                 This opinion is subject to revision before final
                        publication in the Pacific Reporter

                                 2018 UT 58


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                        BANK OF AMERICA, N.A.,
                              Appellant,
                                       v.
           LORAINE SUNDQUIST and JOHN DOE/JANE DOE/
             OCCUPANT DOUG KAHLER, an individual,
                           Appellees.

                              No. 20170014
                          Filed October 5, 2018

                            On Direct Appeal

                     Third District, Salt Lake
               The Honorable Judge Bruce C. Lubeck
                       No. 110408730 EV

                                 Attorneys:
     Daniel S. Volchok, Washington, D.C., Brian E. Pumphrey,
    Richmond, VA, Robert H. Scott, Salt Lake City, for appellant
           Tyler Ayers, Draper, J. Kent Holland, Sandy,
           Scott C. Borison, Frederick, MD, for appellees

     JUSTICE PEARCE authored the opinion of the Court, in which
        CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
           JUSTICE HIMONAS, and JUSTICE PETERSEN joined.


   JUSTICE PEARCE, opinion of the Court:
                           INTRODUCTION
   ¶ 1 Location, location, location are, at least according to Lord
Harold Samuel, the three things that matter most in real estate.
Location is also the thing that matters the most in this case. The
National Bank Act authorizes a national bank to perform certain
fiduciary functions if the law of the state where the national bank is
located permits competing entities to engage in those activities. In
2013, a majority of this Court opined that the word “located” was
                   BANK OF AMERICA v. SUNDQUIST
                         Opinion of the Court

unambiguous. With the benefit of more focused briefing we
conclude that, as used in the Act, located lends itself to at least two
plausible meanings. Because we find Congress’s use of the word
ambiguous, we must defer to the “not unreasonable” interpretation
the Comptroller of the Currency has assigned to the word located.
Applying that definition, we overturn the decision we reached when
this case was before us on interlocutory review. We reverse and
remand for further proceedings.
                          BACKGROUND
    ¶ 2 Loraine Sundquist purchased a home in Utah. At the time of
the purchase, she executed a deed of trust, in Utah, naming
Mortgage Electronic Registration Systems, Inc. (MERS) as
beneficiary. The deed of trust named an attorney as trustee.
ReconTrust Company, N.A. (ReconTrust) later replaced the attorney
as trustee.
    ¶ 3 Sundquist fell behind on her payments. ReconTrust elected
to sell the property. The beneficial interests were then assigned to the
Federal National Mortgage Association (FNMA). ReconTrust, acting
as the trustee on the deed, auctioned the property. Bank of America,
which later acquired FNMA’s interest in the property, asserts that
ReconTrust was located in Texas while it acted as the trustee. 1
FNMA won the auction and ReconTrust conveyed the property to
FNMA.
    ¶ 4 After the sale, Sundquist refused to leave. FNMA brought
this action, seeking an order forcing Sundquist from her home.
FNMA also asked for damages allegedly arising out of her decision
to stay in the property after it had been sold. The district court
entered an eviction order.
   ¶ 5 Sundquist petitioned for interlocutory review. We granted
the petition, which we resolved in Federal National Mortgage Ass’n v.
Sundquist (Sundquist I), 2013 UT 45, 311 P.3d 1004. In that case,
Sundquist asserted that the sale was invalid because Utah law does
not permit a bank to act as a trustee on a trust deed. Id. ¶ 8. FNMA
countered that Texas law permitted ReconTrust to serve as the


_____________________________________________________________
   1ReconTrust executed the notice of default and election to sell in
Texas. The substitution of trustee and trustee’s deed were also
executed in Texas.



