Brimhall v. Ditech Financial , 2021 UT App 34 ( 2021 )

2021 UT App 34THE UTAH COURT OF APPEALS
TAWNYA BRIMHALL AND ERIC BRIMHALL,
Appellants,
v.
DITECH FINANCIAL LLC AND DITECH MORTGAGE CORPORATION,
Appellees.
Opinion
No. 20180544-CA
Filed April 1, 2021
Third District Court, Salt Lake Department
The Honorable Su Chon
No. 160906722
Judson T. Pitts, Attorney for Appellants
Alex B. Leeman and Matthew O. Stromquist,
Attorneys for Appellees
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Ditech Financial LLC (Ditech) pursued non-judicial
foreclosure after Tawnya and Eric Brimhall defaulted on their
mortgage loan. 1 The Brimhalls sought foreclosure relief, but
1. The loan documents identify the borrower as “Tawnya D.
Brimhall, a married woman as her sole and separate property.”
And all the foreclosure correspondence is addressed only to
Tawnya. However, because the Brimhalls jointly filed the
original complaint and jointly appealed the decision of the
district court, we refer to the parties collectively in this opinion.
Where appropriate, we refer to Tawnya and Eric by their first
names for clarity and ease of reference.
Brimhall v. Ditech Financial
Ditech asserted that the Brimhalls’ loss mitigation application
was incomplete and that Ditech was therefore unable to review
it. The Brimhalls sued Ditech after a trustee’s sale of their
property, contending they had timely submitted a complete
application for mortgage relief and were still negotiating
foreclosure relief with Ditech, a situation which they claim
should have precluded Ditech from scheduling and conducting a
trustee’s sale. The district court granted summary judgment in
favor of Ditech. The Brimhalls appealed, and we reverse and
remand.
BACKGROUND 2
¶2 In 2007, the Brimhalls borrowed $268,000 from
Countrywide Home Loans to purchase a house in Utah (the
Property). The loan was secured by a deed of trust on the
Property. The beneficial interest under that deed of trust was
subsequently assigned to the Bank of New York Mellon (BNYM).
BNYM retained Green Tree Servicing, which later became
Ditech, as the loan servicer.
¶3 The Brimhalls defaulted on the loan in 2013, and Ditech
sent a letter by certified mail, dated January 17, 2014, informing
the Brimhalls of the default, specifically indicating that they had
fifty payments past due. The successor trustee recorded a notice
of default and provided legal notice to the Brimhalls of the
default, the amount of debt, and the fact that the loan had been
referred for foreclosure.
¶4 In July 2014, the Brimhalls jointly filed for bankruptcy, an
event which suspended the foreclosure proceedings until
2. “In reviewing a grant of summary judgment, we recite the
undisputed facts. To the extent that the facts are disputed, we
recite the disputed facts in a light most favorable to the
nonmoving party.” Northern Monticello All. LLC v. San Juan
County, 2020 UT App 79, n.1, 468 P.3d 537 (quotation simplified).
20180544-CA 2 2021 UT App 34Brimhall v. Ditech Financial
January 2016, when the bankruptcy court entered an order
terminating the automatic stay.
¶5 On February 25, 2016, Ditech sent the Brimhalls a letter
regarding loss mitigation, a process through which borrowers
and loan servicers can potentially work together to avoid
foreclosure. The letter explained available loss mitigation
options and advised the Brimhalls to act quickly to avoid losing
the Property. The letter included a request for mortgage
assistance (RMA) application for the Brimhalls’ use and urged
the Brimhalls to “read these instructions carefully and complete
the [RMA] application in its entirety so that Ditech may evaluate
[their] eligibility for a loss mitigation option.” The RMA “forms
provid[ed] a list of the documents required for a complete loss
mitigation application” and stated that the Brimhalls needed to
“fill out and execute the [RMA] forms and provide all the
applicable documents within thirty (30) days.” The letter
indicated that the RMA and required documents could be
submitted by mail or fax. By way of explanation, the letter went
on to clarify that the Brimhalls could contact their Ditech account
representative once all the documents had been received to
discuss mitigation options. Lastly, the letter informed the
Brimhalls that if their RMA application was denied, they would
receive a letter giving the reason for the denial. The letter also
stated that “no foreclosure sale [would] be conducted while
Ditech [was] reviewing the application,” provided that the
application was received by Ditech “more than 37 days prior to
foreclosure sale.” 3 Tawnya asserted that she “began the process
3. This thirty-seven-day period is mandated by federal law, see
12 C.F.R. § 1024.41(g) (2020), which prohibits a foreclosure sale if
a borrower has submitted a complete RMA application after a
notice of a foreclosure process was filed “but more than 37 days
before a foreclosure sale, . . . unless: (1) The servicer has sent the
borrower a notice . . . that the borrower is not eligible for any
loss mitigation option and” any appeals are denied, not
applicable, or not requested; “(2) The borrower rejects all loss
(continued…)
20180544-CA 3 2021 UT App 34Brimhall v. Ditech Financial
of submitting paperwork and a formal application for a loan
modification” after receiving this information from Ditech.
