This opinion is subject to revision before final

publication in the Pacific Reporter

2017 UT 2

IN THE

SUPREME COURT OF THE STATE OF UTAH

BANK OF AMERICA,

Appellant,

v.

SAMUEL D. ADAMSON and

COURTNEY D. ADAMSON,

Appellees.

No. 20140861

Filed January 11, 2017

On Direct Appeal

Fifth District, St. George Dep’t

The Honorable Jeffrey C. Wilcox

No. 14050067

Attorneys:

Robert H. Scott, Salt Lake City, UT, Amy Miller, Washington D.C.,

Brian E. Pumphrey, Richmond, VA, for appellant

John Christian Barlow, St. George, UT, for appellees 

JUSTICE DURHAM authored the opinion of the Court in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE HIMONAS, and JUDGE LAWRENCE joined.

Having been recused, JUSTICE PEARCE does not participate herein;

DISTRICT JUDGE BARRY G. LAWRENCE sat.

JUSTICE DURHAM, opinion of the Court:

INTRODUCTION

¶1 This case involves a nonjudicial foreclosure sale conducted 

in violation of Utah Code section 57-1-21, which requires the trustee 

of the sale to maintain a physical office location within the state. 

Today we answer the question left open in Federal National Mortgage 

Association v. Sundquist, 2013 UT 45, 311 P.3d 1004, as to the 

appropriate remedy for this violation. Because we conclude, under 
BANK OF AMERICA v. ADAMSONS

Opinion of the Court

2

the circumstances of this case, that the violation did not result in a 

void or voidable trustee’s deed, we hold that the district court erred 

in dismissing the unlawful detainer action in favor of the Adamsons. 

We thus reverse and remand for further proceedings consistent with 

this opinion.

BACKGROUND

¶2 Samuel D. Adamson refinanced his home in 2007 through a 

deed of trust.1 Mr. Adamson defaulted on the loan in December 

2008. Bank of America appointed ReconTrust as the successor 

trustee, which then executed and recorded a notice of default and 

election to sell on June 25, 2009. The notice included a phone number 

to reach ReconTrust with any questions. 

¶3 Although Mr. Adamson had notice of the default and 

upcoming trustee sale date, he never contacted ReconTrust before 

the scheduled sale date, and did not attend the sale.2 Neither did 

Mr. Adamson seek an injunction or file a lawsuit prior to the sale. On 

January 14, 2010, ReconTrust sold the property in a nonjudicial 

foreclosure sale to BAC Home Loans Services, LP. BAC Home Loans 

Services eventually merged with Bank of America, which then sold 

the property to Distressed Asset on December 18, 2013. 

Mr. Adamson and his wife, Courtney D. Adamson, have lived 

continuously on the property since the sale, and have not made a 

loan payment or paid property taxes since December 2008. 

¶4 In 2014, Distressed Asset filed an unlawful detainer action 

against the Adamsons. At trial, the Adamsons argued that the 

trustee’s sale was defective because ReconTrust did not meet the 

qualifications to serve as trustee under Utah Code section 57-1-21, 

which required ReconTrust to maintain a physical office location in 

Utah. Id. § 57-1-21(1)(a). The Adamsons argued that this defect 

rendered the sale void. 

¶5 The district court noted that in Federal National Mortgage 

Association v. Sundquist, 2013 UT 45, ¶ 13, 311 P.3d 1004, we held that

“ReconTrust is neither a member 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, the 

1 Mr. Adamson originally refinanced through Guild Mortgage, 

which sold the debt to Countrywide Home Loan Servicing LP, which

in turn sold to Bank of America. 

2 Mr. Adamson was in contact with Bank of America at the time, 

trying to get a loan modification. 
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Opinion of the Court

3

district court also noted that “the Sundquist court expressly declined 

to decide what effect, if any, its determination that ReconTrust did 

not qualify as a trustee with the power of sale would have on the 

validity of the sale and resulting trust deed.” See id. ¶ 50.

¶6 Although the district court found that Distressed Asset had 

made out “a prima facie case for unlawful detainer,” it concluded 

that the failure to satisfy Utah Code section 57-1-21 rendered the 

trustee sale void ab initio, and dismissed the unlawful detainer 

action. Distressed Asset appealed. We transferred the case to the 

court of appeals. Distressed Asset then assigned its rights, title, and 

interest in the property to Bank of America. After oral argument in 

the court of appeals, but before that court issued an opinion, we 

vacated our transfer order and recalled the case. We have 

jurisdiction pursuant to Utah Code section 78A-3-102(3)(j).

STANDARD OF REVIEW

¶7 “We review questions of statutory interpretation for 

correctness, affording no deference to the district court’s legal 

conclusions.” Salt Lake City Corp. v. Evans Dev. Grp., LLC, 2016 UT 15, 

¶ 9, 369 P.3d 1263 (citation omitted).

