2020 UT App 54

THE UTAH COURT OF APPEALS

IN RE EXCESS PROCEEDS FROM THE FORECLOSURE OF PROPERTY 

LOCATED AT 1107 SNOWBERRY STREET, PARK CITY, UTAH

OCEAN 18 LLC; AND AMIR HECHTER,

Appellants,

v.

OVERAGE REFUND SPECIALISTS LLC; AND BRIAN DOWD,

Appellees.

Opinion

No. 20190257-CA

Filed April 2, 2020

Third District Court, Silver Summit Department

The Honorable Kent R. Holmberg

No. 180500253

Troy L. Booher, Beth E. Kennedy, and Kenyon D. 

Dove, Attorneys for Appellants

R. Spencer MacDonald and Elizabeth M. Peck, 

Attorneys for Appellees

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES

KATE APPLEBY and DIANA HAGEN concurred.

HARRIS, Judge:

¶1 In 2006, a property owner (Owner) borrowed $500,000 

from Instant Mortgage Lending, Inc. (IML); the loan was 

memorialized in a promissory note in favor of IML. The parties 

intended the loan to be secured by a deed of trust on Owner’s 

home (the Property), but on the first page of the deed (Trust 

Deed), Instant Funding, L.L.C. (Instant Funding)—and not 

IML—was listed as the “Beneficiary,” even though the Trust 

Deed later defined the term “Beneficiary” as the “owner and 

holder . . . of the note secured hereby.”
In re Foreclosure

20190257-CA 2 2020 UT App 54

¶2 Several years later, in 2018, the Property was sold, and 

after certain priority lienholders were paid, more than $273,000 

of excess proceeds remain to be distributed. Appellants Ocean 18

LLC and Amir Hechter (collectively, Ocean 18) purport to be the 

successors-in-interest to IML, and claim an entitlement to those 

proceeds. Ocean 18’s claim is contested by two other lowerpriority claimants, who assert that—due to Instant Funding 

being listed as the beneficiary on the first page of the Trust 

Deed—IML never had any claim to the Property to begin with, 

and therefore could not have conveyed anything to Ocean 18. 

The district court, after considering briefing and holding oral 

argument, agreed with the lower-priority claimants. It 

determined as a matter of law that Instant Funding was the 

beneficiary of the Trust Deed, declared Ocean 18’s claim invalid, 

and awarded the proceeds to the lower-priority claimants. 

Ocean 18 now appeals.

¶3 We conclude that the Trust Deed is ambiguous regarding 

the identity of its beneficiary, but determine that we can resolve 

at least some of that ambiguity on the record before us. As a 

matter of law and undisputed fact, Instant Funding was never 

intended to be the beneficiary of the Trust Deed and, further, at 

the time the deed was created the parties intended for IML to be 

the beneficiary. Beyond that, however, the record before us does 

not permit resolution of this case as a matter of law, and we 

therefore reverse and remand for further proceedings in order

to, among other things, determine whether Ocean 18 is the valid 

successor-in-interest to the actual beneficiary of the Trust Deed.

BACKGROUND

¶4 In early 2006, IML loaned $500,000 to Owner, who 

executed a promissory note (the Note) promising to repay the 

loan; the Note lists “Instant Mortgage Lending, Inc.” as the 

lender and holder of the Note. In connection with the loan 

transaction, Owner also executed the Trust Deed, granting a 

security interest in the Property—a home located in the 
In re Foreclosure

20190257-CA 3 2020 UT App 54

Glenwild area near Park City, Utah—to an entity. On February

24, 2006, just a few days after its execution, the Trust Deed was 

duly recorded with the Summit County Recorder’s Office. At 

issue in this case, among other things, is the identity of the entity 

to whom Owner granted this security interest.

¶5 In its first paragraph, the Trust Deed proclaims that 

Owner is granting the security interest to “Instant Funding, 

L.L.C., a Nevada limited liability company, as Beneficiary, 

whose mailing address is Instant Mortgage Lending, a California 

corporation, 5415 Oberlin Drive, San Diego, CA 92121.” 

However, on its last page, in paragraph 16, the Trust Deed states 

that “[t]he term ‘Beneficiary’ shall mean the owner and holder, 

including any pledgee, of the note secured hereby.”

¶6 The original Note indicates that its holder is “Instant 

Mortgage Lending, Inc.” But the Note was amended on seven 

future occasions, beginning on August 28, 2006, and never again 

did the drafters indicate that the holder was “Instant Mortgage 

Lending, Inc.” Instead, the holder is listed, variably, as “Instant 

Mortgage Lending,” “Instant Mortgage Lending Corp.,” and 

“Nationwide Servicing Center, Inc.” It is undisputed that the 

“owner and holder” of the Note secured by the Trust Deed was 

never Instant Funding, and that Instant Funding was not the 

entity that loaned $500,000 to Owner. But the parties do not 

agree that the Note (and its seven amendments) makes clear 

who the “owner and holder” actually is.

