2021 UT App 105

THE UTAH COURT OF APPEALS

GREG DANIELS AND SHARON K. DANIELS,

Appellees and Cross-appellants,

v.

DEUTSCHE BANK NATIONAL TRUST AND 

OCWEN LOAN SERVICING LLC,

Appellants and Cross-appellees.

Opinion

No. 20190693-CA

Filed October 7, 2021

Third District Court, Silver Summit Department

The Honorable Kent R. Holmberg

No. 160500166

Steven W. Dougherty and Jason E. Greene, Attorneys

for Appellees and Cross-appellants

R. Spencer Macdonald and Benjamin J. Mann, 

Attorneys for Appellants and Cross-appellees

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Deutsche Bank National Trust and Ocwen Loan Servicing 

LLC (individually, Deutsche and Ocwen; collectively, Bank) 

attempted to foreclose on a house owned by Greg and Sharon K. 

Daniels (Homeowners) years after Homeowners defaulted on 

their mortgage obligations. Homeowners brought suit, 

contending that the statute of limitations had run on Bank’s right 

to foreclose on the trust deed securing Homeowners’ loan. The 

district court agreed with Homeowners, ruling that Bank’s right 

to foreclose had been extinguished, quieting title in favor of 

Homeowners, and awarding them attorney fees and costs. We 
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affirm and remand for the calculation of fees and costs 

Homeowners incurred on appeal.

BACKGROUND

¶2 In January 2007, Homeowners purchased a newly 

constructed house (the Property) in Kamas, Utah. Homeowners

procured a loan of $333,000 (the Debt) from New Century 

Mortgage Corporation (New Century) to finance their purchase. 

The Debt was secured by a deed of trust (the Trust Deed)

naming Mortgage Electronic Registration Systems Inc. as the 

beneficiary.

¶3 Greg Daniels, who was a real estate professional,

experienced a reduction in income due to the housing market 

downturn, and by mid-2007, Homeowners had failed to make 

some of the monthly payments on the Debt. Although

Homeowners had defaulted on the Debt, they continued to make 

some full and partial payments between April 2007 and 

November 2009. On September 25, 2008, the trustee recorded a 

“Notice of Default & Election to Sell” on the Property. As a result 

of the default notice, the Debt was accelerated and immediately 

due in full. Despite the acceleration, New Century did not 

schedule a trustee’s sale and undertook no immediate further 

action to advance the foreclosure process.

¶4 Homeowners filed a bankruptcy petition on September

25, 2009, an action that stayed foreclosure proceedings. Saxon 

Mortgage Services Inc. (Saxon), which in 2009 had been assigned 

the servicing rights for the Debt, requested and was granted 

relief from the automatic stay on October 21, 2009. Saxon then 

assigned its right to service the Debt to Ocwen.

¶5 Homeowners’ obligation to pay the Debt was discharged 

through bankruptcy in April 2010, resulting in Ocwen no longer 

being able to enforce the Debt personally against Homeowners. 

See National Fin. Co. of Utah v. Valdez, 359 P.2d 9, 10 (Utah 1961)

(“[A] discharge in bankruptcy is neither a payment nor the 
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extinguishment of debts. It is simply a bar to their enforcement

by legal proceedings.”).

¶6 After receiving notice of the change of servicers,

Homeowners wrote a letter to Ocwen on November 20, 2009, 

explaining their financial hardship and requesting a 

modification of the Debt. Along with the letter, Homeowners

submitted a hardship affidavit and additional financial 

information on a form provided to them by Ocwen.

¶7 On February 16, 2010, Homeowners sought modification 

of their Debt obligations through the federal Home Affordable 

Modification Program (HAMP Plan). In documentation they 

submitted in connection with the HAMP Plan, Homeowners

represented that they could not afford the mortgage payments 

and were in default. The submitted documentation clearly 

indicated that it concerned the mortgage and promissory note on 

the Property; it contained repeated references to mortgage 

payments, monthly loan payments, and delinquent amounts as 

they concerned the Debt. Ocwen agreed to modify Homeowners’ 

Debt obligations upon Homeowners’ compliance with several 

conditions. Under the proposed modification, Homeowners

agreed to a trial period during which they would be required to 

make three monthly payments, which were about a thousand 

dollars less than their original monthly payments, by February 1,

March 1, and April 1, 2010. 

¶8 Homeowners made the first two payments on January 28 

and February 25, but before they made the third, Ocwen notified 

Homeowners that the trial plan was canceled and that they

would not be able to receive the HAMP Plan modification due to 

tax-lien issues with the “mortgage title that prevent[ed]

acceptance into the program.” After being so notified,

Homeowners made no additional payments for the mortgage 

modification. Thus, their last payment was made on February 

25, 2010.
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¶9 Homeowners sent three additional letters (dated 

November 2010, April 2011, and October 2011) to Ocwen 

explaining their financial hardship and seeking a mortgage

modification.

¶10 The November 2010 letter expressed that Homeowners

“want[ed] to keep [their] home” and “work with Ocwen” to that 

end. Homeowners stated, “[W]e have been through bankruptcy 

. . . and have been discharged from our debts, including Ocwen.” 

Homeowners noted that the discharge of their debts would 

“now make it easier to afford a modified mortgage.” They

requested of Ocwen, “Please review the information we have 

provided, and help us stay in our home. We would welcome an 

opportunity to mediate a new mortgage, and would be willing 

to have an appraisal done, to help us both arrive at a fair value.” 

New signed copies of the hardship affidavit and an Ocwen 

financial form accompanied the letter.

¶11 The April 2011 letter recounted Homeowners’ financial 

situation. Homeowners reiterated that while the Debt had been 

“discharged in bankruptcy,” they hoped that “this attempt to 

modify [their] mortgage” would allow them to stay in their 

home. Homeowners also stated that this submission would be 

their “last attempt” “for a mortgage modification.” Copies of 

paystubs, financial statements, and income tax returns 

accompanied the letter. An April 27, 2011 fax, only the cover of 

which is in the record, purported to contain Homeowners’ recent 

paystubs and was apparently submitted in connection with the 

application for mortgage modification referenced in the April 

2011 letter.