ANALYSIS

¶8 Bank of America advances two main arguments on appeal: 

first, that we should overturn our decision in Federal National 

Mortgage Association v. Sundquist, 2013 UT 45, 311 P.3d 1004, and 

hold that the National Bank Act “preempts Utah law regarding a 

national bank’s authority to exercise the power of sale;” and 

second—even if we do not overturn Sundquist—that the district 

court erred in finding the trustee sale void. We hold that Bank of 

America has failed to meet its burden of persuasion on its first 

argument because it was inadequately briefed, but we conclude the 

district court erred in finding the trustee sale void and in dismissing 

the unlawful detainer action. 

I. WE DECLINE TO OVERRULE SUNDQUIST, AS BANK OF 

AMERICA HAS NOT ADEQUATELY BRIEFED THIS ARGUMENT

¶9 Stare decisis is “a cornerstone of Anglo-American 

jurisprudence.” State v. Guard, 2015 UT 96, ¶ 33, 371 P.3d 1 (citation 

omitted). Therefore, “[t]hose asking us to overturn prior precedent 

have a substantial burden of persuasion.” State v. Menzies, 889 P.2d 

393, 398 (Utah 1994). In order to meet this burden, “we must be 

‘clearly convinced that’ prior caselaw ‘was originally erroneous or is 

no longer sound because of changing conditions.’” Scott v. Universal 

Sales, Inc., 2015 UT 64, ¶ 23, 356 P.3d 1172 (citation omitted).
BANK OF AMERICA v. ADAMSONS

Opinion of the Court

4

¶10 Bank of America does not mention this standard, nor does it 

offer any arguments to explain why our decision was either 

originally erroneous or no longer sound. Bank of America asserts 

that “Sundquist was wrongly decided and should be overruled.” But 

the only authority it cites as “significant legal developments” in 

support of its assertion is an unpublished Tenth Circuit opinion3 and 

two amici curiae briefs from other cases. See Garrett v. ReconTrust Co., 

546 F. App’x 736 (10th Cir. 2013) (unpublished opinion); Office of the 

Comptroller of the Currency’s Amicus Brief, Dutcher v. Matheson, 

No. 12-4150 (10th Cir. July 15, 2013); U.S. Solicitor General’s Amicus 

Brief, Fed. Nat’l Mortg. Ass’n v. Sundquist, No. 13-852 (U.S. Oct. 7, 

2014). Bank of America devotes fewer than two pages of its brief to 

this issue and does not develop any reasoned argument for 

overturning our very recent precedent. 

¶11 Utah Rule of Appellate Procedure 24(a)(9) requires an 

appellant’s brief to “contain the contentions and reasons of the 

appellant with respect to the issues presented . . . with citations to 

the authorities, statutes, and parts of the record relied on.” We have 

clarified this requirement by stating that “[a]n issue is inadequately 

briefed if the argument ‘merely contains bald citations to authority 

[without] development of that authority and reasoned analysis based 

on that authority.’” State v. Timmerman, 2009 UT 58, ¶ 25 n.5, 218 

P.3d 590 (second alteration in original) (citation omitted). We have, 

at times, stated that inadequate briefing is an absolute bar to review 

of an argument on appeal. See Johnson v. Johnson, 2014 UT 21, ¶ 20, 

330 P.3d 704 (“We have repeatedly warned that [appellate courts] 

will not address arguments that are not adequately briefed, and that 

we are not a depository in which the appealing party may dump the 

3 We note that the Tenth Circuit opinion is not persuasive 

authority on whether to overrule Sundquist, as the reasonableness of 

the agency regulation was not contested before that court. See Garrett 

v. ReconTrust Co., 546 F. App’x 736, 739 (10th Cir. 2013) (unpublished 

opinion) (“Importantly, Garrett raises arguments only as to the 

meaning of Rule 9.7, and not to the reasonableness of the regulations 

themselves; thus, we limit our inquiry accordingly.” (citation 

omitted)). Because no one in Garrett argued that the agency’s 

regulation was unreasonable, the court did not go through the 

Chevron analysis to determine whether to apply the regulation. Thus, 

Bank of America represented this case as one that would compel the 

conclusion that we wrongly decided Sundquist, when in fact it does 

not even address the determinative issue in Sundquist (i.e. whether to 

apply the regulation). Fed. Nat’l Mortg. Ass’n v. Sundquist, 2013 UT 

45, 311 P.3d 1004.
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Opinion of the Court

5

burden of argument and research.” (alteration in original) (citation 

omitted)). However, we recognize that there is a spectrum of how 

adequately an argument may be briefed. On one end, an issue may 

be argued in only one sentence without any citations to legal 

authority or to the record. On the other, there may be dozens of 

pages of argument including volumes of authority and citations to 

the record regarding a single issue. Defining the exact point at which 

a brief becomes adequate is not possible, nor is it advisable, as each 

issue is different and may require different amounts of analysis and 

argument. 

