Lewis v. U.S. Bank Trust

2024 UT App 3

THE UTAH COURT OF APPEALS

BRIAN K. LEWIS,
Appellant,
v.
U.S. BANK TRUST, NA, AS TRUSTEE FOR LSF9 MASTER
PARTICIPATION TRUST,
Appellee.

Opinion
No. 20220434-CA
Filed January 5, 2024

Fourth District Court, Nephi Department
The Honorable Anthony L. Howell
No. 180600022

Stephanie L. O’Brien, Attorney for Appellant
Heidi G. Goebel, Keith S. Anderson, and Spencer
MacDonald, Attorneys for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY
concurred.

OLIVER, Judge:

¶1 After foreclosure was initiated against property he
purchased in Mona, Utah (the Property), Brian K. Lewis sued the
foreclosing parties, spurring a host of litigation. Lewis appeals the
district court’s grant of summary judgment on the quiet title and
unjust enrichment claims he made against U.S. Bank Trust, NA
(U.S. Bank). Lewis also appeals the court’s grant of summary
judgment to U.S. Bank on its claim for judicial foreclosure on the
Property and the court’s denial of his rule 60(b) motion for relief
from this portion of the judgment. For the reasons laid out below,
we affirm the district court in all respects.
Lewis v. U.S. Bank Trust

BACKGROUND

¶2 In 2008, the prior owner (Prior Owner) of the Property
financed his purchase of the Property by executing a
promissory note and a deed of trust securing the note. The loan
was eventually sold to LSF9 Master Participation Trust (LSF9),
and after several assignments, the deed was assigned to U.S.
Bank, as trustee on behalf of LSF9. Prior Owner defaulted on the
loan and filed for bankruptcy. Prior Owner’s bankruptcy petition
was discharged, and along with it, his personal obligation on the
loan. 1
0F

¶3 In April 2010, notice of default on the loan was recorded,
noting there had been no payment on the obligation since Prior
Owner’s default. This notice was later “rescind[ed], cancel[led]
and withdraw[n]” on May 1, 2014. But a new notice of default was
entered the same day. A few months later, in August 2014, Prior
Owner sold the Property to Lewis. Lewis claims he “has
maintained” and “put substantial improvements into the
Property” since 2014.

The First Lawsuit

¶4 In July 2016, Lewis was informed that a nonjudicial
foreclosure sale of the Property would occur in September.
Lewis filed a complaint against the foreclosing parties in state
district court, seeking to quiet title and obtain a judgment
preventing future foreclosure. Lewis argued the foreclosing

1. Pursuant to rule 201 of the Utah Rules of Evidence and U.S.
Bank’s request, this court takes judicial notice of Prior Owner’s
bankruptcy proceedings in the United States Bankruptcy Court
for the District of Utah, case number 10-23076. See Utah R. Evid.
201(b) (allowing courts to “judicially notice a fact that is not
subject to reasonable dispute because it . . . can be accurately and
readily determined from sources whose accuracy cannot
reasonably be questioned”).

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Lewis v. U.S. Bank Trust

parties had failed to foreclose within the statutory period and
were no longer entitled to do so. This suit (the First Lawsuit) was
removed to the United States District Court for the District of
Utah. See Lewis v. Caliber Home Loans, Inc., No. 2:16-cv-01252, 2018
WL 485967 (D. Utah Jan. 18, 2018). The federal district court
granted summary judgment in favor of the foreclosing parties,
concluding the statute of limitations period began on May 1, 2014,
and had not run by the time foreclosure proceedings began in
September 2016. Id. at *1. Lewis appealed this decision to the
United States Court of Appeals for the Tenth Circuit, but the
appeal was dismissed for lack of prosecution. See Lewis v. Caliber
Home Loans, Inc., No. 18-4020, 2018 WL 3996494, at *1 (10th Cir.
May 3, 2018).