¶7 Soon after the Trust Deed was recorded, interested parties 

recognized that it had not been drafted with precision. In late 

May 2006, the trustee recorded a document entitled “Notice of 

Correction of Beneficiary Address in Trust Deed.” In that 

document, Instant Funding was again listed as beneficiary in the 

opening paragraph, but its mailing address was changed to 

eliminate all reference to “Instant Mortgage Lending, a 

California corporation.” This time, the “correct mailing address 

for Beneficiary” was listed simply as “Instant Funding, LLC, 

5415 Oberlin Drive, San Diego, CA 92121.”
In re Foreclosure

20190257-CA 4 2020 UT App 54

¶8 A little more than two months later, on August 3, 2006, 

the trustee recorded another document, this one entitled “Notice 

of Clerical Correction to Trust Deed to Conform with Record.” In 

this document, the trustee purported to amend both the name 

and the mailing address of the beneficiary. The document 

proclaims that “[n]otice is hereby given of the correct name and 

mailing address for Beneficiary, Instant Mortgage Lending 

Corp., a California corporation, also known as Instant Mortgage 

Lending, Inc.,” whose mailing address is “3830 Valley Centre 

Dr., Ste 705, Pmb 182, San Diego CA 92130.” The document 

states that “[t]he incorrect reference in said Deed of Trust to 

Instant Funding, LLC, as Beneficiary . . . is hereby deleted and 

corrected by this Notice.” The document was executed only by 

the trustee and not by Instant Funding; in fact, the record 

submitted to us on appeal does not contain any document 

signed by Instant Funding in which it purported to give up any 

interest it might have had in the original Trust Deed.

¶9 Several years later, in 2012, IML assigned its interest in 

the Note and Trust Deed to Ocean 18 and three other 

individuals; in 2013, the three individuals assigned their interest 

to Ocean 18 and Amir Hechter, who now purport to own all of 

IML’s interest—whatever that interest might be—in the Note 

and Trust Deed.

¶10 In 2018, a priority lienholder foreclosed on the Property, 

which was then sold at a trustee’s sale. After the priority 

lienholder was paid, the sale trustee deposited the excess 

proceeds—over $286,000—with the district court pursuant to 

Utah law, which allows a trustee the “discretion” to “deposit the 

balance of the proceeds with the clerk of the district court of the 

county in which the sale took place.” See Utah Code Ann. § 57-1-

29(1)(a)(iii)(B) (LexisNexis 2017).

¶11 Following deposit of the funds, the district court sent 

notice to all individuals and entities known to possess a possible 

interest in the excess proceeds. Five claimants submitted claims, 

two of which were relatively small and unquestionably had 
In re Foreclosure

20190257-CA 5 2020 UT App 54

priority. After payment of the two smaller claims, over $273,000 

of proceeds remained, and three claimants sought the money:

• Ocean 18, claiming to be the successor-ininterest to IML, made a claim dating to 2006 in 

the amount of over $396,000.

• Brian Dowd, a judgment creditor of Owner 

dating to 2018, made a claim in the amount of 

$125,000.

• Overage Refund Specialists (Overage), 

successor-in-interest to Owner, made a claim 

for any proceeds left over once all of the other 

valid claims are paid.

If Ocean 18’s claim is valid, its claim has priority over the other 

two remaining claims, and is of sufficient size to use up all of the 

remaining excess proceeds, leaving Dowd and Overage with 

nothing. On the other hand, if Ocean 18’s claim is not valid, it 

will receive nothing, Dowd will be fully paid, and Overage will 

receive whatever remains, something on the order of $148,000. It 

thus became important for the district court to determine 

whether Ocean 18’s claim is valid.

¶12 To that end, the district court invited the parties to submit 

briefs on, among other issues, the question of the validity of 

Ocean 18’s claim. Dowd and Overage opposed Ocean 18’s claim, 

asserting that Ocean 18’s chain of title was “rife with 

inconsistencies,” and pointing out that Instant Funding—and not 

IML, Ocean 18’s predecessor-in-interest—was the listed 

beneficiary on the first page of the original Trust Deed. They 

further asserted that the inconsistencies could not have been 

corrected by the two post-transaction documents purporting to 

correct the record, because those documents were not signed by 

Instant Funding, and because the problem the documents were 

trying to fix was no mere “clerical” error. Dowd and Overage 
In re Foreclosure

20190257-CA 6 2020 UT App 54

also claimed that the later conveyances that purportedly passed 

IML’s interest on to Ocean 18 were defective.

¶13 In response, Ocean 18 asserted that the mistake in setting 

forth the identity of the beneficiary on the Trust Deed had been a 

“minor scrivener error,” and submitted a sworn declaration 

from its president—an individual who was formerly the 

president of IML, and who also once “originated loans with a 

group named Instant Funding, LLC”—who averred that Instant 

Funding was “mistakenly listed as the beneficiary” on the Trust 

Deed, and that this “identification was erroneous and was 

subsequently corrected” by the August 2006 recording of the 

“Notice of Clerical Correction.” Other than this declaration, no 

party submitted any extrinsic evidence of what the parties to the 

Note and Trust Deed may have intended. And no party 

expressly claimed that the Trust Deed was ambiguous.

¶14 After full briefing, the district court heard oral argument 

from counsel. Although the record submitted to us does not 

contain a transcript of that hearing, the district court issued a 

four-page written ruling a few weeks later, and therein noted 

that, at the hearing, “counsel confirmed to the Court that they 

were submitting the issues regarding the priority of their 

respective claims on their written briefs and that an evidentiary 

hearing was unnecessary.” And our review of the record also 

fails to turn up any request by any party for additional 

discovery, whether filed pursuant to rule 56(d) of the Utah Rules 

of Civil Procedure or in any other manner.

