Far West Bank v. Robertson
406 P.3d 1134
Utah Ct. App.2017Background
- Robertson executed multiple notes (2006–2009) secured by two trust deeds on the same property; parties consolidated debt into a $669,726.32 Consolidated Note in 2009.
- Far West foreclosed nonjudicially after defaults; it credit-bid $403,000 at the trustee’s sale (combined bids) on June 1, 2011.
- Far West sued for a deficiency judgment after the sale; Robertson asserted counterclaims for breach of contract and breach of the implied covenant based on alleged promises about ACH services.
- The Consolidated Note and Consolidated Loan Agreement contained integration clauses; Far West also had a separate Origination (ACH) Agreement executed in 2008.
- On summary judgment the district court dismissed Robertson’s counterclaims and held foreclosures were lawful; trial limited to amount owed and property fair market value.
- At trial Robertson’s late-disclosed appraiser was excluded; court found FMV $340,000, sale price $403,000, balance owed $693,513.97, and entered a deficiency judgment for the difference. Court awarded trial attorney fees to Far West; Far West sought appellate fees.
Issues
| Issue | Plaintiff's Argument (Robertson) | Defendant's Argument (Far West) | Held |
|---|---|---|---|
| Whether extrinsic ACH promises defeated integration and supported breach claim | Email from loan officer promising to “reinstate ACH line” created triable issue that ACH was part of the final agreement | Consolidated documents contain integration clauses; parol evidence (email) cannot vary integrated agreement; Origination Agreement (2008) governs ACH and was lawfully terminated | Held for Far West: integration clause bars parol evidence; email insufficient to create triable issue; counterclaim dismissed |
| Whether implied covenant claim survived summary judgment | Termination of ACH deprived Robertson of contract benefits and excused performance / supports damages | Covenant cannot create independent duties inconsistent with express terms; Far West complied with Origination Agreement’s termination terms | Held for Far West: claim fails as it seeks to create obligations beyond the contract; dismissal affirmed |
| Validity of trustee’s sale for deficiency purposes — notice description allegedly misleading (single TIN) | Single tax ID in notice for multi-parcel property chilled bidding and prejudiced sale price | Any notice irregularity is immaterial absent proof of prejudice or reduced sale price; sale price exceeded FMV here so no prejudice shown | Held for Far West: post-sale challenge requires proof of prejudice; Robertson produced none; partial summary judgment affirmed |
| Whether trustee received timely payoff request under Utah Code §57‑1‑31.5 | Robertson mailed payoff request (May 16) and raised factual dispute about receipt | Trustee swore he never received request; statute requires proof via approved delivery (return receipt or tracking) and admissible evidence on summary judgment | Held for Far West: Robertson produced only a mailing receipt and hearsay statements, not statutorily required proof; no triable issue |
| Exclusion of Robertson’s appraiser at trial | Appraiser was disclosed only morning of trial but allegedly for impeachment — should be allowed under rule for impeachment witnesses | Appraiser was an expert rebuttal witness; rule required pretrial disclosure under expert-witness rule; nondisclosure justified exclusion under Rule 37 | Held for Far West: exclusion proper because witness was expert rebuttal and not timely disclosed |
| Appellate attorney fees entitlement | N/A (Robertson) | Consolidated Loan Agreement authorizes fees; prevailing party on appeal may recover appellate fees | Held: Far West entitled to reasonable appellate attorney fees; remanded to calculate amount |
Key Cases Cited
- Bullfrog Marina, Inc. v. Lentz, 501 P.2d 266 (Utah 1972) (contemporaneous instruments may be read together)
- Tangren Family Trust v. Tangren, 182 P.3d 326 (Utah 2008) (integration clause bars extrinsic evidence of separate agreement)
- Bank of America v. Adamson, 391 P.3d 196 (Utah 2017) (trustee sale will not be set aside absent fraud or proof of prejudice)
- Concepts, Inc. v. First Sec. Realty Services, Inc., 743 P.2d 1158 (Utah 1987) (presumption that trustee’s sale was regular; burden on trustor to prove irregularity and prejudice)
- Jackson v. Rich, 499 P.2d 279 (Utah 1972) (first material breach excuses the other party’s performance)