The Current Lawsuit

¶5 Days after Lewis’s Tenth Circuit appeal was dismissed, he
filed a new complaint (the Current Lawsuit) in state court, this
time against U.S. Bank. Lewis again sought to quiet title in the
Property and to enjoin U.S. Bank from “asserting any estate, right,
title or interest” in the Property. U.S. Bank removed the action to
federal district court. Lewis opposed removal and filed a second
amended complaint in state court. The state court concluded it did
not have jurisdiction over the amended complaint as the case had
been removed to federal court, but based on lack of diversity
jurisdiction, the federal court eventually remanded the case to the
state court.

¶6 U.S. Bank then filed a motion to dismiss Lewis’s complaint
under rule 12(b)(6) of the Utah Rules of Civil Procedure, arguing
the suit was barred by res judicata and failed to state a claim upon
which relief could be granted. Thereafter, the court permitted
Lewis to amend his complaint. Lewis’s third amended complaint
raised a quiet title claim labeled “Quiet Title—Laches” wherein he
alleged U.S. Bank or its predecessors in interest had
“unreasonably delayed enforcing” their rights against the

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Lewis v. U.S. Bank Trust

Property. 2 The complaint also alleged U.S. Bank had been unjustly
1F

enriched by Lewis’s maintenance and improvement of the
Property.

¶7 U.S. Bank then filed another motion to dismiss, arguing
again that Lewis’s claims were barred by res judicata and were
otherwise meritless. The court agreed that Lewis’s claims for quiet
title and unjust enrichment were barred by res judicata and
dismissed them because they “could and should have been
brought in the earlier lawsuit.” Lewis appealed the dismissal of
his claims to this court. We held that “[b]ecause the district court
could not decide this issue without considering materials outside
the pleadings, the motion to dismiss should have been converted
to one for summary judgment” and we remanded the case to the
district court. Lewis v. U.S. Bank Trust NA, 2020 UT App 55, ¶ 1,
463 P.3d 694. Thereafter, U.S. Bank answered Lewis’s third
amended complaint, again arguing his claims were barred by res
judicata.

¶8 While the Current Lawsuit was pending, U.S. Bank had
initiated a judicial foreclosure of the Property. On U.S. Bank’s
motion, the court consolidated the judicial foreclosure action into
the Current Lawsuit. On April 30, 2020, the May 1, 2014, notice of
default was cancelled.

¶9 U.S. Bank then simultaneously filed two motions for
summary judgment. Though the motions were both captioned
“Motion for Summary Judgment and Memorandum in Support,”
they addressed different issues—one motion concerned Lewis’s
claims for quiet title (the Quiet Title Motion), while the other
focused on U.S. Bank’s foreclosure claim (the Foreclosure

2. Lewis raised a second quiet title claim, alleging the deed of trust
was not properly transferred to U.S. Bank, rendering U.S. Bank
unable to foreclose on the Property. But this claim was later
dismissed by stipulation of the parties.

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Lewis v. U.S. Bank Trust

Motion). The Foreclosure Motion stated on its first page that “U.S.
Bank Trust has simultaneously filed a separate motion for
summary judgment as to Mr. Lewis’s claims against U.S. Bank
Trust and which is adopted in full” and later likewise noted the
“simultaneously-filed Motion for Summary Judgment that
addresses Mr. Lewis’s quiet title and unjust enrichment claims.”
The Quiet Title Motion argued Lewis’s quiet title and unjust
enrichment claims were barred by res judicata. The day after U.S.
Bank filed its two motions for summary judgment, it filed a Notice
of Errata, noting that it had “[i]nadvertently” included a
watermark on the Quiet Title Motion. U.S. Bank attached a
corrected motion.

¶10 Lewis’s counsel (Counsel) “mistakenly believed that [the
Quiet Title Motion] was the only pending motion for
summary judgment.” Thus, Lewis filed a single Opposition
to Defendants’ Motion for Summary Judgment addressing
only the Quiet Title Motion. Though Lewis did not directly
oppose the Foreclosure Motion, he did briefly address judicial
foreclosure in his opposition to the Quiet Title Motion, arguing
U.S. Bank did not have a right to foreclose because it could not
demonstrate a “chain of title” establishing assignment of the deed
of trust.