¶12 The October 2011 letter largely repeated what had been 

set out in the April 2011 letter. Once again, Homeowners noted 

that their mortgage obligation had been discharged in 

bankruptcy. They further expressed that they had “submitted 

multiple applications for a mortgage modification to Ocwen, 

with no success so far,” but they nevertheless expressed hope 
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that “this attempt to modify” the mortgage would allow them 

“to stay in [their] home.”

¶13 In January 2012, the beneficial interest in the Trust Deed 

was transferred to Deutsche. In June 2014, Homeowners

appealed the denial of their mortgage modification. Ocwen 

responded and explained (1) the reasons for the denial, (2) that 

the Property had “a confirmed foreclosure sale date,” 

and (3) that the “loan [was] not eligible for foreclosure 

suspension because [Ocwen had] not received a recent 

application.” Homeowners also formally requested and received 

various documents so that they could conduct an audit of 

the loan. Homeowners spoke with an Ocwen representative in 

early July 2014 and said that Ocwen should “not be able” 

to foreclose because of the bankruptcy and that they would be 

open to a settlement for $80,000. On September 29, 2015, the 

trustee recorded a new notice of default. This time, however, the 

trustee recorded notice of a trustee’s sale. The notice was 

published on April 5, 2016, and the sale was scheduled for 

May 6, 2016.

¶14 In April 2016, Homeowners filed a complaint, followed by 

an amended complaint a few days later, in which they sought a 

declaratory judgment that the six-year statute of limitations had 

run on Bank’s right to foreclose against the Property. 

Homeowners also sought a decree quieting title to the Property 

in their favor.

¶15 After a period of discovery, Homeowners filed a motion 

for summary judgment (1) seeking a declaration that the statute 

of limitations had run preventing foreclosure, (2) quieting title in 

their favor, (3) directing Deutsche and Ocwen to reconvey the 

Trust Deed to Homeowners, and (4) awarding Homeowners

attorney fees and costs. Bank filed its own motion for summary 

judgment requesting that the district court determine that the 

statute of limitations had not run and that it could foreclose on 

the Property.
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¶16 On May 3, 2016, the parties stipulated that any 

“unexpired . . . statute of limitations or statute of repose 

applicable to claims relating to the enforcement” of the Trust 

Deed as identified in Homeowners’ amended complaint was 

“tolled as of the date of filing” the complaint.

¶17 In May 2017, after full briefing and oral argument, the 

district court entered an order granting in part Homeowners’ 

motion for summary judgment. The court concluded that the 

“statute of limitations applicable” to Bank’s right to foreclose

was “established by the version of Utah Code Ann. § 57-1-34 that 

was in effect at the time this action was commenced.” That 

statute read as follows:

The trustee’s sale of property under a trust deed 

shall be made, or an action to foreclose a trust deed 

as provided by law for the foreclosure of 

mortgages on real property shall be commenced, 

within the period prescribed by law for the 

commencement of an action on the obligation 

secured by the trust deed.

Utah Code Ann. § 57-1-34 (LexisNexis 2010).

1 Thus, the 

court concluded that to timely foreclose on the Property, 

Bank needed to take the necessary foreclosure action—either 

completion of a nonjudicial foreclosure sale or initiation of 

a judicial foreclosure action—within the time period provided 

 

1. The current version of the statute, effective May 10, 2016, 

requires only that, for nonjudicial foreclosures, the filing of a 

notice of default—rather than completion of a trustee’s sale—

happen within the limitations period: “A person shall, within the 

period prescribed by law for the commencement of an action on 

an obligation secured by a trust deed: (1) commence an action to 

foreclose the trust deed; or (2) file for record a notice of default 

under Section 57-1-24.” Utah Code Ann. § 57-1-34 (LexisNexis 

Supp. 2020).
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by the statute of limitations applicable to enforcement of the 

Debt. And there was no doubt—based on either one of two 

statutes, see id. § 78B-2-309 (2012); id. § 70A-3-118 (2009)—that 

the applicable limitations period for a foreclosure action was six 

years.2

¶18 But while the parties agreed that the applicable 

limitations period was six years, they disagreed about when that 

six-year limitations period started to run. Relevant to this 

question is section 78B-2-113(1) of the Utah Code, which states as 

follows:

 

2. The change in Utah Code section 78B-2-309 lends itself to 

confusion in the context of this opinion. At the time relevant to 

the events at issue, subsection (2) of the statute read as follows: 

“An action may be brought within six years . . . upon any 

contract, obligation, or liability founded upon an instrument in 

writing . . . .” Utah Code Ann. § 78B-2-309(2) (LexisNexis 2012). 

But as of May 2019, the language of subsection (2) was entirely 

replaced with the following language: 

For a credit agreement, as defined in Section 25-5-4, 

the six-year period described in Subsection (1) 

begins the later of the day on which: (a) the debt 

arose; (b) the debtor makes a written 

acknowledgment of the debt or a promise to pay 

the debt; or (c) the debtor or a third party makes a 

payment on the debt.

Id. (Supp. 2021). To be clear, the current iteration of subsection 

(2) is not relevant to this opinion except insofar as it is apt to 

cause confusion, not in small part owing to its striking similarity 

to Utah Code section 78B-2-113(1), which does play a central part 

in this opinion. See id. § 78B-2-113(1) (LexisNexis 2018). The 

relevant version of subsection (2) remains codified at Utah Code 

section 78B-2-309(1)(b). See id. § 78B-2-309(1)(b) (LexisNexis 

Supp. 2021).
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An action for recovery of a debt may be brought 

within the applicable statute of limitations from the 

date: (a) the debt arose; (b) a written 

acknowledgment of the debt or a promise to pay is 

made by the debtor; or (c) a payment is made on 

the debt by the debtor.

See id. § 78B-2-113(1) (2018). Relying on this statute, read in 

conjunction with section 78B-2-309, see id. § 78B-2-309(2) (2012) 

(“An action may be brought within six years . . . upon any 

contract, obligation, or liability founded upon an instrument in 

writing . . . .”), Homeowners argued that the six-year period 

began running on the date they made their last payment on the 

Debt, namely, February 25, 2010. Thus, Homeowners asserted, 

“Since a trustee’s sale of the Property did not occur within six 

years of [Homeowners’] last payment, [Bank was] barred from 

taking any further action to enforce the Trust Deed.” 