¶15 In the court’s written decision, it ruled that IML had no 

interest in the Trust Deed, because the first page of that 

document listed Instant Funding—and not IML—as the 

beneficiary. Apparently persuaded by the conclusiveness of the

declaration on the Deed’s first page, the court stated that, “in the 

absence of a valid conveyance or assignment of interest from 

[Instant Funding] to Instant Mortgage Lending, Inc./Instant 

Mortgage Lending Corp., [Instant Funding] remained the 

beneficiary under the” Trust Deed. The court concluded that the 
In re Foreclosure

20190257-CA 7 2020 UT App 54

August 2006 “correction” did not change the situation, because 

misidentification of a beneficiary is not a clerical or scrivener’s 

error that can be addressed without a document signed by 

Instant Funding. In summary, the court ruled that IML “simply 

had no interest to convey” to Ocean 18 in the subsequent 

transactions. The court did not consider whether the Trust Deed 

was ambiguous, and (given the nature of its ruling) did not 

examine the validity of the 2012 and 2013 conveyances.

¶16 After making its ruling, the district court issued an order 

and judgment distributing $125,000 of the excess proceeds to 

Dowd, over $148,000 to Overage, and nothing to Ocean 18. The 

district court later stayed enforcement of that judgment, pending 

the outcome of this appeal.

ISSUE AND STANDARD OF REVIEW

¶17 Ocean 18 appeals from the district court’s judgment, and 

asserts that the court erred in concluding, as a matter of law, that 

it had no interest in the Trust Deed.1 Both parties assert that the 

 

1. Overage and Dowd contend that Ocean 18 has failed to 

preserve its challenge for appellate review, asserting that Ocean 

18 never asked the district court to “look to the language of the 

[Trust D]eed as a whole” or to construe the Trust Deed “to give 

effect to the intent of the parties.” Overage and Dowd 

misunderstand the scope of an appellant’s preservation 

obligation. Our preservation jurisprudence draws a distinction 

between “issues” (which must be preserved) and “arguments” 

(which consist merely of authority in support of a party’s 

position on an issue, and do not need to be specifically made at 

the trial level in order to be included in a brief on appeal). See

Gressman v. State, 2013 UT 63, ¶ 45, 323 P.3d 998 (“Issues must be 

preserved, not arguments for or against a particular ruling on an 

issue raised below.”). The issues preserved for appeal include 

both whether IML was the beneficiary of the Trust Deed and, if 

(continued...)
In re Foreclosure

20190257-CA 8 2020 UT App 54

question presented is a mixed question of law and fact, in which 

case we would review the district court’s factual findings for 

clear error and its legal determinations for correctness. But the 

district court did not purport to make any factual findings; 

indeed, the court decided this matter after considering only 

briefing and oral argument, without taking evidence. In essence, 

although neither the parties nor the court framed it this way, the 

court made a summary judgment ruling in which it determined, 

as a matter of law and undisputed fact, that Ocean 18 had no 

interest in the Trust Deed. It is of course well-settled that we 

review a district court’s summary judgment rulings for 

correctness, see Zundel v. Magana, 2015 UT App 69, ¶ 4, 347 P.3d 

444, and we apply that standard of review to the district court’s 

ruling in this case.

ANALYSIS

¶18 After briefing and argument, but without the benefit of an 

evidentiary hearing, the district court issued an order reaching 

two important conclusions. First, the court determined that 

Instant Funding was the beneficiary of the 2006 Trust Deed. 

Second, based on its first conclusion, the court then determined 

that IML “had no interest [in the Trust Deed] to convey,” and

that therefore Ocean 18—as purported successor-in-interest to 

IML—had no interest in the Trust Deed either. Ocean 18 

challenges both of those conclusions, and not only asks this court 

to reverse them but also asks us to determine that it should 

 

(...continued)

so, whether Ocean 18 succeeded to IML’s interest under the 

Trust Deed. On appeal, Ocean 18 is entitled to make new 

arguments, and cite new authorities, in support of the issues it 

raised below, even if it did not cite those authorities at the 

district court level. We have no trouble concluding that the 

issues presented in Ocean 18’s appeal were properly preserved 

for our review.
In re Foreclosure

20190257-CA 9 2020 UT App 54

prevail as a matter of law. We are not willing to go as far, at this 

point and on this record, as Ocean 18 asks us to. But we agree 

with Ocean 18 that the district court’s first conclusion was 

infirm, and we conclude that questions of fact preclude entry of 

judgment, at least on the record before us, in either party’s favor 

on the second issue.

¶19 We begin our analysis by setting forth applicable 

principles of contractual interpretation that guide our analysis. 

We then analyze the first issue—whether the district court 

correctly determined that Instant Funding was the beneficiary of 

the Trust Deed—and conclude that the district court erred, and 

that actually, as a matter of law, Instant Funding was not the 

beneficiary of the Trust Deed. After that, we address the second 

question, and determine, as a matter of law, that—at least at the 

time the Trust Deed was executed—the parties intended for IML 

to be the beneficiary. However, the record before us does not 

permit us to conclusively determine, as a matter of law, whether

IML validly conveyed any interest to Ocean 18. Accordingly, we 

must remand for further proceedings.