¶6 On March 21, Ditech notified the Brimhalls by letter that
their RMA application was incomplete. In addition to repeating
the deadline for completing the RMA application, the letter
specifically identified certain documents that remained missing
from the Brimhalls’ application: a profit/loss statement and pay
stubs. This letter informed the Brimhalls that Ditech would “not
be able to move forward with review of [the RMA] application”
unless it received the “required documents” by April 20. Ditech
asserted that the Brimhalls failed to submit the required
documentary information necessary to complete the RMA
application by the April 20 deadline. However, the Brimhalls
contended that they did, in fact, submit the required
documentation prior to the deadline.
¶7 On April 26, Ditech sent a notice to the Brimhalls
informing them that their RMA application remained incomplete
and that because the Brimhalls had “not provided [Ditech] with
all of the required information within the time frame requested,”
Ditech would “not be reviewing [their RMA] application at this
time.” Nevertheless, the letter informed the Brimhalls that they
could contact Ditech “to discuss [their] situation and any loss
mitigation that may still be available,” including reinstatement
(i.e., immediately bringing the account current), a repayment
plan (i.e., requiring the Brimhalls to repay a fraction of the
delinquent amount in addition to the regular payment each
month), a forbearance (i.e., delaying foreclosure to allow time for
the Brimhalls to bring their account current), a modification (i.e.,
adding the delinquent amount back into the loan), a short sale
(i.e., selling the Property to settle the debt), or a deed-in-lieu (i.e.,
voluntarily deeding the Property back to Ditech).
(…continued)
mitigation options offered by the servicer; or (3) The borrower
fails to perform under an agreement on a loss mitigation
option,” id.
20180544-CA 4 2021 UT App 34Brimhall v. Ditech Financial
¶8 The Brimhalls asserted that they fully complied with
Ditech’s requests to submit a complete RMA application.
Specifically, Tawnya stated in her affidavit filed in support of the
Brimhalls’ motion for summary judgment that she had
submitted two complete RMA applications “in the first four
months of 2016” and that “even though Ditech had sent [her]
letters stating that [Ditech was] no longer considering” the RMA
application because the “files were not ‘complete,’” (1) she “had
sent all requested documents,” (2) she “was still engaged in
phone communications from May–August 2016,” and (3) Ditech
“representatives . . . were asking [her] to update documents in
their system and submit new documents they had misplaced.”
Similarly, Eric stated in a declaration that he “had been
frustrated with Ditech for months, because [he and Tawnya] had
jointly prepared two prior RMA’s for Ditech and had sent Ditech
every form and piece of information that Ditech had requested,
to the best of [their] knowledge and understanding, to complete
[their] prior RMA’s, but Ditech would never acknowledge
receiving what [they] sent.”
¶9 On July 1, the successor trustee issued a notice of sale of
the Property, scheduled for August 16, posting it on the Property
and in the county recorder’s office, as well as publishing it in a
local newspaper. On July 11, the Brimhalls received another
letter from Ditech informing them that they were “not eligible
for mortgage modification assistance” because they had “failed
to timely return the documents requested by the program
requirements.”
¶10 Eric contended that when he called Ditech on July 15 to
inquire about the status of the RMA application, he was told that
the RMA “had been denied” by letter on July 11. He stated that
at that time Ditech encouraged him to submit another RMA
application. He claims that Ditech “interviewed” him “to
qualify” for “a third RMA offer from Ditech that would arrive
shortly at the office” of the Brimhalls’ bankruptcy attorney.
Eric’s declaration stated that the Ditech agent assured him that
the sale of the Property “would be stopped and that [the
Brimhalls] would receive another packet to begin the loan
20180544-CA 5 2021 UT App 34Brimhall v. Ditech Financial
modification process again, and then would have 30 days to get
information back to them.”
¶11 Regarding the July 15 phone conversation, Ditech’s
representative averred, in an affidavit filed in support of
Ditech’s motion for summary judgment, that its agent explained
to Eric that the RMA “application had been denied due to a
number of documents that were missing, and provided him a fax
number to which he could submit the missing documents.” The
representative further stated, “At no point in the course of the
telephone call did Ditech state or represent in any way that the
trustee’s sale scheduled for August 16, 2016, would be stopped
or cancelled.”
¶12 Ditech recorded the July 15 phone conversation, a copy of
which it submitted in conjunction with the affidavit of the Ditech
representative who had knowledge of the events surrounding
the Brimhalls’ interaction with Ditech. The Brimhalls
acknowledged that the recording of the “phone call does not
appear to contain any discussion of the Trustee’s sale at all,” but
they pointed to “long pauses in the call that could call the
authenticity of the recording into question.” Even though the
recording lacks mention of postponing the sale, “the Brimhalls
recall[ed] that postponement of the sale was discussed” in the
July 15 phone call. On appeal, the Brimhalls do not contend that
Ditech represented that the trustee’s sale would be stopped.
¶13 On July 30, not having received the RMA forms from
Ditech, Eric stated that he again called Ditech to follow up on
their request for mortgage assistance. Following that call, the
Brimhalls received a letter, which was addressed to Tawnya and
dated July 15, encouraging them to apply for mortgage
modification. A blank RMA form was attached to the letter. The
Brimhalls maintain that they submitted their third RMA
application after receiving these forms.
