This opinion is subject to revision before final publication in the Pacific Reporter

2013 UT 45

IN THE 

## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

F EDERAL N ATIONAL M ORTGAGE A SSOCIATION , Plaintiff and Appellee,

v.
L ORAINE S UNDQUIST, Defendant and Appellant.

No. 20110575 Filed July 23, 2013

Third District, West Jordan Honorable Bruce C. Lubeck No. 110408730

Attorneys: Maria-Nicholle Beringer, Robert H. Scott, Chandler P. Thompson, Salt Lake City, for appellee J. Kent Holland, Daniel J. Morse, Sandy, Douglas R. Short, Midvale, for appellant Jerrold S. Jensen, Wade Farraway, Salt Lake City, amicus curiae for State of Utah

J USTICE P ARRISHauthored the opinion of the Court, in which C HIEF J USTICE D URRANT, J USTICE D URHAM , and J UDGE O RME joined. Having recused himself, A SSOCIATE C HIEF J USTICE N EHRING does not participate herein; C OURT OF A PPEALS J UDGE G REGORY K. O RME sat. J USTICE L EE filed a concurring opinion.

J USTICE P ARRISH , opinion of the Court:

INTRODUCTION ¶1 Appellant Loraine Sundquist appeals from an interlocutory order requiring her to vacate her home during the pendency of an unlawful detainer action. Appellee Federal National Mortgage Association (FNMA) initiated the un lawful detainer action, claiming ownership of Sundquist’s home. FNMA claimed ownership pursuant to a trustee’s deed that it obtained from ReconTrust.F ED

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1 FNMA has raised at least some additional arguments for the first time on appeal. However, because the district court agreed with FNMA on the preemption issue, FNMA did not need to raise these arguments in the district co urt and the district court did not rule on them. We decline to address them for the first time on appeal.

2 ReconTrust is a national bank that conducted a nonjudicial foreclosure sale in its capacity as trustee of the trust deed that Sundquist had executed to secure her mortgage. ¶2 The interlocutory order atissue was entered at the conclusion of an immediate occu pancy hearing held just two weeks after FNMA initiated the unlawful de tainer action. At that hearing, Sundquist argued that ReconTrust lacked authority to conduct the foreclosure sale and convey her home to FNMA. Specifically, she argued that sections 57-1-21 and 57- 1-23 of the Utah Code limit the power of sale to trustees who are either members of the Utah State Bar or title insurance companies with an office in Utah. In response, FNMA argued that ReconTrust, as a national bank, was authorized to conduct the sale under federal law and that federal law preempted the Utah statute. The district court agreed with FNMA and entered an order of restitutio n, requiring that Sundquist vacate her home. ¶3 We reverse. Utah Code sections 57-1-21 and 57-1-23 are not preempted by federal law. A na tional bank seeking to foreclose real property in Utah must comply with Utah law. We therefore vacate the district court’s order of restitution and remand for additional proceedings. ¶4 Because our ruling in this matter is limited to the preemption issue, the parties may, on remand, raise any additional issues they may see fit with resp ect to FNMA’s claim for immediate occupancy. 1 Similarly, the parties remain free to raise any additional arguments they may have regarding the validity of the trustee’s deed in connection with the final re solution of the unlawful detainer action.

FACTUAL & PROCEDURAL BACKGROUND ¶5 In 2006, Sundquist executed a d eed of trust as security for the loan on her Utah home (Property). In 2009, Sundquist stopped making payments on her mortgage. The beneficiary under the deed of trust appointed ReconTrust, a wholly-owned subsidiary of BankCite as: 2013 UT 45 Opinion of the Court

3 of America, as the successor trustee. In January 2011, ReconTrust placed a notice of trustee’s sale on Sundquist’s door. In May 2011, ReconTrust conducted a nonjudicial foreclosure of Sundquist’s home and thereafter deeded it to FNMA. ¶6 In June 2011, FNMA filed an unlawful detainer action. Pursuant to Utah Code sectio n 78B-6-810, the district court conducted an evidentiary hearing to determine which party would have possession of the Property during the pendency of the litigation. At the hearing, Sundquist argued that Utah law regarding the qualification of trustees did no t authorize ReconTrust to conduct a nonjudicial foreclosure. In response, FNMA asserted that Utah law was preempted by federal law, which authorized ReconTrust to conduct the foreclosure sale. Th e district court sided with FNMA and awarded it possession of the Property during the pendency of the litigation. ¶7 Sundquist filed a petition fo r interlocutory appeal, which was granted. The order of restitution was stayed pending appeal. We have jurisdiction under Utah Code section 78A-3-102(3). ¶8 Sundquist argues that ReconTrust lacked authority to conduct a nonjudicial foreclosure of her home because such authority is granted only to member s of the Utah State Bar or title insurance companies with an office in Utah. U TAH C ODE §§ 57-1-21; 57-1-23. She asserts that it necessarily follows that ReconTrust’s deed is “null and void,” that FNMA lacks title to the Property, and that FNMA is without standing to bring an unlawful detainer action. She concludes that the districtcourt lacked subject matter jurisdiction to entertain the eviction action brought by FNMA. ¶9 FNMA counters that ReconTrust is a national bank exercising fiduciary powers subject to section 92a of the National Banking Act (NBA), which preempts Utah law regarding qualification of trustees. U TAH C ODE §§ 57-1-21, 57-1-23; 12 U.S.C. § 92a. Specifically, FNMA claims that ReconTrust is subject to the laws of Texas because that is wh ere ReconTrust is “located” and where it conducts its fiduciary business, and that ReconTrust is authorized to conduct nonjudicial foreclosures under Texas law. FNMA also argues that the order of restitution was proper because Sundquist suffered no prejudice by vi rtue of ReconTrust’s role as a trustee inasmuch as she was unable to demonstrate an ability to make up her missed mortgage payments or post a bond. FNMA further argues that the other issues raised by Sundquist are not ripe for appeal inasmuch as the district court has yet to determineF ED

