Asset Acceptance LLC v. Stocks

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:

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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.‛

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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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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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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

(<continued)
See, e.g., Portfolio Acquisitions LLC v. Feltman, 909 N.E.2d 876, 884
(Ill. App. Ct. 2009); Smither v. Asset Acceptance LLC, 919 N.E.2d
1153, 1160 (Ind. Ct. App. 2010); Gemini Capital Group v. New, No.
10-1096, 2011 WL 3925723, at *3 (Iowa Ct. App. Sept. 8, 2011);
Capital One Bank v. Creed, 220 S.W.3d 874, 877–78 (Mo. Ct. App.
2007); Colorado Nat’l Bank of Denver v. Story, 862 P.2d 1120, 1122
(Mont. 1993). Other states have reached the opposite conclusion
and apply the longer statute reserved for contracts in writing.
See, e.g., Hill v. American Express, 657 S.E.2d 547, 548 (Ga. Ct.
App. 2008); Unifund CCR LLC v. Lowe, 367 P.3d 145, 148–49
(Idaho 2016).

4. In its briefing, Asset Acceptance states, ‚The trial court record
regarding the writings upon which the credit agreement in this
case was founded was not fully developed.‛ And as a
consequence, ‚*a+nother case with a fully-developed record
regarding the writings supporting the credit card agreement
may be better suited for this Court’s determination of the issue.
As such, the Court may be better served by not reaching a
determination on the statute of limitations issue by way of this
case.‛

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Asset Acceptance v. Stocks

as an open account or instrument in writing, there is no such
agreement in the record or even a description of the particular
agreement beyond the bare allegations of the complaint and the
motion for summary judgment, which are limited to ‚*Stocks+
entered into a contract with CITIBANK opening an account
ending in *+3517,‛ which the parties seem to acknowledge is a
credit card account of some kind. From the facts before us in the
record, there is simply no evidence about how any agreement
might have been reached or what any of its terms are, beyond
the bare requirement to make periodic payments.

¶11 Further, the procedural posture here—a ruling on a rule
60(b) motion to set aside a default judgment—is not well suited
to resolve the kind of legal question raised. For instance, the
demonstration of a ‚meritorious defense‛ requires no more than
‚a clear and specific proffer of a defense that, if proven, would
preclude total or partial recovery,‛ requiring only ‚that a party
state the basis for its claims or defenses in short and plain
terms.‛ Sewell v. Xpress Lube, 2013 UT 61, ¶ 33, 321 P.3d 1080
(citation and internal quotation marks omitted). And the
standard of review for the denial of such a motion focuses
heavily on the highly discretionary nature of such a decision. See
Katz v. Pierce, 732 P.2d 92, 93 (Utah 1986) (per curiam) (‚The
district court judge is vested with considerable discretion under
Rule 60(b) in granting or denying a motion to set aside a
judgment.‛); see also Jones, 2009 UT 39, ¶ 27 (‚A district court
abuses its discretion only when its decision was against the logic
of the circumstances and so arbitrary and unreasonable as to
shock one’s sense of justice . . . [or] resulted from bias, prejudice,
or malice.‛ (alteration and omission in original) (citation and
internal quotation marks omitted)). This narrow focus on the
facial validity of claims or defenses is well tailored to the rule’s
limited purpose: ‚[T]o prevent the necessity of judicial review of
questions which, on the face of the pleadings, are frivolous.‛
Sewell, 2013 UT 61, ¶ 33 (citation and internal quotation marks
omitted). But the result can be that an important legal issue such
as this one, does not receive the full analytical attention at the

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district court level it should otherwise merit and the appellate
court is left without the benefit of the district court’s insight. As a
consequence, although we agree with both Stocks and Asset
Acceptance that ‚this is an issue of first impression in Utah,‛ this
may not be the right case to address the issue because, as Asset
Acceptance points out, ‚a review of the law of other jurisdictions
is of little assistance, as there is no clear majority opinion, and
statutory schemes for limitations periods vary widely from state
to state.‛

¶12 Under the circumstances, then, we think it appropriate to
resolve the matter on a different basis than the court below.
‚Although the district court based its denial of the 60(b) motion
on other grounds, we are free to affirm the dismissal on any
grounds apparent from the record,‛ Johnson v. Johnson, 2010 UT
28, ¶ 13, 234 P.3d 1100, and we ‚may affirm the decision
rendered below . . . on a ground on which the district court did
not rely,‛ First Equity Fed. Inc. v. Phillips Dev. LC, 2002 UT 56,
¶ 11, 52 P.3d 1137. See Orton v. Carter, 970 P.2d 1254, 1260 (Utah
1998) (stating that ‚*i+t is well established that an appellate court
may affirm‛ a district court’s order if the order ‚is sustainable on
any legal ground or theory apparent on the record‛ (citation and
internal quotation marks omitted)). We think it appropriate to
do so here and conclude that Stocks failed to demonstrate that
the circumstances entitled him to relief under rule 60(b)(1).5

¶13 Rule 60(b) of the Utah Rules of Civil Procedure provides a
mechanism for a party to obtain relief from a final order or
judgment on the basis of, among other things, ‚mistake,
inadvertence, surprise, or excusable neglect.‛ See Utah R. Civ. P.
60(b). To be entitled to relief under the rule, a party must show
that ‚(1) the motion is timely; (2) there is a basis for granting

5. We note that both parties have briefed the issue of whether
Stocks is entitled to relief under rule 60(b) for either mistake or
excusable neglect.

20140898-CA 9 2016 UT App 84
Asset Acceptance v. Stocks

relief under one of the subsections of 60(b); and (3) the movant
has alleged a meritorious defense.‛ Menzies v. Galetka, 2006 UT
81, ¶ 64, 150 P.3d 480. ‚These considerations should be
addressed in a serial manner.‛ Id. ‚In other words, there is no
need to consider whether there is a basis for setting aside a . . .
judgment if the motion was not made in a timely manner, and
no need to consider whether there is a meritorious defense if
there are not grounds for relief.‛ Id. And ‚it is unnecessary, and
moreover inappropriate, to even consider the issue of [a]
meritorious defense[] unless the court is satisfied that a sufficient
excuse has been shown.‛ State ex rel. Dep’t of Soc. Servs. v.
Musselman, 667 P.2d 1053, 1056 (Utah 1983) (plurality opinion).
In this case, the district court appears to have turned to the issue
of Stocks’s claimed meritorious defense without first considering
whether he had met the other conditions for relief.

