2016 UT App 84
THE UTAH COURT OF APPEALS
ASSET ACCEPTANCE LLC,
Appellee,
v.
JAY R. STOCKS,
Appellant.
Opinion
No. 20140898-CA
Filed April 28, 2016
Seventh District Court, Moab Department
The Honorable Lyle R. Anderson
No. 149700037
Marshall Thompson, Attorney for Appellant
Spencer B. Lythgoe, Attorney for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
KATE A. TOOMEY concurred. SENIOR JUDGE RUSSELL W. BENCH
dissented, with opinion.1
ROTH, Judge:
¶1 Jay R. Stocks appeals the district court’s denial of his
motion to set aside a default judgment under rule 60(b)(1) of the
Utah Rules of Civil Procedure. Stocks’s proposed defense below
was that the four-year statute of limitations for actions on an
‚open account‛ barred any claim against him for the unpaid
balance on his credit card account. See Utah Code Ann. § 78B-2-
307(1)(c) (LexisNexis 2012). The district court ruled, however,
that the six-year statute of limitations for a ‚liability founded
upon an instrument in writing‛ applied and that the action was
1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
Asset Acceptance v. Stocks
therefore timely. See id. § 78B-2-309(2). Because Stocks’s only
claimed defense was that the suit was time-barred by the statute
of limitations, the court declined to set aside the judgment
against him. Stocks argues on appeal that the four-year statute of
limitations applies to credit cards because credit card accounts
are open store accounts and not liabilities founded on
instruments in writing. See id. §§ 78B-2-307, -309. We do not
reach that question but affirm the district court on the alternative
basis that Stocks failed to demonstrate either mistake or
excusable neglect sufficient to warrant setting aside the
judgment under rule 60(b). See Utah R. Civ. P. 60(b).
BACKGROUND
¶2 Although the date is not apparent from the record, Stocks
at some point entered into an agreement with Citibank for a
credit card. Stocks used the credit card to make various
purchases but eventually failed to make payments and defaulted
on the account, leaving an unpaid balance of approximately
$13,000. Citibank assigned Stocks’s debt to Asset Acceptance for
collection purposes.
¶3 Asset Acceptance filed a collection action and served
Stocks with the complaint on February 20, 2014. Stocks, acting
pro se, filed an answer on March 7, 2014. In his answer Stocks
asserted an affirmative defense that because there had been no
activity on the account since 2007, Asset Acceptance’s claim
against him was barred by the four-year statute of limitations set
out in Utah Code section 78B-2-307.
¶4 After receiving Stocks’s answer, Asset Acceptance served
Stocks with its first set of discovery requests, which included
both a request for production of documents and requests for
admission. Asset Acceptance’s discovery request contained the
following notice, entirely in bold print, on the first page
immediately below the caption:
20140898-CA 2 2016 UT App 84
Asset Acceptance v. Stocks
*** IMPORTANT NOTICE TO DEFENDANT ***
This Discovery Set contains Requests for
Admission in addition [to] Request[s] for
Production. Under Rule 36 of the Utah Rules of
Civil Procedure the Requests for Admission shall
be deemed admitted unless you respond to the
Requests within 28 days after service of the
Requests or within such shorter or longer time as
the court may allow. Be aware that Plaintiff may
move to have the Court enter judgment against
you if certain matters in this action are deemed
admitted based on your failure to respond timely.
(Emphasis in original.) In addition to this notice on the first
page, the third page also contained a notice entirely in bold print
that immediately preceded the requests for admission: ‚The
following requests for admission will be deemed admitted if not
responded to within twenty-eight (28) days after service.‛ Stocks
did not respond.
¶5 On May 14, 2014, Asset Acceptance filed a motion for
summary judgment. The motion contained the following notice:
Defendant is on notice that failure to respond to
this motion within ten (10) days of the date of
mailing may result in the Court granting the
motion and/or entering a judgment. Defendant*’s+
Answer filed in this matter is insufficient as a
response to this motion.
Stocks again failed to respond. Asset Acceptance submitted the
motion for summary judgment to the district court for decision
on June 19, 2014. The court granted the motion on June 20, 2014,
noting, ‚No opposition to the Motion has been filed and the time
to do so has now passed.‛ That same day, the district court
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Asset Acceptance v. Stocks
signed a judgment in favor of Asset Acceptance and sent notice
of the judgment to Stocks.
¶6 Approximately one month later, Stocks filed a pro se
motion to set aside the judgment pursuant to rule 60(b) of the
Utah Rules of Civil Procedure and requested a hearing. See Utah
R. Civ. P. 60(b). In his motion, Stocks stated, ‚I did not answer
the summons and complaint in the lawsuit because: (1) I
believed that the response given to the original complaint was
sufficient and was waiting for my day in court. (2) I believed the
defense of statute of limitation had been raised and no other
actions nor further filings were needed on my behalf.‛ 2 Stocks
again asserted that the action was time-barred because under
Utah Code section 78B-2-307 a four-year statute of limitations for
open accounts applied to credit cards. In its memorandum in
opposition to Stocks’s motion, Asset Acceptance argued that
Stocks had not only failed to establish a valid basis for relief
under rule 60(b) but had ‚consciously chose[n] to disregard the
warnings and not respond to Discovery or the Motion for
Summary Judgment.‛ Asset Acceptance argues that such actions
demonstrated ‚a clear lack of diligence‛ and that Stocks’s
‚willful disregard [does] not even qualify as neglect‛ under rule
60(b). See id. R. 60(b)(1). Asset Acceptance further argued that a
six-year statute of limitations applied to its claim and not, as
Stocks asserts, a four-year statute of limitations. See Utah Code
Ann. §§ 78B-2-307, -309 (LexisNexis 2012).
