Kirton McConkie attorneys win appellate argument in Utah Court of Appeals

The Utah Court of Appeals issued an opinion on September 11, 2015, affirming the dismissal of claims brought by a junior lienholder against a senior lienholder which had previously successfully foreclosed on a deed of trust (Capri Sunshine, LLC v. E&C Fox Investments, LLC, 2015 UT App 231).The trial court, Judge Robert Faust of the Third District Court in Salt Lake City, had previously dismissed plaintiff’s claims that the senior lienholder was obliged to resolve any dispute regarding the amount of a payoff statement provided under Utah Code § 57-1-31.5 prior to foreclosure, and was obliged to accept its offer to redeem the property under Utah Code § 57-1-31. In affirming the dismissal of plaintiff’s claims, the Court of Appeals reasoned the plaintiff did not allege in its complaint that it ever tendered the redemption amount to the senior lienholder. The appeals court also held that even assuming the plaintiff was entitled to receive a pay-off statement, it had failed to demonstrate as a matter of law that the remedy for violations of these statutes would include setting aside the trustee’s sale or damages. Thus, the court reasoned, the trial court’s dismissal with prejudice was not error.

The senior lienholder, E&C Fox Investments, was represented by R. Willis Orton and Analise Q. Wilson of Kirton McConkie.