Utah First Federal Credit Union v. Dudley

IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

Utah First Federal Credit Union, ) MEMORANDUM DECISION
)
Plaintiff and Appellee, ) Case No. 20100829‐CA
)
v. ) FILED
) (June 7, 2012)
John S. Dudley and John Does I‐X, )
) 2012 UT App 164
Defendant and Appellant. )

‐‐‐‐‐

Third District, Salt Lake Department, 100905635
The Honorable Deno G. Himonas

Attorneys: Clayne I. Corey, Sandy, for Appellant
Darwin H. Bingham and Jonathan H. Rupp, Salt Lake City, for Appellee

‐‐‐‐‐

Before Judges McHugh, Orme, and Roth.

ROTH, Judge:

¶1 John S. Dudley appeals the trial court’s determination that he did not properly
exercise a right of rescission on a refinance loan made by Utah First Federal Credit
Union (Utah First) and secured by his residence (the property). He therefore claims that
Utah First, which purchased the property at a trustee sale, was not an owner entitled to
make a claim of unlawful detainer and that, as a consequence, the court erred when it
quieted title to the property in Utah First and assessed rent, damages, attorney fees, and
costs against him totaling over $47,000. We affirm and remand to the trial court for an
award to Utah First of attorney fees reasonably incurred on appeal.
¶2 Utah First purchased the property at a nonjudicial foreclosure sale held on March
18, 2010, after Dudley defaulted on a $1.56 million refinance loan that Utah First had
extended to him. When Dudley and the other occupants failed to comply with the
March 27, 2010 notice to vacate, Utah First filed a complaint for unlawful detainer (the
unlawful detainer claim).

¶3 Dudley answered the complaint by asserting, as an affirmative defense of
rescission, that he had rescinded the loan under the federal Truth In Lending Act
(TILA). In a memorandum supporting his subsequent motion for summary judgment,
Dudley more specifically explained his defense. Dudley asserted that when he
refinanced the property on November 16, 2007, he did not receive the material
disclosures required by TILA that trigger the running of a statutory three‐day rescission
period. See generally 15 U.S.C. § 1635(a) (2006) (current version at id. (Supp. 2010))
(stating that in “any consumer credit transaction” involving a security interest that “is
or will be retained or acquired in any property which is used as the principal dwelling
of the person to whom credit is extended, the obligor shall have the right to rescind the
transaction until midnight of the third business day following [the later of] the
consummation of the transaction or the delivery of the information and rescission forms
. . . together with a statement containing the material disclosures required under”
TILA); 12 C.F.R. § 226.23(a)(3) (2007). Dudley claimed that because he did not receive
these disclosures, he was entitled to exercise his right to rescind within the extended
three‐year rescission period, which did not expire until November 15, 2010. See
generally 15 U.S.C. § 1635(f) (stating that if the information, forms, and disclosures
required under TILA are not delivered, “[a]n obligor’s right of rescission shall expire
three years after the date of consummation of the transaction”); 12 C.F.R. § 226.23(a)(3).
Dudley asserted that he exercised that right by sending Utah First a notice of rescission
on March 17, 2010.1 He contended that, as a result of his rescission notice, the trust deed
on the property was automatically rendered void and the subsequent trustee’s sale was

1
When the notice of rescission was actually given is not apparent from the record,
as various documents have different dates and the date the notice was recorded is
illegible. The trial court found that Dudley may have attempted to rescind the loan as
early as February 2, 2010, or as late as March 18, 2010. The actual date is not material to
the resolution of this appeal, and for ease of reference we will refer to the notice of
rescission as occurring on March 17, 2010, because that is the date Dudley executed the
notice that was recorded.

20100829‐CA 2
legally ineffective to transfer title to Utah First. See generally 15 U.S.C. § 1635(b) (“When
an obligor exercises his right to rescind under subsection (a)[,] . . . any security interest
given by the obligor . . . becomes void upon such a rescission.”); 12 C.F.R. § 226.23(d)(1).
The district court denied Dudley’s summary judgment motion and set the matter for a
bench trial.