¶19 Bank took a different view and made four arguments in 

response. First, relying on Utah Code section 70A-3-118(1), see id.

§ 70A-3-118(1) (2009) (“[A]n action to enforce the obligation of a 

party to pay a note payable at a definite time must be 

commenced within six years after the due date or dates stated in 

the note or, if a due date is accelerated, within six years after the 

accelerated due date.”), it argued that each monthly installment

Homeowners made on the Debt constituted a separate obligation 

with its own six-year statute of limitations. Second, it argued 

that the statute of limitations would not begin to run until the 

maturity of the note for the Debt, which it identified as February 

1, 2037. Third, it argued that the six-year limitations period

restarted with each notice of default. Fourth, it pointed to section 

78B-2-113 and argued in the alternative that Homeowners had 

made “a written acknowledgement of the debt and/or promise to 

pay the debt,” resulting in “the statute of limitation [beginning] 

to run anew.” “Thus,” Bank argued, “even under Homeowners’ 

interpretation of applicable law, [Bank had] six years from the

date of [the October 2011 letter] to foreclose.”
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¶20 After considering the parties’ arguments, the court 

concluded that the applicable limitations period began to run

“from the latest event described” in section 78B-2-113(1), 

namely, the date on which (1) the Debt arose, (2) Homeowners

made written acknowledgment of or promise to pay the Debt, or

(3) Homeowners made a payment on the Debt. The court 

rejected Bank’s argument that Homeowners’ communications 

with Ocwen regarding loan modification constituted written 

acknowledgment that would renew the limitations period of the 

Debt. Addressing the October 2011 letter, see supra ¶ 12, the court 

observed that the letter did not “specifically acknowledge the 

[D]ebt” but instead stated “that the [D]ebt at issue had been 

discharged in bankruptcy.” The court went on to conclude that 

(1) Homeowners’ “purpose in sending the letter was to seek a 

modification of their mortgage in order to stay in their home,”

(2) “[s]eeking to modify a mortgage is not equivalent to 

acknowledging a debt or promising to pay a debt,” and 

(3) seeking to modify a mortgage to prevent foreclosure “does 

not renew the statute of limitation commencement date under” 

section 78B-2-113.

¶21 Thus, the court determined “that the six-year statute of 

limitations . . . began to run on the date of [Homeowners’] final 

payment towards the [D]ebt, which was February 25, 2010.” The 

court therefore concluded that “pursuant to Utah Code Ann. 

§ 57-1-34, the statute of limitations [expired] on February 25, 

2016,” and with its passing, Bank’s “right to enforce the Trust 

Deed through a trustee’s sale or judicial foreclosure action” had 

also expired. 

¶22 The court also rejected an equitable estoppel argument 

advanced by Bank. “[T]o support an equitable estoppel defense,” 

the court explained that Bank

must prove three things: (1) a statement, 

admission, act, or failure to act by one party 

inconsistent with a claim later asserted; 

(2) reasonable action or inaction by the other party, 
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taken on the basis of the first party’s statement, 

admission, act, or failure to act; and (3) injury to 

the second party that would result from allowing 

the first party to contradict or repudiate the 

statement, admission, act, or failure to act.

(Citing Baldassin v. Freeman, 2009 UT App 109U, para. 9.) The 

court concluded that Bank had “failed to demonstrate any 

inconsistency between the actions taken by [Homeowners]

during the limitations period and the position they [were] taking 

in [the lawsuit].” In the court’s estimation, Homeowners’ 

efforts to modify their mortgage in order to stay in 

their house was straight-forward and obvious. 

[They] did nothing to prevent [Bank] from rejecting 

[their] modification application and initiating a 

trustee’s sale or foreclosure action during the 

limitations [period]. There is no inconsistency 

between seeking a modification of a mortgage 

during the limitations period and asserting a 

statute of limitations defense after the limitations 

period has run. [Bank was] not lulled into inaction 

by [Homeowners’] pursuit of a mortgage 

modification.

Therefore, the court ruled that “equitable estoppel [did] not 

weigh in here to prevent [Homeowners] from asserting a statute 

of limitations bar on [Bank’s] right to” foreclose on the Property.

¶23 Even though the court determined that the statute of 

limitations had run on Bank’s pursuit of foreclosure, it initially 

rejected Homeowners’ request for quieting title to the Property

or, alternatively, requiring Bank to reconvey the Trust Deed. 

However, after Homeowners filed a motion to reconsider, the 

district court entered an order quieting title to the Property in 

Homeowners’ favor. It reasoned that Bank no longer had an 

interest in the Property because its beneficial interest—as 
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evidenced by the Trust Deed—could no longer be enforced.

Accordingly, the court concluded that Homeowners’ “claim to 

title in the Property [was] superior to the Trustee’s claim, 

because the Trustee no longer [had] any power to enforce the 

Trust Deed.” Thus, because the Trust Deed was “ineffective but 

remain[ed] a cloud on the title” and because Homeowners’

“claim and interest in the Property [was] superior” to Bank’s

interest, the court quieted title in Homeowners’ favor. 

¶24 After final judgment was entered (1) declaring that the 

statute of limitations had run on Bank’s ability to foreclose on 

the Property and (2) quieting title in favor of Homeowners, 

Homeowners filed a motion for attorney fees. Following briefing 

and oral arguments, the court granted the motion and awarded 

fees and costs in the amount of $95,523.04 to Homeowners. Bank 

appeals.

ISSUES AND STANDARDS OF REVIEW

¶25 Bank first contends that the district court erred in 

determining that the statute of limitations had expired on its

right to foreclose on the Property. We review “[t]he application 

of a statute of limitations . . . for correctness. But application of a 

statute of limitations may also involve subsidiary factual 

determinations, which we review in the light most favorable to 

the non-moving party.” Moshier v. Fisher, 2019 UT 46, ¶ 6, 449 

P.3d 145 (quotation simplified). 