¶11 After a hearing, the court granted both of U.S. Bank’s
motions for summary judgment. The court concluded Lewis’s
quiet title and unjust enrichment claims were barred as a matter
of law by claim preclusion. And the court granted summary
judgment to U.S. Bank on its judicial foreclosure claim, finding the
statute of limitations had not run on the claim. U.S. Bank prepared
a proposed written order memorializing the court’s judgment, but
Lewis objected, arguing the order failed “to clarify and make clear
the consequences and facts surrounding U.S. Bank’s filing of two
(2) Motions for Summary Judgment . . . with identical titles,
followed by an Errata.” The court entered final judgment over
Lewis’s objection.

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Lewis v. U.S. Bank Trust

¶12 U.S. Bank later filed a motion to amend the judgment
under rule 59 of the Utah Rules of Civil Procedure, arguing the
court had not properly addressed Lewis’s quiet title claims.
Shortly thereafter, Lewis filed a rule 60(b) motion for relief from
the court’s grant of summary judgment to U.S. Bank on its judicial
foreclosure claim. Counsel argued she “encountered a scenario
that was unprecedented in her practice of law when U.S. Bank
filed two (2) separate pleadings titled ‘Motion for Summary
Judgment and Memorandum in Support’” and that the filing of
the Errata caused “confusion,” which constituted mistake or
excusable neglect under rule 60(b)(1). Counsel declared in a
subsequent affidavit that due to the Errata “and the fact that . . .
multiple pleadings were filed by [U.S. Bank] with the same title
on the same date,” she “mistakenly failed to realize a separate
motion for summary judgment was filed on U.S. Bank’s claim for
judicial foreclosure.”

¶13 After a hearing, the court granted U.S. Bank’s rule 59
motion and issued an amended judgment. 3 The court denied
2F

Lewis’s rule 60(b) motion, finding Lewis had “not established the
requisite showing of ‘due diligence’ required for relief under” rule
60(b)(1). The amended judgment affirmed the court’s prior grant
of summary judgment to U.S. Bank on both Lewis’s claims and
U.S. Bank’s judicial foreclosure claim.

ISSUES AND STANDARDS OF REVIEW

¶14 On appeal, Lewis argues the district court erred in
concluding his claims for quiet title and unjust enrichment were
barred by claim preclusion. “Whether res judicata, and more
specifically claim preclusion, bars an action presents a question of
law that we review for correctness.” Pioneer Home Owners Assoc.
v. TaxHawk Inc., 2019 UT App 213, ¶ 19, 457 P.3d 393 (cleaned up).

3. The substance of the amendment is not relevant to this appeal.

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Lewis v. U.S. Bank Trust

¶15 Next, Lewis argues the district court improperly granted
summary judgment to U.S. Bank on its judicial foreclosure claim.
In particular, he argues the court erred in determining the statute
of limitations on the claim had not yet run. “We review summary
judgment decisions for correctness, viewing the facts in a light
most favorable to the losing party below and giving no deference
to the district court’s conclusions of law.” Brinkerhoff v. Fleming,
2023 UT App 92, ¶ 10, 536 P.3d 156 (cleaned up), cert. denied, Dec.
5, 2023 (No. 20230835).

¶16 Finally, Lewis argues the district court abused its
discretion in denying his rule 60(b)(1) motion. “We review a
district court’s denial of a rule 60(b) motion for relief from
judgment for an abuse of discretion.” Jones v. Layton/Okland, 2009
UT 39, ¶ 10, 214 P.3d 859.

ANALYSIS

I. Lewis’s Quiet Title and Unjust Enrichment Claims

¶17 First, Lewis challenges the district court’s conclusion that
res judicata barred his quiet title and unjust enrichment claims as
a matter of law. “The doctrine of res judicata embraces two
distinct branches: claim preclusion and issue preclusion.” Macris
& Assocs., Inc. v. Neways, Inc., 2000 UT 93, ¶ 19, 16 P.3d 1214. While
“claim preclusion corresponds to causes of action[,] issue
preclusion corresponds to the facts and issues underlying causes
of action.” Mack v. State Dep’t of Com., 2009 UT 47, ¶ 29, 221 P.3d
194 (cleaned up). Claim preclusion “is premised on the principle
that a controversy should be adjudicated only once.” Pioneer Home
Owners Assoc. v. TaxHawk Inc., 2019 UT App 213, ¶ 41, 457 P.3d
393 (cleaned up). To this end, for claim preclusion to apply,
(1) “both cases must involve the same parties or their privies,”
(2) “the claim that is alleged to be barred must have been
presented in the first suit or be one that could and should have
been raised in the first action,” and (3) “the first suit must have

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Lewis v. U.S. Bank Trust

resulted in a final judgment on the merits.” Id. (cleaned up). Lewis
challenges only the court’s application of the second element of
this test to his claims.