¶14 To begin, there is no dispute that Stocks’s rule 60(b)
motion was timely. And although Stocks urges this court to
reach the third consideration of whether he has a meritorious
defense, Stocks’s actions in the proceedings below demonstrate
the wisdom of addressing the considerations to obtain relief
under rule 60(b) ‚in a serial manner.‛ See Menzies, 2006 UT 81,
¶ 64. Accordingly, we must next determine whether Stocks has
‚a basis for granting relief under one of the subsections of [rule]
60(b).‛ See id.6

6. Although Stocks acknowledges that the district court’s
statement is ‚not as explicit as it could have been,‛ he maintains
that the district court implicitly ‚found a basis for relief‛ in his
claims of excusable neglect and mistake because the court stated
that it ‚could set aside the judgment and . . . then consider a motion
for summary judgment on the grounds that it’s a six-year
statute that applies, or [the court+ could determine that there’s
really no point in granting a motion to set aside because a six-
year statute is what applies.‛ (Emphasis added.) The dissent
(continued<)

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Asset Acceptance v. Stocks

¶15 Stocks brought his motion to set aside the judgment
under the theories of excusable neglect, mistake, or newly
discovered evidence, which implicates subsections (1) and (2) of
rule 60(b).7 See Utah R. Civ. P. 60(b)(1), (2). Stocks states in his

(<continued)
reaches the same conclusion, i.e., that the district court implicitly
ruled in favor of Stocks’s claim of excusable neglect before it
proceeded to consider whether Stocks had a meritorious defense.
Infra ¶ 24.
We interpret the court’s statement differently. Here, the
court not only failed to ‚make any explicit finding regarding due
diligence,‛ see Shamrock Plumbing LLC v. Silver Baron Partners LC,
2012 UT App 70, ¶ 4, 277 P.3d 649, but it did not even mention
the issue in its ruling. Given that omission, the court’s bare
statement that it ‚could set aside the judgment‛ does not seem to
support a reasonable inference that the court had fully
considered the circumstances and determined that Stocks had
established a reasonable excuse for his neglect of the
proceedings. Rather, it is reasonable to conclude that the court
simply skipped that step and proceeded directly to the question
of whether there was a meritorious defense, describing only
hypothetically what would happen if the court granted relief and
without meaning to imply that it had determined that Stocks
had shown a basis for it.

7. Rule 60(b)(2) allows for post-judgment relief based upon
‚newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial.‛ Utah R.
Civ. P. 60(b)(2). Although Stocks cited rule 60(b)(2) in his motion
to set aside the judgment and stated in his affidavit in support of
that motion that he had ‚newly discovered evidence that will
indicate that this is a time barred claim and would allow for the
judgment to be set aside,‛ he did not present any new evidence
either at the hearing or in his reply to Asset Acceptance’s
opposition to his motion. Accordingly, we need not consider
(continued<)

20140898-CA 11 2016 UT App 84
Asset Acceptance v. Stocks

reply brief that ‚*i+n addition to the listed grounds for relief, rule
60(b) includes a catchall provision for ‘any other reason
justifying relief from the operation of the judgment.’‛ (Quoting
id. R. 60(b)(6).) Stocks continues, ‚Trial courts are granted broad
discretion to make factual determinations about the attendant
circumstances of a 60(b) motion.‛ But Stocks merely recites this
portion of the rule in his reply brief without providing any
analysis. See Brown v. Glover, 2000 UT 89, ¶ 23, 16 P.3d 540
(‚Generally, issues raised by an appellant in the reply brief that
were not presented in the opening brief are considered waived
and will not be considered by the appellate court.‛); Utah R.
App. P. 24(a)(9) (‚The argument shall contain the contentions
and reasons of the appellant with respect to the issues
presented, . . . with citations to the authorities, statutes, and parts
of the record relied on.‛). And, in any event, because his claim
most closely fits under subsection (1) of the rule for ‚mistake‛ or
‚excusable neglect,‛ it cannot be brought under subsection (6)
which is reserved for ‚any other reason justifying relief.‛ See
Bliss v. Sky High Inc., 2002 UT App 255U, para. 7 (concluding that
because appellant argued for relief under rule 60(b)(1) ‚he
cannot [also] ask for relief under 60(b)(6)‛). Subsection (6) of the
rule does not apply, ‚*b+ecause *it+ is meant to operate as a
residuary clause, [and] may not be relied upon if the asserted
grounds for relief fall within any other subsections of rule 60(b).‛
Menzies, 2006 UT 81, ¶ 71. Therefore, because Stocks’s stated
reasons for the relief he sought in the district court fall within the
scope of rule 60(b)(1), he may not avail himself of subsection (6).

¶16 Although Stocks explained to the district court that he
‚made a mistake,‛ it is this claimed ‚mistake‛ that seems to be
his ‚excuse‛ for neglecting the request for discovery, the motion
for summary judgment, and the notice to submit for decision.

(<continued)
Stocks’s claim of newly discovered evidence, precisely because
he did not present any.

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Asset Acceptance v. Stocks

But Stocks’s actions do not qualify for relief as excusable neglect.
The Utah Supreme Court has defined excusable neglect as ‚the
exercise of due diligence by a reasonably prudent person under
similar circumstances.‛ Mini Spas Inc. v. Industrial Comm’n of
Utah, 733 P.2d 130, 132 (Utah 1987) (per curiam) (citation and
internal quotation marks omitted); see also Sewell v. Xpress Lube,
2013 UT 61, ¶ 29, 321 P.3d 1080 (‚Due diligence is established
where the failure to act was the result of . . . the neglect one
would expect from a reasonably prudent person under similar
circumstances.‛ (omission in original) (citation and internal
quotation marks omitted)). ‚*W+hile a party need not be
perfectly diligent in order to obtain relief, some diligence is
necessary‛ in order for the neglect to be considered excusable.
See Jones v. Layton/Okland, 2009 UT 39, ¶ 23, 214 P.3d 859. In
determining whether a party has exercised due diligence, the
district court must consider whether the actions of the party
seeking relief were ‚sufficiently diligent and responsible, in light
of the attendant circumstances, to justify excusing it from the full
consequences of its neglect.‛ Id. ¶ 22. Therefore,

[t]o grant relief on the ground of excusable neglect
where a party has exercised no diligence at all, but
simply because other equitable considerations
might favor it, subverts the purpose of the excusable
neglect inquiry. Rule 60(b)’s use of ‘excusable’ as a
modifier of ‘neglect’ makes clear that mere neglect
alone is an insufficient justification for relief.

