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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,
v.
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.

          Brooke C. Wells Magistrate Judge.

          MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO RELEASE NOTICES OF LIS PENDENS

          Clark Waddoups United States District Judge.

         Defendant's 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.

         BACKGROUND

         In this 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 reads:

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 FR-Airline;
2. 839 Alpine Hwy, Alpine, UT, owned by defendant FR-Airline; and
3. 747 West Ranch Circle, Alpine, UT, owned by The Newell and Connie Whitney Trust defendant.

         Defendants 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 attorneys' fees.

         ANALYSIS

         I. PLAINTIFF IMPROPERLY FILED ITS ...


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