¶12 We clarify that there is not a bright-line rule determining

when a brief is inadequate. Rather, an appellant who fails to

adequately brief an issue “will almost certainly fail to carry its 

burden of persuasion on appeal.” State v. Nielsen, 2014 UT 10, ¶ 42, 

326 P.3d 645. “Accordingly, from here on our analysis will be 

focused on the ultimate question of whether the appellant has 

established a [sufficient argument for ruling in its favor]—and not on 

whether there is a technical deficiency in [briefing] meriting a 

default.” Id. ¶ 41.

¶13 While we make this clarification, we emphasize the 

importance of a party’s thoughtful analysis of prior precedent and its 

application to the record. An appellant that fails to devote adequate 

attention to an issue is almost certainly going to fail to meet its 

burden of persuasion. A party must cite the legal authority on which 

its argument is based and then provide reasoned analysis of how 

that authority should apply in the particular case, including citations 

to the record where appropriate. Under this standard, we hold that 

Bank of America has failed to meet its burden of persuading us that 

we should overrule Sundquist. 

II. VOIDING THE TRUSTEE SALE IS AN IMPROPER REMEDY

¶14 Because Bank of America failed to meet its burden of 

persuasion in its request to overturn Sundquist, we must still 

determine the remedy for failure to comply with Utah Code section 

57-1-21. In order to exercise the power of sale in a nonjudicial 

foreclosure, Utah law requires a trustee to be “qualified.” UTAH 

CODE § 57-1-23. A qualified trustee is defined as

(i) any active member of the Utah State Bar who 

maintains a place within the state where the trustor or 

other interested parties may meet with the trustee . . . ;

[or] 

. . . 
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6

(iv) any title insurance company or agency that: (A) 

holds a certificate of authority 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.

Id. § 57-1-21(1)(a). As we held in Sundquist, “ReconTrust is neither a 

member 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.” Fed. Nat’l Mortg. Ass’n v. Sundquist,

2013 UT 45 ¶ 13, 311 P.3d 1004. However, we did not decide in 

Sundquist—or any other case—what effect, if any, the violation of 

section 57-1-21 would have on the trustee sale and resulting trustee’s

deed. See id. ¶ 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 N[ational] B[anking] A[ct].”).

¶15 We begin by noting that at the time of the sale, the Trust 

Deed Act (Utah Code sections 57-1-19 through 57-1-36) did not 

provide a statutory remedy for violations of section 57-1-21.4

However, even without the explicit statutory remedy, the Trust 

Deed Act lays out the requirements for the foreclosure of a trust 

deed, and we have previously discussed when the failure of other

requirements may result in a voidable trustee’s deed. See Concepts, 

Inc. v. First Sec. Realty Servs., Inc., 743 P.2d 1158, 1160 (Utah 1987) 

(laying out test for when a trustee’s deed may be set aside for 

deficient notice of sale). We follow our prior precedent detailing 

when a trustee’s deed may be set aside for Utah Code section 57-1-

21. We first articulate the Trust Deed Act’s focus on trustor 

protections prior to the trustee sale, and detail some of the 

protections the statutory scheme has in place to protect the rights of 

trustors to challenge the foreclosure prior to the sale. Second, we 

outline the high burden trustors face in challenging foreclosure 

proceedings after the trustee sale has taken place, and clarify the 

differences between void, voidable, and valid deeds. Finally, we 

hold that the trustee’s deed in this case is valid.

4 In 2011, the Utah legislature adopted Utah Code section 57-1-

23.5, which provides that “a person who does not qualify as a trustee 

under Subsection 57-1-21(1)(a)(i) or (iv) . . . [and] conducts an 

unauthorized sale is liable to the trustor for the actual damages 

suffered by the trustor as a result of the unauthorized sale or $2,000, 

whichever is greater.”
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Opinion of the Court

7

A. Before the Sale: Notice of Default and Statutory Right 

to Cure the Default

¶16 In most cases, Utah law requires “that a trustor assert her 

rights before the trustee’s sale.” Reynolds v. Woodall, 2012 UT App 

206, ¶ 16, 285 P.3d 7. This “is consistent with the statutory right to 

cure the default, which also must be exercised during the threemonth grace period before a trustee’s sale is held.” Id. (citing Utah 

Code section 57-1-24’s requirement that a trustee record notice of 

default at least three months before giving notice of sale, and section 

57-1-31’s requirement that the trustor cure the default within three 

months of the notice of default). Indeed, a trustor “may by 

acquiescence and failure to assert his rights at the proper time be 

estopped to set up irregularities in the foreclosure proceedings to 

defeat rights of the purchaser.” Am. Falls Canal Sec. Co. v. Am. Sav. & 

Loan Ass’n, 775 P.2d 412, 414 (Utah 1989) (citation omitted).