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                           Opinion of the Court

trustee and that under the National Bank Act, Texas law applied. Id.
¶ 9.
    ¶ 6 The outcome of the case rose and fell on the question of
whether Utah law applied. Under Utah law, only certain people and
entities can serve as a trustee of a trust deed—for example, active
attorneys and title insurance companies. See UTAH CODE §§ 57-1-21,
– 23. 2 A bank, like ReconTrust, may not. In contrast, ReconTrust
argued that Texas law would have permitted ReconTrust to be the
trustee and oversee the property’s sale. Sundquist I, 2013 UT 45, ¶ 9.
   ¶ 7 The relevant portion of the National Bank Act reads:
            (a) Authority of Comptroller of the Currency
            The Comptroller of the Currency shall be
         authorized and empowered to grant by special permit
         to national banks applying therefor, when not in
         contravention of State or local law, the right to act as

_____________________________________________________________
   2   Utah Code section 57-1-21 provides that:
         (1)(a) The trustee of a trust deed shall be:
               (i) any individual who is an active member of the
                   Utah State Bar, or any entity in good standing
                   that is organized to provide licensed
                   professional legal services and employs an
                   active member of the Utah State Bar, if [certain
                   conditions are met];
               (ii) any depository institution as defined in
                   Section 7-1-103, or insurance company
                   authorized to do business and actually doing
                   business in Utah under the laws of Utah or the
                   United States;
               (iii) any corporation authorized to conduct a trust
                   business and actually conducting a trust
                   business in Utah under the laws of Utah or the
                   United States;
               (iv) any title insurance company or agency that
                   [meets certain qualifications];
               (v) any agency of the United States government;
                   or
               (vi) any association or corporation that is licensed,
                   chartered, or regulated by the Farm Credit
                   Administration or its successor.


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                         Opinion of the Court

       trustee, executor, administrator, registrar of stocks and
       bonds, guardian of estates, assignee, receiver, or in any
       other fiduciary capacity in which State banks, trust
       companies, or other corporations which come into
       competition with national banks are permitted to act under
       the laws of the State in which the national bank is located.
          (b) Grant and exercise of powers deemed not in
       contravention of State or local law
          Whenever the laws of such State authorize or
       permit the exercise of any or all of the foregoing
       powers by State banks, trust companies, or other
       corporations which compete with national banks, the
       granting to and the exercise of such powers by national
       banks shall not be deemed to be in contravention of
       State or local law within the meaning of this section.
12 U.S.C. § 92a(a)–(b) (emphasis added).
    ¶ 8 The central inquiry became, therefore, whether corporations
were permitted to serve as trustees of trust deeds “under the laws of
the State in which [ReconTrust] [was] located.” Id. § 92a(a). And this
required us to determine where ReconTrust was located. To suss out
the meaning of located, we consulted the Merriam-Webster online
dictionary. Sundquist I, 2013 UT 45, ¶ 23. We relied on its definition
of locate to conclude that the statutory language was unambiguous
and that “a national bank is located in the place or places where it
acts or conducts business.” Id.
   ¶ 9 We also decided that even if the statute’s plain language
was not clear, two different canons of statutory construction would
dictate that Utah law applied. Id. ¶ 30. The first canon provides that
when Congress delegates authority to agencies to make significant
decisions, it does so clearly and explicitly. FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 159–61 (2000). The second
canon provides that we will not find that Congress has intruded into
traditional areas of state law unless Congress does so explicitly.
Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).
    ¶ 10 We opined that both of these canons suggested that
Congress did not intend to dictate what law would apply to a
foreclosure action. We concluded that real property is a matter of
“intensely local concern.” Sundquist I, 2013 UT 45, ¶ 37. And, because
“a clear statement of an intent to permit the laws of a foreign state to
regulate the manner and mode of a foreclosure sale in another state
should be required,” Utah law governed that matter. Id. We also