¶14 Having seen no update on the status of the latest RMA
application in their online account with Ditech—which
characterized the application’s status as “received and . . . under
20180544-CA 6 2021 UT App 34Brimhall v. Ditech Financial
review”—the Brimhalls claimed that they called Ditech several
times during the next few weeks. The Brimhalls provided the
first names of four different Ditech representatives with whom
they claimed to have either spoken or left messages regarding
their RMA applications. The Brimhalls further asserted to have
left “dozens of voice-messages . . . with Ditech.”
¶15 On August 16, the Property was sold to BNYM as the
beneficiary of the deed of trust at the trustee’s sale. Even after
the Property was sold, the Brimhalls continued to contact Ditech
about the status of their RMA application. When they checked
their online Ditech account on September 2, the Brimhalls found
an update informing them that Ditech was “[u]nable to approve
[their] application for loss mitigation.”
¶16 On October 28, the Brimhalls filed suit against both Ditech
and BNYM seeking, among other things, a declaratory judgment
that Ditech had unlawfully foreclosed on the Property because it
had not complied with the statutory notice requirements (RMA
suit). See Utah Code Ann. § 57-1-24.3(5)–(6) (LexisNexis Supp.
2020) (prohibiting a trustee’s sale of the property of a default
trustor who has applied for foreclosure relief until the servicer
gives written notice of the decision regarding foreclosure relief
to the default trustor). 4 They also sought injunctive relief to
prevent Ditech from advancing any eviction process. However,
even though the Brimhalls listed BNYM in the caption of the
RMA suit, their complaint contains no other mention of BNYM
and did not actually state a cause of action against it. In addition,
while the Brimhalls served Ditech in the RMA suit, they did not
timely serve BNYM.
¶17 Approximately a year later, in October 2017, BNYM filed
a separate unlawful detainer action against the Brimhalls
(eviction suit), and the Brimhalls moved to consolidate that
action with the still-pending RMA suit. A few weeks later, the
4. Because there have been no substantive changes to the
relevant statutes, we cite the current version of the Utah Code.
20180544-CA 7 2021 UT App 34Brimhall v. Ditech Financial
Brimhalls also filed a motion for summary judgment in the RMA
suit, arguing that Ditech violated Utah law by scheduling a sale
of the Property before written notice was given denying their
RMA application. Ditech filed a cross-motion for summary
judgment, arguing that it had fully complied with Utah law
governing the trustee’s sale.
¶18 In a telephonic hearing, the district court took up the
Brimhalls’ motion to consolidate by asking the Brimhalls’
counsel to address rule 4 of the Utah Rules of Civil Procedure,
which states, “If the summons and complaint are not timely
served, the action against the unserved defendant may be
dismissed without prejudice on motion of any party or on the
court’s own initiative.” See Utah R. Civ. P. 4(b). The court
inquired, “How can we move this [RMA suit] forward because
you failed to serve [BNYM]?” In response, the Brimhalls’ counsel
stated,
Look, I’m absolutely happy if the court wants to
dismiss [BNYM] without prejudice. We’ll just bring
the claims in the other suit [i.e., the eviction suit]. I
mean, rule 4 says dismiss it without prejudice. I’d
entertain that motion. I’ll make the oral motion
right now, today, with the court to dismiss
[BNYM] from this action without prejudice
immediately, today.
(Quotation simplified.) For its part, Ditech argued that the two
actions should not be consolidated:
[Ditech is] the servicing agent for the mortgage. . . .
[T]he claims that are brought in this [RMA suit] . . .
have to do with the servicing of the mortgage, not
the validity of the underlying mortgage, whether it
really exists . . . . It has to do with whether Ditech
properly followed the law in foreclosing on a
property. Those are claims against Ditech.
20180544-CA 8 2021 UT App 34Brimhall v. Ditech Financial
¶19 Noting that the Brimhalls had stipulated to BNYM’s
dismissal, the court denied the motion to consolidate and
dismissed BNYM without prejudice, reasoning that the
Brimhalls’ RMA suit and BNYM’s eviction suit were “at two
different stages of litigation, and consolidation would prolong
[the RMA suit].” Further, the court noted that BNYM was not a
party to the RMA suit because the Brimhalls failed to serve
BNYM and that “[i]t would not promote judicial economy to
allow the consolidation.”
¶20 In March 2018, the Brimhalls moved to dismiss the RMA
suit, arguing that the district court’s “sua sponte” dismissal of
BNYM deprived the action of an “indispensable party,” thus
placing the action “outside the scope of the [c]ourt’s
jurisdiction.” See Utah R. Civ. P. 19(a)–(b). 5
¶21 Two months later, the court issued a memorandum
decision and order addressing the Brimhalls’ motion for
summary judgment, the Brimhalls’ motion to dismiss, and
Ditech’s cross-motion for summary judgment. The court noted
that the Brimhalls had submitted an RMA application in
February 2016 but that Ditech had notified them their
application was incomplete and they needed to submit the
missing documents by April 20, 2016. The court determined that
“[t]he Brimhalls did not submit the documents, and on April 26,
Ditech sent a letter stating that it would not review the
application because the Brimhalls had not complied with the
deadline.” Based on this sequence of events, the court concluded
that Ditech had complied with the statutory notice requirements
regarding the trustee’s sale in the context of foreclosure relief.