¶18 In determining whether claims “are the same as those
brought or that could have been brought” for claim preclusion
purposes, Utah courts have adopted a transactional test. See Mack,
2009 UT 47, ¶ 30. Under this test, claims are the same as those that
could and should have been brought in the prior suit “if they arise
from the same operative facts, or in other words from the same
transaction.” TaxHawk, 2019 UT App 213, ¶ 43 (cleaned up). This
test does not turn on “the specific legal theory invoked” but rather
on “the essential similarity of the underlying events giving rise to
the various legal claims,” considering “whether the facts are
related in time, space, origin, or motivation” and “whether they
form a convenient trial unit.” Gillmor v. Family Link, LLC, 2012 UT
38, ¶¶ 13–14, 284 P.3d 622 (cleaned up).

¶19 Here, the transaction giving rise to Lewis’s quiet title
claims in the Current Lawsuit and the First Lawsuit is the same.
In the First Lawsuit, Lewis sought to quiet title to the Property,
arguing the foreclosing parties did not timely initiate foreclosure
proceedings and the statute of limitations on foreclosure had run.
He based that claim on the fact that default on the loan occurred
in 2009 but foreclosure was not initiated until 2016—outside the
applicable six-year statute of limitations. In the Current Lawsuit,
Lewis again raised a quiet title claim, arguing this time—under
the doctrine of laches—that U.S. Bank and its predecessors in
interest “unreasonably delayed enforcing their rights against the
Property.” This claim was based on his factual allegations that
“[f]rom July 2010, [U.S. Bank] or its claimed predecessors in
interest could have taken action against the Property” but failed
to do so until 2016.

¶20 Both claims concern the Property, were motivated by
Lewis’s desire to prevent foreclosure of the Property, and concern

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Lewis v. U.S. Bank Trust

the delay in foreclosure. And Lewis does not suggest that the
viability of his laches claim hinges on the additional delay
incurred between the First Lawsuit and the Current Lawsuit.
Although premised on different legal theories—statute of
limitations versus laches—Lewis’s quiet title claims in the First
Lawsuit and Current Lawsuit arise from the same transaction.
The claims are related in time, space, origin, and motivation, see
id. ¶¶ 13–14, and the laches-based claim could and should have
been brought in the First Lawsuit.

¶21 Likewise, Lewis’s unjust enrichment claim is based on the
same transaction and should have been raised in the First
Lawsuit. Lewis based his unjust enrichment claim in the Current
Lawsuit on his assertion that he “maintained” and “made
substantial improvements to the Property,” thus “conveying a
benefit” on U.S. Bank. Lewis bought the Property on August 26,
2014. And he claims he began improving the Property “by new
construction” sometime in 2015. This means, by the time he filed
the First Lawsuit on August 23, 2016, he would have been able to
bring an unjust enrichment claim based on his supposed
maintenance and improvement.

¶22 Lewis declared that “additional maintenance and
improvements” to the Property since this “new construction”
provide the basis for the unjust enrichment claim in the Current
Lawsuit. (Emphasis added.) But this is a tacit acknowledgement
that Lewis improved the Property prior to the First Lawsuit.
Lewis makes no attempt to differentiate between improvements
made prior to the First Lawsuit and those supposed
improvements giving rise to his unjust enrichment claim in the
Current Lawsuit. And he provides no detail to substantiate what
his supposed improvements are. Thus, we are left to conclude that
this claim is based—at least in part—on improvements made to
the Property prior to the First Lawsuit. Consequently, the unjust
enrichment claim is based on the same operative facts as a claim
that should have been brought in the First Lawsuit.

