APS v. Briggs

927 P.2d 670, 303 Utah Adv. Rep. 24, 1996 Utah App. LEXIS 112, 1996 WL 666048
CourtCourt of Appeals of Utah
DecidedNovember 15, 1996
DocketNo. 950756-CA
StatusPublished
Cited by2 cases

This text of 927 P.2d 670 (APS v. Briggs) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
APS v. Briggs, 927 P.2d 670, 303 Utah Adv. Rep. 24, 1996 Utah App. LEXIS 112, 1996 WL 666048 (Utah Ct. App. 1996).

Opinion

OPINION

JACKSON, Judge:

Plaintiff APS appeals the trial court’s judgment dismissing its collection action against defendant Vaughn L. Pulsipher on the [672]*672ground that the six-year statute of limitations had run. We reverse and remand.

FACTS

On June 18, 1986, the four defendants in this case — Garth E. Briggs, Vaughn L. Pulsi-pher, Autumn Development and Construction Company (Autumn Development), and American Real Estate Associates — signed a trust deed note in favor of APS. By signing the note, these four comakers jointly and severally promised to pay APS $75,000 plus interest by June 18, 1987. The note was secured by a trust deed executed solely by comaker Autumn Development, encumbering real property in Salt Lake County. This property was already encumbered by a hen held by Valley National Mortgage Company (Valley National).

On January 11, 1988, Autumn Development filed a bankruptcy petition and was automatically granted a stay against all acts to enforce hens against its property. See 11 U.S.C.A. § 362(a) (West 1993). On November 17, 1991, Valley National had the automatic stay lifted and exercised its senior hen rights to begin a nonjudicial foreclosure on the property that had also served as collateral on the note held by APS. The foreclosure was completed on April 22,1993.

APS filed this collection action against the four comakers on November 10, 1993, alleging that no payments had ever been made on the note. Pulsipher moved to dismiss the claim against him, arguing that the six-year statute of limitations had run. See Utah Code Ann. § 78-12-23 (Supp.1992). Pulsi-pher argued that the statute began to run at least by June 18, 1987 — the date the entire loan was due — and therefore had expired at least by June 18,1993, several months before the action was filed. The other three comakers have raised different defenses. Therefore, this appeal involves only APS’s claim against Pulsipher.

In response to Pulsipher’s motion to dismiss, APS argued that the statute of limitations was tolled by a combination of Utah Code Ann. § 78-37-1 (1992) (the one-action rule), 11 U.S.C.A. § 362(a), and Utah Code Ann. § 78-12-41 (1992). The trial court rejected APS’s arguments and granted Pulsi-pher’s motion to dismiss. When APS’s motion to reconsider was denied, APS obtained certification of the order dismissing APS’s action as a final order. This appeal followed.

ISSUE AND STANDARD OF REVIEW

On appeal, APS makes a three-part argument that the statute of limitations did not run on its claim against Pulsipher: (1) Utah’s one-action rule prevented APS from suing Pulsipher and the other comakers until Autumn Development’s real property was foreclosed or lost, even though Autumn Development was the only comaker who provided any security; (2) 11 U.S.C.A. § 362(a) (West 1993) temporarily stayed APS from filing an action to foreclose on the property; and (3) Utah Code Ann. § 78-12-41 (1992) mandates that the time during which the statutory stay was in effect not be counted as “part of the time limited for the commencement of the action.”

Pulsipher does not dispute APS’s characterization of 11 U.S.C.A. § 362(a) or Utah Code Ann. § 78-12-41, but rather challenges APS’s interpretation of the one-action rule. Pulsipher contends that the one-action rule only protects debtors who personally provided the property securing their debt. Pulsipher argues that APS could have sued Pulsipher without waiting for Autumn Development’s property to be foreclosed or lost, and thus the statute of limitations should not have been tolled.

From these arguments, we conclude that the proper issue for our consideration is this: Does Utah’s one-action rule protect comakers on a secured promissory note who provided none of the real property securing the note? This issue is one of law, and therefore we give no deference to the trial court’s judgment. See Sanders v. Ovard, 838 P.2d 1134, 1135 (Utah 1992).

ANALYSIS

Utah’s one-action rule provides that “[t]here can be one action for the recovery of any debt or the enforcement of any right secured solely by mortgage upon real estate.” Utah Code Ann. § 78-37-1 (1992). [673]*673Under this rule, “[a] creditor must foreclose and have a deficiency determined by the court before proceeding against the debtor personally.” City Consumer Servs., Inc. v. Peters, 815 P.2d 234, 235 (Utah 1991) (citing Utah Mortgage & Loan Co. v. Black, 618 P.2d 43, 45 (Utah 1980)); see also Bank of Ephraim v. Davis, 581 P.2d 1001, 1003 (Utah 1978) (stating “the mortgaged property constitute[s] a primary fund ... to which the mortgagee must first resort for the discharge of the debt, and until that fund has been exhausted the mortgagee has no personal right of action against the mortgagor”). “Although the rule speaks in terms ’of a ‘mortgage,’ Utah cases ... have held that the one-action rule applies to trust deeds ... as well as to mortgages.” Peters, 815 P.2d at 236. An exception to the one-action rule is where the security has been lost or rendered valueless through no fault of the creditor. Id.; see also Lockhart Co. v. Equitable Realty, Inc., 657 P.2d 1333, 1335-36 (Utah 1983); Cache Valley Banking Co. v. Logan, 88 Utah 577, 583, 56 P.2d 1046, 1049 (1936). In accordance with this exception, the Utah Supreme Court has held the one-action rule does not apply to a “ ‘sold out junior lienor,’ a creditor originally secured by a second lien against real property but unsecured as a result of the senior’s foreclosure.” Peters, 815 P.2d at 236.

The Utah Supreme Court has declared that “[t]he underlying purpose of the single-action statute is to preclude the creditor from waiving the security and suing directly on the contract to pay money and hold the debtor rather than the security primarily liable.” Davis, 581 P.2d at 1003; accord Black, 618 P.2d at 45; Mickelson v. Anderson, 81 Utah 444, 452, 19 P.2d 1033, 1036 (1932). The one-action rule represents a policy preference that, when available, real property collateral be used before the debt- or’s personal assets to satisfy debts. One commentator has observed that absent this security-first requirement, the creditor “could dispose of any of a debtor’s assets the creditor chooses and disrupt the debtor’s preferences in that regard.

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Bluebook (online)
927 P.2d 670, 303 Utah Adv. Rep. 24, 1996 Utah App. LEXIS 112, 1996 WL 666048, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aps-v-briggs-utahctapp-1996.