While the court acknowledged that the Brimhalls presented a
different account of their interaction with Ditech and Ditech’s
alleged promises to stop the trustee’s sale, the court determined
that it “need not address [Tawnya’s] affidavit because it was
5. Though the Brimhalls characterize the decision as “sua
sponte,” we note that their counsel appears to have stipulated to
the dismissal of BNYM. See supra ¶ 18.
20180544-CA 9 2021 UT App 34Brimhall v. Ditech Financial
filed in her own motion for summary judgment and was not
included in her opposition to Ditech’s cross-motion.” The court
further characterized Tawnya’s affidavit as “self-serving” and
noted that Ditech’s “concerns [about the affidavit] are valid.”
The court thus granted Ditech’s cross-motion for summary
judgment and denied the Brimhalls’ motion for summary
judgment and motion to dismiss “as moot.” The Brimhalls
appeal.
ISSUES AND STANDARDS OF REVIEW
¶22 The Brimhalls first contend that because BNYM was a
necessary and indispensable party to their declaratory judgment
action, the district court deprived itself of jurisdiction when it
dismissed BNYM from the lawsuit. We review a district court’s
determination about whether a party is indispensable to an
action for an abuse of discretion. See Seftel v. Capital City Bank,
767 P.2d 941, 944–45 (Utah Ct. App. 1989), aff’d sub nom. Landes v.
Capital City Bank, 795 P.2d 1127 (Utah 1990).
¶23 The Brimhalls next challenge the district court’s grant of
Ditech’s motion for summary judgment, arguing that in refusing
to consider all the affidavit evidence from the Brimhalls, the
court “failed to legally abide by the standards for evaluating
summary judgment motions.” “[W]e review a district court’s
grant of summary judgment for correctness, affording that
ruling no deference.” Segota v. Young 180 Co., 2020 UT App 105,
¶ 10, 470 P.3d 479.
¶24 The Brimhalls’ final claim is that the district court
erroneously applied a federal regulation instead of the
applicable Utah statute, compare 12 C.F.R. § 1024.41(g) (2020),
with Utah Code Ann. § 57-1-24.3(6) (LexisNexis Supp. 2020), in
reaching its determination that Ditech complied with the
statutory notice requirements relevant to foreclosure on the
Property in the context of a defaulting party’s request for
mortgage relief. “The proper interpretation and application of a
statute is a question of law which we review for correctness,
20180544-CA 10 2021 UT App 34Brimhall v. Ditech Financial
affording no deference to the district court’s legal conclusions.”
Bott v. Osburn, 2011 UT App 139, ¶ 5, 257 P.3d 1022 (quotation
simplified).
ANALYSIS
I. The Dismissal of BNYM
¶25 The Brimhalls assert that the district “court lost
jurisdiction to adjudicate [their motion for summary judgment
and Ditech’s cross-motion for summary judgment] and render
any decision when it dismissed [BNYM], sua sponte, from the
action” because BNYM was “a necessary and indispensable
party to the action.”
¶26 Pursuant to rule 19 of the Utah Rules of Civil Procedure,
“a court must engage in a two-part inquiry” to determine
whether joinder is required. See Mower v. Simpson, 2012 UT App
149, ¶ 27, 278 P.3d 1076. “First, the court must ascertain whether
a party has sufficient interest in the action to make it a necessary
party. . . . Second, if the court indeed deems the party necessary
to the action, and joinder is unfeasible, the court must then
determine whether the party is indispensable.” Turville v. J & J
Props., LC, 2006 UT App 305, ¶¶ 36–37, 145 P.3d 1146 (quotation
simplified). In other words, “a court is required to address
indispensability under rule 19(b) only if it first finds that joinder
of the party is necessary.” Central Utah Water Conservancy Dist. v.
Upper East Union Irrigation Co., 2013 UT 67, ¶ 58, 321 P.3d 1113.
¶27 Here, BNYM was not a necessary party to the Brimhalls’
claims against Ditech. The Brimhalls’ RMA suit alleged that
Ditech wrongfully foreclosed on the Property because it
improperly noticed the trustee’s sale after the Brimhalls had
initiated foreclosure relief. The Brimhalls’ claim of wrongdoing
in the RMA suit concerned alleged irregularities in the timing of
the notice of the trustee’s sale on the part of the loan servicer—
Ditech—not the assignee—BNYM. And while the Brimhalls
challenged BNYM’s title to the Property obtained in the trustee’s
20180544-CA 11 2021 UT App 34Brimhall v. Ditech Financial
sale, they did not and do not challenge the validity of the
underlying obligation secured by the Property. Indeed, the
allegations of wrongdoing in the RMA suit solely concern
Ditech’s alleged failure to comply with state and federal law in
the timing of the trustee’s sale. And even in the absence of
BNYM, complete relief can be granted to Ditech and to the
Brimhalls on the question of whether Ditech complied with
statutory foreclosure requirements.
