opinion is subject to revision before final publication in
the Pacific Reporter
Direct Appeal Third District, Salt Lake The Honorable Judge
Bruce C. Lubeck No. 110408730 EV
S. Volchok, Washington, D.C., Brian E. Pumphrey, Richmond,
VA, Robert H. Scott, Salt Lake City, for appellant.
Ayers, Draper, J. Kent Holland, Sandy, Scott C. Borison,
Frederick, MD, for appellees.
Justice Pearce authored the opinion of the Court, in which
Chief Justice Durrant, Associate Chief Justice Lee, Justice
Himonas, and Justice Petersen joined.
1 Location, location, location are, at least according to
Lord Harold Samuel, the three things that matter most in real
estate. Location is also the thing that matters the most in
this case. The National Bank Act authorizes a national bank
to perform certain fiduciary functions if the law of the
state where the national bank is located permits competing
entities to engage in those activities. In 2013, a majority
of this Court opined that the word "located" was
unambiguous. With the benefit of more focused briefing we
conclude that, as used in the Act, located lends itself to at
least two plausible meanings. Because we find Congress's
use of the word ambiguous, we must defer to the "not
unreasonable" interpretation the Comptroller of the
Currency has assigned to the word located. Applying that
definition, we overturn the decision we reached when this
case was before us on interlocutory review. We reverse and
remand for further proceedings.
2 Loraine Sundquist purchased a home in Utah. At the time of
the purchase, she executed a deed of trust, in Utah, naming
Mortgage Electronic Registration Systems, Inc. (MERS) as
beneficiary. The deed of trust named an attorney as trustee.
ReconTrust Company, N.A. (ReconTrust) later replaced the
attorney as trustee.
3 Sundquist fell behind on her payments. ReconTrust elected
to sell the property. The beneficial interests were then
assigned to the Federal National Mortgage Association (FNMA).
ReconTrust, acting as the trustee on the deed, auctioned the
property. Bank of America, which later acquired FNMA's
interest in the property, asserts that ReconTrust was located
in Texas while it acted as the trustee. FNMA won the
auction and ReconTrust conveyed the property to FNMA.
4 After the sale, Sundquist refused to leave. FNMA brought
this action, seeking an order forcing Sundquist from her
home. FNMA also asked for damages allegedly arising out of
her decision to stay in the property after it had been sold.
The district court entered an eviction order.
5 Sundquist petitioned for interlocutory review. We granted
the petition, which we resolved in Federal National
Mortgage Ass'n v. Sundquist (Sundquist I), 2013 UT
45, 311 P.3d 1004. In that case, Sundquist asserted that the
sale was invalid because Utah law does not permit a bank to
act as a trustee on a trust deed. Id. ¶ 8. FNMA
countered that Texas law permitted ReconTrust to serve as the
trustee and that under the National Bank Act, Texas law
applied. Id. ¶ 9.
6 The outcome of the case rose and fell on the question of
whether Utah law applied. Under Utah law, only certain people
and entities can serve as a trustee of a trust deed-for
example, active attorneys and title insurance companies.
See Utah Code §§ 57-1-21, -
A bank, like ReconTrust, may not. In contrast, ReconTrust
argued that Texas law would have permitted ReconTrust to be
the trustee and oversee the property's sale.
Sundquist I, 2013 UT 45, ¶ 9.
7 The relevant portion of the National Bank Act reads:
(a) Authority of Comptroller of the Currency
The Comptroller of the Currency shall be authorized and
empowered to grant by special permit to national banks
applying therefor, when not in contravention of State or
local law, the right to act as trustee, executor,
administrator, registrar of stocks and bonds, guardian of
estates, assignee, receiver, or in any other fiduciary
capacity in which State banks, trust companies, or other
corporations which come into competition with national banks
are permitted to act under the laws of the State in which the
national bank is located.
(b) Grant and exercise of powers deemed not in contravention
of State or local law
Whenever the laws of such State authorize or permit the
exercise of any or all of the foregoing powers by State
banks, trust companies, or other corporations which compete
with national banks, the granting to and the exercise of such
powers by national banks shall not be deemed to be in
contravention of State or local law within the meaning of
12 U.S.C. § 92a(a)-(b) (emphasis added).
8 The central inquiry became, therefore, whether corporations
were permitted to serve as trustees of trust deeds
"under the laws of the State in which [ReconTrust] [was]
located." Id. § 92a(a). And this required
us to determine where ReconTrust was located. To suss out the
meaning of located, we consulted the Merriam-Webster online
dictionary. Sundquist I, 2013 UT 45, ¶ 23. We
relied on its definition of locate to conclude that the
statutory language was unambiguous and that "a national
bank is located in the place or places where it acts or
conducts business." Id.