Id. ¶ 23 (emphasis added).

¶17 Stocks’s inaction cannot qualify as excusable neglect. In
response to Asset Acceptance’s complaint, Stocks filed an
answer asserting the affirmative defense that Asset Acceptance’s
claim was barred by the four-year statute of limitations under
section 78B-2-307 of the Utah Code. Asset Acceptance then
served Stocks with its first set of discovery requests, which
included both a request for production of documents and
requests for admission. With respect to the requests for

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Asset Acceptance v. Stocks

admission, Asset Acceptance explicitly warned Stocks—in a
large-type, bolded ‚IMPORTANT NOTICE TO
DEFENDANT‛—that ‚*u+nder 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,‛
and repeated that warning as an introduction to the admission
requests themselves. (Emphasis in original.) The discovery
requests further cautioned Stocks in bold print that if he did not
respond, Asset Acceptance could ‚move to have the Court enter
judgment against [him] if certain matters in [the] action [were]
deemed admitted based on [his] failure to respond timely.‛ Yet
Stocks made no effort to respond. Asset Acceptance then filed a
motion for summary judgment based on Stocks’s deemed
admissions, just as it had warned him it could. Stocks again
failed to respond, despite the admonition contained in the
motion for summary judgment itself, stating that he was ‚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‛ and advising him that his
‚*a+nswer filed in this matter is insufficient as a response to this
motion.‛ Stocks again failed to respond. Asset Acceptance then
filed a request to submit the matter for decision, and, again
because Stocks failed to respond, the district court granted
summary judgment in favor of Asset Acceptance. In doing so,
the district court stated, ‚No opposition to the Motion *for
summary judgment] has been filed and the time to do so has
now passed.‛ Although Stocks did file an answer to the original
complaint, he did nothing else until after judgment was awarded
to Asset Acceptance.

¶18 Stocks does not assert that he did not receive the requests
for discovery, the motion for summary judgment, or the notice
to submit for decision; rather, he simply says, ‚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 . . . said it was a
time-barred statute was sufficient.‛ Therefore, it seems there are
only two plausible scenarios explaining Stocks’s failure to

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Asset Acceptance v. Stocks

respond. Either Stocks chose not to read the documents and thus
did not see the large bold-print notices informing him that he
must respond or he read the documents but consciously chose to
disregard the warnings and not respond. Neither of these
scenarios qualifies as excusable neglect under rule 60(b).

¶19 If Stocks failed to read the documents, then he did not
exercise the appropriate level of diligence required to excuse his
neglect, because his complete lack of action does not meet the
standard required, i.e., ‚the exercise of due diligence by a
reasonably prudent person under similar circumstances.‛ Mini
Spas Inc., 733 P.2d at 132 (citation and internal quotation marks
omitted); see also Jones, 2009 UT 39, ¶ 23 (‚To grant relief on the
ground of excusable neglect where a party has exercised no
diligence at all . . . subverts the purpose of the excusable neglect
inquiry.‛ (emphasis added)). ‚*D+iligence on the part of the
party claiming excusable neglect is an essential element of [the]
inquiry, and relief may not be granted based on other equitable
considerations where a party has exercised no diligence at all.‛
Bodell Constr. Co. v. Robbins, 2014 UT App 203, ¶ 10, 334 P.3d
1004 (citation and internal quotation marks omitted). And while
we acknowledge that ‚a party need not be perfectly diligent in
order to obtain relief‛ under rule 60(b), ‚some diligence is
necessary.‛ Jones, 2009 UT 39, ¶ 23. Under this scenario, failing to
read the documents after receiving them does not qualify as
excusable neglect that relieves Stocks from judgment.

¶20 The other possibility, which seems a reasonable inference
from his statement to the district court, is that Stocks read the
documents and chose not to respond because he ‚believed that
the response given to the original complaint was sufficient‛ and
therefore ‚no other actions nor further filings were needed.‛ But
to take this course, Stocks would have had to disregard the
specific perils the documents themselves warned of, including
the possibility that Asset Acceptance might seek judgment
against him if he failed to respond to the requests for admission
and the warning that judgment could result if he failed to
respond to Asset Acceptance’s subsequent motion seeking such

20140898-CA 15 2016 UT App 84
Asset Acceptance v. Stocks

a judgment. His explanation is that he continued to hold to his
belief that no response was required because he had stated a
limitations defense in his answer, despite a specific admonition
in the summary judgment motion itself that his answer was an
insufficient response to the motion. Stocks characterizes this
belief as a ‚mistake,‛ and it is this mistake that Stocks seems to
intertwine with his claim of excusable neglect. But such a
mistake cannot be deemed an innocent error or neglect worthy
of judicial relief where it involves hewing to a course of action in
disregard of repeated warnings that serious harm may result.
Rather, this is a path that no reasonably prudent person would
follow in the face of such risk. See Cadlerock Joint Venture II LP v.
Envelope Packaging of Utah Inc., 2011 UT App 98, ¶ 9, 251 P.3d 837
(concluding that the district court did not abuse its discretion in
finding that a party’s neglect was not excusable even though the
party ‚claim*ed+ . . . it was unfamiliar with Utah Rules of Civil
Procedure‛ (omission in original) (internal quotation marks
omitted)); Serrato v. Utah Transit Auth., 2000 UT App 299, ¶ 8 n.5,
13 P.3d 616 (noting that ‚*a+ reasonably prudent person would
not misread such a straightforward important legal document‛
as the one at issue in this case); Meadow Fresh Farms Inc. v. Utah
State Univ. Dep’t of Agric. & Applied Sci., 813 P.2d 1216, 1218–20
(Utah Ct. App. 1991) (concluding plaintiff’s ‚lack of
communication with counsel,‛ failure to appear at hearing, and
confusion regarding the proceedings did not meet the excusable
neglect standard, because a reasonably prudent person under
similar circumstances would have followed the court’s order to
appear). Moreover, ‚a party who simply misunderstands or fails
to predict the legal consequences of his deliberate acts cannot
later, once the lesson is learned, turn back the clock to undo
those mistakes.‛ Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th
Cir. 1999).