¶4 On the day trial began, Dudley filed a motion requesting that the trial court
consider only the unlawful detainer claim, without considering damages under TILA,
or, alternatively, exercise supplemental jurisdiction over the twenty‐nine claims he had
filed in federal district court three days prior. In the supporting memorandum, Dudley
explained that he was concerned that the court’s limited consideration of TILA’s
rescission right as a defense to the unlawful detainer claim would result in a
determination that would have res judicata effect on his federal claims. The trial court
denied the motion to consider the federal claims, and only the unlawful detainer claim
proceeded to trial. The question of whether Dudley had properly rescinded the loan
transaction with Utah First under TILA was considered in conjunction with that claim.

¶5 Following the bench trial, the court issued a written decision in which it ruled
against Dudley and in favor of Utah First. The court concluded that “[w]hile the
paperwork behind the [refinance] loan from Utah First to Dudley is not worthy of
imitation, Utah First did make all necessary ‘material disclosures’ as that term is defined
by TILA” at the time of closing on November 16, 2007. Consequently, it determined
that Dudley’s right to rescind expired on November 20, 2007, the third business day
after closing, and his attempt to exercise that right on March 17, 2010, was “without
effect.” The trial court then entered an Order of Restitution giving Utah First possession
of the property and directing Dudley and the other occupants to vacate. See generally
Utah Code Ann. §§ 78B‐6‐811(1)(b), ‐812(1) (2008) (requiring a judgment in favor of the
plaintiff on unlawful detainer to “include an order for the restitution of the premises,”
which shall “direct the defendant to vacate the premises, remove his personal property,
and restore possession of the premises to the plaintiff” within three calendar days).2
The trial court also awarded Utah First $16,725.60 in unlawful detainer damages for the
110‐day period between the expiration of the notice to vacate on March 27, 2010, and the

2
For the convenience of the reader, all citations to the Utah Code are to the
current version because any amendments to the relevant sections do not affect our
analysis.

20100829‐CA 3
final day of trial on July 15, 2010. See generally id. § 78B‐6‐811(2)(b), (3) (requiring
assessment of treble damages for damages accrued during a period of unlawful
detainer). The judgment was to automatically increase by $147.96 for each day after
July 15, 2010, that any of the occupants remained on the property. Utah First also
received attorney fees in the amount of $29,654 and costs in the amount of $638. See
generally id. § 78B‐6‐811(3) (authorizing an unlawful detainer judgment to include
reasonable attorney fees); Utah R. Civ. P. 54(d) (allowing an award of costs to the
prevailing party).

I. Requirements for Exercising a Rescission

¶6 Dudley first argues that the trial court incorrectly entered an Order of Restitution
giving Utah First the right to possession of the property. According to Dudley, in the
absence of any response by Utah First, his notice of rescission automatically voided the
trust deed for the property even if it was later determined by a court to be legally
ineffective. In support of this position, Dudley asserts that Utah First was required to
contest his notice of rescission by raising it in judicial proceedings or, at a minimum, by
responding in writing to his notice within twenty days of receipt. Such action, he
contends, “would have . . . provided [Utah First] the opportunity to produce evidence
sufficient to create a triable issue of fact about compliance with TILA’s disclosure
requirements.” Utah First did neither. Consequently, Dudley argues, Utah First
acquiesced to his exercise of the right of rescission, which had the effect of voiding the
trust deed pursuant to which the foreclosure sale of the property was carried out.
Dudley finds support for his argument in the language of section 1635 of TILA, which
provides, “When an obligor exercises his right to rescind . . . [,] any security interest
given by the obligor . . . becomes void upon such a rescission.” 15 U.S.C. § 1635(b).

¶7 Utah First counters by asserting that the rescission provisions of section 1635,
including the one that voids a security interest, apply only to a valid rescission. Utah
First also finds support for its position in the statutory language of section 1635. It
contends, however, that the operative word is “right,” that is, the security interest
becomes void if the borrower exercises his right to rescission. See id. Utah First thus
argues that because Dudley’s right to rescind expired on November 20, 2007, three
business days after the consummation of the transaction and the delivery of material
disclosures, any attempt to rescind on March 17, 2010, was invalid.