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2It is unclear from the record ifeither party actually requested this hearing. Under the statute, however, it is clear that such a hearing should be scheduled only “upon request of either party.” U TAH C ODE § 78B-6-810(2)(a). We theref ore note that district courts should not schedule such hearings un less requested to do so by one of the parties.

4 whether Sundquist’s challenge to ReconTrust’s authority has any effect on the validity of the trust deed.

STANDARD OF REVIEW ¶10 We generally will not disturb a district court’s order of restitution unless it abuses its discretion. State v. Snyder , 747 P.2d 417, 422 (Utah 1987). Howev er, when the validity of an order of restitution turns on interpretation of a statue, it presents issues of law. State v. Garcia , 866 P.2d 5, 6 (Utah Ct. App. 1993). “We accord a lower court’s statutory interpretations no particular deference but assess them for correctness, as we do any other conclusion of law.” State v. Rio Vista Oil, Ltd. , 786 P.2d 1343, 1347 (Utah 1990).

ANALYSIS

I. SECTION 92a OF THE NATIONAL BANKING ACT DOES NOT PREEMPT SECTIONS 57-1-21 AND 57-1-23 OF THE UTAH CODE AND A NATIONAL BANK SEEKING TO FORECLOSE REAL PROPERTY IN UTAH MUST THEREFORE COMPLY WITH UTAH LAW ¶11 Sundquist appeals the order of restitution directing her to vacate the Property during the pendency of the unlawful detainer action. In an unlawful detain er action, a court may hold an evidentiary hearing under section 78B-6-810(2)(b)(i) of the Utah Code to “determine who has the right of occupancy during the litigation’s pendency.” The district court held such a hearing in this

case. 2At this hearing, Sundquist argued that ReconTrust was not qualified to conduct the foreclos ure because Utah law establishing the qualifications of trustees is not preempted by the NBA. The district court rejected this argument and ordered Sundquist to vacate the Property. ¶12 Under section 57-1-23 of the Utah Code, a qualified trustee “is given the power of sale by wh ich the trustee may . . . cause the trust property to be sold.” Section 57-1-21(1)(a) defines qualified
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3 This statute survived constitutional challenge in Kleinsmith v. Shurtleff , 571 F.3d 1033 (10th Cir. 2009).

5 (i) any active member ofthe Utah State Bar who maintains a place within th e state where the trustor or other interested parties may meet with the trustee [or]

. . . (iv) any title insurance company or agency that: (A) holds a certificate of au thority or license . . . to conduct insurance business in the state; (B) is actually doing business in the state; and (C) maintains a bona fide office in the state. 3 ¶13 ReconTrust is neither a memb er of the Utah State Bar nor a title insurance company or agency with an office in the State of Utah. ReconTrust was therefore not a qualified trustee with the power of sale under Utah Code sections 57-1-21 and 57-1-23. However, FNMA argues that Utah law does not apply to ReconTrust because, as a national bank, ReconTrust is subject to the laws of Texas, not Utah. Under Texas law, ReconTrust is arguably authorized to conduct a nonjudicial foreclosure sale. SeeTex. Fin. Code §§ 32.001, 182.001. ¶14 Whether ReconTrust is subject to the laws of Utah or Texas depends on where it is “located.” As a national bank, ReconTrust operates under the National Banking Act, 12 U.S.C. § 1 et seq. , and is regulated by the Office of the Comptroller of Currency (Comptroller). The NBA gives the Comptroller authority “to grant . . . to national banks . . . the right to act as trustee . . . under the laws of the State in which the national bank is located .” 12 U.S.C. § 92a(a) (emphasis added). And section 92a(b) of the NBA provides that “exercise of such powers by national banks shall not be deemed to be in contravention of State or local law.” ¶15 The Comptroller’s current interpretation of section 92a is contained in the Code of Federal Regulations. 12 C.F.R. § 9.7. The applicable regulation provides that a national bank is “located” in “the state in which the bank acts in a fiduciary capacity.” 12 C.F.R. § 9.7 (d). And the regulations define the state in which the bank acts in a fiduciary capacity as “the stat e in which it accepts the fiduciary appointment, executes the docu ments that create the fiduciary relationship, and makes discretio nary decisions regarding the investment or distribution of fiduciary assets.” 12 C.F.R. § 9.7(d).F ED