¶17 This is so because, “[w]hen . . . title to real property is at 

issue, the need for finality is at its apex.” Am. Estate Mgmt. Corp. v. 

Int’l Inv. & Dev. Corp., 1999 UT App 232, ¶ 10, 986 P.2d 765. Utah law 

presumes that “a trustee’s deed, which states that it complies with 

the statutory requirements, is ‘conclusive evidence in favor of bona 

fide purchasers’ of the trustee’s deed’s validity.” RM Lifestyles, LLC v. 

Ellison, 2011 UT App 290, ¶ 17 n.5, 263 P.3d 1152 (quoting Utah Code 

Annotated section 57-1-28(2)(c)(ii)). See also Blodgett v. Martsch, 590 

P.2d 298, 303 (Utah 1978) (“Our statutes protect a bona fide 

purchaser at a public sale under a trust deed, by permitting him to 

rely on the recitals in the deed he receives from the trustee after the 

sale.”); Reynolds, 2012 UT App 206, ¶ 15 (“Absent . . . exceptional 

circumstances, the proper remedy is to seek an injunction prior to a 

sale, which allows a debtor to challenge irregularities and protect her 

rights before the sale is completed and a trustee’s deed is executed 

and delivered to the purchaser.”).

¶18 Utah Code section 57-1-21 lays out the requirements for a

person to qualify as a trustee and was presumably designed to make 

it “easier for Utahns to meet with trustees” and ask questions about 

the notice of default, curing the default, or any other issues that may 

arise prior to the sale. Kleinsmith v. Shurtleff, 571 F.3d 1033, 1048 (10th 

Cir. 2009). However, the time when a trustor needs to contact the 

trustee with these questions is before the foreclosure sale, not after. 

Raising any issues with the foreclosure process prior to the sale 

furthers the policy of “protecting the validity of trustee’s deeds, thus 

promoting bidding at trustee’s sales and improving the chances that 

a sale will be for fair market value.” Reynolds, 2012 UT App 206, 

¶¶ 16, 18 (refusing to set aside a trustee sale in part because the 

trustor did not seek “an injunction to allow her to challenge the 
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Opinion of the Court

8

alleged inadequacy of notice ‘before the sale was completed and a 

trustee’s deed was executed.’” (citation omitted)). Failing to 

challenge a trustee sale prior to the sale does not foreclose relief, but 

the trustor faces a much higher burden once the sale has taken place.

B. Trustor’s Remedy After the Sale

¶19 In this case, the Adamsons attempt to set aside a trustee sale 

after it has been completed. The district court, looking to a treatise on 

real estate law, concluded that there are three categories of trustee’s 

deeds: void, voidable, and valid. The district court determined that, 

because the trustee did not meet all of the statutory requirements 

and was thereby not a qualified trustee, the trustee’s deed was void. 

We clarify the distinction between these categories in Utah.

¶20 Once a trustee sale is completed, “[t]he remedy of setting 

aside the sale will be applied only in cases which reach unjust 

extremes.” Concepts, 743 P.2d at 1159. We have previously held that 

there are three categories of deeds: void, voidable, and valid. If a 

deed is declared void, it “cannot be ratified or accepted, and anyone 

can attack its validity in court.” Ockey v. Lehmer, 2008 UT 37, ¶ 18, 

189 P.3d 51 (citations omitted). A void deed “carries no title on 

which a bona fide purchaser may rely, whereas a [voidable deed] 

may be the basis of good title in the hands of a bona fide purchaser 

who gave value prior to the time the deed was avoided by the 

grantor.” Bennion Ins. Co. v. 1st OK Corp., 571 P.2d 1339, 1341 (Utah 

1977). A voidable deed “is valid against the world, . . . because only 

the injured party has standing to ask the court to set it aside.” Ockey, 

2008 UT 37, ¶ 18 (citations omitted). A deed is valid and not void or 

voidable if it results from only inconsequential errors that do not 

affect the validity of the sale. 

¶21 This court has recognized only one kind of deed as void ab 

initio; i.e., a deed that violates public policy. Id. ¶¶ 18–20 (“Only 

[deeds] that offend public policy or harm the public are void ab 

initio.” (citation omitted)). In Ockey, we analyzed whether a deed 

was void, as opposed to voidable, by looking at two factors: 

1) legislative statements of public policy, and 2) whether the 

conveyance “harmed the public as a whole.” Id. ¶¶ 19, 23–24 (Deeds 

“that offend an individual, such as those arising from fraud, 

misrepresentation, or mistake, are voidable.”). In that case, a trustee 

conveyed real property from a trust when that trustee lacked the 

authority to do so. Id. ¶ 17. We held that even though such an action 

was ultra vires, the deed was only voidable, not void ab initio. Id. ¶ 24.

