The Law of the Case Doctrine Applied by Utah Supreme Court to Aid Texas Trustee to Foreclose on Utah Home

Location, location, location are, at least according to Lord Harold Samuel, the three things that matter most in real estate. Location is also the thing that matters the most in this case. The National Bank Act authorizes a national bank to perform certain fiduciary functions if the law of the state where the national bank is located permits competing entities to engage in those activities. In 2013, a majority of this Court opined that the word “located” was unambiguous. With the benefit of more focused briefing we conclude that, as used in the Act, located lends itself to at least two plausible meanings. Because we find Congress’s use of the word ambiguous, we must defer to the “not unreasonable” interpretation the Comptroller of the Currency has assigned to the word located. Applying that definition, we overturn the decision we reached when this case was before us on interlocutory review. We reverse and remand for further proceedings.

After our decision, FNMA petitioned for certiorari to the United States Supreme Court. The court called for briefing from the Solicitor General. Although sharply disagreeing with our opinion— and our conclusion that located was an unambiguous term—the Solicitor General suggested that the Court deny certiorari because, in part, our decision was not final. Brief for the United States as Amicus Curiae at 1, 7–11, 16, Federal Nat’l Mortg. Ass’n v. Sundquist (Sundquist II), 134 S. Ct. 475 (2014) (No. 13-852), 2014 WL 4979386, at *8–12, *16. The Court then denied certiorari. Sundquist II, 134 S. Ct. 475.

I. Exceptional Circumstances Permit Us to Revisit Sundquist I

Before we reach the merits of the underlying dispute, we must confront a threshold question: does our decision in Sundquist I bind our hands in this matter. Sundquist argues that under the law of the case doctrine, Sundquist I both begins and ends our analysis. Under [the law of the case doctrine], a court is justified in refusing to reconsider matters it resolved in a prior ruling in the same case for reasons of efficiency and consistency. . . . The exceptional circumstances under which courts have reopened issues previously decided are narrowly defined: (1) when there has been an intervening change of controlling authority; (2) when new evidence has become available; or (3) when the court is convinced that its prior decision was clearly erroneous and would work a manifest injustice. Thurston v. Box Elder Cty., 892 P.2d 1034, 1038–39 (Utah 1995).

¶Bank of America acknowledges the doctrine’s pull, but urges us to reopen Sundquist I under the third consideration: “when the court is convinced that its prior decision was clearly erroneous and would work a manifest injustice.” Id. at 1039. We are not immune from the effects of our decisions. And we are generally bound by our prior decisions in the same case. Gildea v. Guardian Title Co. of Utah, 2001 UT 75, ¶ 9, 31 P.3d 543 (“Under the law of the case doctrine, issues resolved by this court on appeal bind the trial court on remand, and generally bind this court should the case return on appeal after remand.”).

However, the law of the case doctrine is not a limit on power but, ‘as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided.’ Thurston, 892 P.2d at 1038–39 (quoting Messenger v. Anderson, 225 U.S. 436, 444 (1912)). And “this court need not apply the [law of the
case] doctrine to promote efficiency at the expense of the greater interest in preventing unjust results or unwise precedent.” Gildea, 2001 UT 75, ¶ 9 (citation omitted).

This case has afforded us an opportunity to review our prior reasoning, and we are confident that Sundquist I was “clearly erroneous.” Thurston, 892 P.2d at 1039.3 We had significantly less focused briefing on this issue the last time this case was before us. The last time around, Sundquist’s opening brief did not even cite the federal statute at the heart of this appeal, though it did assert that ReconTrust lacked authority to conduct the sale. FNMA’s brief, on the other hand, reluctantly discussed the issue of ReconTrust’s authority while repeatedly asserting that “the issue is not ripe for appeal” because “[t]he trial court has not made a final determination regarding whether Sundquist’s challenge to ReconTrust’s authority affects the validity of the trustee’s deed.”
We now have the benefit of briefing focused on this issue. And that superior briefing causes us to see the need to reconsider our prior decision to correct an erroneous conclusion. Under those circumstances, law of the case presents no barrier.

The Summary of the Opinion – The Comptroller (at the helm is Joseph Otting, AKA former Foreclosure Magnet and sidekick to Steve “Foreclosure King” Mnuchin) Gets the Final Say – Feds Win Over the State Laws which are truly ‘Trump’d’ (Resulting in a Foreclosure for the Bank and another Homeowner Loss).

What Congress meant by the term “located” in the National Bank Act cannot be determined from the statute’s plain language. Because this is a federal statute accompanied by an agency’s interpretation of the ambiguous language, Chevron requires us to defer to the “not unreasonable” interpretation the agency has provided.

Because the Comptroller’s interpretation of where a bank is “located” is reasonable, we reverse and remand. On remand, the district court should apply section 92(a), as interpreted by the Comptroller, to determine where ReconTrust is located and apply the law of that jurisdiction.

Utah Supreme Court Sundquist Reversal on Command from OCC and US Supreme Court

US Supreme Court Sundquist Petition Denied

FNMA Response to Sundquist Petition US Supreme Court