9 We also decided that even if the statute's plain
language was not clear, two different canons of statutory
construction would dictate that Utah law applied.
Id. ¶ 30. The first canon provides that when
Congress delegates authority to agencies to make significant
decisions, it does so clearly and explicitly. FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120,
159-61 (2000). The second canon provides that we will not
find that Congress has intruded into traditional areas of
state law unless Congress does so explicitly. Gregory v.
Ashcroft, 501 U.S. 452, 460 (1991).
10 We opined that both of these canons suggested that
Congress did not intend to dictate what law would apply to a
foreclosure action. We concluded that real property is a
matter of "intensely local concern." Sundquist
I, 2013 UT 45, ¶ 37. And, because "a clear
statement of an intent to permit the laws of a foreign state
to regulate the manner and mode of a foreclosure sale in
another state should be required," Utah law governed
that matter. Id. We also concluded that the
"matter of authorizing one state to regulate
non-judicial sales for the foreclosure of real property in
another state would be monumental-hardly the sort of
interstitial administrative detail that Congress would likely
leave for an agency." Id. ¶ 38.
11 Because we concluded the statute was unambiguous, we had
no need to address whether under Chevron, U.S.A., Inc. v.
National Resource Defense Council, Inc., 467
U.S. 837 (1984), we were required to defer to the
agency's interpretation. Sundquist I, 2013 UT
45, ¶¶ 39-40. In relevant part, the regulation
For each fiduciary relationship, the state referred to in
section 92a is the state in which the bank acts in a
fiduciary capacity for that relationship. A national bank
acts in a fiduciary capacity in the state in which it accepts
the fiduciary appointment, executes the documents that create
the fiduciary relationship, and makes discretionary decisions
regarding the investment or distribution of fiduciary assets.
nevertheless examined the Comptroller's interpretation of
the statute and decided that the regulation was unreasonable.
We reasoned that:
[T]here is nothing in the statute itself that ascribes any
particular significance of these three particular acts, while
rendering other acts undertaken by the bank irrelevant.
Moreover, the three activities identified in the regulation
could theoretically be performed in any location without
regard to the location of the trust property, thereby
allowing national banks to dictate the applicable law.
Id. ¶ 42.
12 Ultimately, we concluded that "[a] state bank which
seeks to foreclose on real property in Utah must comply with
Utah law. A federally chartered "bank" which seeks
to foreclose on such property must comply with Utah law as
well." Id. ¶ 51 (alteration in original)
13 After our decision, FNMA petitioned for certiorari to the
United States Supreme Court. The court called for briefing
from the Solicitor General. Although sharply disagreeing with
our opinion- and our conclusion that located was an
unambiguous term-the Solicitor General suggested that the
Court deny certiorari because, in part, our decision was not
final. Brief for the United States as Amicus Curiae at 1,
7-11, 16, Federal Nat'l Mortg. Ass'n v. Sundquist
(Sundquist II), 134 S.Ct. 475 (2014) (No.
13-852), 2014 WL 4979386, at *8-12, *16. The Court then
denied certiorari. Sundquist II, 134 S.Ct. 475.
14 FNMA transferred its interest in the property to Bank of
America through a quitclaim deed. The district court quieted
title in favor of Sundquist. Bank of America appeals.
AND STANDARD OF REVIEW
15 To decide this appeal, we must determine what the National
Bank Act means by the term "located" in 12 U.S.C.
section 92a(a). "We review questions of statutory
interpretation for correctness, affording no deference to the
district court's legal conclusions." Marion
Energy, Inc. v. KFJ Ranch P'ship, 2011 UT 50, ¶
12, 267 P.3d 863 (citation omitted).
Exceptional Circumstances Permit Us to Revisit Sundquist
16 Before we reach the merits of the underlying dispute, we
must confront a threshold question: does our decision in
Sundquist I bind our hands in this matter. Sundquist
argues that under the law of the case doctrine, Sundquist
I both begins and ends our analysis.
Under [the law of the case doctrine], a court is justified in
refusing to reconsider matters it resolved in a prior ruling
in the same case for reasons of efficiency and consistency. .
. . The exceptional circumstances under which courts have
reopened issues previously decided are narrowly defined: (1)
when there has been an intervening change of controlling
authority; (2) when new evidence has become available; or (3)