¶22 If a deed is not void ab initio, our holding in Concepts sets 

forth the method for attacking a trustee’s deed as voidable. We held 

in Concepts that “[a] sale once made will not be set aside unless the 
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Opinion of the Court

9

interests of the debtor were sacrificed or there was some attendant 

fraud or unfair dealing.” 743 P.2d at 1160; cf. Gregorakos v. Wells Fargo 

Nat’l Ass’n, 647 S.E.2d 289, 292 (Ga. Ct. App. 2007) (“[A] plaintiff 

asserting a claim of wrongful foreclosure [must] establish a legal 

duty owed to it by the foreclosing party, a breach of that duty, a

causal connection between the breach of that duty and the injury it 

sustained, and damages.” (second alteration in original) (citation 

omitted)).

¶23 Unless there is evidence of fraud or other unfair dealing, the 

trustor is required to show he suffered prejudice from some defect in 

the sale in order to state a claim for relief. See Reynolds, 2012 UT App 

206, ¶ 16 (“[T]o . . . state[] a claim upon which relief can be granted, 

[trustor] must have asserted that she suffered prejudice as a result of 

the failure to file a substitution of trustee until after the trustee’s 

sale.”); RM Lifestyles, 2011 UT App 290, ¶ 18 (“[Trustors] did not 

produce any evidence that the alleged irregularity resulted in their 

receiving defective notice of the sale or in any other way affected 

their ability to protect their rights.”); Occidental/Nebraska Fed. Sav. 

Bank v. Mehr, 791 P.2d 217, 221 (Utah Ct. App. 1990) (“[Trustee]

failed to comply strictly with the procedural requirements that 

should precede a trustee’s sale. However, the steps taken afforded all 

parties the rights and protections the statutory requirements for a 

nonjudicial foreclosure were intended to ensure.”); accord Amresco 

Indep. Funding, Inc. v. SPS Props., LLC, 119 P.3d 884, 886–87 (Wash. 

Ct. App. 2005) (“Despite the strict compliance requirement, a 

plaintiff must show prejudice before a court will set aside a trustee 

sale.”).

¶24 A trustor must prove prejudice when the trustor alleges 

some failure of the trustee to strictly comply with the statutory 

requirements of the Trust Deed Act, or some other deficiency in the 

sale. See, e.g., Timm v. Dewsnup, 2003 UT 47, ¶¶ 34–37, 86 P.3d 699 

(holding failure to strictly comply with notice requirements not 

sufficient to set aside trustee’s deed without showing of prejudice); 

Concepts, 743 P.2d at 1161 (holding that typographical error in the 

statutory notice of sale did not prejudice the trustor). Prejudice alone 

is not enough; the trustor must also establish a causal connection 

between the defect and the prejudice. See Timm, 2003 UT 47, ¶ 37

(“Whatever irregularities [the trustor] may allege in the technicalities 

of the notice requirement, they are immaterial if she does not 

demonstrate that she was unable to protect her interests, or if there 

were a resulting ‘effect of chilling the bidding and causing an 

inadequacy of price.’”); Pierucci v. U.S. Bank, NA, 2015 UT App 80, 

¶ 14, 347 P.3d 837 (“It is insufficient for the [the trustors] to allege 

that their interests in the property were affected; rather, they must 
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Opinion of the Court

10

allege that an irregularity in the sale—such as deficient notice or 

fraud in connection with the sale—prevented them from protecting 

their interest in the property.”); Jones v. Johnson, 761 P.2d 37, 41 n.2 

(Utah Ct. App. 1988) (“‘[S]ubstantial inadequacy of price, coupled 

with fraud, mistake, or other unfair dealing’ can be the basis for 

setting aside a foreclosure sale.” (citations omitted)); accord Gilroy v. 

Ryberg, 667 N.W.2d 544, 555 (Neb. 2003) (“[T]o establish a defect that 

renders the trustee’s sale voidable, the party seeking to set aside the 

sale must show not only the defect, but also that the defect caused 

the party prejudice. If the party did not suffer any harm from the 

alleged defect, there is no justification for imposing the additional 

costs associated with setting aside the sale.”); 55 AM. JUR. 2D, 

Mortgages § 565 (“To establish a defect that renders the trustee’s sale 

under a trust deed voidable, the party seeking to set aside the sale 

must show not only the defect, but also that the defect caused the 

party prejudice.”). If the defect does not cause prejudice, then the 

error is considered inconsequential and the trustee’s deed is valid.