¶28 The Brimhalls point us to no authority, and we are not
aware of any, that indicates a lender is a necessary party to
adjudicate the alleged wrongdoing on the part of a loan servicer
in this context. Instead, authority on point indictates that BNYM
was not a necessary party. Indeed, “[w]here a plaintiff makes no
claims against the unjoined party, it is clear under rule 19 that
complete relief can be granted in its absence.” White v. Jeppson,
2014 UT App 90, ¶ 16, 325 P.3d 888 (quotation simplified). “Such
is the case here. [The Brimhalls] have made no claims against
[BNYM] in [the RMA suit]. Indeed, [the Brimhalls’] claims in this
case were expressly limited to [Ditech’s] acts or omissions . . . .”
See id. (quotation simplified). Moreover, BNYM has “already
sought resolution” of any claims it might have against the
Brimhalls in the separate eviction suit. See id. “Accordingly, as
[the Brimhalls’] claims are strictly limited to [Ditech’s] conduct,
complete relief can be granted [between the Brimhalls and
Ditech] without joining” BNYM. See id. Thus, even if we assume,
without deciding, that the Brimhalls did not invite any error on
the court’s part by stipulating to the dismissal of BNYM, the
district court’s dismissal of BNYM did not violate rule 19
because BNYM’s involvement was not necessary to determine
whether Ditech complied with the statutory notice requirements
delineated in the foreclosure process.
II. The Grant of Ditech’s Motion for Summary Judgment
¶29 Next, the Brimhalls challenge the district court’s grant of
summary judgment in favor of Ditech, asserting that a factual
question exists as to whether they timely submitted all the
necessary documents to complete their RMA application. “It is
20180544-CA 12 2021 UT App 34Brimhall v. Ditech Financial
well established that summary judgment is appropriate where
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Gonzalez v. Cullimore, 2018 UT 9, ¶ 35, 417 P.3d 129 (quotation
simplified); see also Utah R. Civ. P. 56; Northgate Village Dev., LC
v. Orem City, 2014 UT App 86, ¶ 20, 325 P.3d 123 (“A disputed
fact is material if it affects the rights and liabilities of the
parties.”).
¶30 Here, the district court erred in granting Ditech’s cross-
motion for summary judgment precisely because a dispute of
material fact existed as to whether the Brimhalls timely supplied
all the required documentation requested by Ditech to support
their application for mortgage relief. Ditech claims that the
Brimhalls did not submit the required documentation to
complete their application by Ditech’s deadline of April 20. The
court determined that Ditech had sent correspondence to the
Brimhalls informing them that their application for loss
mitigation was incomplete. After the Brimhalls failed to submit
the required documents, Ditech then informed them on April 26
that their application remained incomplete and that Ditech was
therefore unable to review their application further. The court
concluded that the notice of trustee’s sale was not issued until
early July, well after the thirty-seven-day period required by
federal regulation. See also 12 C.F.R. § 1024.41(g) (2020).
¶31 But neither Ditech nor the court acknowledged the import
of Tawnya’s affidavit, which stated that as of July 1, 2016, she
was actively negotiating mortgage relief and that she had
submitted all requested documents:
I had submitted two [RMA applications] in the first
four months of 2016, and even though Ditech had
sent me letters stating that they were no longer
considering my requests because, according to
them, my files were not “complete,” I had sent all
20180544-CA 13 2021 UT App 34Brimhall v. Ditech Financial
requested documents, I had completed my files,
but most importantly, I was still engaged in phone
communications from May–August 2016 with
[Ditech] representatives who were asking me to
update documents in their system and submit new
documents they had misplaced.
¶32 In addition, Eric’s declaration went unnoticed by the
court. There, Eric stated that he “had been frustrated with Ditech
for months,” explaining,
[M]y wife and I had jointly prepared two prior
[RMA applications] for Ditech and had sent Ditech
every form and piece of information that Ditech
had requested, . . . but Ditech would never
acknowledge receiving what I sent. I provided
RMA documents and information to Ditech
representatives by fax, and e-mail, however no
matter how many times I provided the
information, Ditech would inform me on my
follow-up calls that the information was not
received.
The Brimhalls’ sworn statements create a dispute of material fact
that precludes summary judgment on the question of whether
the Brimhalls’ RMA application was complete. In a nutshell, the
Brimhalls assert that they repeatedly submitted all the required
RMA documents in a timely fashion; Ditech says that they did
not.
¶33 The district court did not make any mention of the
assertions Eric made in his declaration. And as to Tawnya’s
affidavit, the court determined that it “need not address [it]
because it was filed in her own motion for summary judgment
and was not included in her opposition to Ditech’s cross-
motion.” This reasoning is incorrect. While the Brimhalls did not
attach Tawnya’s affidavit to the opposition filing, they explicitly
cited it several times and quoted from it extensively in that
20180544-CA 14 2021 UT App 34Brimhall v. Ditech Financial
filing, and the district court could not ignore it solely on the
grounds that it was not attached. Indeed, rule 56 of the Utah
Rules of Civil Procedure does not require that affidavits be filed
in opposition to a motion for summary judgment to be
considered: “A party asserting that a fact cannot be genuinely
disputed or is genuinely disputed must support the assertion by
. . . citing to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory
answers, or other materials . . . .” Utah R. Civ. P. 56(c)(1). And
rather than being limited to considering only materials filed
alongside a motion, a court considering a summary judgment
motion “may consider other materials in the record.” Id. R.