¶26 Bank next asserts that the court erred in quieting title to

the Property in Homeowners’ favor. “Determination of the 

proper scope of a quiet title action presents a legal question that 

we review for correctness.” Thatcher v. Lang, 2020 UT App 38, 

¶ 21, 462 P.3d 397 (quotation simplified).

¶27 Lastly, Bank claims that the court erred in awarding

Homeowners their attorney fees. “Whether attorney fees are 

recoverable in an action is a question of law, which we review 
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for correctness.” Valcarce v. Fitzgerald, 961 P.2d 305, 315 (Utah 

1998).

3

ANALYSIS

I. Statute of Limitations on Foreclosure

A. The statute of limitations started running with the last 

payment.

¶28 Under Utah law, the statute of limitations on the right to 

foreclose on property pursuant to a deed of trust is tied to the 

statute of limitations on the right to enforce the underlying debt 

secured by the deed of trust. See Utah Code Ann. § 57-1-34 

(LexisNexis 2010) (stating that foreclosure must be undertaken 

“within the period prescribed by law for the commencement of 

an action on the obligation secured by the trust deed”). The 

statute of limitations for enforcement of an obligation secured by 

a trust deed is six years. See id. § 70A-3-118 (2009); see also

Deleeuw v. Nationstar Mortgage LLC, 2018 UT App 59, ¶¶ 12–13, 

424 P.3d 1075 (clarifying that the statute of limitations identified 

in Utah Code section 70A-3-118(1) applies to foreclosure on a 

trust deed). Because the statute of limitations for enforcement of 

the underlying debt is six years, and because Utah law ties the 

foreclosure limitations period to the debt-enforcement 

limitations period, the applicable statute of limitations for 

foreclosure actions is six years. 

 

3. Homeowners also filed a motion asking us to strike Bank’s 

reply brief on the grounds that it contains new arguments, 

inaccurate and unsupported factual assertions, and an irrelevant 

and immaterial argument. We deny this motion but note that we 

have not relied on the challenged material contained in Bank’s 

reply brief except insofar as to summarily reject Bank’s 

exceptional-circumstances argument. See infra note 4. 
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¶29 The determinative questions in this case are when that 

six-year period began to run, whether it was ever tolled or 

restarted, and ultimately whether Bank’s right of foreclosure on 

the Property is now time-barred. Prior to May 2016, Utah law 

required that one of two actions be taken prior to expiration of 

the six-year period: (1) completion of a “trustee’s sale of property 

under a trust deed” or (2) the filing of “an action to foreclose a 

trust deed.” See Utah Code Ann. § 57-1-34 (LexisNexis 2010); id.

amend. notes (Supp. 2020). Bank never completed a trustee’s sale 

on the Property, and it did not commence any action for judicial

foreclosure. Thus, the resolution of this appeal hinges on 

whether the limitations period on the Debt secured by the Trust 

Deed ran before Bank completed a nonjudicial foreclosure sale 

or initiated a judicial foreclosure on the Property. The district 

court ruled that the limitations period began running on the date 

of Homeowners’ last payment and expired six years later on 

February 25, 2016, prior to the completion of a trustee’s sale. 

Bank does not contest the district court’s conclusion that the sixyear limitations period began to run on February 25, 2010, when 

Homeowners made their last payment. But Bank presents

several arguments to support its assertion that the statute of 

limitations did not expire six years from that date but instead

was extended or tolled. We address these arguments in the 

following sections.

B. Homeowners did not acknowledge the Debt after the last 

payment.

¶30 A key issue on appeal, as noted by Bank during oral 

argument, is whether the district court erred in determining that 

various communications from Homeowners to Ocwen asking to 

be considered for loan modification constituted written

acknowledgment of the Debt, even though it had been 

discharged in bankruptcy.

¶31 Bank argues that Homeowners repeatedly acknowledged 

the Debt when they sought mortgage relief from Ocwen. 

Specifically, Bank asserts that Homeowners’ post-bankruptcy 
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communications concerning mortgage modification, see supra

¶¶ 9–12, constituted written acknowledgment that they owed 

and would pay the Debt. These communications, Bank argues, 

“re-started the limitations period each time [Homeowners] sent 

them.” Thus, by Bank’s reasoning, the six-year limitations period 

repeatedly re-started with Homeowners’ various 

communications seeking mortgage modification because these 

communications constituted written acknowledgment of the 

Debt. We disagree. 

¶32 To restart a statute of limitations, an acknowledgement of 

a debt must be “clear, distinct, direct, unqualified, and 

intentional.” See Wells Fargo Bank, NA v. Temple View Invs., 2003 

UT App 441, ¶ 9, 82 P.3d 655; see also Salt Lake Transfer Co. v.

Shurtliff, 30 P.2d 733, 736 (Utah 1934) (“[N]othing short of a 

distinct, direct, unqualified, and intentional admission of a 

present, subsisting debt on which a party is liable will be 

sufficient to take the obligation out of the statute and start it 

running anew.”). Moreover, an acknowledgment “must be more 

than a hint, a reference, or a discussion of an old debt; it must 

amount to a clear recognition of the claim and liability as 

presently existing.” See Beck v. Dutchman Coal. Mines Co., 269 

P.2d 867, 870 (Utah 1954) (quotation simplified); accord Wells 

Fargo, 2003 UT App 441, ¶ 9.

¶33 Contrary to Bank’s assertion, Homeowners never 

acknowledged that they were still obligated to repay the Debt in 

any of their communications in a “clear, distinct, direct, 

unqualified, and intentional” manner. See Wells Fargo, 2003 UT 

App 441, ¶ 9. Neither did Homeowners acknowledge that they 

were “liable” for the Debt as “present” and “subsisting.” See Salt

Lake Transfer Co., 30 P.2d at 736. To the contrary, while

Homeowners certainly recognized that they had previously been 

on the hook to repay their mortgage loan, in each 

communication made to Ocwen after the bankruptcy 

proceedings, they explicitly stated that the Debt had been 

discharged in bankruptcy and that they were no longer 

personally liable to repay it. 
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¶34 Bank counters by seeking to draw an equivalency 