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6 ¶16 Despite the fact that the Property at issue is located in Utah, FNMA argues that ReconTrustacted in a fiduciary capacity in Texas because the substitution of trustee, notice of default, and trustee’s deed all were executed and notarized in Texas. It therefore concludes that the laws of Texas apply and that, under Texas law, ReconTrust has the authority to co nduct a nonjudicial foreclosure of property located in Utah. ¶17 The issue of whether the NBA preempts Utah law governing the qualification of trus tees has been addressed by the Utah federal district courts, with diffe ring results. In three cases, the federal district courts have fo und that federal law preempts Utah law and have therefore concluded that the laws of Texas apply. Garrett v. ReconTrust Co., N.A. , 2011 WL 7657381, at *2 (D. Utah 2011) (holding that because Re conTrust is located in Texas, it acts as a trustee in Texas, and therefore “the state laws that apply to ReconTrust by virtue of section 92a are those of Texas, rather than Utah.”); Dutcher v. Matheson , 2012 WL 423379, at *7 (D. Utah 2012) (holding that Texas law governs Re conTrust, and even if it did not, that section 92a of the NBA preempt s Utah law because Utah title insurance companies comp ete with ReconTrust); Baker v. BAC Home Loans Servicing LP, 2012 WL 464024, at *4 (D. Utah 2012) (following Dutcher). ¶18 In four cases, however, the federal district courts have reached the contrary result and held that Utah law is not preempted. Cox v. ReconTrust Co., N.A. , 2011 WL 835893, at *6 (D. Utah 2011) (stating that “[u]nder a straight fo rward reading of [section] 92a(b), this court must look to Utah law in its analysis of whether ReconTrust’s activities in Utahexceed ReconTrust’s trustee powers”); Coleman v. ReconTrust Co., N.A. , U.S. Dist. LEXIS 138519 (D. Utah 2011) (agreeing with the reasoning applied in Cox ); Loomis v. Meridias Capital, Inc. , 2011 WL 5844304 (D. Utah 2011) (same); Bell v. Countrywide Bank, N.A. , 860 F. Supp. 2d 1290 (D. Utah 2012) (same). We find Judge Jenkins’ analysis in Bell to be particularly persuasive, and follow much of this same analysis here. Like Judge Jenkins, we conclude that ReconTrustis subject to the laws of Utah when exercising the power to sell property located in Utah. ¶19 In arguing that ReconTrust is subject to Texas law, FNMA relies heavily on the regulations interpreting section 92a, which provide that a national bank is lo cated in the state where it accepts its fiduciary appointment, execut es the documents creating the fiduciary relationship, and makes discretionary decisions regarding the asset. 12 C.F.R. § 9.7(d). Th e first question confronting us,Cite as: 2013 UT 45 Opinion of the Court

7 therefore, is the level of deference that we owe to the regulation. When a court reviews an agen cy’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addresse d the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842–43 (1984) (footnotes omitted). ¶20 With this standard in mind, our task is clear. We must first examine the language of sectio n 92a of the NBA to see if it unambiguously addresses the questi on of where a national bank is located. If so, that is the end of the matter. On the other hand, if the statute is ambiguous, we then l ook to the federal regulations to determine whether the interpretation they adopt is based on a permissible construction of the NBA. A. Under the Plain Language of Section 92a, a National Bank Performing Trustee’s Duties Must Comply with the Law of the State in Which the Duties Are Performed ¶21 We now turn to the relevant statutory language to determine if Congress has directly spoken to the issue of where a national bank is “located.” See Robinson v. Shell Oil Co. , 519 U.S. 337, 341 (1997) (“The plainness or ambiguity of statutory language is determined by reference to the lang uage itself, the specific context in which that language is used, an d the broader context of the statute as a whole.”); Marion Energy, Inc. v. KFJ Ranch P’ship , 2011 UT 50, ¶ 14, 267 P.3d 873 (“The best evidence of the [L]egislature’s intent is the plain language of the statute itself.” (internal quotation marks omitted)). ¶22 Under section 92a of the NBA, the Comptroller has authority to authorize national banks to act as a trustee or in aF ED

