Security National v. Brunson , 348 P.3d 746 ( 2015 )

2015 UT App 102THE UTAH COURT OF APPEALS
SECURITY NATIONAL LIFE INSURANCE COMPANY,
Plaintiff and Appellee,
v.
SALINA BRUNSON AND RALAND BRUNSON,
Defendants and Appellant.
Per Curiam Decision
No. 20141150-CA
Filed April 23, 2015
Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 120412469
Raland Brunson, Appellant Pro Se
Jeffrey R. Stephens and Matthew G. Bagley,
Attorneys for Appellee
Before JUDGES GREGORY K. ORME, JAMES Z. DAVIS, and
MICHELE M. CHRISTIANSEN.
PER CURIAM:
¶1 Raland Brunson appeals the summary judgment in favor
of Security National Life Insurance Company (SNLIC) that
awarded a deficiency judgment following a nonjudicial
foreclosure.1 This case is before the court on SNLIC’s motion for
1. Salina and Raland Brunson filed a notice of appeal in this case
shortly after Salina Brunson filed a bankruptcy petition. The
United States Bankruptcy Court (1) granted relief from the
automatic stay for the purpose of allowing SNLIC to defend
itself in this appeal, (2) clarified that the automatic stay had
never applied to claims against Raland Brunson, and (3) stated
that relief from the automatic stay was subject to any discharge
(continued…)
Security National v. Brunson
summary disposition. We grant the motion and affirm the
deficiency judgment.
¶2 Contrary to Brunson’s assertion, the motion for summary
disposition is properly before this court because it was filed after
the United States Bankruptcy Court granted relief from the
automatic stay to allow SNLIC to defend itself on appeal.
Furthermore, a motion for summary disposition that is clearly
meritorious supports a suspension of the time limitation
contained in rule 10 of the Utah Rules of Appellate Procedure.
Bailey v. Adams, 798 P.2d 1142, 1143 (Utah Ct. App. 1990) (per
curiam).
¶3 “Summary judgment is appropriate only where there are
no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law.” Basic Research, LLC v.
Admiral Ins. Co., 2013 UT 6, ¶ 5, 297 P.3d 578 (citing Utah R. Civ.
P. 56(c)). “We review the trial court’s summary judgment for
correctness, considering only whether the trial court correctly
applied the law and correctly concluded that no disputed issues
of material fact existed.” Hermansen v. Tasulis, 2002 UT 52, ¶ 10,
48 P.3d 235.
¶4 There are no genuine issues material to whether Brunson
applied for and received a loan from SNLIC’s predecessor-in-
interest. The district court also determined that the fact that
Wells Fargo Bank’s name appeared on the note did not create a
material issue of fact, because the records produced during the
case demonstrated that Wells Fargo declined to purchase the
note on the secondary market and returned it to SNLIC’s
(…continued)
that might be entered in Salina Brunson’s bankruptcy
proceeding. Salina Brunson later received a discharge. SNLIC
asserts claims only as to Raland Brunson.
20141150-CA 2 2015 UT App 102Security National v. Brunson
predecessor. The district court correctly determined that
Brunson’s claim that Wells Fargo rather than SNLIC owned the
note was unsupported by anything other than speculation. There
is thus no genuine dispute that at all times relevant to this case,
either SNLIC or its predecessor held the note.
¶5 Brunson’s legal claims that SNLIC’s purchase of the
property at the trustee’s sale by a credit bid is not legal or that a
credit bid is not a valid bid lack merit. In Thomas v. Johnson, 801
P.2d 186 (Utah Ct. App. 1990), we stated that a credit bid made
by the beneficiary of a trust deed is a valid bid at a trustee’s sale.
Id. at 188 n.1; see also Green v. United States, 434 F. Supp. 2d 1116,
1124 (D. Utah 2006) (stating that under Utah law, a credit bid is
“a lawful irrevocable bid for the real property” and “*t+he credit
bid did not require that money actually change hands”).
Similarly, Brunson’s claim that SNLIC could not seek a
deficiency while also retaining possession of the property
purchased at the trustee’s sale is contrary to the governing
statute, which allowed SNLIC to recover “the amount by which
the amount of the indebtedness with interest, costs, and
expenses of sale, including trustee’s and attorney’s fees, exceeds
the fair market value of the property as of the date of the sale.”
Utah Code Ann. § 57-1-32 (LexisNexis 2010). Finally, Brunson’s
claim that the collateral source rule bars any recovery of a
deficiency because SNLIC received partial payment from a
mortgage insurer is an incorrect statement of law. See Pioneer
Builders Co. of Nev., Inc. v. KDA Corp., 2012 UT 74, ¶ 84, 292 P.3d
672 (“Under the collateral source rule, a wrongdoer is not
entitled to have damages, for which he is liable, reduced by
proof that the plaintiff has received or will receive compensation
or indemnity for the loss from an independent collateral source.”
(citation and internal quotation marks omitted)). In addition,
SNLIC reduced the claimed deficiency by the amount of that
insurance payment. Accordingly, there was no double recovery,
as Brunson claims.
20141150-CA 3 2015 UT App 102Security National v. Brunson
¶6 We agree with the district court that Brunson failed to
raise any genuine issue of material fact regarding the calculation
of the deficiency. First, Brunson’s calculations incorrectly
allocated the total amount of his mortgage payments toward the
loan principal, although those payments included a relatively
small amount of principal, along with interest, escrow amounts,
and mortgage insurance premiums passed on to a third-party
insurer. Second, Brunson’s claim that an online “Zillow” search
on a completely different property demonstrated a greater fair
market value for his property was properly rejected as both
irrelevant and untimely. In a June 17, 2014 ruling and order, the
district court determined a fair market value of $190,000.00,
based upon the only competent evidence of fair market value in
the form of an appraisal submitted to the district court by
SNLIC. Brunson failed to provide any timely evidence to
support his valuation claims.
¶7 Finally, all of Brunson’s remaining arguments on appeal
lack merit. Specifically, the argument that a summary judgment
cannot be granted if its effect would be to deny a requested jury
trial is without merit. Similarly, there is no demonstration in the
record before us that the district court failed to appropriately
construe the evidence in the nonmoving parties’ favor, where
Brunson’s purported issues of fact were based upon conjecture,
speculation, mathematical error, or unsupported legal claims.
Accordingly, we affirm.
20141150-CA 4 2015 UT App 102