2018 UT App 59
THE UTAH COURT OF APPEALS
BRAD DELEEUW,
Appellant,
v.
NATIONSTAR MORTGAGE LLC AND NATIONSTAR
MORTGAGE PROPERTIES LLC,
Appellees.
Opinion
No. 20170034-CA
Filed April 12, 2018
Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 160401076
Steven R. Sumsion, Attorney for Appellant
Robert H. Scott and Jason T. Baker, Attorneys
for Appellees
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN and RYAN M. HARRIS
concurred.
MORTENSEN, Judge:
¶1 Having not made any payment since 2008, Appellant
Brad Deleeuw faults the holder of the trust deed note on his
home for not foreclosing faster. The district court dismissed his
complaint, which asserted that the statute of limitations for
foreclosure had expired and that the note holder should be stuck
with the debt. The district court ruled that the statute of
limitations did not start running until the note was accelerated in
2016 and that even now the statute of limitations has not
expired. Deleeuw asserts on appeal that the district court erred,
arguing that the statute of limitations started to run when he first
Deleeuw v. Nationstar Mortgage
failed to make a payment and defaulted in 2008, and that the
statute of limitations expired in 2014. We disagree and affirm.
BACKGROUND
¶2 SCME Mortgage Inc. (SCME) loaned $224,000 to Deleeuw
in November 2003 in exchange for Deleeuw’s promise to repay
the loan in full, plus interest. This agreement was reduced to
writing by way of a signed note (the Note). The Note was
secured by a deed of trust (the Deed of Trust) on Deleeuw’s
residence in American Fork, Utah (the Property), and it placed
no conditions on his obligation to repay the debt. The Deed of
Trust designated SCME as the lender, Mortgage Electronic
Registration Systems Inc. as the beneficiary, and Precision Title
Insurance Agency of Utah Inc. as the trustee. The Note was later
assigned to and is currently in the possession of the successor-in-
interest, Nationstar Mortgage LLC (Nationstar).
¶3 In the Note, Deleeuw agreed to pay principal and interest
each month. He further agreed that if he had not repaid the loan
in full by the maturity date, December 1, 2033, he would pay the
Note in full at that time. Additionally, the Note stipulated that if
Deleeuw missed his monthly payment when due, he would be
in default. In the event of a default, the note holder (Note
Holder) would be permitted to “send [Deleeuw] a written notice
telling [Deleeuw] that if [he did] not pay the overdue amount by
a certain date, the Note Holder may require [him] to pay
immediately the full amount of Principal which has not been
paid and all the interest [owed] on that amount.”
¶4 Further, the Note provided that “[e]ven if, at a time when
[Deleeuw is] in default, the Note Holder does not require [him]
to pay immediately in full as described above, the Note Holder
will still have the right to do so if [Deleeuw is] in default at a
later time.” The Note also specified “how and under what
20170034-CA 2 2018 UT App 59
Deleeuw v. Nationstar Mortgage
conditions [Deleeuw] may be required to make immediate
payment in full of all amounts [owed] under this Note.”
¶5 Under the Deed of Trust, additional protections were
given to the Note Holder and the following acceleration clause
was agreed upon:
Lender shall give notice to Borrower prior to
acceleration following Borrower’s breach of any
covenant or agreement in this Security
Instrument . . . . [which] shall specify: (a) the
default; (b) the action required to cure the default;
(c) a date, not less than 30 days from the date the
notice is given to Borrower, by which the default
must be cured; and (d) that failure to cure the
default on or before the date specified in the notice
may result in acceleration of the sums secured by
the Security Instrument and the sale of the
Property . . . . If the default is not cured on or
before the date specified in the notice, Lender at its
option may require immediate payment in full of
all sums secured by this Security Instrument.
¶6 Deleeuw has not made a payment on the Note since
August 2008 and has been in default under the terms of the Note
since September 2008. Orange Title Insurance Agency Inc.
(Orange Title) was substituted as trustee under the Deed of Trust
on April 2, 2013, and again on July 10, 2014. 1 As trustee, Orange
Title filed three notices of default against Deleeuw: one in April
2014, which was cancelled; one in July 2014, which was
1. Orange Title was substituted as trustee on two separate
occasions due to an error in the legal description of the Property
during the first substitution. That error is not at issue in this
appeal.