20100829‐CA 4
¶8 We agree with Utah First that TILA contemplates a valid rescission. TILA was
enacted to protect consumers from inaccurate and unfair credit practices by requiring
that financial institutions provide them with accurate information regarding the actual
cost of credit. See generally id. § 1601(a) (2006) (“The Congress finds that economic
stabilization would be enhanced and the competition among the various financial
institutions and other firms engaged in the extension of consumer credit would be
strengthened by the informed use of credit. . . . It is the purpose of [TILA] to assure a
meaningful disclosure of credit terms so that the consumer will be able to compare
more readily the various credit terms available to him and avoid the uninformed use of
credit, and to protect the consumer against inaccurate and unfair credit billing and
credit card practices.”). TILA was not designed to provide the borrower the ability to
halt a lender’s foreclosure process simply by claiming a right to rescission, irrespective
of the legal validity of that claim.3

¶9 Rather, TILA provides recourse in the form of rescission for consumers when
financial institutions actually fail to comply with their statutory obligations. Thus, it is
only when a borrower legitimately exercises a rescission right that TILA obligations and
protections are triggered.

Neither [TILA] nor the regulation establishes that a
borrower’s mere assertion of the right of rescission has the
automatic effect of voiding the contract. . . . The natural
reading of this language is that the security interest becomes
void when the obligor exercises a right to rescind that is
available in the particular case, either because the creditor
acknowledges that the right to rescission is available, or
because the appropriate decision maker has so determined.

Large v. Conseco Fin. Servicing Corp., 292 F.3d 49, 54‐55 (1st Cir. 2002); see also id. at 50
(concluding that a borrower’s rescission one year after closing on the basis that the bank
failed to make required TILA disclosures did not automatically void the transaction
without resorting to the arbitration procedure called for by the loan’s terms to

3
Nothing in the record indicates that Dudley moved for an injunction, filed for a
declaratory judgment that he had exercised a right of rescission, or otherwise sought
judicial recourse to prevent the sale of the property.

20100829‐CA 5
determine whether the rescission was valid); accord In re Cromwell, 461 B.R. 99, 131
(Bankr. E.D. Mass. 2011) (“[W]hen a debtor rescinds a transaction, meaning that the
court has determined that such a right was legally available, the security interest becomes
void.” (emphasis added)). See generally Fisher v. Chase Home Fin., LLC, No. 3:11CV202‐
HEH, 2011 WL 2268474, at *3 (E.D. Va. June 7, 2011) (mem.) (“Following valid rescission,
the borrower is not liable for any finance or other charge . . . and any security interest
given by the obligor . . . becomes void.” (second omission in original) (emphasis added)
(internal quotation marks omitted)); Family Fin. Servs., Inc. v. Spencer, 677 A.2d 479, 488
(Conn. App. Ct. 1995) (stating that the security interest automatically became void upon
the bank’s receipt of a valid rescission). Unless the lender acquiesces in the notice of
rescission, “it cannot be that the security interest vanishes immediately upon the giving
of the notice. Otherwise a borrower could get out from under a secured loan simply by
claiming TILA violations, whether or not the lender had actually committed any.”
Yamamoto v. Bank of N.Y., 329 F.3d 1167, 1172 (9th Cir. 2003). “In a contested case,” as
here,4 “the security interest ‘becomes void’ only . . . . when the right to rescind is
determined [by the courts] in the borrower’s favor.” Id. Whether Dudley’s rescission
notice voided the trust deed, making the foreclosure sale invalid as a consequence,
therefore depends on whether Dudley’s purported March 17, 2010 rescission was, in
fact, valid.

4
Utah First did not take any action in response to Dudley’s March 17, 2010
rescission notice, and Dudley argues that Utah First therefore neglected its obligation
under TILA to respond within twenty days. TILA, however, only requires that the
lender return payments and take action to ensure the termination of any security
interest within twenty days of receiving a valid notice of rescission. See 15 U.S.C.
§ 1635(b) (2006) (current version at id. (Supp. 2010)). For the reasons discussed later in
this decision, Dudley’s request was not valid.
Dudley further contends that in failing to respond to his notice, Utah First
acquiesced to his rescission. What Dudley does not acknowledge, however, is that
despite his notice, Utah First simply continued with the foreclosure process and the
trustee’s sale of the property. Certainly, Utah First’s rejection of his attempt to rescind
might have been more directly communicated in writing, but its subsequent actions
were unequivocal and cannot be interpreted as acquiescence.