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Lewis v. U.S. Bank Trust

¶23 Because Lewis’s quiet title claim, based on laches, and his
unjust enrichment claim could and should have been raised in the
First Lawsuit, and because the remaining elements of claim
preclusion are undisputed, the district court correctly concluded
that claim preclusion barred Lewis’s claims as a matter of law. 43F

II. U.S. Bank’s Judicial Foreclosure Claim

¶24 Lewis challenges the district court’s conclusion that the
statute of limitations on U.S. Bank’s judicial foreclosure claim had
not begun to run. 5 Under Utah Code section 57-1-34, a person
4F

seeking to foreclose on an obligation secured by trust deed must
either “commence an action” for judicial foreclosure or initiate
nonjudicial foreclosure by filing “a notice of default” “within the
period prescribed by law.” In Deleeuw v. Nationstar Mortgage LLC,
2018 UT App 59, 424 P.3d 1075, this court concluded the “period
prescribed by law” is the six-year statute of limitations laid out by
Utah Code section 70A-3-118(1). Id. ¶¶ 11–13 (cleaned up). Under
section 70A-3-118(1), this six-year statute of limitations begins to

4. Lewis also argues that, in barring his claims based on claim
preclusion, the district court somehow applied res judicata to bar
his defense to U.S. Bank’s judicial foreclosure claim. But in its
order granting summary judgment, the court addressed U.S.
Bank’s judicial foreclosure claim on the merits. The court did not
apply res judicata to prevent Lewis from defending against
judicial foreclosure. This argument is unavailing.

5. Lewis argues U.S. Bank’s judicial foreclosure claim was a
compulsory counterclaim to the First Lawsuit and should
therefore be dismissed. But because this argument is unpreserved,
we do not address it further. See State v. Centeno, 2023 UT 22, ¶ 57,
537 P.3d 232 (“It is well established that we will not address the
merits of an unpreserved issue absent a showing that an exception
to the preservation rule applies.”).

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Lewis v. U.S. Bank Trust

run “after the due date or dates stated in the note, or, if a due date
is accelerated, within six years after the accelerated due date.”

¶25 Filing a notice of default is an acceleration, causing this
statute of limitations to begin to run. See Daniels v. Deutsche Bank
Nat’l Trust, 2021 UT App 105, ¶ 3, 500 P.3d 891 (“As a result of the
default notice, the [d]ebt was accelerated and immediately due in
full.”); Johnson v. Nationstar Mortgage LLC, 2020 UT App 127, ¶ 21,
475 P.3d 140 (noting that filing a notice of default was an
“acceleration event” that “triggered the limitations period”), cert.
denied, 485 P.3d 946 (Utah 2021). A notice of default may be
cancelled, thus halting the statute of limitations; however, filing a
new notice re-accelerates the obligation’s due date and restarts the
statutory period for foreclosure. See Deleeuw, 2018 UT App 59,
¶¶ 6, 13 (acknowledging two previously filed notices of default
had been cancelled and the six-year statute of limitations began
running anew when a third notice of default was filed).

¶26 Here, the first notice of default on the loan obligation was
filed in 2010. It was later cancelled on May 1, 2014, but a new
notice was entered on the same day. This notice was later
cancelled on April 30, 2020. This cancellation of the notice of
default halted the six-year statute of limitations period for
foreclosure. See id. No new notice of default has been recorded.
Thus, the six-year limitations period for foreclosure had not even
begun by the time U.S. Bank filed its judicial foreclosure action,
and the district court correctly concluded as much. 6 5F

6. Lewis also argues genuinely disputed material facts precluded
summary judgment on U.S. Bank’s judicial foreclosure claim.
Lewis lists four allegedly disputed “facts,” but he makes no
attempt to explain how they precluded summary judgment. And
in his reply brief, he raises factual issues different from those in
his opening brief, again without a meaningful attempt to explain
(continued…)

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Lewis v. U.S. Bank Trust

III. Lewis’s Rule 60(b) Motion

¶27 Lastly, Lewis argues the district court abused its discretion
in denying his motion for relief under rule 60(b) of the Utah Rules
of Civil Procedure. “In general, a movant is entitled to have a
default judgment set aside under [rule] 60(b) if (1) the motion is
timely; (2) there is a basis for granting 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. Rule
60(b) provides several bases for relief, including “mistake,
inadvertence, surprise, or excusable neglect.” Utah R. Civ. P.
60(b)(1). To qualify for relief under rule 60(b)(1), a movant must
demonstrate due diligence. See 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.” Go
Invest Wisely LLC v. Murphy, 2016 UT App 185, ¶ 21, 382 P.3d 631
(cleaned up).