between Homeowners’ recognition of its continuing right to 

foreclose on the Property and an acknowledgment of personal 

liability on the Debt. But acknowledgement of a debt requires 

more than recognizing a right to foreclose. “Debt has been 

defined variously, but generally it is an obligation to pay a fixed 

and certain sum of money. A debt is usually a monetary sum 

that is owed to another.” Olsen v. Fair Co., 2016 UT App 46, ¶ 10, 

369 P.3d 473 (quotation simplified). Thus, for Homeowners’

communications to constitute an acknowledgement of the Debt 

after discharge by the bankruptcy court, Homeowners would 

have had to acknowledge that they continued to personally owe 

something to Bank. But Homeowners’ personal liability for the 

Debt had been discharged by the bankruptcy court, and with 

that discharge, any amount owed ceased to exist relative to 

Homeowners personally. See Fitzgerald v. Critchfield, 744 P.2d 

301, 305 (Utah Ct. App. 1987) (stating that discharge of a debt in 

bankruptcy divests a debt “of its character as a legally 

enforceable personal liability”). Acknowledgment of a right to 

foreclose on the Property is not the same thing as 

acknowledgment of personal liability on the Debt, especially 

where, as here, Homeowners’ personal liability on the Debt had 

been discharged in bankruptcy.

¶35 In their written communications with Ocwen,

Homeowners did not acknowledge the Debt or obligate

themselves to repay it despite their discharge; instead,

Homeowners were asking Ocwen not to exercise the right to 

foreclose against the Trust Deed securing the Debt. In exchange 

for not foreclosing, Homeowners proposed to enter into a new 

deal that would allow Ocwen to recoup its losses while allowing 

Homeowners to stay in their home. Homeowners certainly never 

offered to repay the Debt that had been discharged, and they 

never hinted that they might have some continuing or current 

obligation to do so.

¶36 In sum, we agree with the district court’s determination 

that Homeowners’ communications with Ocwen did not 
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function as an acknowledgment of the Debt because, at most,

those communications were a “reference” to “or a discussion of 

an old debt,” not “a clear recognition of [a] claim and [a] liability 

as presently existing.” See Beck, 269 P.2d at 870 (quotation 

simplified). 

C. The running of the limitations period was not tolled by 

the bankruptcy stay or the statutory hold on the trustee’s 

sale.

¶37 Bank also argues that the statute of limitations was tolled 

by two discrete events. It is unclear that these tolling issues were 

preserved below. But assuming they were, we agree with 

Homeowners that Bank’s arguments in this regard are 

unpersuasive. See State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 

415 (“[I]f the merits of a claim can easily be resolved in favor of

the party asserting that the claim was not preserved, we readily may 

opt to do so without addressing preservation.”).

¶38 Tolling is essential to Bank’s argument on appeal because, 

owing to the stipulation, see supra ¶ 16, if the limitations period 

was tolled for a sufficient amount of time, Bank’s right to 

foreclose would be evaluated under the current version of Utah 

Code section 57-1-34, which became effective May 10, 2016, 

rather than the version of the statute in effect prior to that date.

Prior to May 10, 2016, “[t]he trustee’s sale of property under a 

trust deed [had to] be made, or an action to foreclose a trust deed 

as provided by law for the foreclosure of mortgages on real 

property [had to] be commenced, within the period prescribed 

by law for the commencement of an action on the obligation 

secured by the trust deed.” Utah Code Ann. § 57-1-34 

(LexisNexis 2010); id. amend. notes (Supp. 2020). But as of May 

10, 2016, the statute prescribed, “A person shall, within the 

period prescribed by law for the commencement of an action on 

an obligation secured by a trust deed: (1) commence an action to 

foreclose the trust deed; or (2) file for record a notice of default 

under Section 57-1-24.” Id. (Supp. 2020). Thus, the key difference 

between the two statutes, as concerns nonjudicial foreclosure 
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efforts, was that prior to May 16, 2016, the trustee’s sale had to be 

completed during the limitations period, but the current statute 

requires only that a notice of default be recorded prior to the 

running of the limitations period. Because a notice of default was 

recorded before the limitations period had run, Bank clearly 

would have the right to enforce its lien under the post-May 10, 

2016 statute. But if the earlier statute controls, the limitations 

period expired before Bank completed the necessary actions.

¶39 Bank first argues that the automatic stay associated with

Homeowners’ bankruptcy petition tolled the limitations period 

for forty days. But the bankruptcy petition and automatic stay, 

which occurred in September and October 2009, obviously 

preceded the triggering of the running of the limitations period, 

which the parties acknowledge began or was re-started on 

February 25, 2010, the date of Homeowners’ last payment on the 

Debt. Bank addresses this obstacle by arguing that because the 

limitations period actually began with the filing of the first 

notice of default and consequent acceleration of the due date on 

September 25, 2008, the bankruptcy stay occurred after the 

limitations period began. See id. § 70A-3-118(1) (2009) (“[A]n 

action to enforce the obligation of a party to pay a note payable 

at a definite time must be commenced within six years after the 

due date or dates stated in the note or, if a due date is 

accelerated, within six years after the accelerated due date.”).

Bank then asserts that Homeowners “re-started the statute of 

limitations per Utah Code Ann. § 78B-2-113 by making a 

payment on February 25, 2010 . . . , thus leading to a tolling of 

the limitations period to February 25, 2016.” (Quotation 

simplified.) In essence, Bank argues that tolling associated with 

the bankruptcy stay from 2009 should be applied to the 

subsequent limitations period triggered or re-started when 

Homeowners made their last payment on February 25, 2010. We 

find this argument unconvincing. Bank cites no precedent, nor 

are we aware of any, that allows the “banking” of the time tolled

by a past action such that it can be applied to a limitations period

yet to be commenced by a new triggering event.
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20190693-CA 18 2021 UT App 105

¶40 Bank also points to the three-month statutory hold 

required before a trustee is allowed to conduct a trustee’s sale

after recording the notice of default in nonjudicial foreclosure 

actions. See id. § 57-1-24(2) (2010) (“The power of sale conferred 

upon the trustee . . . may not be exercised until . . . not less than 

three months has elapsed from the time the trustee filed for 

record [the notice of default].”). Bank contends that the language 

in Utah Code section 78B-2-112 “tolls or extends any limitations 

period to include such statutory prohibitions” as the threemonth hold identified in section 57-1-24(2). See id. § 78B-2-112 

(2018) (“The duration of an injunction or statutory prohibition 

which delays the filing of an action may not be counted as part 

of the statute of limitations.”). We find this argument unavailing 

because it misreads the plain language of the two statutes. 