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8 fiduciary capacity “when not in contrav ention of [the] State [law] . . . in which the national bank is located,” whenever State banks are permitted to act as a trustee un der that State’s laws. 12 U.S.C. § 92a(a). As mandated by sectio n 57-1-23, Utah banks are not given “the power of sale by which the trustee may . . . cause the trust property to be sold.” And there is nothing in the text of the NBA to suggest that a national bank may a ppoint a Texas trustee to foreclose on Utah property when a Utah bank could not do so. ¶23 The key inquiry under the statute is determining where a national bank is “located.” Locate is a commonly used term. Webster’s dictionary defines “locate” as “to determine or indicate the place, site, or limits of” something. “Locate,” Merriam-Webster Online Dictionary, 2013, http://www.merriam-webster.com (last visited July 8, 2013). This suggests th at a national bank is located in the place or places where it acts or conducts business. As Judge Jenkins correctly reasoned, “[t]he statute’s plain meaning indicates that the national bank is ‘located’ in each state in which it carries on activities as trustee.” Bell , 860 F. Supp. 2d at 1300. When acting as a trust ee of a trust deed, one necessarily acts in the capacity as trustee in the State where the real property is located, where notice of default is filed, and where the sale is conducted. In this case, ReconTrust is acti ng as trustee of a trust deed for real property in the Stat e of Utah. ReconTrust, as trustee, filed notice of default and election to foreclose on real property within the State of Utah.

The notice is filed in Utah . The sale is conducted in Utah, often on the steps of the local county courthouse. Those acts do not occur in Texas. Those acts may not be performed by Utah-chartered banks.

Id. at 1300–01. ¶24 Judge Waddoups’ reasoning in Cox was similar. He stated that he was unconvinced by ReconTrust's argument that [section] 92a(b) dictates that the court look to some state law other than Utah state law to evaluate ReconTrust’s foreclosure activities in Utah . . . . Here, . . . ReconTrust is conducting foreclosure activities on behalf of Bank of America in several states, including Utah. . . . Under a straight forward reading of [section]Cite as: 2013 UT 45 Opinion of the Court

9 92a(b), this court must look to Utah law in its analysis of whether ReconTrust’s ac tivities in Utah exceed ReconTrust’s trustee power s. The powers granted to ReconTrust under federal law in this case are limited by the powers granted by Utah state law to ReconTrust’s competitors. Accordingly, the extent of ReconTrust’s federal powers must be determined by reference to the laws of Utah, not by reference to the laws of some other state. Under Utah law, the power to conduct a nonjudicial foreclosure is limited to attorneys and title compan ies. The scope of the powers granted by federal law is limited to the same power Utah statute confers on ReconTrust’s Utah competitors.
Cox v. ReconTrust Co., N.A. , 2011 WL 835893, at *6 (D. Utah 2011). ¶25 In short, the plain meaning of the statute is clear. A national bank is located in those places where it acts or conducts business. And it certainly acts as a trustee in the state in which it liquidates trust assets. ¶26 Our conclusion is bolstered by the legislative history of the NBA, specifically the history of section 92a, which limits the Comptroller’s authority to grant trustee powers to national banks only when “not in contravention of State or local law.” 12 U.S.C. § 92a(a). We again summarize Judge Jenkins’ analysis. ¶27 “The phrase, ‘when not in contravention of State or local law’ originated with [section] 11(k) of the Federal Reserve Act of 1913.” Bell , 860 F. Supp. 2d at 1301. Section 11(k) of the Federal Reserve Act of 1913 allowed conversi on of state banks to national banks “[p]rovided . . . [t]hat sa id conversion shall not be in contravention of the State law.” Federal Reserve Act of 1913, Dec. 23, 1913, ch. 6 § 11(k), 38 Stat. 262. Th is language was also included in section 8 of the same Act, but was expanded to include local law as well. Discussions in the Senate as to this language stated that it was “put . . . in to show that th ere was no purpose on the part of Congress to disregard the local State law, but merely to give its assent provided the St ate law permitted it to be done.” 51 Cong. Rec. S879 (December 15, 1913) (statement of Sen. Owen). ¶28 As Judge Jenkins reasoned, taken together, the language of sections 11(k) and 8 is nearly identi cal to language later included in section 92a(a) of the NBA, which similarly limits the Comptroller’s authority to grant trustee powers to national banks only “when notF ED

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4 See also First Nat’l Bank of Bay City v. Fellows ex rel. Union Trust Co , 244 U.S. 416, 426 (1917) (holding th at under section 11(k) of the Federal Reserve Act of 1913, a state must allow a national bank to conduct the same business as it allows a state bank to conduct).