¶21 Thus, based on the undisputed facts before the district
court, Stocks’s complete lack of action in response to Asset
Acceptance’s discovery requests, motion for summary judgment,
and notice to submit for decision despite repeated warnings of

20140898-CA 16 2016 UT App 84
Asset Acceptance v. Stocks

potential adverse consequences of grave significance cannot
qualify as excusable neglect or mistake under rule 60(b) of the
Utah Rules of Civil Procedure. We therefore conclude as a
matter of law that Stocks is not entitled to relief from the default
judgment. See Shamrock Plumbing LLC v. Silver Baron Partners LC,
2012 UT App 70, ¶¶ 6–7, 277 P.3d 649 (reversing the trial court’s
grant of a rule 60(b) motion to set aside the judgment on
grounds of excusable neglect on the basis that ‚*u+nder the
circumstances, [defendants] appear to have exercised no
diligence at all; thus, the relief afforded by the trial court was not
justified‛ (internal quotation marks omitted)).

CONCLUSION

¶22 The district court based its denial of Stocks’s rule 60(b)
motion on whether the statute of limitations barred Asset
Acceptance’s claim, but ‚*i+t is well established that an appellate
court may affirm‛ a district court’s order if the order ‚is
sustainable on any legal ground or theory apparent on the
record.‛ Orton v. Carter, 970 P.2d 1254, 1260 (Utah 1998) (citation
and internal quotation marks omitted); see also Johnson v. Johnson,
2010 UT 28, ¶ 13, 234 P.3d 1100 (‚*W+e are free to affirm the
dismissal on any grounds apparent from the record.‛). Based on
the undisputed facts in the record of the proceedings in the
district court, it is clear that Stocks failed to act as a reasonably
prudent person would in similar circumstances. Accordingly, we
affirm the district court’s denial of his rule 60(b) motion on that
basis.

BENCH, Senior Judge (dissenting):

¶23 I disagree with the majority’s decision to affirm on the
alternative ground that Stocks failed to show excusable neglect.

20140898-CA 17 2016 UT App 84
Asset Acceptance v. Stocks

I believe we should address the statute of limitations question on
the merits.

¶24 In ruling that Stocks had no meritorious defense, the
district court implicitly accepted his excusable neglect argument.
The court suggested that it might have set aside the judgment if
it thought that Stocks might be able to successfully defend
against another motion for summary judgment by convincing
the court that the four-year statute of limitations should apply to
Asset Acceptance’s claims. However, the court ultimately
determined that there would be ‚no point in granting a motion
to set aside because a six-year statute is what applies.‛

¶25 ‚A district court has broad discretion to rule on a motion
to set aside a default judgment under rule 60(b) of the Utah
Rules of Civil Procedure,‛ Menzies v. Galetka, 2006 UT 81, ¶ 54,
150 P.3d 480, and I am not convinced, particularly in light of the
fact that Stocks was acting pro se, that it was an abuse of the
district court’s discretion to determine that Stocks had
demonstrated excusable neglect. Stocks explained to the district
court that he believed his answer to Asset Acceptance’s
complaint, in which he raised the statute of limitations defense,
made it unnecessary for him to further respond to Asset
Acceptance’s motion for summary judgment. Although it might
be appropriate to remand the case for the district court to
explicitly rule on the excusable neglect issue, I do not believe we
are in any position to make such a ruling as a matter of law.

¶26 I am also not convinced that a more fully developed
record is needed to address the question of which statute of
limitations applies to credit card debt. Whether an open credit
card account, which is presumably subject to terms dictated by a
written agreement, but which has a shifting balance tracked in
monthly statements,8 falls under the four-year statute of

8. Asset Acceptance indicates that ‚written terms and conditions
setting forth the essential terms‛ of a credit card agreement ‚are
(continued<)

20140898-CA 18 2016 UT App 84
Asset Acceptance v. Stocks

limitations or under the six-year statute of limitations is a
question of statutory interpretation. The four-year statute of
limitations is applicable to actions ‚on an open store account for
any goods, wares, or merchandise . . . [or] on an open account
for work, labor or services rendered, or materials furnished.‛
Utah Code Ann. § 78B-2-307(1) (LexisNexis 2012). The six-year
statute of limitations is applicable to actions brought ‚upon any
contract, obligation, or liability founded upon an instrument in
writing.‛ Id. § 78B-2-309(2). The question of which statute of
limitations applies to credit card debt does not appear to be
particularly fact dependent.9 I fail to see how a more detailed
record would help us to resolve this question of statutory

(<continued)
universally provided to the cardholder . . . when the card is
issued‛ and that ‚*p+eriodic written statements‛ are also
‚universally sent to the cardholder . . . and include the balance
owing on the account, any fees and interest accrued, the interest
rate, the current payment due, and the payment due date.‛
Stocks likewise acknowledges that ‚standard credit agreements
are generally kept in a writing of some form that explains the
applicable interest rates and other important terms‛ and that
although no written instrument had been produced in this case it
could be presumed that he ‚entered into a standard credit card
agreement . . . , which is usually and properly kept in writing.‛

9. The district court’s summary decision on the statute of
limitations issue supports this conclusion. Had the district court
considered this issue to involve a fact-dependent inquiry, it
would have considered the particular facts of the case in
reaching its decision rather than simply following the rulings in
other district court cases that applied the six-year statute of
limitations. Indeed, the district court explained that it considered
the statute of limitations issue to present ‚a purely legal
question.‛

20140898-CA 19 2016 UT App 84
Asset Acceptance v. Stocks

interpretation.10 While it might be easier to decide the issue after
it has received ‚full analytical attention at the district court
level,‛ and our analysis could certainly ‚benefit *from+ the
district court’s insight,‛ see supra ¶ 11, this issue of statutory
interpretation is ultimately a legal question that we review ‚for
correctness, affording no deference to the district court’s legal
conclusions,‛ State v. Gallegos, 2007 UT 81, ¶ 8, 171 P.3d 426.

¶27 I believe the parties are entitled to a straightforward
answer to the question they have presented on appeal. Because
the main opinion fails to answer that question, I respectfully
dissent.

10. The majority suggests that a careful analysis of the specific
credit card agreement at issue is necessary to determine which
statute of limitations applies. See supra ¶ 10. This implies that the
majority anticipates the four-year statute of limitations applying
to some credit card debts and the six-year statute applying to
others, depending on the specific terms of the credit card
agreement at issue. I fear that such an approach would create
unpredictability and confusion regarding the application of the
statute of limitations to actions based on credit card agreements.
I do not agree that it is necessary to examine the particular
agreement at issue in order to determine which statute of
limitations applies to credit card agreements generally. Rather,
an examination of the nature of credit card debt and the form
and structure of standard credit card agreements should be
sufficient. See supra ¶ 26 & note 8.