20100829‐CA 6
II. Validity of Dudley’s Rescission

¶10 Dudley argues that the trial court erroneously concluded that his rescission was
not valid. His assertions that Utah First failed to provide him with material disclosures
required by TILA constitute challenges to certain core factual findings about Utah
First’s disclosures to Dudley in connection with the loan. In particular, the trial court
found that Utah First complied with TILA by providing Dudley with information that
included (1) an adjustable rate note that identified the maturity date of the loan, the
current interest rate, the amount of payments for the first five years, a “clear[] and
conspicuous[]” disclosure that the note had a variable interest rate after the first five
years, and the minimum and maximum interest rates for the loan after the first five
years; (2) a Good Faith Estimate that set forth the fees associated with the loan; (3) a
notice of Dudley’s right to cancel; (4) a Settlement Statement that listed the finance
charges; and (5) a Truth in Lending Disclosure Statement that summarized the terms
and conditions of the loan. See generally 15 U.S.C. § 1602(u) (2006) (current version at id.
§ 1602(v) (Supp. 2010)) (defining “material disclosures” as “the disclosure . . . of the
annual percentage rate, the method of determining the finance charge and the balance
upon which a finance charge will be imposed, the amount of the finance charge, the
amount to be financed, the total of payments, the number and amount of payments, the
due dates or periods of payments scheduled to repay the indebtedness, and[, if
applicable,] the disclosures required by section 1639(a)”); id. § 1635(a) (2006) (current
version at id. (Supp. 2010)) (requiring disclosure of a borrower’s right to rescind).
Dudley also challenges the court’s finding that he “voluntarily chose” to execute a
confirmation that the three‐day rescission period had expired at closing “as a
convenience to him.”

¶11 There is evidence in the record to support each of the court’s findings. At trial,
Utah First offered into evidence documents setting out all the information that TILA
requires to be disclosed, along with testimony that those documents had been delivered
to Dudley in connection with the origination of the loan. And each of those documents
bears Dudley’s signature, which establishes a rebuttable presumption that Dudley
received them on or before closing on November 16, 2007. See generally id. § 1635(c)
(“[W]ritten acknowledgment of receipt of any disclosures required under [TILA] by a
person to whom information, forms, and a statement is required to be given . . . create[s]
a rebuttable presumption of delivery.”). At trial, Dudley made no effort to rebut the
presumption of delivery; rather, he testified that he had in fact seen and signed each of

20100829‐CA 7
the documents. Furthermore, the escrow officer, Utah First’s loan officer, and Dudley
each testified about how the documents, including Dudley’s right to rescind, were
explained at closing. Dudley contends on appeal that those explanations were
confusing and that allowing a borrower to sign a confirmation that the rescission period
had expired in advance of its actual expiration was a misleading tactic because in
“having [him] sign a certificate of non‐rescission on the date of the transaction, Utah
First suggested [he] had foreclosed his right of rescission.” The trial court found,
however, that Dudley was “an experienced and sophisticated businessman,” not some
“hapless dupe who had no idea what he was signing.” Dudley’s challenge to the
findings therefore amounts to a challenge to the court’s credibility determination. It is
essentially a truism that we defer to the trial court on questions of credibility. See
Henshaw v. Henshaw, 2012 UT App 56, ¶¶ 11‐12, 271 P.3d 837 (mem.) (noting that trial
courts have the opportunity to view a witness firsthand and assess his or her demeanor
in the context of the proceedings and that, for this reason, appellate courts defer to their
judgments absent a showing of error); Clement v. American Honda Fin. Corp., 145 F. Supp.
2d 206, 209 (D. Conn. 2001) (“Ordinarily, whether disclosures under [TILA] are
inaccurate, misleading, or confusing is a question of fact for the factfinder.”). Dudley
has not carried the very heavy burden of convincing us that the court’s credibility
determinations are erroneous, and we therefore accept the trial court’s factual findings.
See Fisher v. Fisher, 907 P.2d 1172, 1178 (Utah Ct. App. 1995) (declining to disturb factual
findings “absent a proper showing that the trial court erred”).