20170034-CA 3 2018 UT App 59
Deleeuw v. Nationstar Mortgage
cancelled; and one in February 2016, which accelerated the
remaining payments under the Note.
¶7 In July 2016, Nationstar, through Orange Title, attempted
to foreclose on the Property. Deleeuw brought an action to
prevent foreclosure, arguing that Nationstar’s efforts to foreclose
were barred by a six-year statute of limitations that had expired.
In his complaint, Deleeuw alleged causes of action for injunctive
relief barring foreclosure, quiet title to the Property, and
declaratory relief stating that the statute of limitations for
foreclosure had expired. All of Deleeuw’s claims were premised
on the argument that the general statute of limitations for
written contracts, Utah Code section 78B-2-309, applied to the
foreclosure and that the statute of limitations had expired.
¶8 Nationstar moved to dismiss, arguing that the applicable
statute of limitations was not the general statute for written
contracts, but was instead the statute of limitations found in
Article 3 of the Uniform Commercial Code (the UCC), which it
asserted had not expired. The district court agreed and granted
Nationstar’s motion to dismiss with prejudice. Deleeuw now
appeals.
ISSUE AND STANDARD OF REVIEW
¶9 Deleeuw challenges the district court’s grant of
Nationstar’s motion to dismiss. We review a district court’s
decision to grant or deny a motion to dismiss for correctness,
giving no deference to the decision of the lower court. See State v.
Hamilton, 2003 UT 22, ¶ 17, 70 P.3d 111.
ANALYSIS
¶10 Deleeuw argues that the district court erred in granting
Nationstar’s motion to dismiss because it applied the wrong
20170034-CA 4 2018 UT App 59
Deleeuw v. Nationstar Mortgage
statute of limitations. Deleeuw contends that the statute of
limitations period for foreclosure under a deed of trust is
governed by Utah Code section 78B-2-309, not Article 3 of the
Uniform Commercial Code. We disagree.
¶11 Utah Code section 57-1-34 provides that
[a] person shall, within the period prescribed by law
for the commencement of an action on an
obligation secured by a trust deed:
(1) commence an action to foreclose the trust deed;
or
(2) file for record a notice of default under Section
57-1-24.
Utah Code Ann. § 57-1-34 (LexisNexis 2009) (emphasis added).
The parties disagree on which “period prescribed by law”
applies in this situation. Deleeuw asserts that the statute of
limitations applicable here is Utah Code section 78B-2-309, the
six-year statute of limitations for an action on an instrument in
writing, and that the limitations period began to run on
September 1, 2008—the date that he first failed to make a
monthly mortgage payment. See id. § 78B-2-309 (2012).
Nationstar, however, asserts that the applicable statute of
limitations is found in Utah Code section 70A-3-118(1), the six-
year statute of limitations for negotiable instruments under the
UCC, which began to run on February 5, 2016, the date
Nationstar accelerated the payments under the Note. See id.
§ 70A-3-104(1) (2009) (negotiable instrument); id. § 70A-3-118(1)
(statute of limitations).
¶12 The statute of limitations for an action on an instrument
in writing generally begins to run at the time of the breach—that is,
the date of the first missed payment. See Goldenwest Fed. Credit
Union v. Kenworthy, 2017 UT App 191, ¶¶ 3, 7 n.4, 406 P.3d 253
20170034-CA 5 2018 UT App 59
Deleeuw v. Nationstar Mortgage
(running the statute of limitations from the time of breach, which
is the time of the first missed payment or the maturity date). In
contrast, the UCC statute of limitations states that “an action to
enforce the obligation of a party to pay a note payable at a
definite time must be commenced within six years after the due
date or dates stated in the note or, if a due date is accelerated,
within six years after the accelerated due date.” Utah Code Ann.
§ 70A-3-118(1) (emphasis added). Thus, while both statutes
prescribe six-year limitation periods, they contain potentially
different triggering dates for the commencement of the six-year
periods.
