repeatedly warned that [appellate courts]
will not address arguments that are not adequately briefed, and that
we are not a depository in which the appealing party may dump the
3 We note that the Tenth Circuit opinion is not persuasive
authority on whether to overrule Sundquist, as the reasonableness of
the agency regulation was not contested before that court. See Garrett
v. ReconTrust Co., 546 F. App’x 736, 739 (10th Cir. 2013) (unpublished
opinion) (“Importantly, Garrett raises arguments only as to the
meaning of Rule 9.7, and not to the reasonableness of the regulations
themselves; thus, we limit our inquiry accordingly.” (citation
omitted)). Because no one in Garrett argued that the agency’s
regulation was unreasonable, the court did not go through the
Chevron analysis to determine whether to apply the regulation. Thus,
Bank of America represented this case as one that would compel the
conclusion that we wrongly decided Sundquist, when in fact it does
not even address the determinative issue in Sundquist (i.e. whether to
apply the regulation). Fed. Nat’l Mortg. Ass’n v. Sundquist, 2013 UT
45, 311 P.3d 1004.
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burden of argument and research.” (alteration in original) (citation
omitted)). However, we recognize that there is a spectrum of how
adequately an argument may be briefed. On one end, an issue may
be argued in only one sentence without any citations to legal
authority or to the record. On the other, there may be dozens of
pages of argument including volumes of authority and citations to
the record regarding a single issue. Defining the exact point at which
a brief becomes adequate is not possible, nor is it advisable, as each
issue is different and may require different amounts of analysis and
argument.
¶12 We clarify that there is not a bright-line rule determining
when a brief is inadequate. Rather, an appellant who fails to
adequately brief an issue “will almost certainly fail to carry its
burden of persuasion on appeal.” State v. Nielsen, 2014 UT 10, ¶ 42,
326 P.3d 645. “Accordingly, from here on our analysis will be
focused on the ultimate question of whether the appellant has
established a [sufficient argument for ruling in its favor]—and not on
whether there is a technical deficiency in [briefing] meriting a
default.” Id. ¶ 41.
¶13 While we make this clarification, we emphasize the
importance of a party’s thoughtful analysis of prior precedent and its
application to the record. An appellant that fails to devote adequate
attention to an issue is almost certainly going to fail to meet its
burden of persuasion. A party must cite the legal authority on which
its argument is based and then provide reasoned analysis of how
that authority should apply in the particular case, including citations
to the record where appropriate. Under this standard, we hold that
Bank of America has failed to meet its burden of persuading us that
we should overrule Sundquist.
II. VOIDING THE TRUSTEE SALE IS AN IMPROPER REMEDY
¶14 Because Bank of America failed to meet its burden of
persuasion in its request to overturn Sundquist, we must still
determine the remedy for failure to comply with Utah Code section
57-1-21. In order to exercise the power of sale in a nonjudicial
foreclosure, Utah law requires a trustee to be “qualified.” UTAH
CODE § 57-1-23. A qualified trustee is defined as
(i) any active member of the Utah State Bar who
maintains a place within the state where the trustor or
other interested parties may meet with the trustee . . . ;
[or]
...
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(iv) any title insurance company or agency that: (A)
holds a certificate of authority or license . . . to conduct
insurance business in the state; (B) is actually doing
business in the state; and (C) maintains a bona fide
office in the state.
Id. § 57-1-21(1)(a). As we held in Sundquist, “ReconTrust is neither a
member of the Utah State Bar nor a title insurance company or
agency with an office in the State of Utah. ReconTrust was therefore
not a qualified trustee with the power of sale under Utah Code
sections 57-1-21 and 57-1-23.” Fed. Nat’l Mortg. Ass’n v. Sundquist,
2013 UT 45 ¶ 13, 311 P.3d 1004. However, we did not decide in
Sundquist—or any other case—what effect, if any, the violation of
section 57-1-21 would have on the trustee sale and resulting trustee’s
deed. See id. ¶ 50 (“Our opinion in this matter is limited to the
narrow issue of whether Utah law regarding the qualification of
trustees is preempted by the N[ational] B[anking] A[ct].”).