Section 78B-2-112 provides for tolling when a “statutory 

prohibition . . . delays the filing of an action.” See id. But section 

57-1-24(2) does not pertain to the filing of an action; rather, in 

nonjudicial foreclosure proceedings, the statute prohibits a 

trustee from exercising the power of sale until at least three 

months have passed after recording a notice of default. See Napue

v. Gor-Mey West, Inc., 175 Cal. App. 3d 608, 616 (Ct. App. 1985) 

(“Statutes of limitation, which fix the time within which a suit

must be commenced, are to be distinguished from other

procedural statutes fixing times to do acts or seek judicial relief. 

The three-month [hold on conducting a trustee’s sale] does not 

fix the time within which a suit must be commenced, but rather 

fixes the time for curing a default in payments on a note secured 

by a deed of trust. The three-month [hold] is, therefore, not a 

statute of limitation.” (quotation simplified)).

¶41 In other words, the prohibition in section 57-1-24(2) is not 

an injunction or a prohibition on the filing of an action but rather 

suspends the time for a trustee to exercise the power of sale to 

provide a period for the debtor to cure its default. Thus, reading 

section 57-1-24(2) in light of section 78B-2-112 does nothing to 

convert section 57-1-24(2) into a statute of limitations because 

section 57-1-24(2) does not concern the filing of any action; 

rather, it is a statutory hold on the trustee’s power of sale. In 
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20190693-CA 19 2021 UT App 105

short, because statutes of limitations fix the time within which a 

suit must be filed, and because there is no action to be filed in 

nonjudicial foreclosure proceedings, section 78B-2-112 does not 

apply. See Bryan A. Garner, Garner’s Dictionary of Legal Usage 862 

(3d ed. 2011) (“Action denotes a mode of proceeding in court . . . 

to enforce a private right or redress or prevent a private 

wrong. . . . Today, since virtually all jurisdictions have merged 

the administration of law and equity, the terms action and suit

are interchangeable.” (quotation simplified)); id. at 361 

(explaining that “file is often used as an ellipses for file suit”); see 

also Napue, 175 Cal. App. 3d at 616 (“The statute of limitation 

provisions of the Code of Civil Procedure are applicable to civil 

actions and special proceedings of a civil nature both of which 

are judicial remedies. A trustee’s sale pursuant to a power of sale 

under a deed of trust is not a judicial remedy. Such trustee’s sale 

is alternately referred to as an extrajudicial or nonjudicial 

foreclosure. The statute of limitation provisions are, therefore, 

clearly inapplicable to a trustee’s sale.” (quotation simplified)).

Accordingly, we reject Bank’s argument that the three-month

hold on conducting the trustee’s sale acted to toll the limitations 

period.

D. Equitable estoppel did not toll the statute of limitations.

¶42 Bank next claims that the district court “erred in not 

tolling the statute of limitations via the ‘equitable estoppel’ 

doctrine.”4 To prevail on its claim of equitable estoppel, Bank

must prove each of three elements: 

 

4. Alongside its equitable estoppel argument, Bank argues that 

the federal prohibition on dual tracking tolled the statute of 

limitations. Bank identifies no place in the record where this 

issue was presented to the district court. And when a party fails 

“to preserve an issue in the trial court, but seeks to raise it on 

appeal . . . , this court will not typically reach the issue absent 

some recognized exception.” State v. Johnson, 2017 UT 76, ¶ 17, 

(continued...)
Daniels v. Deutsche Bank

20190693-CA 20 2021 UT App 105

(1) a statement, admission, act, or failure to act by 

one party inconsistent with a claim later asserted; 

(2) reasonable action or inaction by the other party 

taken or not taken on the basis of the first party’s 

statement, admission, act or failure to act; and (3) 

injury to the second party that would result from 

allowing the first party to contradict or repudiate 

such statement, admission, act, or failure to act.

Benge v. Cody Ekker Constr., 2019 UT App 164, ¶ 20, 451 P.3d 667 

(quotation simplified); accord In re Koller, 2018 UT App 27, ¶ 23, 

424 P.3d 926.

¶43 We agree with the district court that there is no evidence 

that Homeowners’ actions were inconsistent with their claim

that foreclosure was barred by the running of the statute of 

limitations. Seeking to avoid a foreclosure during the limitations 

period and then later asserting a statute of limitations defense 

after the limitations period had run is in no way inconsistent. 

Instead, Homeowners’ actions were logically sequential. Having 

repeatedly failed to convince Ocwen to agree to a mortgage 

modification during the six-year limitations period, 

 

(...continued)

416 P.3d 443. Bank nevertheless asserts that we should consider 

this issue under the exceptional-circumstances doctrine. But

Bank has made no effort to explain how the exceptionalcircumstances doctrine applies here—except for the bald 

assertion that it does. More specifically, it has failed to explain 

what “rare procedural anomaly” prevented it from preserving 

the issue or excused its failure to do so. See id. ¶ 29. And as our 

supreme court has stated, “the showing of a rare procedural 

anomaly has been requisite to invoking exceptional 

circumstances.” See id. ¶ 31. Thus, we decline Bank’s invitation 

to consider its dual-tracking-tolling argument.
Daniels v. Deutsche Bank

20190693-CA 21 2021 UT App 105

Homeowners then asserted the obvious defense to foreclosure 

once the limitations period had expired. Bank claims that 

Homeowners’ requesting forbearance of foreclosure efforts is 

“inconsistent” with their “later claim” that Bank “should then 

be punished and permanently prevented from foreclosing on the 

. . . Property.” But this assertion mischaracterizes the record, 

which shows that (1) Ocwen cancelled the HAMP Plan in early 

2010 and never offered the mortgage modification contemplated 

by that plan, see supra ¶ 8, (2) Homeowners made repeated 

efforts asking Ocwen to reconsider, see supra ¶¶ 9–12, and (3) 

Homeowners asserted a statute of limitations defense after 

receiving notice of the trustee’s sale, see supra ¶¶ 13–14. Rather 

than displaying inconsistency, Homeowners pursued the 

appropriate remedy available at the relevant time. In other 

words, Homeowners acted exactly as one would expect them to 

act relative to the circumstances in which they found themselves.