A

¶20 At their most basic level, deeds are simply a particular 

type of contract between parties. Indeed, Utah appellate courts 

have long made clear that “deeds are to be construed like other 

written instruments,” see Keith v. Mountain Resorts Dev. LLC, 2014 

UT 32, ¶ 21, 337 P.3d 213 (quotation simplified), “according to 

ordinary rules of contract construction,” Panos v. Olsen & Assocs.

Constr., Inc., 2005 UT App 446, ¶ 15, 123 P.3d 816 (quotation 

simplified); Keith, 2014 UT 32, ¶ 21 (“Courts interpreting a deed 

should employ all appropriate tools of construction to arrive at 

the best interpretation of its language.” (quotation simplified)). 

Therefore, we must construe the Trust Deed according to 

generally applicable rules of contractual interpretation.

¶21 Under those rules, the “overriding principle” is that the 

“intentions of the parties are controlling.” See Layton City v. 
In re Foreclosure

20190257-CA 10 2020 UT App 54

Stevenson, 2014 UT 37, ¶ 21, 337 P.3d 242 (quotation simplified); 

see also Mind & Motion Utah Invs., LLC v. Celtic Bank Corp., 2016 

UT 6, ¶ 24, 367 P.3d 994 (“When interpreting a contract, our task 

is to ascertain the parties’ intent.”); Morris v. Off-Piste Capital 

LLC, 2018 UT App 7, ¶ 21, 418 P.3d 66 (stating that, when 

interpreting an assignment of a deed, “courts endeavor to carry 

out the grantor’s intention whenever it is possible” (quotation 

simplified)). And in attempting to ascertain the intent of the 

contracting parties, the appropriate place to begin is with the 

language the parties agreed to use. See Central Fla. Invs., Inc. v. 

Parkwest Assocs., 2002 UT 3, ¶ 12, 40 P.3d 599 (“We first look to 

the plain language within the four corners of the agreement to 

determine the intentions of the parties.”); see also Mind & Motion, 

2016 UT 6, ¶ 24 (stating that “the best indication of the parties’ 

intent is the ordinary meaning of the contract’s terms”). In 

evaluating the language of a contract or deed, courts examine 

the instrument in its entirety, considering “each contract 

provision in relation to all of the others, with a view toward 

giving effect to all and ignoring none.” See Café Rio, Inc. v. LarkinGifford-Overton, LLC, 2009 UT 27, ¶ 25, 207 P.3d 1235 (quotation 

simplified); see also Hartman v. Potter, 596 P.2d 653, 656 (Utah 

1979) (stating that “the cardinal rule of deed construction” is that 

“the intention of the parties as drawn from the whole deed must 

govern”). Before concluding that a contract is ambiguous, a court 

must first attempt to “harmoniz[e] conflicting or apparently 

ambiguous contract language,” an exercise in which “we 

examine the entire contract and all of its parts in relation to each 

other and give a reasonable construction of the contract as a 

whole to determine the parties’ intent.” Gillmor v. Macey, 2005 

UT App 351, ¶ 19, 121 P.3d 57 (quotation simplified).

¶22 In many cases, we need look no further than the plain 

language of the contract, because that language may 

unambiguously tell us what the parties intended. Indeed, where 

the language used in the contract is “facial[ly]” unambiguous, see

Daines v. Vincent, 2008 UT 51, ¶¶ 25–26, 190 P.3d 1269, “the 

parties’ intentions are determined from the plain meaning of the 

contractual language, and the contract may be interpreted as a 
In re Foreclosure

20190257-CA 11 2020 UT App 54

matter of law,” without resort to parol evidence, see Café Rio, 

2009 UT 27, ¶ 25 (quotation simplified). But in other instances—

those in which the contractual language is facially ambiguous—a 

court will not be able to tell, simply from an examination of the 

contract’s plain language, what the parties intended. In those 

situations, “parol evidence of the parties’ intentions should be 

admitted.” See Daines, 2008 UT 51, ¶ 25; see also Central Fla. Invs., 

2002 UT 3, ¶ 12 (“If the language within the four corners of the 

contract is ambiguous, . . . extrinsic evidence must be looked to 

in order to determine the intentions of the parties.”).

¶23 Thus, one of the first questions a court must consider in 

interpreting a contract is whether the contract is ambiguous. 

Under Utah law, whether a contract is (or is not) ambiguous is 

“a question of law to be determined by the judge.” Daines, 2008 

UT 51, ¶ 25; see also WebBank v. American Gen. Annuity Service

Corp., 2002 UT 88, ¶ 22, 54 P.3d 1139 (“Whether an ambiguity 

exists in a contract is a question of law.” (quotation simplified)). 

“A contract is facially ambiguous if its terms are capable of more 

than one reasonable interpretation because of uncertain 

meanings of terms, missing terms, or other facial deficiencies.” 