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concluded that the “matter of authorizing one state to regulate non-
judicial sales for the foreclosure of real property in another state
would be monumental—hardly the sort of interstitial administrative
detail that Congress would likely leave for an agency.” Id. ¶ 38.
    ¶ 11 Because we concluded the statute was unambiguous, we
had no need to address whether under Chevron, U.S.A., Inc. v.
National Resource Defense Council, Inc., 467 U.S. 837 (1984), we were
required to defer to the agency’s interpretation. Sundquist I, 2013 UT
45, ¶¶ 39–40. In relevant part, the regulation provides:
       For each fiduciary relationship, the state referred to in
       section 92a is the state in which the bank acts in a
       fiduciary capacity for that relationship. A national bank
       acts in a fiduciary capacity in the state in which it
       accepts the fiduciary appointment, executes the
       documents that create the fiduciary relationship, and
       makes     discretionary     decisions    regarding     the
       investment or distribution of fiduciary assets.
We nevertheless examined the Comptroller’s interpretation of the
statute and decided that the regulation was unreasonable. We
reasoned that:
       [T]here is nothing in the statute itself that ascribes any
       particular significance of these three particular acts,
       while rendering other acts undertaken by the bank
       irrelevant. Moreover, the three activities identified in
       the regulation could theoretically be performed in any
       location without regard to the location of the trust
       property, thereby allowing national banks to dictate
       the applicable law.
Id. ¶ 42.
    ¶ 12 Ultimately, we concluded that “[a] state bank which seeks to
foreclose on real property in Utah must comply with Utah law. A
federally chartered “bank” which seeks to foreclose on such property
must comply with Utah law as well.” Id. ¶ 51 (alteration in original)
(citation omitted).
   ¶ 13 After our decision, FNMA petitioned for certiorari to the
United States Supreme Court. The court called for briefing from the
Solicitor General. Although sharply disagreeing with our opinion—
and our conclusion that located was an unambiguous term—the
Solicitor General suggested that the Court deny certiorari because, in
part, our decision was not final. Brief for the United States as Amicus
Curiae at 1, 7–11, 16, Federal Nat’l Mortg. Ass’n v. Sundquist (Sundquist

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                         Opinion of the Court

II), 134 S. Ct. 475 (2014) (No. 13-852), 2014 WL 4979386, at *8–12, *16.
The Court then denied certiorari. Sundquist II, 134 S. Ct. 475.
   ¶ 14 FNMA transferred its interest in the property to Bank of
America through a quitclaim deed. The district court quieted title in
favor of Sundquist. Bank of America appeals.
              ISSUE AND STANDARD OF REVIEW
    ¶ 15 To decide this appeal, we must determine what the National
Bank Act means by the term “located” in 12 U.S.C. section 92a(a).
“We review questions of statutory interpretation for correctness,
affording no deference to the district court’s legal conclusions.”
Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 12, 267 P.3d 863
(citation omitted).
                             ANALYSIS
    I. Exceptional Circumstances Permit Us to Revisit Sundquist I
    ¶ 16 Before we reach the merits of the underlying dispute, we
must confront a threshold question: does our decision in Sundquist I
bind our hands in this matter. Sundquist argues that under the law
of the case doctrine, Sundquist I both begins and ends our analysis.
       Under [the law of the case doctrine], a court is justified
       in refusing to reconsider matters it resolved in a prior
       ruling in the same case for reasons of efficiency and
       consistency. . . . The exceptional circumstances under
       which courts have reopened issues previously decided
       are narrowly defined: (1) when there has been an
       intervening change of controlling authority; (2) when
       new evidence has become available; or (3) when the
       court is convinced that its prior decision was clearly
       erroneous and would work a manifest injustice.
Thurston v. Box Elder Cty., 892 P.2d 1034, 1038–39 (Utah 1995).
   ¶ 17 Bank of America acknowledges the doctrine’s pull, but
urges us to reopen Sundquist I under the third consideration: “when
the court is convinced that its prior decision was clearly erroneous
and would work a manifest injustice.” Id. at 1039.
   ¶ 18 We are not immune from the effects of our decisions. And
we are generally bound by our prior decisions in the same case.
Gildea v. Guardian Title Co. of Utah, 2001 UT 75, ¶ 9, 31 P.3d 543
(“Under the law of the case doctrine, issues resolved by this court on
appeal bind the trial court on remand, and generally bind this court



