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Bank of West v. Whitney
United States District Court, D. Utah, Central Division
March 9, 2018
BANK OF THE WEST, Plaintiff,
NEWELL K. WHITNEY; CONNIE T. WHITNEY; Newell and Connie Whitney, Trustees of THE NEWELL AND CONNIE WHITNEY TRUST; FOX RUN, LLC; FR-1AB, LLC; FR-2AB, LLC, FR-3AB, LLC; FR-4AB, LLC; FR-5AB, LLC; FR-6AB, LLC; FR-7AB, LLC; FR-8AB, LLC; FR-9AB, LLC; FR-10AB, LLC; FR-11AB, LLC; FR-12AB, LLC; FR-AIRLINE, LLC; FR-CCW, LLC; FR-CW, LLC; FR-DORSET, LLC; F.R. MIDRAIL, LLC; RD-SSTAX, LLC; FR-NAUVOO, LLC; FR-EAGLEWOOD, LLC; NC WHITNEY, LTD; FR-CASTLE, LLC; FR-CW LOTS, LLC; CENTRAL PROPERTY MANAGEMENT, LLC; AND NKW, LLC, Defendants.
C. Wells Magistrate Judge.
MEMORANDUM DECISION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS' MOTION TO RELEASE NOTICES OF
Waddoups United States District Judge.
Motion to Release Notices of Lis Pendens came before the
court for hearing on January 24, 2018. After considering the
parties' memoranda, the record, relevant legal authority,
and hearing oral argument, the court GRANTS IN PART and
DENIES IN PART defendants' motion. (ECF No. 186.)
Plaintiff is ordered to release all notices of lis pendens it
filed in connection with this case; however, defendants are
not awarded statutory damages and attorneys' fees.
action, Bank of the West seeks to impose “a resulting
trust on all of the assets of the Whitney Entities, ”
(see Complaint, ¶ 97, ECF No. 2), and “to
reverse pierce the corporate veils of the Whitney
Entities” so that Bank of the West may execute against
the Whitney entity assets to satisfy a judgment it has
against Newell Whitney individually. (Id., ¶
109). In connection with the claims in this case, Bank of the
West filed a notice of lis pendens against Whitney entity
assets in the Utah County Recorder's Office on March 10,
2017. The substantive portion of the Utah County notice
PLEASE TAKE NOTICE that Bank of the West has filed a
Complaint in the above-referenced lawsuit seeking relief
that, if granted, will affect title to the real property
described on Exhibit A attached hereto. In this action Bank
of the West seeks an order that defendant Newell K. Whitney
is the alter ego of the owners of the real property listed on
Exhibit A. Bank of the West also seeks an order imposing a
resulting trust on the properties listed on Exhibit A, of
which Newell K. Whitney is the sole beneficiary.
(ECF No. 175, Ex. 1.) There are three listed properties on
the Utah County notice:
1. 150 S. 400 E., American Fork, UT, owned by defendant
2. 839 Alpine Hwy, Alpine, UT, owned by defendant FR-Airline;
3. 747 West Ranch Circle, Alpine, UT, owned by The Newell and
Connie Whitney Trust defendant.
also discovered that Bank of the West filed a substantively
identical notice of lis pendens in the Salt Lake County
Recorder's Office on March 10, 2017. Bank of the West did
not give notice to defendants of this filing. The property
identified on the Salt Lake County notice is:
1. 357 W. 6160 S. #8, Murray, UT, owned by defendant FR
Midrail. (Id., Ex. 2.) At issue is whether plaintiff
properly filed its notices in an action of this type, and, if
not, whether defendants are entitled to statutory damages and
PLAINTIFF IMPROPERLY FILED ITS ...