Mind & Motion, 2016 UT 6, ¶ 24 (quotation simplified). A 

“reasonable interpretation” is one “that cannot be ruled out, 

after considering the natural meaning of the words in the 

contract provision in context of the contract as a whole, as one 

the parties could have reasonably intended.” See Brady v. Park, 

2019 UT 16, ¶ 55, 445 P.3d 395. Crucially, ambiguity is present 

only if both proffered interpretations of the contract’s language 

are “tenable” and in keeping with the contract’s language. See

R & R Energies v. Mother Earth Indus., 936 P.2d 1068, 1074 (Utah 

1997) (stating that a contract is “not necessarily ambiguous just 

because one party gives [a] provision a different meaning than 

another party does,” but instead, “the contrary positions of the 

parties must each be tenable” (quotation simplified)); see also

Brady, 2019 UT 16, ¶ 55 (stating that if “either of the competing 

interpretations could reasonably have been what the parties 

intended when they entered into the contract, then the contract 

is ambiguous”). A contract containing terms that are “in 
In re Foreclosure

20190257-CA 12 2020 UT App 54

irreconcilable conflict” and cannot be harmonized is ambiguous. 

See American Bonding Co. v. Nelson, 763 P.2d 814, 816 (Utah Ct. 

App. 1988).

B

¶24 With those background principles in mind, we proceed to 

examine the language of the Trust Deed. The parties advance 

differing positions as to the Trust Deed’s clarity. Before the 

district court, although both sides advocated for diametrically 

opposed interpretations of the Trust Deed and associated 

documents, neither side expressly argued that the recorded 

documents, including the Trust Deed, were ambiguous. On 

appeal, neither side uses any variant of the word “ambiguous” 

in their briefs, though Dowd and Overage argue that “the intent 

of the parties is anything but clear” in the recorded documents, 

which they describe as “exceedingly confusing.” Ocean 18, on 

the other hand, continues to maintain that the recorded 

documents at issue in this case are models of “clarity,” are “not 

confusing,” and clearly indicate an intent to make IML the 

beneficiary of the Trust Deed.

¶25 Parties do not need to use the word “ambiguous” in order 

for a court to determine that a document is indeed ambiguous. 

See, e.g., Waste Connections of Kansas, Inc. v. Ritchie Corp., 298 P.3d 

250, 265 (Kan. 2013) (stating that “the parties’ agreement or lack 

of agreement on the existence of ambiguity does not compel the 

court to arrive at the same conclusion”); North Central Oil Corp. v. 

Louisiana Land & Expl. Co., 22 S.W.3d 572, 575 (Tex. App. 2000) 

(“A court may conclude that a contract is ambiguous even in the 

absence of such a pleading by either party.”). If both sides 

advance interpretations of the Trust Deed that are plausible and 

reasonably supported by the document’s language, then the 

document is ambiguous, even if neither party actually uses that 

label to describe the document. Indeed, that is the very definition 

of contractual ambiguity. See Mind & Motion, 2016 UT 6, ¶ 24 (“A 

contract is facially ambiguous if its terms are capable of more 

than one reasonable interpretation . . . .” (quotation simplified)). 
In re Foreclosure

20190257-CA 13 2020 UT App 54

In our view, both sides espouse interpretations of the Trust Deed 

that are plausible and reasonably supported by its language, and 

we therefore conclude that the Trust Deed is ambiguous.

¶26 Dowd and Overage advance an interpretation that relies 

heavily on the first paragraph of the Trust Deed, which 

proclaims that Instant Funding (and not IML) is the beneficiary. 

Dowd and Overage contend that this paragraph is controlling, 

and that we need look no further in ascertaining the parties’ 

intentions regarding the identity of the beneficiary. We 

acknowledge that language used in the first paragraph of the 

Trust Deed strongly supports Dowd’s and Overage’s position; 

indeed, if there were no contrary provisions, we would be 

inclined to agree with their interpretation.

¶27 But there are contrary provisions, and we must examine

the Trust Deed as a whole. See Hartman, 596 P.2d at 656 

(explaining “the cardinal rule of deed construction that the 

intention of the parties as drawn from the whole deed must 

govern” (quotation simplified)). Indeed, another provision of the 

Trust Deed—paragraph 16, a provision upon which Ocean 18 

heavily relies—states that the “term ‘Beneficiary’ shall mean the 

owner and holder of the [N]ote secured hereby.”2 A separate

 

2. Regardless of whether the Note is considered part of the Trust 

Deed, or extrinsic evidence of the intent of the drafters of the 

Trust Deed, we may consider the language of the Note in the 

process of evaluating whether the Trust Deed is ambiguous. The

Trust Deed repeatedly and expressly refers to the Note. Indeed, 

the Trust Deed proclaims that its purpose is to “secur[e] . . . the 

payment of indebtedness evidenced by” the Note; specifies that 

“Beneficiary is relying upon this Trust Deed as an inducement to 

make the subject loan” to Owner, “and that absent the grant of a 

security interest in the Property in favor of Beneficiary pursuant 

to this Trust Deed . . . Beneficiary would not have made the 

subject loan” to Owner; and expressly ties the definition of 

(continued...)
In re Foreclosure

20190257-CA 14 2020 UT App 54

provision of the Trust Deed similarly relies upon the Note, 

emphasizing that the beneficiary of the Trust Deed “is relying 

upon this Trust Deed as an inducement to make the subject 

loan” to Owner, “and that absent the grant of a security interest 

in the Property in favor of Beneficiary pursuant to this Trust 

Deed that Beneficiary would not have made the subject loan” to 

Owner. And the Note does not—in any of its iterations or 

amendments—make any mention of Instant Funding as its 

owner or holder.