¶13 When two statutory provisions conflict, the more specific
provision governs. Millett v. Clark Clinic Corp., 609 P.2d 934, 936
(Utah 1980). Our supreme court has stated that “where the
Uniform Commercial Code sets forth a limitation period for a
specific type of action, this limitation controls over an older,
more general statute of limitations.” Perry v. Pioneer Wholesale
Supply Co., 681 P.2d 214, 216 (Utah 1984). As such, the more
specific UCC statute of limitations applies to the Note and the
Deed of Trust at issue here. The Note in question was
accelerated in February 2016, and that event started the running
of the limitations period. Because the six-year limitations period
started running in February 2016, it will not expire until
February 2022.
¶14 We draw support for our conclusion from a recent
decision of Utah’s federal district court, which offers persuasive,
but not binding, interpretive guidance regarding the applicable
statute of limitations period. In that decision, the plaintiffs
executed a promissory note and deed of trust to secure a loan of
$235,000. Lewis v. Caliber Home Loans, Inc., No. 2:16-cv-01252,
2018 WL 485967, at *1 (D. Utah Jan. 18, 2018), appeal docketed, No.
18-4020 (10th Cir. Feb. 16, 2018). The plaintiffs defaulted on their
loan in 2009, their debt was accelerated in 2014, and the trustee
attempted to foreclose on the property in 2016. Id. The plaintiffs
20170034-CA 6 2018 UT App 59
Deleeuw v. Nationstar Mortgage
asserted the same argument that Deleeuw presents here—that is,
the statute of limitations began to run from the date of the first
failure to make payment. See id. at *1–2. The defendants asserted
that the UCC applied and that the statute of limitations began to
run on the date of acceleration. Id. at *2. Analogous to the
present case before us, the issue of what statute of limitations
applies was presented in the context of a motion for summary
judgment. See id. The federal district court analyzed the same
statutes discussed here and reasoned that because the UCC
statute was the more specific provision, the UCC statute
governed. Id. Based on this conclusion, the federal district court
rejected the plaintiffs’ argument, holding that the statute of
limitations began running on the date of acceleration. Id. at *3.
We find the reasoning of the Lewis court persuasive insofar as it
supports our independent conclusion that the more specific UCC
statute of limitations controls.
¶15 Contrary to both our reading of the law and the
conclusion in Lewis, Deleeuw argues that Bevan v. Boyce, 2006 UT
App 31U (per curiam), controls in this case. In Bevan, we
dismissed the plaintiff’s argument that real estate transactions
involving deeds of trust are governed by the UCC, stating that
“trust deeds are not regulated by the Uniform Commercial Code
but instead are regulated by Utah Code sections 57-1-1 through
57-1-44.” Id. para. 3. However, the present case does not involve
a real estate transaction—it involves the use of the Property to
secure Deleeuw’s debt by way of an underlying contractual
obligation—and Deleeuw fails to incorporate Utah Code section
57-1-34 into his analysis. That section plainly requires that a
court determine the statute of limitations for foreclosure under a
deed of trust by reference to the limitations period on the
underlying obligation. See Utah Code Ann. § 57-1-34 (LexisNexis
2009); supra ¶ 11. Here, that underlying obligation is the loan. It
is irrelevant that the UCC does not apply to deeds of trust in
other contexts. Therefore, it is clear, through case law and
statutory construction, that the UCC statute of limitations
20170034-CA 7 2018 UT App 59
Deleeuw v. Nationstar Mortgage
applies in this case because it is the more specific provision. See
Millett, 609 P.2d at 936. 2
¶16 Deleeuw further argues that even if the UCC should apply,
it cannot. His rationale is that because the Deed of Trust deals
with a real property transaction, it is not a negotiable instrument,
and negotiability is required for the UCC to apply. While it is
unclear whether this issue was presented to the district court
and thus preserved, we address it to clarify the law and reject his
premise outright. Certainly, the Deed of Trust is not a negotiable
2. In an attempt to argue that the statute of limitations begins to
run at the time of the first missed payment, Deleeuw points us to
DiMeo v. Nupetco Associates, LLC, 2013 UT App 188, 309 P.3d 251,
and Christensen v. American Heritage Title Agency, Inc., 2016 UT
App 36, 368 P.3d 125, which Deleeuw claims support that
proposition. However, in both of these cases, we simply applied
the statute of limitations agreed on by the parties and went on to
address separate legal issues. See DiMeo, 2013 UT App 188, ¶ 9
(determining whether foreclosure was appropriate where the
statute of limitations had run against one, but not all co-obligors
on a note secured by a deed of trust); Christensen, 2016 UT App
36, ¶ 18 (holding that “[t]he parties do not dispute that the
amended complaints, raising the foreclosure claims and adding
the foreclosure defendants to the suit, were filed after the
expiration of the six-year statute of limitations”). Neither case
analyzed the application of competing statutes of limitations, nor
held that the UCC is inapplicable to foreclosures on deeds of
trust securing negotiable instruments. Therefore, those cases are
not binding on this particular set of facts. While Deleeuw may be
correct that the statute of limitations for an action on an
instrument in writing begins to run at the time of the breach—
that is, the date of the first missed payment, see supra ¶ 11—that
is not the case here when read with Utah Code section 70A-3-
104(1) and Utah Code section 57-1-34.