5 See Vermont Agency of Natural Res. v. United States ex rel. Stevens
, (continued...)

10 in contravention of State or local law.” 12 U.S.C. § 92a(a). Thus, “[i]n light of the near-identical natu re of the phrases in [sections] 8 and 11(k), it seems clear that Congress intended to preclude any inference that a national bank may disregard local State law in performing its duties as trustee.” 4 Bell , 860 F. Supp. 2d at 1302. ¶29 The plain meaning of the statutory language is therefore consistent with the legislative history. And through the plain language of section 92a, Congress has directly spoken to the question at issue. “[T]he law that shall a pply to a national bank acting as trustee under a trust deed is the local State law, which in this instance is Utah law.” Bell , 860 F. Supp. 2d at 1304. B. Because Real Property is Traditionally an Area of State Concern, Utah Law Governs When a National Bank Seeks to Foreclose Property Located in Utah ¶30 The concurring opinion suggests that section 92a is not clear on its face. However, even ifthe plain meaning of the statute were not clear, two substantive canons of statutory construction dictate the same result. ¶31 The first is the clear statem ent canon, which applies where Congress is thought to have legislated in a manner that would “alter the usual constitutional balance between the States and the Federal Government,” Will v. Michigan Dep’t of State Police , 491 U.S. 58, 65 (1989) (internal quotation marks omi tted), or “intrude” on a field of traditional state sovereignty, Gregory v. Ashcroft, 501 U.S. 452, 470 (1991). In such fields, courts do not lightly “attribute to Congress an intent to intrude,” but instead require that Congress “make its intention to do so unmistakably cle ar in the language of the statute.” Id . at 460, 470 (internal quotation marks omitted). ¶32 When Congress “intends to pre-empt the historic powers of the States or when it legislates in traditionally sensitive areas,” Raygor v. Regents of the Univ. of Minn. , 534 U.S. 533, 543 (2002) (internal quotation marks omitted), a clear statement of intention to do so is required. 5 This clear statement canon “assures that theCite as: 2013 UT 45 Opinion of the Court

5 (...continued) 529 U.S. 765, 787 (2000) (relying in parton the clear statement rule to decide that a qui tam relator may no t bring an action in federal court against a state under the False Claims Act); New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. , 514 U.S. 645, 655 (1995) (“[W]here federal law is said to bar state action in fields of traditional state regulation . . . we have worked on the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” (interna l quotation marks omitted)); Cipollone v. Liggett Group, Inc. , 505 U.S. 504, 516 (1992) (“[T]he historic police powers of the States [are] not to be superseded by . . . Federal Act unless that [is] the clear and mani fest purpose of Congress.” (all but first alteration in original)); Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65 (1989) (relying on a clear statement rule to decide that states are not “persons” within th e meaning of a section 1983 claim); United States v. Bass , 404 U.S. 336, 349 (1971) (“[W]e will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between fede ral and state criminal jurisdiction.”).

11 [L]egislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.” United States v. Bass , 404 U.S. 336, 349 (1971). It thus reflects “an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere.” Gregory, 501 U.S. at 461. ¶33 A second clear-statement canon is also implicated. It holds that the Chevron analysis as to whether Congress has already spoken to the precise question at issue and clearly expressed its intent is informed by a threshold inquiry in to whether “a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.” Food & Drug Admin. v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 159 (2000). And it recognizes that not all ambiguities can reasonably be seen as a legislative delegation of discretion to an agency. Thus, in Brown & Williamson , the Court drew a distinction between “major questions” of policy and mere “interstitial matters” of “daily administration.” Id . (internal quotation marks omitted). It deemed it highly unlikely that Congress would leave the determin ation of major policy questions to agency discretion, and thus required a clear statement of congressional intent to do so. Id . at 159–60.F ED

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6 See Santa Fe Indus. v. Green , 430 U.S. 462, 479 (1977) (stating that “state law will govern” fiduciary obligations). Though only real property law is implicated in this case, the power to act in a fiduciary capacity impacts contract and probate law as well, which are also traditional areas of state concern. See Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta , 458 U.S. 141, 174 (1982) (Rehnquist, C.J., dissenting) (“Contract and real pr operty law are traditionally the domain of state law.”); Zschernig v. Miller , 389 U.S. 429, 440 (1968) (“The several States, of course, have traditionally regulated the (continued...)

12 ¶34 In Brown & Williamson , the lack of a clear statement persuaded the Court that Congress had not intended to delegate to the FDA the discretion to decide whether to regulate tobacco. Id

. Because such authority was so politically and economically significant, the Court was “confident that Congress could not have intended to delegate” such a decision “to an agency” in a less-than-clear, “cryptic ... fashion.” Id . at 160. A parallel conclusion was adopted in MCI Telecommunications Co rp. v. American Telephone & Telegraph Co. , 512 U.S. 218 (1994). There the Court held that the statutory delegation of agency authority to “modify” common carrier tariff requirements did no t encompass the authority to make fundamental changes in the nature of waiving the tariff requirement altogether. Id . at 225. It rooted its holding in a parallel clear-statement canon, deeming it “highly unlikely that Congress would leave the determination of wh ether an industry will be . . . rate-regulated to agency discretio n—and even more unlikely that it would achieve that through such a subtle device as permission to ‘modify’ rate-filing requirements.” Id . at 231. ¶35 The lack of a clear statement on matters of fundamental significance persuaded the Court in Brown & Williamson and MCI to repudiate any inference of delegation of agency authority: Absent a clear, non-cryptic indication of co ngressional intent to leave these questions up to agency discretion, the Court construed the governing statutes to foreclose it. ¶36 These clear-statement rules would inform our construction of section 92a of the NBA were we to find it ambiguous. Under ReconTrust’s view, this provision delegates to the Comptroller the discretion to authorize one state to regulate the terms and conditions of a foreclosure sale in another st ate. But such delegation would intrude on core matters of traditional state sovereignty. 6 “It isCite as: 2013 UT 45 Opinion of the Court

6 (...continued) descent and distribution of estates.”). Accordingly, if we interpreted section 92a as abrogating state law, it would nullify a large swath of Utah law on matters related to national banks acting in a fiduciary capacity, not just the law of real property.