¶15 We begin by noting that at the time of the sale, the Trust
Deed Act (Utah Code sections 57-1-19 through 57-1-36) did not
provide a statutory remedy for violations of section 57-1-21. 4
However, even without the explicit statutory remedy, the Trust
Deed Act lays out the requirements for the foreclosure of a trust
deed, and we have previously discussed when the failure of other
requirements may result in a voidable trustee’s deed. See Concepts,
Inc. v. First Sec. Realty Servs., Inc., 743 P.2d 1158, 1160 (Utah 1987)
(laying out test for when a trustee’s deed may be set aside for
deficient notice of sale). We follow our prior precedent detailing
when a trustee’s deed may be set aside for Utah Code section 57-1-
21. We first articulate the Trust Deed Act’s focus on trustor
protections prior to the trustee sale, and detail some of the
protections the statutory scheme has in place to protect the rights of
trustors to challenge the foreclosure prior to the sale. Second, we
outline the high burden trustors face in challenging foreclosure
proceedings after the trustee sale has taken place, and clarify the
differences between void, voidable, and valid deeds. Finally, we
hold that the trustee’s deed in this case is valid.
4 In 2011, the Utah legislature adopted Utah Code section 57-1-
23.5, which provides that “a person who does not qualify as a trustee
under Subsection 57-1-21(1)(a)(i) or (iv) . . . [and] conducts an
unauthorized sale is liable to the trustor for the actual damages
suffered by the trustor as a result of the unauthorized sale or $2,000,
whichever is greater.”
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A. Before the Sale: Notice of Default and Statutory Right
to Cure the Default
¶16 In most cases, Utah law requires “that a trustor assert her
rights before the trustee’s sale.” Reynolds v. Woodall, 2012 UT App
206, ¶ 16, 285 P.3d 7. This “is consistent with the statutory right to
cure the default, which also must be exercised during the three-
month grace period before a trustee’s sale is held.” Id. (citing Utah
Code section 57-1-24’s requirement that a trustee record notice of
default at least three months before giving notice of sale, and section
57-1-31’s requirement that the trustor cure the default within three
months of the notice of default). Indeed, a trustor “may by
acquiescence and failure to assert his rights at the proper time be
estopped to set up irregularities in the foreclosure proceedings to
defeat rights of the purchaser.” Am. Falls Canal Sec. Co. v. Am. Sav. &
Loan Ass’n, 775 P.2d 412, 414 (Utah 1989) (citation omitted).
¶17 This is so because, “[w]hen . . . title to real property is at
issue, the need for finality is at its apex.” Am. Estate Mgmt. Corp. v.
Int’l Inv. & Dev. Corp., 1999 UT App 232, ¶ 10, 986 P.2d 765. Utah law
presumes that “a trustee’s deed, which states that it complies with
the statutory requirements, is ‘conclusive evidence in favor of bona
fide purchasers’ of the trustee’s deed’s validity.” RM Lifestyles, LLC v.
Ellison, 2011 UT App 290, ¶ 17 n.5, 263 P.3d 1152 (quoting Utah Code
Annotated section 57-1-28(2)(c)(ii)). See also Blodgett v. Martsch, 590
P.2d 298, 303 (Utah 1978) (“Our statutes protect a bona fide
purchaser at a public sale under a trust deed, by permitting him to
rely on the recitals in the deed he receives from the trustee after the
sale.”); Reynolds, 2012 UT App 206, ¶ 15 (“Absent . . . exceptional
circumstances, the proper remedy is to seek an injunction prior to a
sale, which allows a debtor to challenge irregularities and protect her
rights before the sale is completed and a trustee’s deed is executed
and delivered to the purchaser.”).
¶18 Utah Code section 57-1-21 lays out the requirements for a
person to qualify as a trustee and was presumably designed to make
it “easier for Utahns to meet with trustees” and ask questions about
the notice of default, curing the default, or any other issues that may
arise prior to the sale. Kleinsmith v. Shurtleff, 571 F.3d 1033, 1048 (10th
Cir. 2009). However, the time when a trustor needs to contact the
trustee with these questions is before the foreclosure sale, not after.
