Christenson v. Brown (In re Brown)
UNPUBLISHED
The court considered two arguably inconsistent state statutes with respect to foreclosure of liens on real property. Creditor held a note from debtors and a non-debtor corporation, which was in default and was secured by trust deeds on two separate properties, one of which was debtors' residence. Debtors filed their chapter 11 petition while creditor was in the process of executing its trust deeds, which stayed any foreclosure of debtors' residence. Creditor proceeded with foreclosure of the property owned by the corporation, applied the sales price to the note obligation, and sought relief from stay to execute on debtors' residence. After revaluing the foreclosed property, and directing creditor to apply the full value to debtors' obligation, the court considered debtors' assertion that, under Utah Code Ann. § 15-1-32, plaintiff had waived any deficiency that might exist from the first property sale because it did not bring a deficiency action within 3 months after execution of the trust deed. Creditor countered that Utah's "one action rule," set forth in Utah Code Ann. § 78-371-1, required it to exhaust the property securing the debt before initiating a deficiency action. The court determined that debtors' position would effectively force creditor to choose between its two remedies, which were foreclosure and deficiency, since foreclosure of one trust deed, followed by a deficiency action, would preclude foreclosure of the other trust deed, while foreclosing both properties would preclude a deficiency judgment. The court held that the 3-month rule did not apply until all of the secured property was foreclosed, after which creditor would be required to initiate a deficiency action within 3 months. However, the court noted that the situation might be different if creditor was shown to be responsible for a delay in foreclosing the secured properties. Since debtor had no equity in their residence, creditor's motion for relief from stay was granted.