13 beyond question that . . . the gene ral welfare of society is involved in the security of the titles to real estate and the power to ensure that security inheres in the very nature of [state] government.” BFP v. Resolution Trust Corp. , 511 U.S. 531, 544 (1994) (third alteration in original) (internal quotation marks omitted). ¶37 A delegation of authority to intrude on matters of such intensely local concern may not simply be inferred. Rather, a clear statement of an intent to permit th e laws of a foreign state to regulate the manner and mode of a foreclosure sale in another state should be required. ¶38 Brown & Williamson and MCI dictate a similar conclusion. The matter of authorizing one state to regulate non-judicial sales for the foreclosure of real prop erty in another state would be monumental—hardly the sort of interstitial administrative detail that Congress would likely leave for an agency. Any inference of an intent to leave that to the Comp troller would accordingly require a clear statement of such intent. C. The Comptroller’s Interpretation of Section 92a is Unreasonable and Not Entitled to Deference ¶39 Although consideration of the regulation interpreting section 92a is unnecessary because the statutory language is not ambiguous and because Congress did not intend to delegate to the Comptroller the power to preempt th e historic power of the states to regulate the foreclosure of real property, we think it worth noting that we find the Comptroller’s curre nt interpretation of the statute, which is found in the Code of Federal Regulations, to be unreasonable. Again, we quote from Judge Jenkins. “[E]ven if the statute is not clear and demands in terpretation,” the “interpretation in 12 C.F.R. [section] 9.7(d) modifies the statute and is unreasonable—if not irrational—an d therefore does not deserve deference.” Bell , 860 F. Supp. 2d at 1298. ¶40 Under Chevron , we give deference to an agency’s interpretation of a statute only so long as such an interpretation is neither contrary to Congressional intent, nor unreasonable. 467 U.S.F ED

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14 837, 842–43 (1984); see also LPI Serv. v. McGee , 2009 UT 41, ¶ 7, 215 P.3d 135 (stating that “where the [L]egislature has granted discretion to an agency to interpret the st atutory provision at issue, we will affirm the agency’s interpretation if it is reasonable.”). ¶41 As Judge Jenkins astutely reasoned, “[i]f [section] 92a is to mean what it says (i.e., the plain meaning), the reference to ‘State or local law’ at a minimum should be construed to mean the State in which the trust activity occurs.” Bell , 860 F. Supp. 2d at 1304. And as discussed above, the State in which the trust activity occurred in this case is Utah. ¶42 Despite the straight forward statutory language, the federal regulation setting forth the Comptroller’s interpretation of the statute inexplicably defines a bank’s “location” as the place where it engages in three specific activiti es: where it “accepts the fiduciary appointment, executes the docu ments that create the fiduciary relationship, and makes discretionary decisions regarding the investment or distribution of fi duciary assets.” 12 C.F.R. § 9.7(d). But there is nothing in the statute itself that ascribes any particular significance of these three partic ular acts, while rendering other acts undertaken to the bank irrelevant. Moreover, the three activities identified in the regulation could theoretically be performed in any location without regard to the loca tion of the trust property, thereby allowing national banks to dictate the applicable law. Notably missing from this list is where the bank engages “in an act which liquidates the trust assets, e.g., engaging in a nonjudicial foreclosure of real property where the trust asset is located.” Bell , 860 F. Supp. 2d at 1300. We therefore co nclude that the regulation is not a reasonable construction of the statute. ¶43 While the current regulation is not reasonable, the Comptroller’s former interpreta tion of the statute, found in Interpretive Letter Number 695, 1996 WL 187825 (December 8, 1995), is reasonable. This interpretation states that

the effect of section 92a is thatin any specific state, the availability of fiduciary power s is the same for out-ofstate national banks or for in-state national banks and is dependent upon what th e state permits for its own state institutions. A state may limit national banks from exercising any or a ll fiduciary powers in that state, but only if it also bars its own institutions from exercising the same powers. Therefore, a national bank with its main office in one state . . . may conductCite as: 2013 UT 45 Opinion of the Court

15 fiduciary business in that state and other states, depending upon—with respect to each state—whether each state allows its own institutions to engage in fiduciary business.