¶25 If the trustor does not make any challenges prior to 

completion of the sale, but the deed is still voidable because of fraud 

or prejudice connected to the sale defect, the sale will be set aside 

only if the title has not yet passed into the hands of a bona fide 

purchaser.5 This is because “[o]ur statutes protect a bona fide 

purchaser at a public sale under a trust deed, by permitting him to 

rely on the recitals in the deed he receives from the trustee after the 

sale.” Blodgett, 590 P.2d at 303. Utah Code section 57-1-28(2)(c) 

provides that the trustee’s deed recitals “constitute prima facie 

evidence of compliance with [the Trust Deed Act] and . . . are 

conclusive evidence in favor of bona fide purchasers and 

encumbrancers for value and without notice.” 

¶26 Therefore, once a bona fide purchaser has acquired the 

property, the only remedy left to a trustor under a voidable deed is 

damages from the party causing the injury. See Blodgett, 590 P.2d at 

303–04 (holding that the sale could be set aside if the property had 

not been sold to a bona fide purchaser; otherwise the trustor could 

receive unjust enrichment damages); accord Swindell v. Overton, 314 

S.E.2d 512, 517 (N.C. 1984) (“[W]here the defect in a foreclosure sale 

renders the sale voidable, as in the case at bar, the [trustor’s] right of 

redemption can be cut off if the land is bought by a bona fide 

5 Because we conclude that the defect in this case—failure to 

comply with Utah Code section 57-1-21—did not prejudice the 

Adamsons and therefore the trustee’s deed is valid, we do not 

address the bona fide purchaser status of BAC Home Loans 

Servicing and subsequent purchasers of the property. 
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Opinion of the Court

11

purchaser for value without notice. In such instances, a plaintiff is 

left with an action for damages against the trustee as his only 

remedy.”); Peterson v. Kansas City Life Ins. Co., 98 S.W.2d 770, 775 

(Mo. 1936) (“[A] suit for damages at law is an especially appropriate 

remedy where an innocent purchaser buys at foreclosure, because it 

gives relief against the guilty rather than the innocent party.”); 

GRANT NELSON ET AL., REAL ESTATE FINANCE LAW § 7:21 (6th ed. 2014) 

(“If the defect only renders the sale voidable, the redemption rights 

can be cut off if a bona fide purchaser for value acquires the land. 

When this occurs, an action for damages against the foreclosing 

mortgagee or trustee may be the only remaining remedy.”). 

C. The District Court Erred in Dismissing the 

Unlawful Detainer Action

¶27 Although the district court found that Distressed Asset had 

made a prima facie case for unlawful detainer, it concluded 

ReconTrust’s failure to satisfy Utah Code section 57-1-21 rendered 

the trustee sale void, and dismissed the unlawful detainer action. 

The district court noted our precedent from Concepts that “[a] sale 

once made will not be set aside unless the interests of the debtor were 

sacrificed or there was some attendant fraud or unfair dealing,” 743 

P.2d at 1160, but it found precedent from a Utah Territory case from 

1880 and a court of appeals case to be more persuasive. 

¶28 In Singer Manufacturing Co. v. Chalmers, 2 Utah 542 (Utah 

Terr. 1880), the deed of trust required a United States Marshal to act 

as trustee and perform the sale. Id. at 546–47. At the trustee sale, the 

Marshal was not present and instead one of his deputies auctioned 

off the property. The deputy was not appointed nor authorized to act 

as trustee. The territorial court held

The fact that no injury or fraud in the sale has been 

shown, does not affect the question. Nor is it affected 

by the fact that the purchaser was an innocent party. 

The sale was made by one not authorized to make it, 

and cannot be upheld. It is simply void, and no one 

gains any rights under it.

Id. at 547.

¶29 Singer was issued by the territorial court long before the 

Trust Deed Act was passed and even before Utah became a state. 

While it is persuasive authority, it is not binding as we are applying 

the Trust Deed Act in this case. The district court erred in applying 

this case to supersede our analysis in Concepts.

¶30 Additionally, Singer is distinguishable from the present case.

In Singer, the marshal, as trustee of the trust deed, held legal title to 
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Opinion of the Court

12

the property, but he did not sell it; instead, a person without a legal 

relationship to the parties or the property completed the sale. Here, 

Bank of America correctly argues that ReconTrust “was duly 

appointed by the beneficiary under the deed of trust to act as 

successor trustee,” and as such it “held legal title to the property by 

virtue of its status as trustee.” See UTAH CODE § 57-1-19(4) (A 

“trustee” is defined in the Trust Deed Act as “a person to whom title 

to real property is conveyed by trust deed, or his successor in 

interest.”). Aside from not meeting the local office requirement of 

Utah Code section 57-1-21, ReconTrust satisfied all other 

requirements of the Trust Deed Act and qualifies under the National 

Bank Act as a trustee. ReconTrust owed legal duties to both 

Mr. Adamson as trustor and the bank as beneficiary, and was 

required to provide proper notice of default and to allow the 

Adamsons the chance to redeem before the sale, all of which it did. 