¶28 Here, Counsel stated she received the e-filing notification
for U.S. Bank’s “Motions for Summary Judgment and
Memorandum in Support.” (Emphasis added.) She also received
U.S. Bank’s Errata, which corrected the Quiet Title Motion. She
believed the Errata replaced previous pleadings and “that there
was only one pending Motion for Summary Judgment.” She then
opposed only the Quiet Title Motion—leaving the Foreclosure
Motion unopposed. Lewis argued the failure to oppose

how they precluded summary judgment. “Appellate courts are
not a depository in which a party may dump the burden of
argument and research.” ASC Utah, Inc. v. Wolf Mountain Resorts,
LC, 2013 UT 24, ¶ 16, 309 P.3d 201 (cleaned up). As the appellant,
Lewis has “the burden to clearly set forth the issues [he is]
appealing and to provide reasoned argument and legal
authority.” Id. Because he has not done so, we do not address this
argument further.

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constituted excusable neglect or mistake under rule 60(b)(1)
because “it was unprecedented in [Counsel’s] practice of law” to
file two separate motions for summary judgment, and the
identical captions created a “reasonable scenario in which” she
could believe there was only one motion filed. The district court
disagreed, finding that because Counsel “had notice of, but did
not respond to,” the Foreclosure Motion, her behavior was
“unreasonable” and failed to “establish[] the requisite showing of
‘due diligence’ required.” We agree with the district court.

¶29 “A multitude of Utah decisions” confirm that “failure to
check or read correspondence” demonstrates a lack of due
diligence. Goodrich Mud Co. v. Tops Well Services, LLC, 2023 UT
App 118, ¶ 14, 537 P.3d 649 (collecting cases), cert. denied, Jan. 2,
2024 (No. 20231057); see id. ¶¶ 14–15 (concluding a party who
ignored emails from its registered agent about service of process
“failed to act with diligence—let alone the due diligence required
to justify relief under rule 60(b)(1)”—because “a reasonably
diligent person would have read these emails and discovered
their content”); Asset Acceptance LLC v. Stocks, 2016 UT App 84,
¶¶ 18–19, 376 P.3d 322 (reasoning an attorney who “failed to read
the documents” he received “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” (cleaned up)).

¶30 At the very least, due diligence required Counsel to read
the documents she received. Had she done so, she would have
known U.S. Bank filed two separate motions for summary
judgment. The first page of the Foreclosure Motion stated, “U.S.
Bank Trust has simultaneously filed a separate motion for
summary judgment as to Mr. Lewis’s claims against U.S. Bank
Trust.” And it noted later, “U.S. Bank adopts and incorporates all
arguments and citations in the simultaneously-filed Motion for
Summary Judgment that address Mr. Lewis’s quiet title and

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unjust enrichment claims.” “[F]ailing to read the documents after
receiving them does not qualify” as due diligence. Asset
Acceptance LLC, 2016 UT App 84, ¶ 19. Without a showing of due
diligence, Lewis was not eligible for relief for mistake or
inadvertence under rule 60(b)(1). See Sewell, 2013 UT 61, ¶ 29. And
without a basis for relief under rule 60(b), the district court did
not abuse its discretion in denying the motion.

CONCLUSION

¶31 The district court correctly concluded that Lewis’s quiet
title and unjust enrichment claims were barred by claim
preclusion and that the statute of limitations on U.S. Bank’s
judicial foreclosure claim had not run. And the court acted within
its discretion in denying Lewis’s rule 60(b) motion for relief from
the judgment. Accordingly, we affirm.

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