20140898-CA 20 2016 UT App 84

Opinion

ROTH, Judge:
T1 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. § T8B-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 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 eredit cards because credit card accounts are open store accounts and not lHabilities founded on instruments in writing. See id. §§ 7SRB-2-807, -809. 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).

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 $18,000. Citibank assigned Stocks's debt to Asset Acceptance for collection purposes.

18 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-2-807.

T4 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:

* ** 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.

_ 15 On May 14, 2014, Asset Acceptance filed a motion for summary judgment. The motion contained the following notice:

*326Defendant 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 signed a judgment in favor of Asset Acceptance and sent notice of the judgment to Stocks. ___

16 Approximately one month later, Stocks filed a pro se motion to set aside the judgment pursuant to rule 60) 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 seetion 78B-2-807 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-2-807, -809 (Lexis-Nexis 2012). *>

T7 At the August 26, 2014 hearing, Stocks, appearing pro se, explained,

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

18 "A trial court has discretion in determining whether a movant has shown [Rule 60(b) grounds], and this Court will reverse

*327the trial court's ruling only when there has been an abuse of discretion." Lange v. Hby, 2006 .UT App 118, T6, 188 P.8d 451 (alteration in original) (citation and internal quotation marks omitted); see also Jones v. Lay-ton/Oklanmd, 2009 UT 39, €10, 214 P.8d 859 ("We review a district court's denial of a rule 60(b) motion for relief from judgment for an abuse of discretion.").

T9 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."

{110 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 aceount[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-2-807 (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 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. CJ. United States v. Monroe, 866 F.2d 1857, 1867 (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 as an open gccount or instrument in writing, there is no such agreement in the record or even a description of the particular agreement beyond the bare allegations of the complaint and the motion for summary judgment, which are limited to "[Stocks] entered into a contract with CITIBANK opening an account ending in [ 18517," which the parties seem to acknowledge is a credit card account of some kind. From the facts before us in the record, there is simply no evidence about how any agreement might have been reached or what any of its terms are, beyond the bare requirement to make periodic payments.

111 Further, the procedural posture here-a ruling on a rule 60(b) motion to set *328aside a default judgment-is not well suited to resolve the kind of legal question raised. For instance, the demonstration of a "meritorious defense" requires no more than "a clear and specific proffer of a defense that, if proven, would preclude total or partial recovery," requiring only "that a party state the basis for its claims or defenses-in short and plain terms." Sewell v. Xpress Lube, 2013 UT 61, 188, 321 P.3d 1080 (citation and internal quotation marks omitted). And the standard of review for the denial of such a motion focuses heavily on the highly discere-tionary nature of such a decision. See Katz v. Pierce, 782 P.2d 92, 98 (Utah 1986) (per curiam) ("The district court judge is vested with considerable discretion under Rule 60(b) in granting or denying a motion to set aside a judgment."); see also Jones, 2009 UT 89, 127, 214 P.3d 859 ("A district court abuses its discretion only when its decisidn was against the logic of the cireumstances and so arbitrary and unreasonable as to shock one's sense of justice ... [for] resulted from bias, prejudice, or malice." (alteration and omission in original) (citation and internal quotation marks omitted)). This narrow focus on the facial validity of claims or defenses is well tailored to the rule's limited purpose: "[To prevent the necessity of judicial review of questions which, on the face of the pleadings, are frivolous," Sewell, 2018 UT 61, 138, 321 P.3d 1080 (citation and internal quotation marks omitted). But the result can be that an important legal issue such as this one, does not receive the full analytical attention at the district court level it should otherwise merit and the appellate court is left without the benefit of the district court's insight. As a consequence, although we agree with both Stocks and Asset Acceptance that "this is an issue of first impression in Utah," this may not be the right case to address the issue because, as Asset Acceptance points out, "a review of the law of other jurisdictions is of little assistance, as there is no clear majority opinion, and statutory schemes for limitations periods vary widely from state, to state." >

112 Under the cireumstances, then, we think it appropriate to resolve the matter on a different basis than the court below. "Although the district court based its denial of the 60(b) motion on other grounds, we are free to affirm the dismissal on any grounds apparent from the record," Johnson v. Johnson, 2010 UT 28, T 13, 284 P.8d 1100, and we "may affirm the decision rendered below ... on a ground on which the district court did not rely," First Equity Fed. Inc. v. Phillips Dev. LC, 2002 UT 56, " 11, 52 P.8d 1137. See Orton v. Carter, 970 P.2d 1254, 1260 (Utah 1998) (stating that "(ilt is well established that an appellate court may affirm" a district court's order if the order "is sustainable on any legal ground or theory apparent on the record" (citation and internal quotation marks omitted)). We think it appropriate to do so here and conclude that Stocks failed to demonstrate that the cireumstances entitled him to relief under rule 60(b)(1).5

%13 Rule 60(b) of 'the Utah Rules of Civil Procedure provides 'a meckianism for a party to obtain relief from a final order or judgment on the basis of, among other things, "mistake, inadvertence, surprise, or excusable neglect." See Utah R. Civ. P. 60(b). To be entitled to relief under the rule, a party must show that "(1) the motion is timely; (2) there is a basis for granting relief under one of the subsections of 60(b); and (8) the movant has alleged a meritorious defense." Menzies v. Galetka, 2006 UT 81, $64, 150 P.3d 480. "These considerations should be addressed in a serial manner." Id. "In other words, there is no need to consider whether there is a basis for setting aside a ... judgment if the motion was not made in a timely manner, and no need to consider whether there is a meritorious defense if there are not grounds for relief." Id. And "it is unnecessary, and moreover inappropriate, to even consider the issue of [a] meritorious defensel ] unless the court is satisfied that a sufficient excuse has been shown." State ex rel. Dep't of Soc. Servs. v. Musselman, 667 P.2d 1058, 1056 (Utah 1983) (plurality opinion). In this case, the district court appears *329to have turned to the issue of Stocks's claimed meritorious defense without first considering .whether he had met the other conditions for relief,