Raising any issues with the foreclosure process prior to the sale
furthers the policy of “protecting the validity of trustee’s deeds, thus
promoting bidding at trustee’s sales and improving the chances that
a sale will be for fair market value.” Reynolds, 2012 UT App 206,
¶¶ 16, 18 (refusing to set aside a trustee sale in part because the
trustor did not seek “an injunction to allow her to challenge the
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Opinion of the Court
alleged inadequacy of notice ‘before the sale was completed and a
trustee’s deed was executed.’” (citation omitted)). Failing to
challenge a trustee sale prior to the sale does not foreclose relief, but
the trustor faces a much higher burden once the sale has taken place.
B. Trustor’s Remedy After the Sale
¶19 In this case, the Adamsons attempt to set aside a trustee sale
after it has been completed. The district court, looking to a treatise on
real estate law, concluded that there are three categories of trustee’s
deeds: void, voidable, and valid. The district court determined that,
because the trustee did not meet all of the statutory requirements
and was thereby not a qualified trustee, the trustee’s deed was void.
We clarify the distinction between these categories in Utah.
¶20 Once a trustee sale is completed, “[t]he remedy of setting
aside the sale will be applied only in cases which reach unjust
extremes.” Concepts, 743 P.2d at 1159. We have previously held that
there are three categories of deeds: void, voidable, and valid. If a
deed is declared void, it “cannot be ratified or accepted, and anyone
can attack its validity in court.” Ockey v. Lehmer, 2008 UT 37, ¶ 18,
189 P.3d 51 (citations omitted). A void deed “carries no title on
which a bona fide purchaser may rely, whereas a [voidable deed]
may be the basis of good title in the hands of a bona fide purchaser
who gave value prior to the time the deed was avoided by the
grantor.” Bennion Ins. Co. v. 1st OK Corp., 571 P.2d 1339, 1341 (Utah
1977). A voidable deed “is valid against the world, . . . because only
the injured party has standing to ask the court to set it aside.” Ockey,
2008 UT 37, ¶ 18 (citations omitted). A deed is valid and not void or
voidable if it results from only inconsequential errors that do not
affect the validity of the sale.
¶21 This court has recognized only one kind of deed as void ab
initio; i.e., a deed that violates public policy. Id. ¶¶ 18–20 (“Only
[deeds] that offend public policy or harm the public are void ab
initio.” (citation omitted)). In Ockey, we analyzed whether a deed
was void, as opposed to voidable, by looking at two factors:
1) legislative statements of public policy, and 2) whether the
conveyance “harmed the public as a whole.” Id. ¶¶ 19, 23–24 (Deeds
“that offend an individual, such as those arising from fraud,
misrepresentation, or mistake, are voidable.”). In that case, a trustee
conveyed real property from a trust when that trustee lacked the
authority to do so. Id. ¶ 17. We held that even though such an action
was ultra vires, the deed was only voidable, not void ab initio. Id. ¶ 24.
¶22 If a deed is not void ab initio, our holding in Concepts sets
forth the method for attacking a trustee’s deed as voidable. We held
in Concepts that “[a] sale once made will not be set aside unless the
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interests of the debtor were sacrificed or there was some attendant
fraud or unfair dealing.” 743 P.2d at 1160; cf. Gregorakos v. Wells Fargo
Nat’l Ass’n, 647 S.E.2d 289, 292 (Ga. Ct. App. 2007) (“[A] plaintiff
asserting a claim of wrongful foreclosure [must] establish a legal
duty owed to it by the foreclosing party, a breach of that duty, a
causal connection between the breach of that duty and the injury it
sustained, and damages.” (second alteration in original) (citation
omitted)).
¶23 Unless there is evidence of fraud or other unfair dealing, the
trustor is required to show he suffered prejudice from some defect in
the sale in order to state a claim for relief. See Reynolds, 2012 UT App
206, ¶ 16 (“[T]o . . . state[] a claim upon which relief can be granted,
[trustor] must have asserted that she suffered prejudice as a result of
the failure to file a substitution of trustee until after the trustee’s
sale.”); RM Lifestyles, 2011 UT App 290, ¶ 18 (“[Trustors] did not
produce any evidence that the alleged irregularity resulted in their
receiving defective notice of the sale or in any other way affected
their ability to protect their rights.”); Occidental/Nebraska Fed. Sav.