¶28 In our view, the language of the Trust Deed is ambiguous 

with regard to the identity of the beneficiary. We certainly 

appreciate the position taken by Dowd and Overage—and 

adopted by the district court—that the Trust Deed’s first 

paragraph should control, and that paragraph clearly announces 

 

(...continued)

“Beneficiary” to the Note, indicating that the beneficiary under 

the Trust Deed is the “owner and holder” of the Note. “Parties 

may incorporate the terms of another document by reference 

into their contract,” see Northgate Village Dev., LC v. Orem City, 

2014 UT App 86, ¶ 26, 325 P.3d 123 (quotation simplified), and 

the parties to the transaction at issue here appear to have 

incorporated the Note into the Trust Deed such that we may 

consider the language of the Note in determining whether the 

Trust Deed is ambiguous. Alternatively, Utah appellate courts 

have made clear that, even in the process of considering whether 

a document is ambiguous, extrinsic evidence may be considered, 

so long as the evidence advances an interpretation of the text 

that is “reasonably supported by the language of the contract.” 

See Daines v. Vincent, 2008 UT 51, ¶ 30, 190 P.3d 1269 (quotation 

simplified). In our view, Ocean 18’s interpretation is reasonably 

supported by language in the Trust Deed that expressly refers to 

the Note, and therefore we may examine the language of the 

Note in connection with our examination of the Trust Deed’s 

potential ambiguity.
In re Foreclosure

20190257-CA 15 2020 UT App 54

that Instant Funding is the beneficiary of the Trust Deed. But we 

must review the documents in their entirety and construe them 

as a whole, and there are other provisions that point in the other 

direction, including the provisions that refer to the Note. Instant 

Funding was clearly not the entity that lent Owner $500,000 

pursuant to the Note, and is therefore clearly not the entity 

referred to in paragraph 16 of the Trust Deed, which defines 

“Beneficiary” by reference to the Note. When we view the Trust 

Deed in its entirety, some of its terms are “in irreconcilable 

conflict” and cannot be harmonized through examination of the 

text alone. See American Bonding Co., 763 P.2d at 816. Thus, we 

can come to no other conclusion but that the text of the Trust 

Deed is facially ambiguous as to the identity of its beneficiary.

C

¶29 If a court determines, as a legal matter, that a contract is 

facially ambiguous, then a question of fact exists as to the 

parties’ intentions. See Daines v. Vincent, 2008 UT 51, ¶ 25, 190 

P.3d 1269; see also WebBank v. American Gen. Annuity Service

Corp., 2002 UT 88, ¶ 22, 54 P.3d 1139 (“When ambiguity exists, 

the intent of the parties becomes a question of fact.” (quotation 

simplified)). As noted, at this stage of the proceedings, “parol 

evidence of the parties’ intentions should be admitted.” Daines, 

2008 UT 51, ¶ 25 (quotation simplified). As with any question of 

fact, the resolution of the question of the parties’ intentions 

regarding an ambiguous contract is usually reserved for the 

factfinder after trial. See Brady, 2019 UT 16, ¶ 53 n.37 (“When 

ambiguity does exist, the intent of the parties is a question of fact 

to be determined by the jury.” (quotation simplified)). But even 

questions of fact may be decided as a matter of law at the 

summary judgment stage, so long as the parol evidence 

submitted by the parties is so one-sided that a reasonable 

factfinder could reach but one conclusion. See Cross v. Olsen, 2013 

UT App 135, ¶ 29, 303 P.3d 1030 (“Summary judgment is 

appropriate on . . . factual questions when they fall on either end 

of a factual continuum: when there could be no reasonable 

difference of opinion, or when the facts are so tenuous, vague, or 
In re Foreclosure

20190257-CA 16 2020 UT App 54

insufficiently established that determining the factual issue 

becomes completely speculative.” (quotation simplified)); see also

Northgate Village Dev., LC v. Orem City, 2014 UT App 86, ¶ 35, 325 

P.3d 123 (stating that, “when facial ambiguity exists and the 

competing interpretations both enjoy evidentiary support, the

parties’ intent becomes a question of fact to be determined by the 

jury” (quotation simplified)).

¶30 We next proceed to examine the extrinsic evidence 

regarding the identity of the beneficiary under the Trust Deed. 

We first determine that the extrinsic evidence is clear and onesided enough to allow us to conclude, as a matter of law, that 

Instant Funding was not the beneficiary under the Trust Deed. 

We next determine that the extrinsic evidence is clear enough to 

allow us to also conclude, as a matter of law, that the beneficiary 

under the Trust Deed—at least at the time the Trust Deed was 

executed—was IML. However, the record before us does not 

allow us to make further determinations as a matter of law on 

other questions pertinent to this case, including whether IML 

remained the beneficiary in light of the various amendments to 

the Note, and whether the 2012 and 2013 conveyances of IML’s 

interest in the Trust Deed to Ocean 18 were valid.