20170034-CA 8 2018 UT App 59
Deleeuw v. Nationstar Mortgage
instrument under the UCC, but the Note is. To be negotiable
under Utah Code section 70A-3-104(1), an instrument must: (1)
be signed by the maker or drawer, (2) contain an unconditional
promise or order to pay a sum certain in money, (3) be payable
on demand or at a definite time, and (4) be payable to order or to
bearer. Calfo v. D.C. Stewart Co., 717 P.2d 697, 699 (Utah 1986).
Here, the Note was signed by Deleeuw; it is payable to Note
Holder; it contains an unconditional promise to pay $224,000;
and states that all amounts owed must be paid by December 1,
2033, the maturity date of the loan. Therefore, the Note is a
negotiable instrument within the meaning of the UCC.3 Because
the Note is a negotiable instrument, any lawsuit to enforce the
Note is governed by the UCC statute of limitations. Again,
although the Note is an agreement in writing that might
otherwise be subject to the limitations period of Utah Code
section 78B-2-309, the more specific UCC limitations period
governs. See Millett, 609 P.2d at 936; see also Van Leeuwen v. Bank
of Am. NA, No. 2:14-cv-00703, 2015 WL 5618048, at *3 (D. Utah
Sept. 24, 2015) (rejecting the plaintiff’s argument that the statute
of limitations ran from the borrower’s last payment on the loan
and concluding that the UCC statute of limitations applied
instead).
3. Deleeuw also contends that “[w]here a promissory note and
trust deed are executed together as part of the same transaction,
they must be considered together.” (Citing Trethway v. Furstenau,
2001 UT App 400, ¶ 9, 40 P.3d 649.) However, he fails to cite any
authority that transmutes a negotiable instrument into a non-
negotiable instrument based on an outside reference to a deed of
trust. In fact, our supreme court has held the opposite. See Calfo
v. D.C. Stewart Co., 717 P.2d 697, 700 (Utah 1986) (“[A]n
instrument’s negotiability must be determinable from what
appears on its face and without reference to extrinsic facts.”).
20170034-CA 9 2018 UT App 59
Deleeuw v. Nationstar Mortgage
¶17 The Note in the present case evidences an underlying
obligation to pay money on a loan, not a real estate transaction.
See Utah Code Ann. § 57-1-34. Just because the mechanism by
which Deleeuw is forced to pay back the loan happens to be tied
to a real property foreclosure does not make this a real estate
transaction. The relevant analysis should focus solely on the
underlying obligation, not the security instrument employed.
¶18 The obligation secured by the Deed of Trust in this case is
the Note from November 2003 in which Deleeuw promised to
pay $224,000. The statute of limitations began to run in February
2016 when that Note was accelerated. Because the six-year
statute of limitations has not yet expired, Nationstar is permitted
to foreclose. Therefore, the district court did not err in granting
Nationstar’s motion to dismiss.
CONCLUSION
¶19 For these reasons, we conclude that the UCC applies to
this case and the statute of limitations began to run at the time
the debt was accelerated. Therefore, Nationstar’s right to
foreclose on the Property is not time-barred and the district court
correctly dismissed Deleeuw’s complaint seeking to prevent
foreclosure. We affirm.
20170034-CA 10 2018 UT App 59