{14 To begin, there is no dispute that Stocks's rule 60(b) motion was timely. And although Stocks urges this court to reach the third consideration of whether he has a meritorious defense, Stocks's actions. in the proceedings below demonstrate the wisdom of addressing the considerations to obtain relief under rule 60(b) "in a serial manner." See Menzies, 2006 UT 81, §64, 150 P.3d 480. Accordingly, we must next determine whether Stocks has "a basis for granting relief under one of the subsections of [rule] 60(b)." See id.6

115 Stocks brought his motion to set aside the judgment under the theories of excusable neglect, mistake, or newly discovered evidence, which implicates subsections (1) and (2) of rule 60(b).7 See Utah R. Civ. P. 60(b)(1), (2). Stocks states in his reply brief that "[in addition to the listed grounds for relief, rule 60(b) includes a catchall provision for 'any other reason justifying relief from the operation of the judgment. " (Quoting id. R. 60(b)(6).) Stocks continues, "Trial courts are granted broad discretion to make factual determinations about the attendant cireamstances of a 60(b) motion." But Stocks merely recites this portion of the rule in his reply brief without providing any analysis, See Brown v. Glover, 2000 UT 89, ¶ 23, 16 P.3d 540 ("Generally, issues raised by an appellant in the reply brief that were not presented in the opening brief are considered waived and will not, be considered by the appellate court."); Utah R.App. P. 24(a)(9) ("The argument shall contain the contentions and reasons of the appellant with respect to the issues presented, ... with citations to the authorities, statutes, and parts of the record relied on."). And, in any event, because his claim most closely fits under subsection (1) of the rule for "mistake" or "excusable neglect," it cannot be brought under subsection (6) which is reserved for "any other reason justifying relief." See Bliss v. Sky High Inc., 2002 UT App 255U, para. 7, 2002 WL 1766706 (concluding that because appellant argued for relief under rule 60(b)(1) "he cannot [also] ask for relief under 60(b)(6)"). Subsection (6) of the rule does not apply, "[blecause [it] is meant to operate as a resid-vary clause, [and] may not be relied upon if the asserted grounds for relief fall within any other subsections of rule 60(b)." Menzies, 2006 UT 81, 171, 150 P.3d 480. Therefore, because Stocks's stated reasons for the relief he sought in the district court fall within the *330seope of rule 60(®b)(1), he may not avail himself of subsection (6).

$16 Although Stocks explained to the district court that he "made a mistake," it is this claimed "mistake" that seems to be his "excuse" for neglecting the request for discovery, the motion for summary judgment, and the notice to submit for decision. But Stocks's actions do not qualify for relief - as excusable neglect. The Utah Supreme Court has defined excusable neglect as "the exercise of due diligence by a reasonably prudent person under similar - cireum-stances." - Mini Spas Inc. v. Industrial Comm'n of Utah, 788 P.2d 180, 182 (Utah 1987) (per curiam) (citation and internal quotation marks omitted); see also Sewell v. Xpress Lube, 2018 UT 61, 29, 821 P.3d. 1080 ("Due diligence is established where the failure to act was the result of ... the neglect one would expect from a reasonably prudent person under similar cireumstances." (omis-gion in original) (citation and internal quotation marks omitted)). "[Whhile a party need not be perfectly diligent in order to obtain relief, some diligence is necessary" in order for the neglect to be considered excusable. See Jones v. Loyton/Okland, 2009 UT 39, 1 23, 214 P.8d 859. In determining whether a party has exercised due diligence, the district court must consider whether the actions of the party seeking relief were "sufficiently diligent and responsible, in light of the attendant cireumstances, to justify excusing it from the full consequences of its neglect." Id. 122. Therefore,

-- [tlo grant relief on the ground of excusable neglect where a party has exercised no diligence at all, but simply because other equitable considerations might favor it, subverts the purpose of the excusable neglect inquiry, Rule 60(b)'s use of 'exeusa-ble' as a modifier of 'neglect' makes clear that mere meglect alone is an insufficient justification for relief,

Id. " 28 (emphasis added).

[ 17 Stocks's inaction cannot qualify as excusable neglect. In response to Asset Acceptance's complaint, Stocks filed an answer asserting the affirmative defense that Asset Acceptance's claim was barred by the four-year statute of limitations under section 78B-2-307 of the Utah Code. Asset Acceptance then served Stocks with its first set of discovery requests, which included both a request for production of documents and requests for admission. . With respect to the requests for admission, - Asset - Acceptance - explicitly warned Stocks-in a large-type, bolded "IMPORTANT NOTICE TO DEFENDANT'that "[ulnder Rule 36 of the Utah Rules of Civil Procedure the Requests for Admission shall be deemed admitted umless you respond to the Requests within 28 days after service," and repeated that warning as an introduction to the admission requests themselves. (Emphasis in original.) The discovery requests further cautioned Stocks in bold print that if he did not respond, Asset Acceptance could "move to have the Court enter judgment against [him] if certain matters in [the] action [were] deemed admitted based on [his] failure to respond timely." Yet Stocks made no effort to respond. . Asset Acceptance then filed a motion for summary judgment based on Stocks's deemed admissions, just as it had warned him it could. Stocks again failed to respond, despite the admonition contained in the motion for summary judgment itself, stating that he was "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" and advising him that his "[alnswer filed in this matter is insufficient as a response to this motion." Stocks again failed to respond. Asset Acceptance then filed a request to submit the matter for decision, and, again because Stocks failed to respond, the district court granted summary judgment in favor of Asset Acceptance. In doing so, the district court stated, "No opposition to the Motion [for summary judgment] has been filed and the time to do so has now passed." Although Stocks did file an answer to the original complaint, he did nothing else until after judgment was awarded to Asset Acceptance.

18 Stocks does not assert.that he did not receive the requests for discovery, the motion for summary judgment, or the notice to submit for. decision; rather, he simply says, "I didn't realize that I had to respond to each and every claim that they had made, and I *331thought the initial response that ... said it was a time-barred statute was sufficient," Therefore, it seems there are only two plausible scenarios explaining Stocks's failure to respond. Either Stocks chose not to read the documents and thus did not see the large bold-print notices informing him that he must respond or he read the documents but consciously chose to disregard the warnings and not respond. Neither of these scenarios qualifies as excusable neglect under rule 60(b).