See UTAH CODE §§ 57-1-24 and 57-1-31.

¶31 The case of McQueen v. Jordan Pines Townhomes Owners 

Association, Inc., 2013 UT App 53, 298 P.3d 666, is similarly 

inapplicable to the present case. In McQueen, a condominium 

association foreclosed on a condominium owner because of unpaid 

association fees. Id. ¶¶ 2-3. The Condominium Ownership Act 

incorporated the Trust Deed Act’s requirements for nonjudicial 

foreclosures of assessment liens. See id. ¶ 17. The court of appeals

held that the association was therefore required to “appoint a 

qualified trustee to conduct the sale or foreclosure of a condominium 

owner’s interest in the unit.” Id. The association failed to strictly 

comply with the Trust Deed Act’s requirement to formally appoint a 

trustee by filing a substitution of trustee in the county recorder’s 

office. It simply had its attorney conduct the foreclosure process and 

sale. However, the association “act[ed] through its attorney,” id. ¶ 3, 

whom the association argued was “legally authorized to act on its 

behalf and conduct the foreclosure sale,” id. ¶ 19.

¶32 Despite noting that the Trust Deed Act’s requirement for the 

formal appointment of a qualified trustee is a procedural 

requirement similar to the requirement for “proper notice,” the court 

of appeals did not conduct any of the analysis required under 

Concepts. Id. ¶ 11. It simply determined that the foreclosure was not 

conducted in strict compliance with the Trust Deed Act because the 

sale was not conducted by a qualified trustee, and that the trustee’s 

deed was therefore invalid. Id. ¶¶ 19–21. This holding was based on 

its analysis that “[t]he purpose of requiring the appointment of a 

qualified trustee is to provide an independent third party who can 

objectively execute a foreclosure or sale in the absence of judicial 

oversight.” Id. ¶ 21. The court reasoned that the “underlying 
Cite as: 2017 UT 2

Opinion of the Court

13

rationale behind the trustee requirement thus strengthens our 

conclusion that a party must appoint a qualified trustee in order to 

enforce an assessment lien without judicial intervention.” Id.

However, we note that while a trustee certainly owes duties to both 

the beneficiary and the trustor, nothing in the Trust Deed Act 

requires the trustee to be an independent third party. In fact, the 

Trust Deed Act implies just the opposite. Utah Code section 57-1-

21(2) states that “[t]he trustee of a trust deed may not be the 

beneficiary of the trust deed, unless the beneficiary is qualified to be a 

trustee under Subsection (1)(a)(ii), (iii), (v), or (vi).” (emphasis 

added). Thus, it appears as though the legislature was more 

concerned that the trustee be able to competently fulfill the 

responsibilities of a trustee under the Trust Deed Act, than with the 

trustee’s status as an independent third party.6

¶33 Additionally, in McQueen, the attorney seems to have had 

actual authority to conduct the sale. This appears to have been an 

informal appointment of the attorney as trustee, even if it did not 

strictly comply with the Trust Deed Act’s requirement that the 

appointment be filed in the county recorder’s office. See UTAH CODE

§ 57-1-22(1)(a) (“The beneficiary may appoint a successor trustee at 

6 This is further supported by the fact that the Trust Deed Act 

authorizes the beneficiary under a trust deed to appoint or substitute 

a trustee at any time and that a trustee may be an attorney licensed 

in the state of Utah with an office in this state. UTAH CODE § 57-1-

21(1)(a)(i) & -22(1). Nothing in the Trust Deed Act prevents an 

association from appointing its own attorney as the trustee to 

conduct the foreclosure. McQueen’s holding is further undermined 

by Utah Code section 57-1-22(1)(c), which allows a beneficiary to 

“ratify and confirm an action taken on the beneficiary’s behalf by the 

new trustee prior to the recording of the substitution of trustee.” This 

confirms our prior precedent concerning void and voidable deeds. 

“A contract or a deed that is void cannot be ratified or accepted . . . . 

In contrast, a contract or deed that is voidable may be ratified at the 

election of the injured party.” Ockey v. Lehmer, 2008 UT 37, ¶ 18, 189 

P.3d 51. 