¶12 Dudley further contests the trial court’s legal conclusions underlying the
determination that Utah First’s documents complied with TILA. We review a trial
court’s interpretation of the law for correctness. See generally In re Kitts, 442 B.R. 818,
824‐25 (Bankr. D. Utah 2010) (reviewing the bankruptcy court’s interpretation of TILA
for correctness). In particular, Dudley contends that the trial court’s conclusions were
flawed as a result of it wrongly interpreting the definition of a finance charge under
TILA to exempt the appraisal and pest inspection fees he was charged at closing from
the disclosure requirements. TILA defines a finance charge as “the cost of consumer
credit as a dollar amount” and includes within its definition “any charge payable
directly or indirectly by the consumer and imposed directly or indirectly by the creditor
as an incident to or a condition of the extension of credit.” 12 C.F.R. § 226.4 (2007);
accord 15 U.S.C. § 1605(a). In transactions involving an extension of credit secured by
real property, however, property appraisal fees and pest‐infestation inspection fees are
exempt from the finance charge definition “if the fees are bona fide and reasonable in

20100829‐CA 8
amount.” 12 C.F.R. § 226.4(c)(7)(iv). Dudley contends that Utah First failed to prove
that the appraisal fee and pest inspection fee he incurred were reasonable in amount or
actually paid, and for this reason, the trial court erred in exempting them from the
finance charge disclosure requirement.

¶13 Dudley has failed, however, to point to any place in the record where the issue of
the reasonableness and bona fides of the appraisal fee and pest inspection fee was
preserved in the trial court. See generally Utah R. App. P. 24(a)(5)(A), (a)(9) (requiring an
appellant to include contentions and reasoning regarding the issues presented as well
as citations to the portion of the record where the issue was raised in the trial court). As
a result, Dudley has failed to comply with our briefing requirements meant to ensure
that issues raised on appeal have first been brought to the attention of the trial court in a
manner that informed the court of the need to make a ruling. See generally 438 Main St.
v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801. Preservation is a prerequisite to our
consideration of an issue on appeal, see id. (“Issues that are not raised at trial are usually
deemed waived.”), and we may decline to address an issue that does not comply with
the briefing requirement that preservation be demonstrated, see State v. Smith, 2010 UT
App 231, ¶ 3, 238 P.3d 1103 (“Briefs that do not comply with the detailed requirements
set forth in rule 24(a) [of the Utah Rules of Appellate Procedure] may be disregarded or
stricken.”).

¶14 Even if Dudley did adequately raise the issue below, he nevertheless failed to
alert the trial court to the need to enter findings that the appraisal fee and pest
inspection fee were reasonable and bona fide to warrant exempting them from the
finance charge. The failure to bring this kind of alleged omission to the trial court’s
attention results in waiver of the issue on appeal. See In re K.F., 2009 UT 4, ¶¶ 61, 63,
201 P.3d 985 (“[I]t is . . . wholly necessary for a party to challenge and thus afford the
trial court an opportunity to correct the alleged error of inadequately detailed findings”
because it is the type of error that is “easy for a trial judge to correct” while the case is
“fresh in the judge’s mind.” (internal quotation marks omitted)); id. ¶ 63 (declining to
consider an inadequacy of the findings challenge on appeal “unless the petitioner first
provided the trial court the opportunity to correct the error”).