119 If Stocks failed to read the documents, then he did not exercise the appropriate level of diligence required to excuse his neglect, because his complete lack of action does not meet the standard required, i.e., "the exercise of due diligence by a reasonably prudent person under similar circumstances." - Mini Spas Inc., 7383 P.2d at 182 (citation and internal quotation marks omitted); see also Jores, 2009 UT 89, 23, 214 P.8d 859 ("To grant relief on the ground of excusable neglect where a party has exercised no diligence at all ... subverts the purpose of the excusable neglect inquiry." (emphasis added)). "[DTiligence on the part of the party claiming excusable neglect is an essential element of [the] inquiry, and relief may not be granted based on other equitable considerations where a party has exercised no diligence at all," Bodell Constr. Co. v. Robbins, 2014 UT App 208, T10, 334 P.S8d 1004 (citation and internal quotation marks omitted). And while we acknowledge that "a party need not be perfectly diligent in order to obtain relief" under rule 60(b), "some diligence is necessary." Jones 2009 UT 39, $23, 214 P.3d 859. Under this seenario, failing to read the documents after receiving them does not qualify as excusable neglect that relieves Stocks from judgment. -

$20 The other possibility, which seems a reasonable inference from his state-. ment to the district court, is that Stocks read the documents and chose not to respond because he "believed that the response given to the original complaint was sufficient" and therefore "no other actions nor further filings were needed." But to take this course, Stocks would have had to disregard the specific perils the documents themselves warned of, including the possibility that Asset Acceptance might seek judgment against him if he failed to respond to the requests for admission and the warning that judgment could result if he failed to respond to Asset Acceptance's subsequent motion seeking 'such a Judgment, His explanation is that he continued to hold to his belief that no response was required because he had stated a limitations defense in his answer, despite a specific admonition in the summary judgment motion itself that his answer was an insufficient response to the motion. Stocks characterizes this belief as a "mistake," and it is this mistake that Stocks seems to intertwine with his claim of excusable neglect, . But such a mistake cannot be deemed an innocent error or neglect worthy of judicial relief where it involves hewing to a course of action in disregard of repeated warnings that serious harm may result. Rather, this is a path that no reasonably prudent person would follow in the face of such risk, See Cadlerock Joint Venture II LP .v, Envelope Packaging Utah Inc., 2011 UT App 98, 1 9, 251 P.3d 887 (concluding that the district court did not abuse its discretion in finding that a party's neglect was not excusable even though the party "claim[ed] ... it was unfamiliar with Utah Rules of Civil Procedure" (omission in original) (internal quotation marks omitted)); Serrato v. Utah Transit Auth., 2000 UT App 299, 18 n. 5, 18 P.8d 616 (noting that "[a] reasonably prudent person would not misread such a straightforward important legal document" as the one at issue in this case); Meadow Fresh Forms Inc. v. Utah State Univ. Dept of Agric. & Applied Sci, 813 P.2d 1216, 1218-20 (Utah Ct.App.1991) (concluding plaintiffs "lack of communication with counsel," failure to appear at hearing, and confusion regarding the proceedings did not meet the exeusable neglect standard, because a reasonably prudent person under similar cireumstances would have followed the court's order to appear). Moreover, "a party who simply misunderstands or fails to predict the legal consequences of his deliber«ate acts cannot later, once the lesson is learned, turn back the clock to undo those mistakes." - Yapp v. Excel Corp., 186 F.3d 1222, 1281 (10th Cir,1999).

*332{21 Thus, based on the undisputed facts before the district court, Stocks's complete lack of action in response to Asset Acceptance's discovery requests, motion for summary judgment, and notice to submit for decision despite repéated warnings of potential adverse consequences of grave significance cannot qualify as excusable neglect or mistake under rule 60(b) of the Utah Rules of Civil Procedure. 'We therefore conclude as a matter of law that Stocks is not entitled to relief from the default judgment,. See Shamwrock Plumbing LLC v. Silver Baron Partners LC, 2012 UT App 70, 11 6-7, 277 P.3d 649 (reversing the trial court's grant of a rule 60(b) motion to set aside the judgment on grounds of excusable neglect on the basis that "Funder the cireamstances, [defendants] appear to have exercised no diligence at all; thus, the relief afforded by the trial court was not justified" (internal quotation marks omitted)).

CONCLUSION

22 The district court based its denial of Stocks's rule 60(b) motion on whether the statute of limitations. barred Asset Acceptance's claim, but "[1]t is well-established that an appellate court may affirm" a district court's order if the order "is sustainable on any legal ground or theory apparent on the record." - Orton v. Carter, 970 P.2d 1254, 1260 (Utah 1998) (citation and internal quotation marks omitted); see also Johnson v. Johnson, 2010 UT 28, 118, 284 PBd 1100 ("[Whe are free to affirm the dismissal on any grounds apparent from the record."). Based on the und1sputed facts in the record of the proceedmgs in the dmtrlct court, it is clear that Stocks failed to act. as a reasonably prudent person would in similar ciream-stances. Accordmgly, we affirm the district court's dermal of his rule 6003) motion on that basis.

. 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."

. 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. See, eg., Portfolio Acquisitions LLC v. Feltman, 391 Ill. App.3d 642, 330 Ill.Dec. 854, 909 N.E.2d 876, 884 (2009); Smither v. Asset Acceptance LLC, 919 N.E.2d 1153, 1160 (Ind.Ct.App.2010); Gemini Capital Group v. New, No. 10-1096, 2011 WL 3925723, at *3 (Iowa CtApp. Sept. 8, 2011); Capital One Bank v. Creed, 220 S.W.3d 874, 877-78 (Mo.Ct.App.2007); Colorado Nat'l Bank of Denver v. Story, 261 Mont. 375, 862 P.2d 1120, 1122 (1993). Other states have reached the opposite conclusion and apply the longer statute reserved for contracts in writing. See, eg., Hill v. American Express, 289 Ga.App. 576, 657 $.E.2d 547, 548 (2008); Unifund CCR LLC v. Lowe; 159 Idaho 750, 367 P.3d 145, 148-49 (2016). »

. In its briefing, Asset Acceptance states, "The trial court record regarding the writings upon which the credit agreement in this case was founded was not fully developed." And as a consequence, "[alnother case with a fully-developed record regarding the writings supporting the credit card agreement may be better suited for this Court's determination of the issue. As such, the Court may be better served by not reaching a determination on the statute of limitations issue by way of this case."

, We note that both parties have briefed the issue of whether Stocks is entifled to relief under rule 60(b) for either mistaice or excusable neglect.