Bank v. Mehr, 791 P.2d 217, 221 (Utah Ct. App. 1990) (“[Trustee]
failed to comply strictly with the procedural requirements that
should precede a trustee’s sale. However, the steps taken afforded all
parties the rights and protections the statutory requirements for a
nonjudicial foreclosure were intended to ensure.”); accord Amresco
Indep. Funding, Inc. v. SPS Props., LLC, 119 P.3d 884, 886–87 (Wash.
Ct. App. 2005) (“Despite the strict compliance requirement, a
plaintiff must show prejudice before a court will set aside a trustee
sale.”).
¶24 A trustor must prove prejudice when the trustor alleges
some failure of the trustee to strictly comply with the statutory
requirements of the Trust Deed Act, or some other deficiency in the
sale. See, e.g., Timm v. Dewsnup, 2003 UT 47, ¶¶ 34–37, 86 P.3d 699
(holding failure to strictly comply with notice requirements not
sufficient to set aside trustee’s deed without showing of prejudice);
Concepts, 743 P.2d at 1161 (holding that typographical error in the
statutory notice of sale did not prejudice the trustor). Prejudice alone
is not enough; the trustor must also establish a causal connection
between the defect and the prejudice. See Timm, 2003 UT 47, ¶ 37
(“Whatever irregularities [the trustor] may allege in the technicalities
of the notice requirement, they are immaterial if she does not
demonstrate that she was unable to protect her interests, or if there
were a resulting ‘effect of chilling the bidding and causing an
inadequacy of price.’”); Pierucci v. U.S. Bank, NA, 2015 UT App 80,
¶ 14, 347 P.3d 837 (“It is insufficient for the [the trustors] to allege
that their interests in the property were affected; rather, they must
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Opinion of the Court
allege that an irregularity in the sale—such as deficient notice or
fraud in connection with the sale—prevented them from protecting
their interest in the property.”); Jones v. Johnson, 761 P.2d 37, 41 n.2
(Utah Ct. App. 1988) (“‘[S]ubstantial inadequacy of price, coupled
with fraud, mistake, or other unfair dealing’ can be the basis for
setting aside a foreclosure sale.” (citations omitted)); accord Gilroy v.
Ryberg, 667 N.W.2d 544, 555 (Neb. 2003) (“[T]o establish a defect that
renders the trustee’s sale voidable, the party seeking to set aside the
sale must show not only the defect, but also that the defect caused
the party prejudice. If the party did not suffer any harm from the
alleged defect, there is no justification for imposing the additional
costs associated with setting aside the sale.”); 55 AM. JUR. 2D,
Mortgages § 565 (“To establish a defect that renders the trustee’s sale
under a trust deed voidable, the party seeking to set aside the sale
must show not only the defect, but also that the defect caused the
party prejudice.”). If the defect does not cause prejudice, then the
error is considered inconsequential and the trustee’s deed is valid.
¶25 If the trustor does not make any challenges prior to
completion of the sale, but the deed is still voidable because of fraud
or prejudice connected to the sale defect, the sale will be set aside
only if the title has not yet passed into the hands of a bona fide
purchaser. 5 This is because “[o]ur statutes protect a bona fide
purchaser at a public sale under a trust deed, by permitting him to
rely on the recitals in the deed he receives from the trustee after the
sale.” Blodgett, 590 P.2d at 303. Utah Code section 57-1-28(2)(c)
provides that the trustee’s deed recitals “constitute prima facie
evidence of compliance with [the Trust Deed Act] and . . . are
conclusive evidence in favor of bona fide purchasers and
encumbrancers for value and without notice.”
¶26 Therefore, once a bona fide purchaser has acquired the
property, the only remedy left to a trustor under a voidable deed is
damages from the party causing the injury. See Blodgett, 590 P.2d at
303–04 (holding that the sale could be set aside if the property had
not been sold to a bona fide purchaser; otherwise the trustor could
receive unjust enrichment damages); accord Swindell v. Overton, 314
S.E.2d 512, 517 (N.C. 1984) (“[W]here the defect in a foreclosure sale
renders the sale voidable, as in the case at bar, the [trustor’s] right of
redemption can be cut off if the land is bought by a bona fide
5 Because we conclude that the defect in this case—failure to
comply with Utah Code section 57-1-21—did not prejudice the
Adamsons and therefore the trustee’s deed is valid, we do not
address the bona fide purchaser status of BAC Home Loans
Servicing and subsequent purchasers of the property.
