Bradsen v. Shellpoint Mortgage Services
Bradsen v. Shellpoint Mortgage Services, 2022 UT App 10 (Pohlman, J.)
Property
Plaintiff refinanced the mortgage of her house by obtaining a loan secured by a trust deed on the property. Plaintiff stopped making payments and, in her effort to prevent foreclosure, filed a lawsuit against the entity claiming to currently hold the note and trust deed (‘Defendant’). Plaintiff argued that Defendant did not have standing to foreclose because a break in the chain of title prevented Defendant from having good title because an entity separate from Defendant purported to assign the deed to Residential Credit Solutions (2013 Assignment). Defendant attributed this to a clerical error and filed a Correction. The Utah Court of Appeals reversed in part, affirmed in part, and vacated in part, holding:
- That the 6-year statute of limitations under Utah Code § 70A-3-118(1) began running anew in 2014 because Plaintiff’s letter and form constituted a “clear, distinct, direct, unqualified, and intentional” written acknowledgment of the debt when Plaintiff (1) recognized her late payments on her mortgage loan, (2) requested loan modification, relief, and assistance, (3) identified her original loan amount, (4) and repeatedly referred to herself as the ‘Borrower.’
- The purported error of identifying the incorrect assignor in the 2013 Assignment is “not a minor typographical or clerical error” that can be correct via affidavit or corrected deed under Utah Code § 57-3-106(9).
- Defendant cannot rely on the relation back doctrine as a justification to retroactively correct any error in the original assignment, in part because “it must be executed by the same grantor that executed the original . . . deed.”