¶7 At the August 26, 2014 hearing, Stocks, appearing pro se,
explained,
2. Although Stocks states that he ‚did not answer the summons
and complaint,‛ he did in fact timely answer the complaint. In
context, it appears that Stocks intended this statement to mean
that he did not answer the discovery requests or motion for
summary judgment because he ‚believed that the response
given to the original complaint was sufficient.‛
20140898-CA 4 2016 UT App 84
Asset Acceptance v. Stocks
I didn’t respond [because] . . . I thought that it was
a time-barred case. And then pursuant to Rule 60, I
made a mistake[;] . . . I didn’t realize that I had to
respond to each and every claim that they had
made, and I thought the initial response that it said
it was a time-barred statute was sufficient.
Stocks further explained that he was ‚surprised‛ when Asset
Acceptance ‚got a summary judgment‛ against him. Stocks
argued that Asset Acceptance’s claim should fail because it was
barred by the four-year statute of limitations. In response, Asset
Acceptance argued that ‚there’s [no] basis for setting aside the
judgment‛ because ‚there was no response *from Stocks+ to any
of the subsequent pleadings to the summons complaint‛ and
that ‚the judgment should . . . remain in place‛ because the six-
year statute of limitations for instruments founded on writings
applies to credit cards. The district court denied Stocks’s motion.
In doing so the court stated,
I could set aside the judgment and . . . then
consider a motion for summary judgment on the
grounds that it’s a six-year statute [of limitations]
that applies, or I could determine that there’s really
no point in granting a motion to set aside because a
six-year statute is what applies. And I do believe
that a six-year statute is what applies in this
situation, so I don’t see what’s the point of going a
longer path of setting aside, then hearing another
motion for summary judgment. So I’m denying
your motion to set aside.
Stocks now appeals.
ANALYSIS
¶8 ‚A trial court has discretion in determining whether a
movant has shown [Rule 60(b) grounds], and this Court will
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Asset Acceptance v. Stocks
reverse the trial court’s ruling only when there has been an
abuse of discretion.‛ Lange v. Eby, 2006 UT App 118, ¶ 6, 133
P.3d 451 (alteration in original) (citation and internal quotation
marks omitted); see also Jones v. Layton/Okland, 2009 UT 39, ¶ 10,
214 P.3d 859 (‚We review a district court’s denial of a rule 60(b)
motion for relief from judgment for an abuse of discretion.‛).
¶9 In denying Stocks’s rule 60(b) motion, the district court
stated that it had read all documents related to this matter and
had found that section 78B-2-309 of the Utah Code ‚is the
applicable statute of limitations in this case, as the account in
question is based upon instruments in writing.‛ The court did
not further explain the basis for its decision. Stocks seeks to
challenge the court’s denial of his motion to set aside the
judgment ‚based on the purely legal determination that a six-
year statute of limitations—not a four-year statute of
limitations—applies to credit cards under Utah law.‛
¶10 As both parties agree, the question of which limitations
period applies to actions on credit card accounts is an issue of
first impression in Utah. Stocks argues that the four-year period
applicable to ‚open store account*s+ for *the purchase of+ any
good, wares, or merchandise‛ and to ‚open account*s+ for work,
labor or services rendered, or materials furnished,‛ see Utah
Code Ann. § 78B-2-307 (LexisNexis 2012), is the correct one;
Asset Acceptance contends that it should be the six-year period
applicable to ‚any contract, obligation, or liability founded upon
an instrument in writing,‛ see id. § 78B-2-309. In other
jurisdictions where a similar issue has been addressed, the
results have been mixed and often involve statutory language
that differs from our own in ways that may or may not be
significant.3 And the question presented here is an important one
3. For example, some states have determined that their statute of
limitations for open accounts, as opposed to the statute of
limitations for written contracts, should apply to credit cards.
(continued<)
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Asset Acceptance v. Stocks
that deserves attention, whether judicial or legislative, given the
universality of credit cards in our society and the number of
collection cases involving credit card debt that make their way
into our courts. But precisely because the issue is important and
may have widespread impact, we decline to attempt to resolve
an issue of first impression in a case with the sort of procedural
deficits this one contains. Cf. United States v. Monroe, 866 F.2d
1357, 1367 (11th Cir. 1989) (declining to address an issue of first
impression until ‚a better factual setting in which to determine
the . . . issue‛ arises). Most importantly, as Asset Acceptance
points out, the record here is not suited to the task.4 For example,
though the particular terms and structure of a credit card
agreement may certainly bear on the determination of its nature
(