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should the case return on appeal after remand.”). However, the law
of the case
       doctrine is not a limit on power but, ‘as applied to the
       effect of previous orders on the later action of the court
       rendering them in the same case, merely expresses the
       practice of courts generally to refuse to reopen what
       has been decided.’
Thurston, 892 P.2d at 1038–39 (quoting Messenger v. Anderson, 225
U.S. 436, 444 (1912)). And “this court need not apply the [law of the
case] doctrine to promote efficiency at the expense of the greater
interest in preventing unjust results or unwise precedent.” Gildea,
2001 UT 75, ¶ 9 (citation omitted).
    ¶ 19 This case has afforded us an opportunity to review our prior
reasoning, and we are confident that Sundquist I was “clearly
erroneous.” Thurston, 892 P.2d at 1039.3 We had significantly less
focused briefing on this issue the last time this case was before us.
The last time around, Sundquist’s opening brief did not even cite the
federal statute at the heart of this appeal, though it did assert that
ReconTrust lacked authority to conduct the sale. FNMA’s brief, on
the other hand, reluctantly discussed the issue of ReconTrust’s
authority while repeatedly asserting that “the issue is not ripe for
appeal” because “[t]he trial court has not made a final determination
regarding whether Sundquist’s challenge to ReconTrust’s authority
affects the validity of the trustee’s deed.”
    ¶ 20 We now have the benefit of briefing focused on this issue.
And that superior briefing causes us to see the need to reconsider
our prior decision to correct an erroneous conclusion. Under those
circumstances, law of the case presents no barrier.


_____________________________________________________________
   3 Criticism does not drive our decision to revisit Sundquist I. But it
is worth noting that our decision was not greeted with universal
acclaim. The Tenth Circuit called our opinion “unpersuasive.”
Dutcher v. Matheson, 840 F.3d 1183, 1200-02 (10th Cir. 2016). When
asked by the United States Supreme Court to weigh in on whether it
should review Sundquist I, the Solicitor General argued that our
holdings on the lack of ambiguity of the term, the unreasonableness
of the statute, and canons of construction were “erroneous.” Brief for
the United States as Amicus Curiae at 16, Sundquist II, 134 S. Ct. 475
(2014) (No. 13-852), 2014 WL 4979386, at *16.



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                   BANK OF AMERICA v. SUNDQUIST
                         Opinion of the Court

         II. Congress Left Room for the Comptroller to Interpret
               the Word Located in the National Bank Act
   ¶ 21 This case presents us with a federal statute and a regulation
from the Comptroller of the Currency interpreting that statute. This
places us in the shadow of Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984).
   ¶ 22 Chevron requires us to pass through a series of analytical
gates. But before we apply Chevron, we must first determine whether
Congress intended to delegate authority to the Comptroller to weigh
in on the issue. If the issue presents a “major question[]” then we
presume that Congress would not have left the question to the
agency to decide. FDA v. Brown & Williamson Tobacco Corp., 529 U.S.
120, 159 (2000) (citation omitted).
    ¶ 23 If we determine this is not a major question, but is the type
of issue that Congress would delegate to an agency, we then ask if
“Congress has directly spoken to the precise question at issue.”
Chevron, 467 U.S. at 842. If the intent of Congress is clear, we “must
give effect to the unambiguously expressed intent of Congress.” Id.
at 843. In other words, if Congress’s intent is apparent on the face of
the statute, we have no need to shop for agency guidance.
    ¶ 24 If, however, the statute is ambiguous, we look to see if the
appropriate agency has weighed in on the statute’s meaning. Id. at
843–44. (“If Congress has explicitly left a gap for the agency to fill,
there is an express delegation of authority to the agency to elucidate
a specific provision of the statute by regulation.”). If it has, and if
that interpretation “is based on a permissible construction of the
statute.” Chevron instructs that we must defer to the agency’s
interpretation. Id. at 843.
           A. The Question the National Bank Act Delegates to
       the Comptroller of the Currency Is Not a “Major” Question
    ¶ 25 “Deference under Chevron to an agency’s construction of a
statute that it administers is premised on the theory that a statute’s
ambiguity constitutes an implicit delegation from Congress to the
agency to fill in the statutory gaps.” Brown & Williamson, 529 U.S. at
159. “In extraordinary cases, however, there may be reason to
hesitate before concluding that Congress has intended such an
implicit delegation.” Id. at 123. “Congress is more likely to have
focused upon, and answered, major questions, while leaving
interstitial matters to answer themselves in the course of the statute’s
daily administration.” Id. at 154 (citation omitted).