¶15 Furthermore, with regard to the appraisal fee, Dudley mischaracterizes the trial
court’s decision. The trial court did not exempt the appraisal fee from the finance
charge, as Dudley claims. Rather, it concluded that “[t]he disclosures, provided to

20100829‐CA 9
Dudley prior to and at closing of the loan complied with the requirements of [TILA],”
including the Settlement Statement, which the court determined accurately reflected the
finance charges: “Dudley elected to receive an itemization of the amount financed and
was thus provided with the Settlement Statement that accurately reflected the finance
charges.” The Settlement Statement indeed discloses an “Appraisal Fee to UTAH FIRST
FEDERAL CREDIT UNION” in the amount of $1000.5 While the court did not make
any express findings regarding whether this fee was a finance charge, the quoted
language from its decision is broad enough to bring the appraisal fee within the court’s
conclusion. And, in any event, the end result is the same as if the court had accepted
Dudley’s position. Appraisal fees are exempt from TILA’s definition of finance charges,
with the proviso that the exemption does not apply if the fees are unreasonable or not
bona fide. Dudley claims Utah First did not prove that the appraisal fee was reasonable
and bona fide. The result of Dudley’s analytical path, however, is that the appraisal fee
is a finance charge, meaning it had to be disclosed. The trial court found that the fee
was disclosed, so its conclusion that Utah First complied with TILA’s disclosure
requirement in this regard seems unassailable‐‐at least on the basis argued by Dudley
on appeal.6

5
The record evidence indicates that the $1000 appraisal fee covers the costs of two
appraisals. The first appraisal valued the property at $1.33 million. Because Dudley
was seeking a loan for $1.56 million and offered only the property as collateral, Utah
First ordered a second appraisal. The second appraisal valued the property at $1.95
million and was the basis for Utah First’s decision to make the loan. Dudley takes issue
with the decision to order a second appraisal, asserting that it was obtained “without
. . . Dudley’s knowledge or approval” and that it inflated the value of the home, but he
does not explain how the advisability of the second appraisal or the dollar amount at
which it valued the property renders the disclosure of the $1000 fee inadequate; nor has
he identified a basis, other than nondisclosure, on which TILA applies to this
circumstance.
6
Dudley also claims that Utah First failed to provide new disclosures as required
by TILA section 1639 after it modified the terms of the loan. The trial court’s written
order, however, does not contain any findings or conclusions about the application of
that section, and Dudley has failed to point to the place in the trial record where he
raised the issue or the court made an oral ruling on it. Consequently, Dudley has not
(continued...)

20100829‐CA 10
¶16 In summary, Dudley’s claims of error regarding the trial court’s determination
that Utah First provided Dudley with all of the material disclosures by the time of
closing on November 16, 2007, are without merit.7 The trial court therefore did not err

6
(...continued)
demonstrated that the issue was preserved. See generally Utah R. App. P. 24(a)(5)(A)
(requiring an appellant to show that an issue has been preserved by including citations
to the portion of the record where it was presented to the trial court).
The parties nevertheless each address the issue as though it were presented to
the trial court, and it does appear to have been addressed by both parties in closing
arguments. But, even if preserved, the claim fails because section 1639 is not applicable
under the facts of this case. That section governs high cost loans, that is, loans with high
annual percentage rates (APR) at consummation or with closing costs that exceed the
greater of either 8% of the total loan or $400. See 15 U.S.C. § 1639(a) (2006) (limiting the
section’s application to high cost loans as defined by section 1602(aa)). Dudley’s initial
interest rate was 6.625%, well below the APR threshold required to trigger section 1639.
See 15 U.S.C. § 1602(aa) (current version at id. § 1602(bb) (Supp. 2010)) (setting the APR
for section 1639 at 10% above the yield on treasury securities with a comparable
maturity). In addition, 8% of Dudley’s $1.56 million loan is $124,800. Thus, section 1639
would apply only if Dudley’s closing costs exceeded $124,800. See id. (defining a high
cost loan, to which section 1639 applies, as one with closing costs in excess of the greater
of either $400 or 8% of the loan). Dudley’s closing costs totaled $20,064.11, well below
the amount needed to trigger section 1639’s disclosure requirements.
7
Dudley raises three additional claims regarding disclosures that we do not
consider. First, he asserts in his statement of facts that the Settlement Statement
disclosed credit report fees in the amount of $150 when the reports cost only $94.30.
Dudley does not address this issue in his argument section; consequently, it is
inadequately briefed. See generally Utah R. App. P. 24(a)(9) (stating that to challenge an
issue on appeal, a party must make an argument containing “the contentions and
reasons” along with “citations to the authorities”); Valcarce v. Fitzgerald, 961 P.2d 305,
313 (Utah 1998) (“It is well established that an appellate court will decline to consider an
argument that a party has failed to adequately brief.”). Second, Dudley contends that
his wife was entitled to certain disclosures prior to foreclosure. He did not raise this
claim below‐‐indeed, his wife is not even a party to this action‐‐and the issue is
(continued...)