56(c)(3). 6
¶34 The conflicting accounts offered by the Brimhalls and
Ditech constitute a classic example of a dispute of a material fact
that precludes resolution by summary judgment. See iDrive
Logistics LLC v. IntegraCore LLC, 2018 UT App 40, ¶ 49, 424 P.3d
6. Ditech’s opposition to Tawnya’s affidavit is directed primarily
at her allegations about what a Ditech representative said during
the July 15 telephone call. See supra ¶¶ 10–12. Ditech contends
that these allegations were not based on Tawnya’s personal
knowledge of that conversation, because she did not personally
participate in the call, but rather they were based on the notes
she took from Eric’s telephone conversation with Ditech. This
may be a valid complaint about those allegations specific to the
telephone conversation, but it is not valid as to other points in
Tawnya’s affidavit, such as whether the Brimhalls timely
submitted the required documents to complete their application.
See Utah R. Civ. P. 56(c)(4) (“An affidavit or declaration used to
support or oppose a motion must be made on personal
knowledge, must set out facts that would be admissible in
evidence, and must show that the affiant or declarant is
competent to testify on the matters stated.”).
20180544-CA 15 2021 UT App 34Brimhall v. Ditech Financial
970; see also Heslop v. Bear River Mutual Ins. Co., 2017 UT 5, ¶ 20,
390 P.3d 314 (“In determining whether a factual dispute exists,
we apply an objective standard. The objective standard asks
whether reasonable jurors, properly instructed, would be able to
come to only one conclusion, or if they might come to different
conclusions, thereby making summary judgment inappropriate.”
(quotation simplified)). Thus, we conclude that the district court
erred in granting summary judgment to Ditech because there
remains a dispute of material fact about whether the Brimhalls
timely submitted the required documentation to comply with
Ditech’s instructions for mortgage relief.
III. The Statutory Notice Requirement
¶35 If on remand the factual dispute is resolved in Ditech’s
favor and it is determined that the Brimhalls did not timely
submit the requested documentation to complete their RMA
application, the question will arise as to whether Ditech’s
statutory duties under Utah law to notice the trustee’s sale were
retriggered by the Brimhalls’ further attempts to apply for loss
mitigation and by Ditech’s continuing communication with the
Brimhalls about additional loss mitigation applications. So while
our determination that the district court erred in granting
summary judgment to Ditech forms the sole basis for our
reversal, we nevertheless proceed to address the statutory issue
fully briefed on appeal because it may very well “arise again on
remand,” and we offer the district court some “guidance” in that
regard. See Francis v. National DME, 2015 UT App 119, ¶ 53, 350
P.3d 615; see also Salt Lake City v. Jaramillo, 2007 UT App 32, ¶ 23,
156 P.3d 839 (Orme, J., concurring and dissenting) (noting “the
oft-repeated and sound prescription, underpinned by
considerations of efficiency and judicial economy, that appellate
courts should offer guidance to trial courts on issues likely to
surface on remand”).
¶36 Utah law allows a trustee to sell property in default by
filing a notice of default and, “after the lapse of at least three
months,” by mailing notice of the time and place of the sale to
the interested parties and publishing that same information. See
20180544-CA 16 2021 UT App 34Brimhall v. Ditech Financial
Utah Code Ann. § 57-1-24 (LexisNexis 2010); id. §§ 57-1-25, -26
(Supp. 2020). In the notice of default sent to a default trustor, the
servicer must “direct the default trustor to contact the single
point of contact regarding foreclosure relief available through
the beneficiary or servicer for which a default trustor may apply,
if the beneficiary or servicer offers foreclosure relief.” Id. § 57-1-
24.3(2)(b)(iv) (Supp. 2020). 7 A borrower who seeks foreclosure
relief must timely provide all requested information to the loan
servicer: “A default trustor shall, within the time required by the
beneficiary or servicer, provide all financial and other
information requested by the single point of contact to enable the
beneficiary or servicer to determine whether the default trustor
qualifies for the foreclosure relief for which the default trustor
applies.” Id. § 57-1-24.3(4). Utah law appears to be silent about
the minimum period of time that a servicer must give the default
trustor to submit the requested documents. After the servicer has
made a decision about the request for foreclosure relief, the
“single point of contact” designated by the loan servicer shall
then “notify the default trustor by written notice of the decision
of the beneficiary or servicer regarding the foreclosure relief for
which the default trustor applies.” Id. § 57-1-24.3(5)(d). And
“[n]otice of a trustee’s sale may not be given . . . with respect to
the trust property of a default trustor who has applied for
foreclosure relief until after the single point of contact provides
the notice required by Subsection (5)(d).” Id. § 57-1-24.3(6).