. Although Stocks acknowledges that the district court's statement is "not as explicit as it could have been," he maintains that the district court implicitly "found a basis for relief" in his claims of excusable neglect and mistake because the court stated that it "could set aside the judgment and ... then consider a motion for summary judgment on the grounds that it's a six-year statute that applies, or [the court] could determine that there's really no point in granting a motion to set aside because a six-year statute is what applies." (Emphasis added.) The dissent reaches the same conclusion, Le., that the district court implicitly ruled in favor of Stocks's claim of excusable neglect before it proceeded to consider whether Stocks had a meritorious defense. Infra \ 24.

We interpret the court's statement differently. Here, the court not only failed to "make any explicit finding regarding due diligence," see Shamrock Plumbing LLC v. Silver Baron Partners LC, 2012 UT App 70, 14, 277 P.,3d 649, but it did not even mention the issue in its ruling. Given that omission, the court's bare statement that it "could set aside the judgment" does not seem to support a reasonable inference that the court had fully considered the circumstances and determined that Stocks had established a reasonable excuse for his neglect of the proceedings. Rather, it is reasonable to conclude that the court simply skipped that step and proceeded directly to the question of whether there was a meritorious defense, describing only hypothetically: what would. happen, if the court granted relief and without meaning to imply that it had determined that Stocks had shown a basis for it.

. Rule 60(b)(2) allows for postjudgment rehef based upon "newly -disgovered evidence which by due diligence could not have been discovered in time fo move for a new trial." Utah R. Civ. P. 60(b)(2). Although Stocks cited rule 60(b)@2) in his motion to set aside the judgment and- stated in his affidavit in support of that motion that he had "newly discovered evidence that will indicate that this is a time barred claim and would allow for the judgment to be set aside," he did not present any new evidence either at the hear- © ing or in his reply to Asset Acceptance's opposition to his motion. 'Accordingly, we need not consider Stocks's claim of newly discovered evidence, precisely because he did not present any.

BENCH, Senior Judge
(dissenting):

1 28 I disagree With the majority's decision to affirm on the ailterpative ground that Stocks failed to show excusable neglect. - I believe we should address the statute of limitations question on the merits,

1 24 In ruling that Stocks had no meritorious defense, the district court implicitly accepted his excusable neglect argument. © The court suggested that it might have set aside the judgment if it thought that Stocks might be able to successfully defend against another motion for summary judgment by convine-ing the court that the four-year statute of limitations should apply to Asset Acceptance's claims. However, the court ultimately determined that there would be "no point in granting a motion to set aside because a six-year statute is what applies." |

T 25 "A district court has broad discretion to rule on a motion to set aside a default judgment under rule 60(b) of the Utah Rules of Civil Procedure," Menzies v. Galetka, 2006 UT 81, 154, 150 P.3d 480, and I am not convinced, particularly in light of the fact that Stocks was acting pro se, that it was an abuse of the district court's discretion to determine that Stocks had demonstrated excusable neglect. Stocks explained to the district court that he believed his answer to Asset Acceptance's complaint, in which he raised 'the statute of limitations defense, made it unnecessary for him to further respond to Asset Acceptance's motion for summary judgment. Although it might be appropriate to remand the case for the district court to explicitly rule on the excusable ne-gleet issue, I do not believe we are in any position to make such a ruling as a matter of law.

~ 26 II am also not convinced that a more fully developed record is needed to address the question of which statute of limitations applies to credit card debt. Whether an open credit card account, which is presumably subject to terms dictated by a written agreement, but which has a shifting balance tracked in monthly statements,8 falls under the four-year statute of limitations or under the six-year statute of limitations is a question of statutory interpretation. The four- and include the balance owing on the account, any fees and interest accrued, the interest rate, the current payment due, and the payment due date." Stocks likewise acknowledges that "standard credit agreements are generally kept in a writing of some form that explains the applicable *333year statute of "limitations is applicable to actions "on an open store account for any goods, wares, or merchandise ... [or].on an open account for work, labor or services rendered, or materials. furnished." Utah Code Ann. § 78B-2-807(1) (LexisNexis 2012). The six-year statute of limitations is applicable to actions brought "upon any contract, obligation, or lability founded upon an instrument in writing." Id. § T8B-2-809(2). The question of which statute of limitations applies to credit card debt does not appear to be particularly fact dependent.9 I fail to see how a more detailed record would help us to resolve this question of statutory mterpretation.10 While it might be easier to decide the issue" after it has recived "full analytical attention' at the district court level," and our analysis could certainly "benefit [from] the district court's insight," see stpro T11, this issue of statutory interpretation is ultimately a legal question that we review "for correctness, affording no deference to the district court's legal conclusions," State v. Gallegos, 2007 UT 81, 1 8, 171 P.8d 426.

[27 I believe the parties are entitled to a straightforward answer to the question they have presented on appeal. Because the main opinion fails to answer that question, I respectfully dissent.

. Assét Acceptance indicates that "written terms and conditions setting forth the essential terms" of a credit card agreement "are universally provided to the cardholder ... when the card is.. 'issued" and that "[pleriodic written statements" are also "universally sent to the cardholder ... and include the balance owing on the account, any fees and interest accrued, the interest rate, the current payment due, and the payment due date." - Stocks likewise acknowledges that "standard credit agreements are generally kept in a writing of some form that explains the applicable *333mterest rates and other important terms" and that although no written instrument had been produced in this case it could be presiimed that he "entered into a standard credit-card agreement ..., which is usually and properly kept in writing."

. The district court's summary decision on the statute of limitations issue supports this conclusion, Had the district court considered this issue . to involve a fact-dependent inquiry, it would have considered the particular facts of the case in reaching its decision rather than simply following the rulings in other district court cases that applied the six-year statute of limitations. Indeed, the district court explained that it con-Sldered the statute of 11m1tat1ons issue to present "a purely legal question."

. The majority suggests that a careful analyms of the specific credit card agreement at issue is necessary to determine which statute of limitations applies. See supra 110. This implies that the majority anticipates the four-year statute of limitations applying to some credit card «debts and the six-year staiute applying to others, depending on the specific terms of the credit card agreement at issue. I fear that such an approach would create unpredictability and confusion regarding the application of the statute of limitations to actions based on credit card agreements. I do not agree that it is necessary to examine the 'particular agreement at issue in order to determine which statute of limitations applies to cred-H.card agreements generally, Rather, an examination of the nature of credit card debt and the form and structure of standard credit card agreements should be suffiment See supra 126 & note 8, 20 -