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                        Opinion of the Court

    ¶ 26 In MCI Telecommunications Corp. v. American Telephone &
Telegraph Co., 512 U.S. 218 (1994), the Supreme Court concluded that
the Commission’s “permissive detariffing policy” was not
authorized. Id. at 223, 234. “Since an agency’s interpretation of a
statute is not entitled to deference when it goes beyond the meaning
that the statute can bear, the Commission’s permissive detariffing
policy can be justified only if it makes a less than radical or
fundamental change in the Act’s tariff-filing requirement.” Id. at 229
(citations omitted). But the Court reasoned that:
      The tariff-filing requirement is . . . the heart of the
      common-carrier section of the Communications Act.
      ...
             Much of the rest of the Communications Act
      subchapter applicable to Common Carriers . . . and the
      Act’s Procedural and Administrative Provisions . . . are
      premised upon the tariff-filing requirement of § 203. . . .
      Rate filings are, in fact, the essential characteristic of a
      rate-regulated industry. It is highly unlikely that
      Congress would leave the determination of whether an
      industry will be entirely, or even substantially,
      rate-regulated to agency discretion—and even more
      unlikely that it would achieve that through such a
      subtle device as permission to “modify” rate-filing
      requirements.
Id. at 229–31 (citations omitted). The Court concluded that Congress
had not left this decision to the Commission and that therefore the
detarriffing policy fell outside the Commission’s jurisdiction. Id. at
234.
    ¶ 27 Brown & Williamson reached the same conclusion about the
Food and Drug Administration’s (FDA) attempt to regulate
cigarettes. 529 U.S. at 161. “[T]he FDA . . . asserted jurisdiction to
regulate an industry constituting a significant portion of the
American economy.” Id. at 159. The Court noted that “the FDA
contends that, were it to determine that tobacco products provide no
‘reasonable assurance of safety,’ it would have the authority to ban
cigarettes and smokeless tobacco entirely.” Id. The Court
concluded—given the importance of tobacco to the economy and
Congress’s repeated actions to regulate tobacco separately—“that
Congress could not have intended to delegate a decision of such
economic and political significance to an agency in so cryptic a
fashion.” Id. at 159–60.



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                   BANK OF AMERICA v. SUNDQUIST
                        Opinion of the Court

    ¶ 28 In Sundquist I, we determined that the question of which
state’s law would control was a major question that Congress would
not have delegated to an agency. We opined that:
       The matter of authorizing one state to regulate non-
       judicial sales for the foreclosure of real property in
       another state would be monumental—hardly the sort of
       interstitial administrative detail that Congress would
       likely leave for an agency. Any inference of an intent to
       leave that to the Comptroller would accordingly require
       a clear statement of such intent.
Sundquist I, 2013 UT 45, ¶ 38, 311 P.3d 1004.
    ¶ 29 But Congress did make a “clear statement of such intent”
when it specifically identified that state law would apply to national
banks and that the applicable state law would turn on where the
bank is located. See 12 U.S.C. § 92a(a) (referring to “the State in
which the national bank is located”). Section 92a(a) provides that
“[t]he Comptroller of the Currency shall be authorized and
empowered to grant” permits for banks to act as trustees in the states
in which they are located. Thus, the question delegated to the
Comptroller was not whether one state’s laws could apply to non-
judicial foreclosures in another state; Congress opened the door to
that result in the Act. The question left for the Comptroller was how
to define “located.”
   ¶ 30 This is not the sort of “radical or fundamental change” that
warrants no deference under Chevron. See MCI Telecomms. Corp., 512
U.S. at 229. The choice of state law for banks acting in a fiduciary
capacity can hardly be described as the “heart” of the Act. Id. And
other portions of the Act are not “premised” upon where a bank
would be located when performing fiduciary functions. See id. at 230.
Here, unlike the FDA in Brown & Williamson, the Comptroller is not
asserting the authority to ban an entire segment of the economy. See
Brown & Williamson, 529 U.S. at 159.
    ¶ 31 The Comptroller appears to be attempting to give national
banks predictability into what law will apply to the transactions they
enter. The Comptroller is not, to analogize to Brown & Williamson,
attempting to foreclose foreclosures. 4 See id. at 159–60. Deciding
_____________________________________________________________
   4 Moreover, as the Comptroller has recognized, the National
Banking Act does not modify the substance of state law with respect
to how foreclosures operate. The Comptroller has opined that “[the
                                                     (continued . . .)