20100829‐CA 11
in concluding that Dudley’s right to rescind the loan transaction with Utah First expired
on November 20, 2007, long before his March 17, 2010 rescission notice. Because no
legally effective rescission of the loan transaction ever occurred, the nonjudicial
foreclosure sale of the property secured by the deed of trust was valid, and the trial
court’s conclusion to that effect was proper.

III. Application of Unlawful Detainer Statute

¶17 Dudley’s final argument on appeal is that the trial court failed to correctly apply
the unlawful detainer statute, thereby depriving him of due process and equal
protection. See generally Red Cliffs Corner, LLC v. J.J. Hunan, Inc., 2009 UT App 240, ¶ 13,
219 P.3d 619 (stating that the trial court’s interpretation and application of the unlawful
detainer statute is a question of law, reviewed for correctness). Dudley’s complaint on
appeal is difficult to discern. On the one hand, he seems to take issue with the court’s
determination that this was “not an appropriate case for the expedited hearing process,”
in light of its denial of his request to exercise supplemental jurisdiction over his federal
rescission claims at least in part on the basis that it was untimely. On the other hand, he
appears to be contending that because the court denied the motion to exercise
supplemental jurisdiction, it could only consider issues relating to the right of
possession, which Dudley claims does not include his claim of rescission. More simply
put, Dudley’s argument seems to be that the trial court should either have addressed all
his claims, both state and federal, or not considered his rescission claim at all in the
context of the unlawful detainer action. We conclude that the trial court properly ruled

7
(...continued)
therefore not preserved for appeal. See generally 438 Main St. v. Easy Heat, Inc., 2004 UT
72, ¶ 51, 99 P.3d 801 (“[I]n order to preserve an issue for appeal[,] the issue must be
presented to the trial court in such a way that the trial court has an opportunity to rule
on that issue.” (alterations in original) (internal quotation marks omitted)); id. (“Issues
that are not raised at trial are usually deemed waived.”). Finally, Dudley asserts that
Utah First failed to comply with TILA section 1638(a)(2)(B)(iii) when it failed to
accurately allocate charges to be disbursed to third parties and those to be retained by
the bank itself. Dudley has not specifically identified which charges were not
accurately allocated, however, and we therefore do not consider the claim further. See
generally Utah R. App. P. 24(a)(5) (requiring an appellant to specifically identify the
issues presented for review).

20100829‐CA 12
on the rescission claim in the course of adjudicating Utah First’s unlawful detainer
claim.

¶18 Because Dudley raised, as an affirmative defense to Utah First’s unlawful
detainer action, the claim that he had rescinded the loan transaction and that the trust
deed under which the foreclosure sale had taken place was therefore invalid, the issue
of whether his rescission was legally effective had to be resolved before the trial court
could determine whether Dudley was in unlawful detainer of the property. Whether or
not Dudley had exercised a valid right of rescission was central to the trial court’s
resolution of the issue of who had the legal right to possession of the property. Cf.
Bichler v. DEI Sys., Inc., 2009 UT 63, ¶¶ 32‐33, 220 P.3d 1203 (observing that
counterclaims for a breach of the warranty of habitability or wrongful eviction must be
resolved in an unlawful detainer action because both pertain to the question of
possession).8 For the reasons discussed above, the trial court correctly determined that
Dudley’s purported rescission was not valid and appropriately entered an order of

