The Appellate Group

Brimhall v. Ditech Financial

Brimhall v. Ditech Financial, 2021 UT App 34 (Christiansen Forster, J.)


The Brimhalls defaulted on their mortgage. Beginning on April 20, they filed a series of RMA (request for mortgage assistance) applications with their loan servicer, Ditech Financial. On August 16, Ditech sold the Brimhalls’ property. The Brimhalls sought a declaratory judgment that Ditech had unlawfully foreclosed because it failed to comply with statutory notice requirements under Utah Code section 57-1-24.3. There were several factual disputes about whether the Brimhalls’ first RMA was complete and whether Ditech had promised via telephone to postpone sale of the property. Nevertheless, the district court granted summary judgment in favor of Ditech. The Brimhalls appealed. The Utah Court of Appeals reversed, holding:

  • The district court erred when it granted summary judgment to Ditech. Conflicting accounts offer a classic example of a dispute of material fact that precludes resolution by summary judgment.
  • On remand, the district court should consider whether the Brimhalls timely submitted a complete first application by April 20. Subsequent applications do not retrigger the statutory notice requirements and duties in Utah Code section 57-1-24.3.
  • Practice Point: A lender is not a necessary party to adjudicate a wrongdoing on the part of a loan servicer.

Read the full court opinion