Id. at **4. ¶44 While this interpretation is consistent with the statutory text, the two interpretive letters that subsequently followed reversed Interpretive Letter Number 695 and actually contradict the plain meaning and legislative history of section 92a’s contravention clause. Like the current federal regulati on, Interpretive Letter Number 866, 1999 WL 983923 (October 8, 1999), an d Interpretive Letter 872, 1999 WL 1251391 (October 28, 1999), state that a bank’s location is to be determined by where the bank ac ts in a fiduciary capacity. See e.g. 1999 WL 983923 at Part II.B. And like the current regulation, the letters state that a bank acts in a fiduciary capacity only where it reviews proposed trust appointmen ts, executes trust agreements, and makes discretionary decisions about the investment or distribution of trust assets. See id. at Part II.C. ¶45 Like Judge Jenkins, we conclu de that Congressional intent is clear from the statutory text. Congress intended “that a national bank based in Texas which perfor ms fiduciary functions in Utah cannot have a competitive advantage over a Utah-based national bank that performs its fiduciary functions in Utah.” Bell , 860 F. Supp. 2d at 1305. “[T]he national statutes which created a dual banking system operate to deny out-of-state national banks any competitive advantage over local, state-chartered banks or in-state national banks.” Id. at 1308. However, the interpretation in section 9.7(d) would not just level the pl aying field as Congress intended. Rather, it would mean that “a nati onal bank based in Texas . . . [would] have a competitive advantage over a national bank based in Utah as well as Utah-chartered banks.” Id. at 1305. ¶46 In short, the regulation’s interpretation is not entitled to deference because it modifies the statute and gives out-of-state national banks a sizeable competitive advantage over their state-chartered counterparts and in-state national banks in states—such as Utah—where state-chartered banks and in-state national banks are not allowed to perform certain fiduciary functions, namely exercising the power of sale in nonjudicial trust deed foreclosures.F ED

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16 Id. at 1308. D. Utah Law is Not Preempted by the NBA Because a

National Bank Does Not Compete With Any Utah Institution Authorized to Foreclose Under Utah Law ¶47 We now turn to FNMA’s alternative argument. FNMA asserts that even if ReconTrust exer cised its fiduciary duties in Utah, Utah law is nevertheless preempted by section 92a(b)’s “competition clause.” The Competition Clause provides that whenever the laws of [a] State authorize or permit the exercise of [trustee] powers by State banks, trust companies, or other corporations which compete with national banks, the granting to and the exercise of such powers by national banks shall not be deemed to be in contravention of State or local law. 12 U.S.C. § 92a(b). ¶48 FNMA asserts that ReconTrustcompetes with Utah title insurance companies and reasons that Utah law is therefore preempted. We are unpersuaded. As a national bank, ReconTrust competes with Utah banks. It is not subject to competition from either members of the Utah St ate bar or Utah title insurance companies. And under sections 57-1-21 and 57-1-23 of the Utah Code, even State banks “must procure the services of either an active member of the State bar or title insurance company in order to comply with the Utah law.” Bell , 860 F. Supp. 2d at 1309. ¶49 As a national bank operat ing in Utah under the NBA, ReconTrust is precluded from ex ercising the power of a trustee under Utah statute for purposes of conducting a nonjudicial foreclosure. It would be irratio nal to interpret section 92a(b) or section 9.7 as giving a national banksuch as ReconTrust authority to exercise a power that Utah law specifically prohibits even Utah banks from exercising. We theref ore hold that sections 57-1-21 and 57-1-23 of the Utah Code are not preempted by the NBA. A national bank seeking to foreclose on real property in Utah must comply with Utah law.

II. WE DECLINE TO REACH THE OTHER ISSUES RAISED BY THE PARTIES ¶50 Our opinion in this matter is limited to the narrow issue of whether Utah law regarding the qualification of trustees is preempted by the NBA. In briefing and oral argument, the parties have attempted to raise a variety of other issues relating to theCite as: 2013 UT 45 J USTICE L EE , concurring in part

17 validity of the nonjudicial foreclosure sale, the validity of the trustee’s deed, and the propriety of the order of restitution. Because these issues were not fully litigated below, we decline to reach them on interlocutory appeal. On remand , the parties are free to raise any arguments they may have regardin g the validity of the foreclosure sale and trustee’s deed and the appropriateness of the order of restitution.

CONCLUSION ¶51 The district court erred in concluding that Utah Code sections 57-1-21 and 57-1-23 are preem pted by the NBA. A national bank operating in Utah is authorized to act only to the extent Utah law allows Utah banks to do so . As Judge Jenkins stated in Bell v. Countrywide Bank, N.A. , “[a] state bank which seeks to foreclose on real property in Utah must comply with Utah law. A federally chartered ‘bank’ which seeks to foreclose on such property must comply with Utah law as well .” 860 F. Supp. 2d 1290, 1297 (D. Utah 2012). We remand this matter to th e district court for consideration of other arguments or defenses the parties may properly raise.