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purchaser for value without notice. In such instances, a plaintiff is
left with an action for damages against the trustee as his only
remedy.”); Peterson v. Kansas City Life Ins. Co., 98 S.W.2d 770, 775
(Mo. 1936) (“[A] suit for damages at law is an especially appropriate
remedy where an innocent purchaser buys at foreclosure, because it
gives relief against the guilty rather than the innocent party.”);
GRANT NELSON ET AL., REAL ESTATE FINANCE LAW § 7:21 (6th ed. 2014)
(“If the defect only renders the sale voidable, the redemption rights
can be cut off if a bona fide purchaser for value acquires the land.
When this occurs, an action for damages against the foreclosing
mortgagee or trustee may be the only remaining remedy.”).
C. The District Court Erred in Dismissing the
Unlawful Detainer Action
¶27 Although the district court found that Distressed Asset had
made a prima facie case for unlawful detainer, it concluded
ReconTrust’s failure to satisfy Utah Code section 57-1-21 rendered
the trustee sale void, and dismissed the unlawful detainer action.
The district court noted our precedent from Concepts that “[a] sale
once made will not be set aside unless the interests of the debtor were
sacrificed or there was some attendant fraud or unfair dealing,” 743
P.2d at 1160, but it found precedent from a Utah Territory case from
1880 and a court of appeals case to be more persuasive.
¶28 In Singer Manufacturing Co. v. Chalmers, 2 Utah 542 (Utah
Terr. 1880), the deed of trust required a United States Marshal to act
as trustee and perform the sale. Id. at 546–47. At the trustee sale, the
Marshal was not present and instead one of his deputies auctioned
off the property. The deputy was not appointed nor authorized to act
as trustee. The territorial court held
The fact that no injury or fraud in the sale has been
shown, does not affect the question. Nor is it affected
by the fact that the purchaser was an innocent party.
The sale was made by one not authorized to make it,
and cannot be upheld. It is simply void, and no one
gains any rights under it.
Id. at 547.
¶29 Singer was issued by the territorial court long before the
Trust Deed Act was passed and even before Utah became a state.
While it is persuasive authority, it is not binding as we are applying
the Trust Deed Act in this case. The district court erred in applying
this case to supersede our analysis in Concepts.
¶30 Additionally, Singer is distinguishable from the present case.
In Singer, the marshal, as trustee of the trust deed, held legal title to
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the property, but he did not sell it; instead, a person without a legal
relationship to the parties or the property completed the sale. Here,
Bank of America correctly argues that ReconTrust “was duly
appointed by the beneficiary under the deed of trust to act as
successor trustee,” and as such it “held legal title to the property by
virtue of its status as trustee.” See UTAH CODE § 57-1-19(4) (A
“trustee” is defined in the Trust Deed Act as “a person to whom title
to real property is conveyed by trust deed, or his successor in
interest.”). Aside from not meeting the local office requirement of
Utah Code section 57-1-21, ReconTrust satisfied all other
requirements of the Trust Deed Act and qualifies under the National
Bank Act as a trustee. ReconTrust owed legal duties to both
Mr. Adamson as trustor and the bank as beneficiary, and was
required to provide proper notice of default and to allow the
Adamsons the chance to redeem before the sale, all of which it did.
See UTAH CODE §§ 57-1-24 and 57-1-31.
¶31 The case of McQueen v. Jordan Pines Townhomes Owners
Association, Inc., 2013 UT App 53, 298 P.3d 666, is similarly
inapplicable to the present case. In McQueen, a condominium
association foreclosed on a condominium owner because of unpaid
association fees. Id. ¶¶ 2-3. The Condominium Ownership Act
incorporated the Trust Deed Act’s requirements for nonjudicial
foreclosures of assessment liens. See id. ¶ 17. The court of appeals
held that the association was therefore required to “appoint a
qualified trustee to conduct the sale or foreclosure of a condominium
owner’s interest in the unit.” Id. The association failed to strictly
comply with the Trust Deed Act’s requirement to formally appoint a
trustee by filing a substitution of trustee in the county recorder’s
office. It simply had its attorney conduct the foreclosure process and
sale. However, the association “act[ed] through its attorney,” id. ¶ 3,
whom the association argued was “legally authorized to act on its
behalf and conduct the foreclosure sale,” id. ¶ 19.