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where a national bank is located for the purposes of the National
Banking Act and thus which state law to apply—is more of an
“interstitial” matter. Compare id. at 159. This is simply not the
extraordinary case that would cause us to question the delegation to
the Comptroller.
                   B. The Term Located Is Ambiguous
    ¶ 32 Next, we must decide if the term located is ambiguous,
because “[i]f the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc.
v. NRDC, 467 U.S. 837, 842–43 (1984).
    ¶ 33 In Sundquist I, we concluded that “the plain meaning of the
statute is clear. A national bank is located in those places where it
acts or conducts business. And it certainly acts as a trustee in the
state in which it liquidates trust assets.” 2013 UT 45, ¶ 25, 311 P.3d
1004.
    ¶ 34 To arrive at this conclusion, we turned to an online
dictionary for the definition of “locate,” noting that it meant “to
determine or indicate the place, site, or limits of” something. Id. ¶ 23
(citation omitted). “This suggests,” we reasoned, “that a national
bank is located in the place or places where it acts or conducts
business.” Id. Relying on two federal decisions, we noted that a bank
must conduct business where the property is located. Id. ¶¶ 23–25.
    ¶ 35 We are no longer convinced that “located” is an
unambiguous term. As Justice Lee noted in his concurring opinion in
Sundquist I, “[T]he United States Supreme Court has indicated [that]
the term ‘located’ ‘as it appears in the National Bank Act, has no
fixed, plain meaning.’” 2013 UT 45, ¶ 56 (Lee, J., concurring)
(quoting Wachovia Bank v. Schmidt, 546 U.S. 303, 313 (2006)). In
Dutcher v. Matheson, a Tenth Circuit case dealing with the same
question we are faced with today, that court observed that “even
assuming arguendo that Sundquist [I] is correct in saying that a
national bank’s location equates to where it ‘acts or conducts
business’ the court does not identify in § 92a(a)’s text any basis for
concluding what acts or indicia of conducting business are the
relevant ones.” 840 F.3d 1183, 1201 (10th Cir. 2016).
_____________________________________________________________
regulation] does not affect the applicability of state substantive laws
that govern the fiduciary relationship.” Fiduciary Activities of
National Banks, 66 Fed. Reg. 34796 (July 2, 2001).


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                    BANK OF AMERICA v. SUNDQUIST
                         Opinion of the Court

    ¶ 36 The Comptroller’s regulation, for example, provides that
“[a] national bank acts in a fiduciary capacity in the state in which it
accepts the fiduciary appointment, executes the documents that
create the fiduciary relationship, and makes discretionary decisions
regarding the investment or distribution of fiduciary assets.” 12
C.F.R. § 9.7(d). A bank certainly “conducts business” in those
locations as well as “where the real property is located, where notice
of default is filed, and where the sale is conducted.” Sundquist I, 2013
UT 45, ¶ 23 (citation omitted). But there is nothing inherent in the
term “located” that provides guidance on which of those acts should
determine where a national bank is located.
    ¶ 37 Although we continue to find logic in a national bank being
“located” where the real property it attempts to sell is located, there
is nothing in the plain language that mandates that result.
Accordingly, the term is ambiguous and we must rely on other tools
of statutory interpretation.
              III. Congress Intended the National Bank
                      Act to Displace State Law
   ¶ 38 Sundquist also argues that Utah law should apply because
we presume that absent a clear statement, Congress did not intend
for federal law to preempt state law. And we give life to that
presumption through the clear statement rule. See, e.g., Fish v. Kobach,
840 F.3d 710, 731 (10th Cir. 2016).
    ¶ 39 The clear statement rule provides that “[i]f Congress intends
to alter the usual constitutional balance between the States and the
Federal Government, it must make its intention to do so
unmistakably clear in the language of the statute.” Gregory v.
Ashcroft, 501 U.S. 452, 460 (1991) (citations omitted) (internal
quotation marks omitted). The rule rests on the premise that “the
States retain substantial sovereign powers under our constitutional
scheme, powers with which Congress does not readily interfere.” Id.
at 461. 5

