Zions FNB v. Hudson

Stichting Mayflower v. Dunlap

IN THE UTAH COURT OF APPEALS

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Zions First National Bank,

Plaintiff and Appellee,

v.

Steven E. Hudson and Cloyee J. Hudson,

Defendants and Appellants.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030348-CA
 

F I L E D
(April 22, 2004)
 

2004 UT App 119

 

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Third District, Salt Lake Department

The Honorable Joseph C. Fratto Jr.

Attorneys: D. Bruce Oliver, Salt Lake City, for Appellants

Craig T. Jacobsen, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Thorne.

BENCH, Associate Presiding Judge:

The Hudsons challenge the summary judgment granting Zions First National Bank (Zions) a decree of foreclosure on its trust deed and ordering the sale of real property after the Hudsons defaulted on their loan repayment. Contrary to the Hudsons' argument, they were not relieved from their obligation to pay the outstanding balance on their Home Equity Credit Line Agreement simply because Zions demanded payment through monthly billings rather than by making automatic payroll deductions from Ms. Hudson's wages. Therefore, the trial court's final judgment and decree of foreclosure dated March 24, 2003, and order to sell the property at public auction, were proper. See Grand County v. Rogers, 2002 UT 25,¶21, 44 P.3d 734 ("Summary judgment is appropriate when the evidence 'show[s] that there is no genuine issue as to any material fact'" (emphasis added) (quoting Utah R. Civ. P. 56(c))).

The Hudsons also allege that Zions should be held in contempt for failing to notice a senior lien holder, Wells Fargo Bank, and for failing to pay "the proceeds of such sale first to any senior lienholder" in accordance with the trial court's directive.(1) The Hudsons claim that Zions failed to follow the court's order and ignored the Hudsons' request for an accounting of sale pursuant to Utah Rule of Civil Procedure 69(i)(4). This, the Hudsons assert, has caused the Hudsons to continue making monthly mortgage payments to Wells Fargo Bank for which they should no longer be responsible, and has kept them from redeeming the property.

We do not rule on the propriety of the execution of the trial court's final judgment and decree of foreclosure, ordering the sheriff to "apply the balance of the proceeds of such sale first to any senior lienholder of Zions Bank." Nor do we determine the position or potential entitlements of Wells Fargo Bank due to its alleged senior lien.(2) Before presenting these claims to this court, the Hudsons must first raise them with the trial court. See Olson v. Park-Craig-Olson, Inc., 815 P.2d 1356, 1358 (Utah Ct. App. 1991) ("We normally will not consider arguments on appeal which were not raised before the trial court.").

Zions requests an award of attorney fees it has incurred on appeal. The trial court allowed Zions to take from the proceeds of sale the attorney fees it expended in collecting on its trust deed. The court also ruled that "if a deficiency results after due and proper application of the proceeds" from the foreclosure sale, then Zions could pursue a deficiency judgment. The record does not indicate that a deficiency judgment was ever pursued. Zions's claim for attorney fees it incurred in defending this appeal is therefore denied.

We affirm the summary judgment. Costs are awarded to Zions, as requested, pursuant to rule 34 of the Utah Rules of Appellate Procedure.

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Russell W. Bench,

Associate Presiding Judge

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WE CONCUR:

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Judith M. Billings,

Presiding Judge

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William A. Thorne Jr., Judge

1. Because it is uncontested, we grant the Hudsons' request to supplement their brief. However, we deny their motion to rebrief the case in its entirety.

2. This includes the threshold question of whether Wells Fargo Bank is even entitled to payments.