Wells Fargo Bank v. Jensen , 273 P.3d 383 ( 2012 )

IN THE UTAH COURT OF APPEALS
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Wells Fargo Bank, ) PER CURIAM DECISION
)
Plaintiff and Appellee, ) Case No. 20110993‐CA
)
v. )
) FILED
Stratton Jensen, LLC; and ) (February 16, 2012)
Michael Jensen, )
) 2012 UT App 40Defendants and Appellant. )
)
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Fifth District, St. George Department, 110501634
The Honorable Eric A. Ludlow
Attorneys: Michael Jensen, Hurricane, Appellant Pro Se
Marlon L. Bates and Christopher C. Hill, Salt Lake City, for Appellee
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Before Judges McHugh, Voros, and Orme.
¶1 Michael Jensen appeals the district court’s order granting Wells Fargo Bank’s
motion for summary judgment.1 This matter is before the court on its own motion for
summary disposition on the basis that the grounds for review are so insubstantial as not
to merit further proceedings and consideration by this court.
¶2 The district court correctly granted Wells Fargo’s motion for summary judgment.
In the first instance, Jensen failed to demonstrate that any material facts were
controverted.
1. Jensen filed the notice of appeal on his behalf individually and as “Guarantor for
Stratton Jensen, LLC.” Accordingly, because no notice of appeal was filed on behalf of
Stratton Jensen, LLC, it is not a party to this appeal.
When a motion for summary judgment is made and
supported as provided in this rule, an adverse party may not
rest upon the mere allegations or denials of the pleadings,
but the response, by affidavits or as otherwise provided by
this rule, must set forth specific facts showing that there is a
genuine issue for trial.
Utah R. Civ. P. 56(e); see also Archuleta v. Galetka, 2011 UT 73, ¶ 43, 267 P.3d 232. Here,
Wells Fargo filed a motion for summary judgment with a supporting affidavit in
accordance with the requirements of rule 56 of the Utah Rules of Civil Procedure.
However, in his response, Jensen failed to set forth any evidence to controvert the
specific facts set forth by Wells Fargo. Instead, Jensen merely raised vague allegations
unsupported by the evidence and denials of the material facts set forth by Wells Fargo.
These allegations were insufficient to demonstrate that there was an issue of fact
material to the issues set forth in the motion for summary judgment.
¶3 Further, Wells Fargo demonstrated that based upon the undisputed material
facts, it was entitled to judgment as a matter of law. See Utah R. Civ. P. 56(c). Jensen
raised two primary issues that he believed precluded summary judgment. First, he
argued that Wells Fargo did not demonstrate that it was a holder in due course because
it had failed to produce the original note. Jensen has not cited any single jurisdiction
that has adopted this “show‐me‐the‐note” argument, and we are aware of none. On the
contrary, courts have generally concluded that
where there is no evidence that photocopies of a note or
deed of trust are not exact reproductions of the original
instruments, a party need not present the original note or
deed of trust and may establish that it is the holder of the
instruments by presenting photocopies of the note or deed of
trust.
Dobson v. Substitute Trustee Servs., Inc., 711 S.E.2d 728, 730 (N.C. Ct. App. 2011); see also
Utah R. Evid. 1003 (“[a] duplicate is admissible to the same extent as an original” unless
a question is raised as to the duplicate’s authenticity, or it would be unfair to admit the
duplicate); Cadle Co. v. Errato, 802 A.2d 887, 896 (Conn. App. Ct. 2002) (stating that “the
production of a photocopy of a note, rather than the original, may suffice to establish a
plaintiff’s status as a holder in due course”); Mark v. Household Fin. Corp. III, 296 S.W.3d
838, 842 (Tex. App. 2009) (stating that “‘a photocopy of a note attached to the affidavit
of the holder, who swears that it is a true and correct copy of the note, is sufficient as a
matter of law to prove the status of owner and holder of the note absent controverting
20110993‐CA 2
summary judgment evidence’” (citation omitted)); accord McGinnis v. GMAC Mortg.
Corp., No 2:10cv301‐TC, 2010 WL 3418204 at *2 (D. Utah Aug. 27, 2010) (“Utah law on
non‐judicial foreclosure contains no requirement that the beneficiary produce the actual
note in order to authorize the trustee to foreclose on the property secured by the note.”).
Jensen failed to raise any facts that would bring into question the authenticity of the
duplicate. Accordingly, the district court properly relied upon the duplicate in deciding
the motion for summary judgment.
¶4 Jensen also argues that the district court erred in relying on the affidavit of a
Wells Fargo loan adjuster, which was submitted in support of the motion for summary
judgment, because the affidavit was based upon hearsay statements. Specifically,
Jensen asserts that the affidavit was not based upon personal knowledge, but instead
was based largely on corporate documents. However, the documents relied upon
“constitute business records and are not inadmissible hearsay under the
circumstances.” Superior Receivable Servs. v. Pett, 2008 UT App 225, ¶ 10, 191 P.3d 31; cf.
Utah R. Evid. 803(6) (excepting records of regularly recorded business activity from the
prohibition on hearsay). Thus, the district court properly relied on the loan adjuster’s
affidavit in resolving the motion for summary judgment.
¶5 Affirmed.2
____________________________________
Carolyn B. McHugh,
Presiding Judge
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J. Frederic Voros Jr.,
Associate Presiding Judge
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Gregory K. Orme, Judge
2. To the extent Jensen’s memorandum in opposition to the motion for summary
disposition could be construed as raising additional issues not specifically discussed
above, Jensen has failed to demonstrate that these issues raise a substantial question for
review, and are thus rejected.
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