¶44 Moreover, Bank has not demonstrated that it acted

reasonably in failing to foreclose the Trust Deed within the 

limitations period. Put another way, Homeowners’ repeated 

attempts to enter into mortgage modification in no way induced 

Bank not to pursue foreclosure after Homeowners abandoned 

their modification requests. Our supreme court recently clarified 

that the second prong of the equitable estoppel test “requires 

reasonable action or inaction by the other party taken on the 

basis of the first party’s statement, admission, act, or failure to 

act—that is, a plaintiff must show not only that [it] was induced 

into action or inaction by the defendant’s statement, admission, 

act, or failure to act, but also that . . . [its] action or inaction was 

reasonable.” Fitzgerald v. Spearhead Invs., LLC, 2021 UT 34, ¶ 28, 

493 P.3d 644 (quotation simplified). According to the record,

Homeowners’ final request for mortgage modification was 

submitted in October 2011, and the last communication

Homeowners had with Ocwen about the foreclosure was in July 

2014. Ocwen is an experienced mortgage loan company. One 

would expect that, as a sophisticated party, Ocwen would have 

reasonably concluded that Homeowners had abandoned their 

efforts to work out a modification after months of not hearing 
Daniels v. Deutsche Bank

20190693-CA 22 2021 UT App 105

from them. But even after it was apparent that a mortgage 

modification was not likely, Ocwen did not act to foreclose on 

the Property until after the limitations period had expired in 

February 2016. We fail to see how Ocwen’s inaction can be 

considered reasonable in these circumstances.

¶45 For the above reasons, Bank’s equitable estoppel 

argument is unavailing.

E. The running of the statute of limitations extinguished 

Bank’s right to foreclose.

¶46 Bank next argues that the district court erred in 

determining that foreclosure was no longer an available remedy 

after the limitations period expired. 

¶47 We agree with the district court that the Trust Deed was 

no longer enforceable as security on the Debt after the 

limitations period had run. After Homeowners’ personal liability 

for the Debt was discharged in bankruptcy, Bank no longer had 

the right to collect from Homeowners; rather, what remained 

after discharge was Bank’s right to foreclose against the 

Property. But based on the applicable statute at the time, the

trustee’s sale had to have been completed by the time the 

limitations period for enforcing the underlying obligation 

expired, which was six years from the date of Homeowners’ last 

payment. See Utah Code Ann. § 57-1-34 (LexisNexis 2010); id.

§ 78B-2-113(1)(c) (2018); id. § 70A-3-118 (2009). 

¶48 Bank cites Kamas Securities Co. v. Taylor, 226 P.2d 111 

(Utah 1950), for the assertion that “a pledge is not terminated by 

the running of the statute of limitations against the claim secured 

by the pledge, nor by the discharge of the claim in bankruptcy.” 

Id. at 117 (quotation simplified). But “[t]his common law regime

has been altered by statute in Utah.” Cf. M.J. v. Wisan, 2016 UT 

13, ¶ 47, 371 P.3d 21. Kamas was decided well over a decade 

before section 57-1-34 was enacted by the Utah Legislature, see

Act of Mar. 7, 1961, ch. 181, § 16, 1961 Utah Laws 529, 537. And 
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20190693-CA 23 2021 UT App 105

“where a conflict arises between the common law and a statute

. . . , the common law must yield because the common law

cannot be an authority in opposition to our positive 

enactments.” Gottling v. P.R. Inc., 2002 UT 95, ¶ 7, 61 P.3d 989 

(quotation simplified). Thus, Utah Code section 57-1-34, owing 

to more recent enactment, supplants the common law principle 

contained in Kamas for the right to foreclose on a trust deed after 

the statute of limitations on the underlying debt has expired. 

¶49 Bank also cites DiMeo v. Nupetco Associates, LLC, 2013 UT 

App 188, 309 P.3d 251, for the proposition that “foreclosure is 

still an available remedy, even after the debt is discharged in 

bankruptcy, and even after the statute of limitations has run.”

But DiMeo is easily distinguished from the case at hand. As an 

initial matter, in DiMeo this court did not analyze the impact of 

section 57-1-34, which, as noted, altered the common law regime 

and created a separate statute of limitations for foreclosure 

actions. But in addition, DiMeo is distinguishable on its facts. In 

DiMeo, Vern and Eleanor Strand, along with at least one other 

member of their family, were obligors on a promissory note, 

which was secured by a trust deed granting a security interest in 

Vern and Eleanor’s property. Id. ¶ 2. Vern and Eleanor died, but 

another family member obligor—Michael—continued to make 

periodic payments on the note. Id. ¶ 3. The district court “ruled 

that the trust deed was unenforceable . . . due to the running of 

the statute of limitations, [when the note holder’s] ability to 

collect from [Vern and Eleanor] personally had expired.” Id. ¶ 4. 

This court faulted the district court for not explaining “how the 

mere fact that some obligors on the note can no longer be held 

personally liable undercuts the continued vitality of the trust 

deed as security for the note.” Id. ¶ 9. Importantly, in DiMeo, the

trust deed still validly secured Michael’s obligation due under

the note because the statute of limitations had not run as to him.

See id. ¶ 10.

¶50 In contrast, the limitations period at issue here—which

was triggered in February 2010 when Homeowners made their

final payment—ran in February 2016 and extinguished Bank’s
Daniels v. Deutsche Bank

20190693-CA 24 2021 UT App 105

ability to foreclose. In other words, the running of the statute of

limitations prevented Bank from enforcing the trust deed. But in

this case, unlike in DiMeo, there is no co-obligor remaining.

There is no Michael Strand here. Homeowners are the only

obligors on the Debt, and neither they nor anyone else made

another payment after February 2010. Thus, DiMeo is of little

help to Bank. Indeed, in another case from this court discussing

DiMeo, the impact of Michael’s periodic payments is identified

as the key factor in upholding the right to foreclose. See Roger P.