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   5  An interesting question hides beneath the surface of our
opinion: whether it is analytically proper to apply the clear statement
rule or Chevron first. The ordering of the two canons is not settled.
Harvard Law Review, Chevron and the Substantive Canons: A
Categorical Distinction, 124 HARV. L. REV. 594, 599 (2010) (“A number
of other canons have been found to displace Chevron, but for some,
like the presumption against preemption, the relationship remains
                                                        (continued . . .)

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                          Opinion of the Court

    ¶ 40 In Sundquist I, we noted that, under Bank of America’s
construction, “this provision [of the Act] delegates to the
Comptroller the discretion to authorize one state to regulate the
terms and conditions of a foreclosure sale in another state.”
Sundquist I, 2013 UT 45, ¶ 36, 311 P.3d 1004. And we reasoned,
because “[a] delegation of authority to intrude on matters of such
intensely local concern may not simply be inferred[,] . . . a clear
statement of an intent to permit the laws of a foreign state to regulate
the manner and mode of a foreclosure sale in another state should be
required.” Id. ¶ 37. Sundquist similarly argues that “[t]his usurpation
of state law on matters traditionally left to state law cannot be
accomplished through an OCC regulation when Congress did not
provide it was its clear and manifest purpose.”
    ¶ 41 We continue to believe that this is a traditional area of state
law and that a clear statement is required “to alter the usual
constitutional balance.” See Gregory, 501 U.S. at 460 (citations
omitted) (internal quotation marks omitted). The United States
Supreme Court “has . . . noted the states’ longstanding interest in
regulating the foreclosure process, and has imposed a clear
statement rule on any statutes that could potentially be construed to
impinge on that interest.” Tamburri v. Suntrust Mortg., Inc., 875 F.


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unclear.”). Compare Tennessee v. FCC, 832 F.3d 597, 612 (6th Cir. 2016)
(“The first step of Chevron, however, requires that, ‘if the intent of
Congress is clear, that is the end of the matter.’ The force of the clear
statement rule . . . makes the intent of Congress clear in this case . . . .
There is certainly room for the application of canons of construction
to ascertain whether the first step of Chevron has been met.” (citation
omitted)) (inconsistency of italicization of Chevron in original), with
Brian G. Slocum, The Immigration Rule of Lenity and Chevron Deference,
17 GEO. IMMIGR. L. J. 515, 565 (2003) (“[Some commentators] contend
that courts should not consider substantive canons [in Chevron cases]
because (1) the decision whether to read a statute narrowly or
aggressively involves a number of political, technical, social, and
economic issues, (2) agencies usually possess specialized fact-finding
and policy-making competence superior to the judiciary, and
(3) Chevron’s across-the-board presumption is more workable than
any proposed alternative interpretive principle.”). We need not
address this question because the result we reach remains the same
in whichever order we take these questions.



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                    BANK OF AMERICA v. SUNDQUIST
                         Opinion of the Court