J USTICE L EE , concurring in part and co ncurring in the judgment: ¶ 52 I am on board with the majority’s disposition of this case and with its conclusion that sect ion 92a of the National Bank Act forecloses application of the Comptroller’s regulation in 12 C.F.R. § 9.7. Specifically, I agree that a na tional bank physically located in one state (Texas) but performing a nonjudicial foreclosure sale in another (Utah) is governed by th e law of the latte r state, not the former. And I agree that that conc lusion flows from a construction of section 92a under Chevron step one—in that th e “laws of the State in which the national bank is located,” 12 U.S.C. § 92a(a), must have reference to the state in which the foreclosure sale is performed, and not the state in which the bank is physically located. ¶ 53 I would base that conclusion on only one of the two grounds articulated by the court, however. In my view, the statutory reference to the “laws of the Stat e in which the national bank is located” is not at all clear or un ambiguous on its face. So I cannot concur in part I.A of the court’s opinion, which rests on that conclusion. ¶ 54 Section 92a allows the Comptroller of the Currency to grant a national bank, “when not in contravention of State or local law, the right to act . . . in any . . . fiduci ary capacity in which” entities “which come into competition with national banks are permitted to actF ED

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18 under the laws of the State in whic h the national bank is located.” 12 U.S.C. § 92a(a). If entities competing with national banks are permitted to perform fiduciary acts “under the laws of the State in which the national bank is located,” then national banks may likewise be authorized to perform such acts. ¶ 55 This case turns on the me aning of the term “located.” If ReconTrust is located in Texas by vi rtue of the physical situs of its offices there, then Texas law dictat es the terms and conditions of its authority to act as a fiduciary in co nducting a nonjudicial sale for the foreclosure of real property in Utah. On the other hand, if ReconTrust is located in Utah base d on the situs of the real property subject to foreclosure, then it is Utah law that governs its authority in this regard. ¶ 56 I see no clear or unambiguou s answer to this question on the face of the National Bank Act. As the United States Supreme Court has indicated, the term “located” “as it appears in the National Bank Act, has no fixed, plain meaning. See Wachovia Bank v. Schmidt
, 546 U.S. 304 (2006). “In some provisions, the word unquestionably refers to a single place: the si te of the banking association’s designated main office. In othe r provisions, ‘located’ apparently refers to or includes branch offices.” Id . at 313 (citations omitted). ¶ 57 Loraine Sundquist proffers another possible meaning of the term—one divorced from physical location. She suggests that a bank performing a fiduciary act is “locat ed” in the state in which the bank performs the act at issue. That seems grammatically tenable. In circumstances where a bank is physically officed in one or more states and conducting business in another, any or all of those states are plausibly the place where it is “located.” The dictionary definitions of the intransitive formof the verb “locate,” after all, have reference to the place wher e one “establish[es] one’s business or residence in a place,” or where one “settle[s].” R ANDOM H OUSE D ICTIONARY OF THE E NGLISH L ANGUAGE , 1129 (2d ed. 1987)

. Such definitions beg the key question, which is what sorts of actions are sufficient to rise to the level ofestablishing a “business,” or of “settling.” Without more, I would say that either a physical office or the performance of a fiduciary act on behalf of another could suffice. And thus I cannot say, as the majority does, that the statutory language, standing alone, is clear. ¶ 58 The court bases its contrary conclusion on an alternative definition of “locate”—“‘to determine or indicate the place, site or limits of’ something.” Supra ¶ 23 (quoting Merriam-Webster OnlineCite as: 2013 UT 45 J USTICE L EE , concurring in part

19 Dictionary). Even assuming a defi nition of the transitive form of “locate” to be relevant, this one is similarly question-begging. It could certainly be said “that a nati onal bank is located in the place or places where it acts or conducts business,” supra ¶ 23, but that does not at all eliminate the altern ative conclusion that a bank could also be located in the place or site where its physical offices are situated. The key question under th e majority’s definition, in other words, is what “determines” or “indicates” the place of a person or entity’s location. And that questionis not at all answered—certainly not clearly or unambiguously—by the statutory text. ¶ 59 Nor is the question resolved in the legislative history cited by the majority. It may be that th e addition of “local” to the phrase “not in contravention of State or local law” in an unrelated section of the NBA was meant ”to preclude any inference that a national bank may disregard local State law.” See supra ¶ 28 (internal quotation marks omitted). But given that “located” takes on different meanings throughout the NBA, s ee Wachovia , 546 U.S. at 313–14, it is by no means clear that legislative history concerning the use of the term in one section has any relevance to its use in another. And again, the cited legislative history does not answer the key question: Local to what? To the bank’s phys ical location, or to the fiduciary acts it performs? ¶ 60 Thus, I see no basis for th e conclusion that section 92a clearly mandates any particular notion of “located” among the range of definitions that seem linguistically possible under the statute. I would instead acknowledge that the statute, on its face, is susceptible to a range of construc tions—encompassing both physical locations and the state(s) where a bank conducts its fiduciary acts. ¶ 61 That ambiguity, however, cuts in favor of the construction rendered by the court. It does so under the clear statement rules identified by the majority. I accordingly concur in part I.B of the court’s opinion, and would rest the construction of section 92a on the clear statement principle articul ated there—that on a matter of traditional state sovereignty over the disposition of title to property of an inherently local nature, we cannot lightly deem Congress to have intruded on the local state’s sovereignty.