Christensen IRA v. American Heritage Title Agency, Inc., 2016 UT 

App 36, ¶ 24, 368 P.3d 125 (“The six-year statute of limitations 

had not yet run as against Michael Strand. When [the note 

holder] sought judgment on the note and foreclosure against 

Michael Strand in 2009, its foreclosure action was timely because 

Michael Strand continued making payments until about 2005.” 

(quotation simplified)). Thus, because another obligor continued 

to make payments, “DiMeo sheds little light on the present case, 

and [Bank’s] reliance on DiMeo is misplaced.” See id.

¶51 Having determined (1) that Homeowners’ written 

communications made after the last payment on the Debt fell 

“short of the legal standard in Utah for an enforceable 

acknowledgment” of the Debt, see Wells Fargo Bank, NA v. Temple 

View Invs., 2003 UT App 441, ¶ 11, 82 P.3d 655, (2) that the 

limitations period was not tolled by the bankruptcy stay or the 

statutory hold on conducting a trustee’s sale, (3) that the doctrine 

of equitable estoppel did not toll the limitations period, and 

(4) that Bank’s right to foreclose was extinguished, we conclude 

that the statute of limitations had expired and Bank was 

accordingly barred from proceeding with the foreclosure.

II. Quiet Title

¶52 Having discerned no error in the district court’s decision 

that the statute of limitations had expired on Bank’s right to 

foreclose on the Property, we conclude that the court did not err 

in quieting title in favor of Homeowners. Because Homeowners

held title to the Property, Homeowners had a superior claim to 
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20190693-CA 25 2021 UT App 105

the Property; accordingly, quieting title in favor of Homeowners

was appropriate. See WDIS, LLC v. Hi-Country Estates

Homeowners Ass’n, 2019 UT 45, ¶ 43, 449 P.3d 171 (“[A] a quiet

title claim analysis . . . requires the court to determine whether 

[one claimant’s] property interest is superior to the interests of 

the other named adverse claimants.”).5

III. Attorney Fees

¶53 Bank argues that the district court—in addition to 

being incorrect about the underlying judgment—“erred on a 

more fundamental level when it held that the [Trust Deed] was 

not operative as to [Bank’s] ability to foreclose, but was 

operative for the purposes of awarding attorney’s fees and 

costs.” In fact, the district court did not rely solely on the Trust 

Deed but coupled the attorney fees provision of the Trust Deed 

with Utah’s reciprocal fee statute in awarding fees to 

Homeowners. See Utah Code Ann. § 78B-5-826 (LexisNexis 2018) 

(”A court may award costs and attorney fees to either party that 

prevails in a civil action based upon any promissory note, 

written contract, or other writing . . . when the provisions of the 

promissory note, written contract, or other writing allow at 

least one party to recover attorney fees.”). The court 

reasoned that had Bank been “successful in seeking to enforce 

the Trust Deed against [Homeowners’] property, [Bank] would 

have been entitled to recover [its] reasonable attorneys’ fees 

and costs incurred in the course of that action.” Thus the 

court concluded that “the provisions of the Trust Deed would 

allow at least one party in this action to recover attorney fees as 

set forth in Utah Code § 78B-5-826 and the Supreme Court’s 

 

5. In a cross-appeal, Homeowners ask us to review the district 

court’s denial of their request for reconveyance. As Homeowners 

point out in briefing, it is unnecessary for us to resolve this issue 

because our affirmance of the district court’s issuance of the 

quiet title declaration grants “substantially the same relief” 

Homeowners sought in their motion for reconveyance.
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20190693-CA 26 2021 UT App 105

decision in . . . Bylsma v. R.C. Willey.” See Bylsma v. R.C. Willey,

2017 UT 85, ¶ 89, 416 P.3d 595 (“And because [the creditor] 

would have been entitled to fees if it had prevailed in 

a collection action, the [debtors] have a statutory right to 

seek fees under Utah Code section 78B-5-826 because 

they succeeded on their claim for rescission.”). Bank counters

by arguing that if the Trust Deed “was an unenforceable 

instrument as to [Bank], then [Homeowners] could not 

have relied on it to obtain an award of fees and costs on 

reciprocal basis.”

¶54 But Bank misunderstands the basis of the district court’s 

award of fees. The court awarded fees pursuant to the reciprocal 

fee statute, not under the provision of the Trust Deed. 

The attorney fees provision of the Trust Deed merely triggered 

the application of the reciprocal fee statute. Just as in Bylsma, 

where an entire contract was rescinded and yet the 

victorious debtors were still entitled to attorney fees under the 

reciprocal fee statute, so it is here. See Bylsma, 2017 UT 85, ¶¶ 89–

92. Even though Bank lost the right to foreclose on the 

Trust Deed after expiration of the limitations period, the 

district court retained the discretion to award attorney fees 

to Homeowners. Thus we find no error in the district court’s 

award of attorney fees to Homeowners pursuant to the 

reciprocal fee statute.

¶55 Finally, Homeowners ask for attorney fees on 

appeal. “When a party who received attorney fees

below prevails on appeal, the party is also entitled to fees

reasonably incurred on appeal.” Win-Win Invs. LLC v. Dutson, 

2021 UT App 18, ¶ 27, 483 P.3d 64 (quotation simplified). 

Because the district court awarded fees below and because 

Homeowners have prevailed on appeal, we grant their “request 

for fees and costs on appeal and remand for the district court 

to calculate the award.” See Thomas v. Thomas, 2021 UT App 8, 

¶ 45, 481 P.3d 504.
Daniels v. Deutsche Bank

20190693-CA 27 2021 UT App 105

CONCLUSION

¶56 We find no error in the district court’s determination that 

the statute of limitations had run on Bank’s right to foreclose 

against the Property, that the doctrine of equitable estoppel did 

not toll the limitations period, and that Bank retained no right to 

foreclose once the limitations period had run as to Homeowners. 

Further, the court did not err in quieting title in favor of and 

awarding attorney fees to Homeowners. We therefore affirm the 

orders of the district court and remand for the district court to 

calculate the amount of attorney fees and costs Homeowners

incurred on appeal.