8
Dudley relies on Bichler v. DEI Systems, Inc., 2009 UT 63, 220 P.3d 1203, to
support his argument that the rescission is outside the scope of an unlawful detainer
claim. Bichler does not support Dudley’s position. To the contrary, while Bichler limits
the kind of counterclaim that needs to be addressed in an unlawful detainer case, it
does so on the basis that the “primary purpose of the unlawful detainer statute is to
provide a speedy resolution on the issue of possession.” Id. ¶ 29. Bichler, in fact,
emphasizes that counterclaims related to the question of possession must be resolved in
an unlawful detainer case. See id. ¶¶ 29‐33. As we have explained above, because
Dudley defended on the basis that he had rescinded the loan transaction, the trial court
was required to decide whether his rescission was legally valid in order to determine if
Utah First had a right to possession of the foreclosed property under the trustee’s deed.
Thus, even though the rescission issue in this case was raised as an affirmative defense
rather than a counterclaim, the Bichler principle is the same: In an unlawful detainer
action, “a court must resolve all claims relating to possession.” Id. ¶ 32. The trial court
therefore properly applied the principles of Bichler when it decided the validity of
Dudley’s rescission notice.

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restitution, giving Utah First full possession of the property and unlawful detainer
damages for Dudley’s continued occupancy of the property.9

¶19 Finally, Dudley’s claim that the trial court erred in refusing to exercise
supplemental jurisdiction over his twenty‐nine federal claims is without merit. The
statutory authority upon which Dudley relies‐‐title 28, section 1367(a) of the United
States Code‐‐grants authority only to federal courts to exercise supplemental
jurisdiction over state claims arising out of the same case or controversy and does not
mention state courts at all. See 28 U.S.C. § 1367(a) (2006). Dudley has not cited any
federal or Utah law that authorizes a state court judge to unilaterally assume
jurisdiction over claims in a case pending in federal court, whether or not those claims
were brought under state law. Moreover, even if the trial court had such authority, it
was well within its discretion to deny Dudley’s motion as untimely, when the motion
was made on the first day of trial.

¶20 In conclusion, Dudley was required to exercise a valid right of rescission before
Utah First had any obligation to halt the nonjudicial foreclosure proceedings. Because
Utah First provided Dudley with the disclosures required by TILA by the time of
closing on November 16, 2007, Dudley’s right to rescind expired on November 20, 2007.
Dudley did not attempt to rescind until March 17, 2010, more than two years later. His
attempt to rescind was therefore ineffective, and the trial court correctly ruled that Utah
First acquired possession of the property through the trustee’s deed at the end of a valid
nonjudicial foreclosure process. The trial court therefore properly ruled that Dudley
was in unlawful detainer and awarded Utah First damages, attorney fees, and costs.

9
Dudley’s claim that Utah First’s suit is barred by Utah Code section 78B‐6‐809
was not raised in the trial court, and therefore it is unpreserved for appeal. See generally
438 Main St., 2004 UT 72, ¶ 51 (“[I]n order to preserve an issue for appeal[,] the issue
must be presented to the trial court in such a way that the trial court has an opportunity
to rule on that issue.” (alterations in original) (internal quotation marks omitted)).
Consequently, we do not reach that issue. See id. (“Issues that are not raised at trial are
usually deemed waived.”). We note, however, that section 78B‐6‐809 does not appear
to be applicable in any event because it applies to actions for forcible entry or forcible
detainer, not unlawful detainer. See Utah Code Ann. § 78B‐6‐809 (2008); see also id.
§ 78B‐6‐801 (Supp. 2011) (defining forcible detainer and forcible entry separately from
unlawful detainer).

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¶21 Utah First requests attorney fees on appeal. Because it was awarded attorney
fees in the trial court pursuant to the unlawful detainer statute and has prevailed here,
it is entitled to recover its reasonable fees incurred on appeal. See generally Valcarce v.
Fitzgerald, 961 P.2d 305, 319 (Utah 1998) (“[Appellate] court[s] ha[ve] interpreted
attorney fee statutes broadly so as to award attorney fees on appeal where a statute
initially authorizes them. . . . [W]hen a party who received attorney fees below prevails
on appeal, the party is entitled to fees reasonably incurred on appeal.” (internal
quotation marks omitted)). We remand to the trial court for entry of an appropriate
award of attorney fees.

____________________________________
Stephen L. Roth, Judge

‐‐‐‐‐

¶22 WE CONCUR:

____________________________________
Carolyn B. McHugh,
Presiding Judge

____________________________________
Gregory K. Orme, Judge

20100829‐CA 15