¶32 Despite noting that the Trust Deed Act’s requirement for the
formal appointment of a qualified trustee is a procedural
requirement similar to the requirement for “proper notice,” the court
of appeals did not conduct any of the analysis required under
Concepts. Id. ¶ 11. It simply determined that the foreclosure was not
conducted in strict compliance with the Trust Deed Act because the
sale was not conducted by a qualified trustee, and that the trustee’s
deed was therefore invalid. Id. ¶¶ 19–21. This holding was based on
its analysis that “[t]he purpose of requiring the appointment of a
qualified trustee is to provide an independent third party who can
objectively execute a foreclosure or sale in the absence of judicial
oversight.” Id. ¶ 21. The court reasoned that the “underlying
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Opinion of the Court
rationale behind the trustee requirement thus strengthens our
conclusion that a party must appoint a qualified trustee in order to
enforce an assessment lien without judicial intervention.” Id.
However, we note that while a trustee certainly owes duties to both
the beneficiary and the trustor, nothing in the Trust Deed Act
requires the trustee to be an independent third party. In fact, the
Trust Deed Act implies just the opposite. Utah Code section 57-1-
21(2) states that “[t]he trustee of a trust deed may not be the
beneficiary of the trust deed, unless the beneficiary is qualified to be a
trustee under Subsection (1)(a)(ii), (iii), (v), or (vi).” (emphasis
added). Thus, it appears as though the legislature was more
concerned that the trustee be able to competently fulfill the
responsibilities of a trustee under the Trust Deed Act, than with the
trustee’s status as an independent third party. 6
¶33 Additionally, in McQueen, the attorney seems to have had
actual authority to conduct the sale. This appears to have been an
informal appointment of the attorney as trustee, even if it did not
strictly comply with the Trust Deed Act’s requirement that the
appointment be filed in the county recorder’s office. See UTAH CODE
§ 57-1-22(1)(a) (“The beneficiary may appoint a successor trustee at
6 This is further supported by the fact that the Trust Deed Act
authorizes the beneficiary under a trust deed to appoint or substitute
a trustee at any time and that a trustee may be an attorney licensed
in the state of Utah with an office in this state. UTAH CODE § 57-1-
21(1)(a)(i) & -22(1). Nothing in the Trust Deed Act prevents an
association from appointing its own attorney as the trustee to
conduct the foreclosure. McQueen’s holding is further undermined
by Utah Code section 57-1-22(1)(c), which allows a beneficiary to
“ratify and confirm an action taken on the beneficiary’s behalf by the
new trustee prior to the recording of the substitution of trustee.” This
confirms our prior precedent concerning void and voidable deeds.
“A contract or a deed that is void cannot be ratified or accepted . . . .
In contrast, a contract or deed that is voidable may be ratified at the
election of the injured party.” Ockey v. Lehmer, 2008 UT 37, ¶ 18, 189
P.3d 51.
We acknowledge that there is some concern that a trustee may
not adequately protect the interests of the trustor. However, the
beneficiary’s and the trustor’s interests are often aligned— both want
the highest price at the sale. In those instances where they are not
aligned, the trustee must still avoid fraud and unfair dealing that
“would have the effect of chilling the bidding and causing an
inadequacy of price.” Concepts, Inc. v. First Sec. Realty Servs., Inc., 743
P.2d 1158, 1159 (Utah 1987).
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BANK OF AMERICA v. ADAMSONS
Opinion of the Court
any time by filing an appointment of trustee or a substitution of
trustee for record in the office of the county recorder . . . .”); id. § 57-
1-22(1)(c) (“The beneficiary may, by express provision in the
appointment of trustee or substitution of trustee, ratify and confirm
an action taken on the beneficiary’s behalf by the new trustee prior to
the recording of the substitution of trustee.”). Thus, the proper
question in McQueen was whether the trustor was prejudiced by the
beneficiary’s failure to strictly comply with the Trust Deed Act. To
set aside a trustee’s deed, a court must determine whether the
trustee’s deed was void as against public policy, or voidable because
of fraud, unfair dealing, or that the trustor suffered prejudice due to
some defect in the sale, such as the trustee’s failure to strictly comply
with the Trust Deed Act. We overrule McQueen to the extent that it
implies otherwise. The court of appeals’ analysis of the remedy for
lack of a qualified trustee has no bearing on this case.