¶37 The issue that arises under the Utah statutory scheme is
whether it allows a borrower in default to submit multiple
applications for foreclosure relief, each time retriggering the
statutory notice requirements and potentially preventing a
servicer from scheduling a trustee’s sale due to the pending
7. “Single point of contact” means a person, designated by the
servicer, to coordinate and communicate with a default trustor
and represent the servicer in foreclosure proceedings initiated by
the servicer. See Utah Code Ann. § 57-1-24.3(1)(i) (LexisNexis
Supp. 2020).
20180544-CA 17 2021 UT App 34Brimhall v. Ditech Financial
application for foreclosure relief. This retriggering issue is
relevant here because if on remand the district court resolves the
disputed factual issue in favor of Ditech and determines that the
Brimhalls failed to timely submit all the required documents
prior to the April 20 deadline, see supra ¶¶ 6–7, then the
Brimhalls have indicated they will argue that Ditech did not
timely notify them that their second and third RMAs, see supra
¶¶ 8, 13, had been denied and, consequently, that notice of the
August 16, 2016 trustee’s sale, see supra ¶ 9, was premature and
contrary to Utah law as it preceded the servicer’s decision on a
pending application for foreclosure relief. In fact, on appeal, the
Brimhalls make this very argument, asserting that “nothing in
[Utah Code section 57-1-24.3(6)] suggests that one denial notice
covers subsequent requests/applications for relief.” Similarly, the
Brimhalls will likely argue that Ditech’s continued
communications with them about options to avoid foreclosure
amounted to “dual tracking” and precluded Ditech from
noticing up the trustee’s sale. 8 Indeed, the Brimhalls also
advance this argument on appeal: “[Tawnya] asserted that
Ditech representatives continued the mortgage relief process
with her long after the April 26, 2016 denial letter was issued,
and by doing so, led her to believe that her application(s) were
still being considered.” We are not persuaded that the Brimhalls’
serial-application reading of Utah Code section 57-1-24.3 is
correct.
¶38 As a threshold matter, the Brimhalls cite no authority to
support the serial-application reading of the Utah statute.
Indeed, the Brimhalls conceded below that “there is no case-law”
to support a reading of Utah Code section 57-1-24.3 as requiring
“a denial letter for each separate application” or “that each time
Ditech provided the Brimhalls with a new RMA . . . form to
8. “Dual tracking is the term given to situations in which the
lender actively pursues foreclosure while simultaneously
considering the borrower for loss mitigation options.” Gresham v.
Wells Fargo Bank, NA, 642 F. App’x 355, 359 (5th Cir. 2016).
20180544-CA 18 2021 UT App 34Brimhall v. Ditech Financial
complete and return, it constituted a new application that
required consideration by the beneficiary, and either approval or
denial.”
¶39 Instead, the Brimhalls argue that the statutory language
itself compels their interpretation. However, the statute is
entirely silent about the treatment of serial applications. “When
the statutory language is silent, legislative intent can be gleaned
from the purposes and underlying policies of the statute, along
with the consequences of various interpretations.” State v. Mootz,
808 N.W.2d 207, 221 (Iowa 2012), quoted with approval in Cox v.
Laycock, 2015 UT 20, ¶ 42 n.48, 345 P.3d 689; see also Griffin v.
Griffin, 2014 ME 70, ¶ 18, 92 A.3d 1144 (“If the statutory
language . . . is silent on a particular point, we will then consider
other indicia of legislative intent including the purpose of the
statute.” (quotation simplified)), quoted with approval in Cox, 2015
UT 20, ¶ 42 n.48. In this context, “we analyze the [statute] in its
entirety and harmonize its provisions in accordance with the
legislative intent and purpose.” See Cox, 2015 UT 20, ¶ 42
(quotation simplified). For the following reasons, we determine
that Utah Code section 57-1-24.3(6) allows a servicer to proceed
with a foreclosure sale after the first loss mitigation application
has been properly denied, even if subsequent applications
remain pending. 9
9. The Brimhalls argue that the district court erroneously applied
a federal regulation instead of the Utah statute in granting
Ditech’s motion for summary judgment. We agree with the
Brimhalls that the federal regulation is of limited application
here, where the Brimhalls allege Ditech violated the Utah statute
and not federal law.
Under federal regulations, when a servicer receives an
application for foreclosure relief from a default borrower, the
servicer must postpone any scheduled sale if it receives a
“complete” application more than thirty-seven days prior to the
scheduled sale. See 12 C.F.R. § 1024.41(g) (2020). And any sale is
further prohibited until the servicer provides written notice to
(continued…)
20180544-CA 19 2021 UT App 34Brimhall v. Ditech Financial
¶40 We disagree with the Brimhall’s reading of the statute.
