United States District Court, D. Utah
BRIAN K. LEWIS and MARIDETH LEWIS, Plaintiffs,
CALIBER HOME LOANS, INC., a foreign corporation; and LSF9 MASTER PARTICIPATION TRUST, Defendants.
MEMORANDUM DECISION AND ORDER
A. KIMBALL, United States District Judge
Judge Dale A. Kimball This matter is before the court on
Defendants Caliber Home Loans, Inc., and LSF9 Master
Participation Trust (collectively “Defendants”)
motion for summary judgment. On January 16, 2018, the court
held a hearing on the motion. At the hearing, the Plaintiffs
Brian K. Lewis and Marideth Lewis were represented by James
A. Sorenson and the Defendants were represented by Keith S.
Anderson and Heidi G. Goebel. The court took the motion under
advisement. Based on the briefing filed by the parties and
the law and facts relevant to the pending motion, the court
issues the following Memorandum Decision and Order GRANTING
the Defendants' Motion for Summary Judgment.
January 11, 2008, Chris B. Adams executed a promissory note
(“Note”) in favor of Taylor, Bean & Whitaker
Mortgage Corp. in the principal sum of Two-Hundred Thirty
Five Thousand Dollars ($235, 000.000). The Borrower also
executed a deed of trust securing the Note.
Note was assigned multiple times and the Note is now serviced
by Caliber Home Loans. The original Borrower also assigned
his or her interest and obligations of the Note to Brian K.
Lewis and Marideth Lewis.
September 1, 2009, the original Borrower defaulted on the
loan. On March 16, 2010, the Borrower filed a Chapter 7
Bankruptcy Petition. On April 12, 2010, the Lender recorded a
Notice of Default in the Office of the Recorder of Juab
about May 1, 2014, the Lender filed a Notice of Rescission of
the Notice of Default and Election to Sell Under Deed of
Trust, rescinding, cancelling, and withdrawing the April 12,
2010 Notice of Default that was recorded in the Office of the
Recorder in Juab County, Utah. On the very same day as the
cancellation was recorded, the Lender filed a new Notice of
Default and reaccelerated the debt.
about July 26, 2016, the Defendant posted an Amended Notice
to Conduct a Trustee's Sale of the Property on September
15, 2016. On or about July 27, 2017, an Assignment of Deed of
Trust from Nationstar Mortgage, LLC to U.S. Bank Trust (LSF9
Master Participation Trust) was recorded in the Office of the
Recorder of Juab County, Utah. The Plaintiffs bring this
action seeking a declaratory judgment for quiet title to the
property asserting that the statute of limitations has
expired for collecting on the Note.
court grants summary judgment when “the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The court “view[s] the evidence and
make[s] all reasonable inferences in the light most favorable
to the nonmoving party.” N. Natural Gas Co. v. Nash
Oil & Gas, Inc., 526 F.3d 626, 629 (10th Cir. 2008).
assert that they are entitled to a declaratory judgment
granting them quiet title to the residence because the
statute of limitations for collecting on the mortgage has
expired. The Defendants filed this motion for summary
judgment asserting that the Plaintiffs failed to state a
claim because the statute of limitations has not yet expired.
current version of Utah Code Annotated Section 57-1-34, which
went into effect on May 10, 2016, provides that “[a]
person shall, within the period prescribed by law for the
commencement of an action on an obligation secured by a trust
deed: (1) commence an action to foreclose the trust deed; or
(2) file for record a notice of default under Section
57-1-24.” Under the pre-May 10, 2016 version of Utah
Code Annotated Section 57-1-34, “[t]he Trustee's
sale of property under a trust deed, or an action to
foreclose a trust deed as provided by law for the foreclosure
of mortgages on real property shall be commenced, within the
period prescribed by law for the commencement of an action on
the obligation secured by the trust deed.”
action, the parties dispute which “period prescribed by
law, ” i.e. statute of limitation, applies to
Defendant's proposed foreclosure of Plaintiffs'
property. Plaintiffs assert that the six-year statute of
limitation under Utah Code Annotated Section 78B-2-309 for an
action on a written agreement should ...