¶34 In the present case, the Adamsons do not present any
arguments as to how the trustee’s deed violated public policy. We
therefore hold that the district court erred in declaring the trustee
sale void. We must still determine, however, whether the deed is
voidable or valid. For the deed to be voidable, the trustor must show
evidence of fraud or other unfair dealing, or that a defect prejudiced
the trustor. Fraud or unfair dealing were never alleged in this case,
so we limit our inquiry to whether Mr. Adamson suffered prejudice
from ReconTrust’s failure to comply with Utah Code section 57-1-21.
¶35 ReconTrust was properly appointed by the beneficiary as
successor trustee and held legal title to the property. The only issue
is whether ReconTrust’s failure to maintain an office in the state of
Utah prejudiced the Adamsons. The record reflects that
Mr. Adamson did not suffer prejudice caused by ReconTrust’s status
as an out-of-state trustee and therefore does not qualify for damages
and cannot move to set aside the sale. Mr. Adamson claims that
“because [neither] ReconTrust nor Bank of America has an office in
the State of Utah, Mr. Adamson paid Fortified Financial the sum of
$3,700.00 to make contact with Bank of America and assist the
Adamsons with negotiations for a loan modification.”
¶36 But this assertion does not explain why ReconTrust’s status
as out-of-state trustee led to Mr. Adamson’s actions or prejudiced
him. His negotiations with Bank of America to obtain a loan
modification are irrelevant to the question of whether ReconTrust’s
failure to comply with section 57-1-21 prejudiced Mr. Adamson’s
rights in the foreclosure process. The record reflects that although
ReconTrust properly sent Mr. Adamson notice of the foreclosure and
the sale date, and Mr. Adamson had ReconTrust’s phone number on
the notice of default, he never attempted to contact ReconTrust
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Opinion of the Court
before the scheduled sale date, and did not attend the sale.
Additionally, Mr. Adamson did not seek an injunction or file a
lawsuit prior to the sale. It was not until after the sale that
Mr. Adamson contacted ReconTrust by telephone. In order to show
prejudice, Mr. Adamson would have to show that he would have
gone to a brick-and-mortar office in Utah if such an office were
available, and that this would have changed the outcome of the sale.
There is no evidence in the record that Mr. Adamson would have
gone in person to ReconTrust’s office, especially in light of the fact
that although ReconTrust’s phone number was included on the
notice of default, Mr. Adamson did not even attempt to contact
ReconTrust until after the sale. And even if he were to personally
visit such an office, there is no evidence that this would have
changed the outcome of the foreclosure sale, as there is no evidence
in the record that Mr. Adamson was capable of curing the default. 7
Therefore, this sale was not voidable and the Adamsons may not
seek to set it aside or qualify for damages. The district court erred in
dismissing the unlawful detainer action by finding the trustee’s deed
to be void.
¶37 As a final note, in 2011, after the trustee sale took place, the
Utah legislature adopted Utah Code section 57-1-23.5, which
provides that “a person who does not qualify as a trustee under
Subsection 57-1-21(1)(a)(i) or (iv) . . . [and] conducts an unauthorized
sale is liable to the trustor for the actual damages suffered by the
trustor as a result of the unauthorized sale or $2,000, whichever is
greater.” This statutory remedy is not retroactive, however, and is
not applicable to the present case.
CONCLUSION
¶38 Today we clarify the differences between void, voidable,
and valid trustee’s deeds under Utah law. The trustee sale and
resulting trustee’s deed at issue in this case are neither void nor
voidable. The district court erred in dismissing the unlawful detainer
action, and we therefore reverse and remand for further proceedings
consistent with this opinion.
7Mr. Adamson was trying to negotiate a loan modification with
Bank of America, but Bank of America was not required to accept
such a modification after Mr. Adamson received the notice of
default. At that point, Mr. Adamson’s statutory right of redemption
required curing the default.
15