We acknowledge that there is some concern that a trustee may 

not adequately protect the interests of the trustor. However, the 

beneficiary’s and the trustor’s interests are often aligned— both want 

the highest price at the sale. In those instances where they are not 

aligned, the trustee must still avoid fraud and unfair dealing that 

“would have the effect of chilling the bidding and causing an 

inadequacy of price.” Concepts, Inc. v. First Sec. Realty Servs., Inc., 743 

P.2d 1158, 1159 (Utah 1987).
BANK OF AMERICA v. ADAMSONS

Opinion of the Court

14

any time by filing an appointment of trustee or a substitution of 

trustee for record in the office of the county recorder . . . .”); id. § 57-

1-22(1)(c) (“The beneficiary may, by express provision in the 

appointment of trustee or substitution of trustee, ratify and confirm 

an action taken on the beneficiary’s behalf by the new trustee prior to 

the recording of the substitution of trustee.”). Thus, the proper 

question in McQueen was whether the trustor was prejudiced by the 

beneficiary’s failure to strictly comply with the Trust Deed Act. To 

set aside a trustee’s deed, a court must determine whether the

trustee’s deed was void as against public policy, or voidable because 

of fraud, unfair dealing, or that the trustor suffered prejudice due to 

some defect in the sale, such as the trustee’s failure to strictly comply 

with the Trust Deed Act. We overrule McQueen to the extent that it 

implies otherwise. The court of appeals’ analysis of the remedy for 

lack of a qualified trustee has no bearing on this case. 

¶34 In the present case, the Adamsons do not present any 

arguments as to how the trustee’s deed violated public policy. We 

therefore hold that the district court erred in declaring the trustee 

sale void. We must still determine, however, whether the deed is 

voidable or valid. For the deed to be voidable, the trustor must show 

evidence of fraud or other unfair dealing, or that a defect prejudiced 

the trustor. Fraud or unfair dealing were never alleged in this case, 

so we limit our inquiry to whether Mr. Adamson suffered prejudice 

from ReconTrust’s failure to comply with Utah Code section 57-1-21.

¶35 ReconTrust was properly appointed by the beneficiary as 

successor trustee and held legal title to the property. The only issue 

is whether ReconTrust’s failure to maintain an office in the state of 

Utah prejudiced the Adamsons. The record reflects that 

Mr. Adamson did not suffer prejudice caused by ReconTrust’s status 

as an out-of-state trustee and therefore does not qualify for damages 

and cannot move to set aside the sale. Mr. Adamson claims that 

“because [neither] ReconTrust nor Bank of America has an office in 

the State of Utah, Mr. Adamson paid Fortified Financial the sum of 

$3,700.00 to make contact with Bank of America and assist the 

Adamsons with negotiations for a loan modification.” 

¶36 But this assertion does not explain why ReconTrust’s status 

as out-of-state trustee led to Mr. Adamson’s actions or prejudiced 

him. His negotiations with Bank of America to obtain a loan 

modification are irrelevant to the question of whether ReconTrust’s 

failure to comply with section 57-1-21 prejudiced Mr. Adamson’s 

rights in the foreclosure process. The record reflects that although 

ReconTrust properly sent Mr. Adamson notice of the foreclosure and 

the sale date, and Mr. Adamson had ReconTrust’s phone number on 

the notice of default, he never attempted to contact ReconTrust 
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Opinion of the Court

15

before the scheduled sale date, and did not attend the sale. 

Additionally, Mr. Adamson did not seek an injunction or file a 

lawsuit prior to the sale. It was not until after the sale that 

Mr. Adamson contacted ReconTrust by telephone. In order to show 

prejudice, Mr. Adamson would have to show that he would have 

gone to a brick-and-mortar office in Utah if such an office were 

available, and that this would have changed the outcome of the sale. 

There is no evidence in the record that Mr. Adamson would have 

gone in person to ReconTrust’s office, especially in light of the fact 

that although ReconTrust’s phone number was included on the 

notice of default, Mr. Adamson did not even attempt to contact 

ReconTrust until after the sale. And even if he were to personally 

visit such an office, there is no evidence that this would have 

changed the outcome of the foreclosure sale, as there is no evidence 

in the record that Mr. Adamson was capable of curing the default.7

Therefore, this sale was not voidable and the Adamsons may not 

seek to set it aside or qualify for damages. The district court erred in 

dismissing the unlawful detainer action by finding the trustee’s deed 

to be void.

¶37 As a final note, in 2011, after the trustee sale took place, the 

Utah legislature adopted Utah Code section 57-1-23.5, which 

provides that “a person who does not qualify as a trustee under 

Subsection 57-1-21(1)(a)(i) or (iv) . . . [and] conducts an unauthorized 

sale is liable to the trustor for the actual damages suffered by the 

trustor as a result of the unauthorized sale or $2,000, whichever is 

greater.” This statutory remedy is not retroactive, however, and is 

not applicable to the present case. 

CONCLUSION

¶38 Today we clarify the differences between void, voidable, 

and valid trustee’s deeds under Utah law. The trustee sale and 

resulting trustee’s deed at issue in this case are neither void nor 

voidable. The district court erred in dismissing the unlawful detainer 

action, and we therefore reverse and remand for further proceedings 

consistent with this opinion.

7 Mr. Adamson was trying to negotiate a loan modification with 

Bank of America, but Bank of America was not required to accept 

such a modification after Mr. Adamson received the notice of 

default. At that point, Mr. Adamson’s statutory right of redemption 

required curing the default.