1

¶31 The universe of extrinsic evidence submitted in this case 

is not extensive. Although the parties submitted briefs to the 

district court on the question of the identity of the beneficiary 

under the Trust Deed, the record before us does not indicate that 

the parties conducted any discovery at all on the question. No 

party noticed or took any depositions, and the record is unclear 

as to whether any written discovery requests were exchanged. 

The parties appear to have relied heavily on the available 

documents, including the Note (and its amendments), the Trust 

Deed, and the correction documents filed in 2006. Indeed, at oral 

argument before the district court, the parties each apparently 

turned down the opportunity to present evidence to the court, 
In re Foreclosure

20190257-CA 17 2020 UT App 54

and no party suggested to the court that it should hold off on 

deciding the matter until further discovery could be had.

¶32 In connection with the briefing submitted to the district 

court, the parties identified only two items that clearly fall into 

the category of extrinsic evidence.3 First, Ocean 18 asked the 

court to take into account the parties’ course of dealing, 

including their actions before and after IML’s loan to Owner; 

specifically, Ocean 18 points out that it is undisputed that IML, 

and not Instant Funding, loaned $500,000 to Owner, and posits 

that IML would not have done that if the parties had not 

intended for IML to be the beneficiary under the Trust Deed. 

Conversely, Ocean 18 notes that, on this record, there is no 

evidence that Instant Funding ever loaned Owner any money, 

and a determination that Instant Funding is the beneficiary of 

the Trust Deed would grant Instant Funding a windfall for 

doing, it seems, nothing at all. That outcome makes little sense, 

and we agree with Ocean 18’s assertion that the parties’ course 

of dealing strongly indicates that Instant Funding was not the 

intended beneficiary.

¶33 Second, Ocean 18 submitted a sworn declaration filed by 

its president—an individual who was formerly the president of 

IML, and who also once “originated loans with a group named 

Instant Funding, LLC”—in which he avers that Instant Funding 

was “mistakenly listed as the beneficiary” on the Trust Deed, 

and states that this “identification was erroneous and was 

subsequently corrected” by the August 2006 recording of the 

“Notice of Clerical Correction.” This declaration stands 

 

3. Additional useful extrinsic evidence may not exist, given the 

passage of time since the documents were executed. Indeed, at 

oral argument on appeal, the court asked counsel for Overage to 

provide examples of where—or how—Dowd and Overage 

might look for additional extrinsic evidence that could be used 

to supplement the record and bolster their position, and counsel 

was unable to identify additional potential sources of evidence.
In re Foreclosure

20190257-CA 18 2020 UT App 54

undisputed, on this record; no other individual involved in the 

drafting of the documents has come forward to contradict the 

declaration submitted by Ocean 18.

¶34 When we examine this body of extrinsic evidence, it leads 

to but one conclusion: that the drafters of the Trust Deed made a 

mistake when they indicated, on the document’s first line, that 

Instant Funding was to be the beneficiary under the Trust Deed. 

The only party involved in drafting the documents that has been 

heard from on the matter has averred that this is indeed what 

happened—that a mistake was made in drafting the Trust Deed, 

and that the drafters’ original intent was for IML, and not Instant 

Funding, to be the beneficiary. This testimony squares with the 

undisputed course of dealing between IML and Owner: that 

soon after execution of the Note and Trust Deed, IML—and not 

Instant Funding—loaned Owner $500,000. Indeed, the entire 

structure of the transaction appears aimed at securing IML’s 

loan to Owner.

¶35 Dowd and Overage correctly point out that the May 2006 

correction document sits on the other side of the evidentiary 

ledger. In that document, executed just three months after the 

Trust Deed, the trustee again indicated that Instant Funding 

(albeit this time with a different mailing address) was the 

beneficiary under the Trust Deed. But the problem with relying 

on the May 2006 correction document in this manner is that the 

trustee soon corrected the correction. In early August 2006, the 

trustee filed a second correction document, this time clarifying 

that Instant Funding was not the beneficiary under the Trust 

Deed, and that “Instant Mortgage Lending Corp.” was the 

“correct name” of the beneficiary. And, as noted above, the only 

sworn testimony in the record about the meaning of these 

documents is that the August 2006 document correctly reflects 
In re Foreclosure

20190257-CA 19 2020 UT App 54

the intentions of the drafters regarding the identity of the Trust 

Deed’s beneficiary.4

¶36 In sum, the available extrinsic evidence on the issue of 

whether Instant Funding was ever intended to be the beneficiary 

under the Trust Deed points strongly in one direction: Instant 

Funding was not intended to be the beneficiary. Indeed, in our 

view, the evidence points so strongly in that direction that we 

can conclude, as a matter of law, that Instant Funding was not

the beneficiary of the Trust Deed.