Adopting the reading that they advocate—namely, that each
new RMA application requires a separate denial notification
from the beneficiary or servicer—would yield absurd results. See
Anderson v. Utah County, 368 P.2d 912, 913 n.3 (Utah 1962)
(…continued)
the borrower that the borrower is not eligible for foreclosure
relief. See id. Regarding duplicative requests, “[a] servicer must
comply with the requirements of [12 C.F.R. section 1024.41] for a
borrower’s loss mitigation application, unless the servicer has
previously complied with the requirements of this section for a
complete loss mitigation application submitted by the borrower
and the borrower has been delinquent at all times since
submitting the prior complete application.” Id. § 1024.41(i)
(emphasis added). Federal courts have clarified that this
postponement of a trustee’s sale applies only to the first loss
mitigation application submitted by a borrower. See Wentzell v.
JPMorgan Chase Bank, Nat’l Ass'n, 627 F. App’x 314, 318 n.4 (5th
Cir. 2015) (“The federal restrictions, however, apply only to a
borrower’s first loss mitigation application.”); accord Bennett v.
Bank of Am., NA, 126 F. Supp. 3d 871, 884 (E.D. Ky. 2015).
The issue on appeal is not whether the Brimhalls
submitted multiple complete applications, which is the
circumstance addressed by 12 C.F.R. section 1024.41(g), (i).
Rather, the Brimhalls contend that they submitted a complete
application by April 20, while Ditech maintains that they did
not. Thus, the scope of the issue on appeal makes the federal
regulation of limited applicability here. The precise issue we
leave for the district court to resolve on remand is whether the
Brimhalls timely submitted a complete first application by April
20. If the court determines that the Brimhalls failed to do so and
that Ditech properly notified them of the denial of the
application on this basis, then, as we explain, see infra ¶¶ 40–41,
the subsequent submission of additional applications for
mortgage relief, whether complete or not, would not have
required Ditech to re-notice the trustee’s sale under Utah law.
20180544-CA 20 2021 UT App 34Brimhall v. Ditech Financial
(“Unreasonable, absurd, or ridiculous consequences [resulting
from a statutory construction] should be avoided.” (quotation
simplified)). Such an interpretation would allow a default
borrower to continually delay a trustee’s sale merely by
submitting new applications for foreclosure relief in serial
fashion. This would be a problematic reading of the statute
because it could allow a default borrower to delay a trustee’s
sale in perpetuity. See Rutherford v. Talisker Canyons Fin., Co., 2019
UT 27, ¶ 81 n.29, 445 P.3d 474 (“In cases presenting two plausible
readings, the absurd consequences canon, generally speaking,
causes us to prefer the more reasonable interpretation, even if
the less reasonable interpretation could not be accurately
described as absurd.” (quotation simplified)). To allow a default
trustor a meaningful opportunity to seek foreclosure relief but to
avoid the absurd result of a default borrower endlessly delaying
a trustee’s sale by the serial filing of loss mitigation applications,
the most plausible reading of the Utah statute is that a servicer
complies with section 57-1-24.3(5)(d), and can thereafter notice a
trustee’s sale as stated in section 57-1-24.3(6), after providing
written notice of the decision regarding foreclosure relief on a
default trustor’s first application for foreclosure relief. See Startz
v. JPMorgan Chase Bank, NA, No. 2:16-cv-09627-ODW (PLA), 2017
WL 2218306, at *4 (C.D. Cal. May 19, 2017) (noting that, in the
context of multiple RMAs, “[w]hile ejection from one’s home is
certainly a distressing prospect, no lender can be expected to
indefinitely forgive missed payments for a debt that the
homeowner has no reasonable prospect of satisfying”). While a
servicer may, in its discretion, consider subsequent foreclosure
relief applications, notice of the decision on a subsequent
application is not required to be given to the default trustor
before notice of a trustee’s sale can be filed under section 57-1-
25(1). 10
10. We note that California has a similar provision: “In order to
minimize the risk of borrowers submitting multiple applications
for first lien loan modifications for the purpose of delay, the
(continued…)
20180544-CA 21 2021 UT App 34Brimhall v. Ditech Financial
¶41 Thus, if after consideration of the conflicting evidence
presented by both parties on what documents were submitted
by the Brimhalls before April 20, the factfinder determines that
the Brimhalls did not timely submit a complete loss mitigation
application, the court should also reject any argument that
subsequently submitted applications retriggered the statutory
duties in Utah Code section 57-1-24.3. In other words, even if the
Brimhalls are correct in asserting that they submitted second and
third applications for mortgage relief, Ditech would not have
been required to notify the Brimhalls about its decision on those
subsequent mortgage relief applications before proceeding with
the sale of the Property if their first application had been
properly rejected on grounds of incompleteness and written
notice of that decision had been provided to them.
CONCLUSION
¶42 Because the parties stipulated to dismissing BNYM and
because BNYM was not an indispensable party to the Brimhalls’
claims against Ditech, the district court did not err in dismissing
BNYM from the RMA suit. However, the court’s grant of
summary judgment in favor of Ditech was in error because a
genuine dispute of fact exists about whether the Brimhalls timely
submitted a complete RMA application.
¶43 Reversed and remanded.
(…continued)
mortgage servicer shall not be obligated to evaluate applications
from borrowers who have been evaluated or afforded a fair
opportunity to be evaluated consistent with the requirements of
this section . . . .” Cal. Civ. Code § 2923.6(g) (West 2019).
20180544-CA 22 2021 UT App 34