The Utah courts of appeal recently are breaking out the creative stick. Here’s the most recent literary opening gambit: “The best-laid schemes o’ mice an’ men gang aft agley an lea’s us nought but grief an’ pain for promis’d joy.” Robert Burns, Tae a Moose, in The Best Laid Schemes: Selected Poetry & Prose of Robert Burns 48 (Robert Crawford & Christopher MacLachlan eds., 2009). The court used Burns to gild a rather dull decision, AmericanWest Bank v. Kellin, that gives us a few pointers about appraising, foreclosure valuation, and litigating in Utah.
Kellin and her partner bought two fancy Deer Valley condos for more than a million dollars each with plans to sell one-eighth shares in each. They sold one share of the sixteen. The real property market promptly collapsed. Hence, the “best laid plans of mice and men” quip. In an action to recover the difference between the bank’s loans and the now depressed value, the court provided these nuggets:
- If you want to establish how much you are owed after foreclosing on real property, you, the lender, have the burden to establish 1) the amount you are owed and 2) the fair market value of the property at the time of the foreclosure. The difference is the ‘deficiency judgment’ you get from the debtor.
- Your appraiser had better comply with the Uniform Standards of Professional Appraisal Practice (USPAP) standards. Utah has adopted the standards by statute. See Utah Code Ann. § 61-2g-403(1).
- An appraisal in Utah cannot value “the whole [of a property] solely by adding together the individual values of its various estates or component parts.” (quoting USPAP Standards Rule 1-4(e) (2014–2015 ed.), http://www.uspap.org/#2. Kellin tried this and failed.
- The lender has the burden to prove any offsets to fair market value. If the lender fails to prove entitlement to the offset, it is lost. AmWest Bank tried to prove an offset for the one 1/8th share that was sold but failed to do so. The failure led to the denial of an offset in an amount of around $77k.
- Finally, if your contract includes attorney fees, the prevailing party will normally be awarded attorney fees and costs up through trial and then again on appeal. In many cases, attorney fees can turn into the tail that wags the dog. In small cases, attorney fees can quickly make an insubstantial case into a substantial one.
When you foreclose on property, get your ducks in a row and you will recover max value. It often takes careful planning and always requires good legal advice. If you have questions, you should ask them. If you would like more information about foreclosure and recovery of your assets, contact me, Utah attorney Ken Reich. I do not claim to be a foreclosure guru but I have fantastic partners who are. I regularly represent companies and the individuals and families that own them. My job is to know and understand my clients and their goals. Together with the right legal experts, I can help you get the result you want.