 

4. Ocean 18 wisely does not argue that the August 2006 notice 

cured the problem; instead, on appeal, it asserts merely that 

examination of this document can help “confirm[]” the intent of 

the parties to the original Trust Deed. Indeed, in our view, the 

district court was correct to conclude that listing a different but 

existing company as the beneficiary of a trust deed (as opposed 

to, say, misspelling the beneficiary’s name, or using a shorthand 

term to refer to it, see, e.g., Morris v. Off-Piste Capital LLC, 2018 UT 

App 7, ¶ 25, 418 P.3d 66) is no mere scrivener’s error that can be 

corrected by the “recording of an affidavit or other appropriate 

instrument” not signed by the misidentified party. See Utah 

Code Ann. § 57-3-106(9) (LexisNexis 2019) (allowing for “minor 

typographical or clerical errors in a document of record [to] be 

corrected by the recording of an affidavit or other appropriate 

instrument”); see also Pioneer Builders Co. of Nev. v. KDA Corp., 

2012 UT 74, ¶ 58, 292 P.3d 672 (noting that “courts in other 

jurisdictions have concluded that significant changes to deeds—

such as the improper characterization of a grantee,” were not 

“minor typographical or clerical errors”). Had the Trust Deed 

not been ambiguous on the question of the identity of the 

beneficiary, it may not have been proper for us to consider the 

August 2006 document at all. But because the original Trust 

Deed was ambiguous, we can use the August 2006 document to 

clarify the ambiguity in the Trust Deed. We therefore view the 

2006 document as evidence of the parties’ original intent, rather 

than as a document that somehow cured the problem altogether.
In re Foreclosure

20190257-CA 20 2020 UT App 54

2

¶37 For similar reasons, that same limited body of extrinsic 

evidence is also clear enough to allow us to determine, as a 

matter of law, that—at least at the time the Trust Deed was 

executed—IML was the intended beneficiary of the Trust Deed. 

As noted, IML was the entity that loaned $500,000 to Owner, and 

the undisputed intent of the transaction was for the Trust Deed 

to secure the loan made to Owner. This intent is confirmed by 

the language of the Trust Deed, including paragraph 16, as well 

as by the parties’ course of dealing and by the sworn declaration

submitted by Ocean 18.

3

¶38 But that limited body of extrinsic evidence is not sufficient 

to allow us to answer other questions pertinent to the outcome of 

this case, including these: (1) did IML remain the holder of the 

Note, and therefore remain the beneficiary referred to in 

paragraph 16 of the Trust Deed?; and (2) if so, did IML properly 

transfer its interest in the Trust Deed to Ocean 18, via the 2012 

and 2013 transactions?

¶39 With regard to the first question, the Note was amended 

seven times, starting on August 28, 2006, about three weeks after 

the second correction document was recorded. As discussed 

above, the original Note listed “Instant Mortgage Lending, Inc.” 

as the lender and holder of the Note. But never again, in any of 

the seven amendments, was “Instant Mortgage Lending, Inc.” 

listed as the holder of the Note; instead, the holder is listed, 

variably, as “Instant Mortgage Lending,” “Instant Mortgage 

Lending Corp.,” and “Nationwide Servicing Center, Inc.” And 

the record submitted to us contains no extrinsic evidence about 

why these amendments were made, what the relationship is 

between these entities, or what the intent (if any) was behind the 

various amendments. We know nothing about the parties’ 

course of dealing that would explain these amendments, and the 

Ocean 18 declaration does not discuss them.
In re Foreclosure

20190257-CA 21 2020 UT App 54

¶40 As noted, the Trust Deed itself, in paragraph 16, identifies 

its beneficiary as the “owner and holder” of the Note. From the 

available extrinsic evidence, we know that the holder of the 

Note, at the time of its issuance, was IML. But there is evidence 

that IML may not have remained the holder of the Note, and 

may not have been the holder of the Note in 2012 and 2013 at the 

time it purported to convey its interest in the Trust Deed to 

Ocean 18. Because the district court determined that IML did not 

have any interest in the Trust Deed to begin with, it did not 

reach the question of whether IML retained its interest following 

the seven amendments to the Note. We simply have no 

information to assist us in resolving this ambiguity posed by the 

Trust Deed’s reference to the Note.

¶41 Similarly, given the nature of its ruling, the district court 

had no occasion to reach the question of whether the 2012 and 

2013 conveyances were valid. Dowd and Overage raise several 

potential issues with the validity of those conveyances, and 

those issues have never been addressed.

¶42 Further proceedings, including possibly discovery (if any 

can be had), on these issues is warranted, given that we cannot 

resolve them as a matter of law on the record before us.

CONCLUSION

¶43 The language of the Trust Deed is ambiguous regarding 

the identity of the beneficiary; the document’s first page (listing 

Instant Funding as beneficiary) contradicts language elsewhere 

in the document, including paragraph 16, where the drafters 

indicate an intent that the beneficiary be the owner and holder of 

the Note, and it is undisputed that Instant Funding was never 

the owner and holder of the Note. Given the universe of extrinsic 

evidence submitted to us, we are able to resolve two elements of 

the ambiguity as a matter of law: Instant Funding was not the 

beneficiary under the Trust Deed, because—at least at the time it 

was executed—the beneficiary was IML.
In re Foreclosure

20190257-CA 22 2020 UT App 54

¶44 But we are not able to resolve, as a matter of law, 

additional questions pertinent to this case on the record before 

us, including whether IML remained the beneficiary of the Trust 

Deed following the various amendments to the Note and, 

relatedly, whether the 2012 and 2013 conveyances properly 

transferred a meaningful interest in the Trust Deed to Ocean 18. 

Accordingly, we reverse the district court’s order determining 

that Instant Funding was the beneficiary under the Trust Deed

and awarding the excess proceeds to Dowd and Overage, and

we remand for further proceedings consistent with this opinion.