Supp. 2d 1009, 1019 (N.D. Cal. 2012) (citing BFP v. Resolution Tr.
Corp., 511 U.S. 531, 541–44 (1994)).
    ¶ 42 But Congress spoke clearly in the National Bank Act. The
statute delineates the federal-state law balance that Congress
intended to strike with this provision. Banks can “act . . . [in a]
fiduciary capacity in which State banks, trust companies, or other
corporations which come into competition with national banks are
permitted to act under the laws of the State in which the national
bank is located.” 12 U.S.C. § 92a(a). In other words, Congress clearly
stated that it intended to alter the traditional federal-state balance by
dictating that a certain set of laws would apply to national banks.
And it does not matter which reading we give to the word located.
Whatever located means, Congress has instructed that a state has to
permit a national bank to act as a fiduciary if institutions that
compete with the national bank in the state where it is located can
act as a fiduciary. This expresses a federal intent to clomp into an
area of traditional state concern.
    ¶ 43 The Fourth Circuit reached a similar result in Virginia v.
Browner, 80 F.3d 869 (4th Cir. 1996). That case concerned an
Environmental Protection Agency finding that Virginia had failed to
comply with the Clean Air Act because Virginia’s proposed
permitting system did not have adequate provisions for judicial
review. Id. at 872–73. Virginia challenged the finding. Id. at 872. The
relevant portion of the statute required “an opportunity for judicial
review in State court of the final permit action by the applicant, any
person who participated in the public comment process, and any
other person who could obtain judicial review of that action under
applicable law.” Id. at 876 (emphasis omitted) (citation omitted).
Virginia leveled several arguments against the statute, including that
requiring states to provide judicial review in this context violated the
clear statement rule. Id. at 878. The Fourth Circuit disagreed,
concluding that “it is manifestly clear that Congress specifically
intended that the states conform their judicial standing rules to meet
the [Clean Air Act] standard.” Id. In particular, the court noted that,
“[b]y its terms, [the provision] could apply to nothing but state
courts.” Id. at 879.
    ¶ 44 The National Bank Act is similarly explicit in its “inten[t] to
alter the usual constitutional balance between the States and the
Federal Government.” See Gregory, 501 U.S. at 460 (citations omitted)
(internal quotation marks omitted). Congress expressly provided
when national banks can act and when state law comes into play. For



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                         Opinion of the Court

example, in 12 U.S.C. section 92a(b), Congress expressed an intent to
potentially override state law:
       (b) Grant and exercise of powers deemed not in
       contravention of State or local law
       Whenever the laws of such State authorize or permit
       the exercise of any or all of the foregoing powers by
       State banks, trust companies, or other corporations
       which compete with national banks, the granting to
       and the exercise of such powers by national banks shall
       not be deemed to be in contravention of State or local
       law within the meaning of this section.
Simply stated, Congress sufficiently communicated its intent with
respect to section 92a.
                V. Applying Chevron, the Comptroller’s
                     Interpretation Is Reasonable
    ¶ 45 “[I]f the statute is silent or ambiguous with respect to the
specific issue, the question for the court is whether the agency’s
answer is based on a permissible construction of the statute.”
Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843 (1984). Because
we have decided that the term “located” in the National Bank Act is
ambiguous, we must now decide whether the Comptroller’s
interpretation is reasonable.
   ¶ 46 That regulation provides:
       For each fiduciary relationship, the state referred to in
       section 92a is the state in which the bank acts in a
       fiduciary capacity for that relationship. A national bank
       acts in a fiduciary capacity in the state in which it
       accepts the fiduciary appointment, executes the
       documents that create the fiduciary relationship, and
       makes     discretionary     decisions    regarding     the
       investment or distribution of fiduciary assets.
12 C.F.R. § 9.7(d).
   ¶ 47 Sundquist argues that this regulation is unreasonable
because it “sets forth three criteria that have little to no relevance to
foreclosure of a deed of trust.” 6 Sundquist also argues that the

_____________________________________________________________
   6 Sundquist mentions a few times in her brief that the deed of
trust provided that federal and Utah law would apply, and she
                                                   (continued . . .)

                                   15
                    BANK OF AMERICA v. SUNDQUIST
                          Opinion of the Court

regulation “places the national bank above state banks by giving the
national bank the advantage of importing laws from another state
that the national bank effectively can choose to control by engaging
in the nonessential activities the [regulation] identifies . . . in a state
the national bank finds advantageous.”
   ¶ 48 We take each in turn.

_____________________________________________________________
argues that this makes the application of the regulation irrelevant.
The relevant language of the deed of trust reads: “This Security
Instrument shall be governed by federal law and the law of the
jurisdiction in which the Property is located. All rights and
obligations contained in this Security Instrument are subject to any
requirements and limitations of Applicable Law.” The property is
located in Utah. “Applicable Law” is defined in the deed of trust as
“all controlling applicable federal, state and local statutes,
regulations, ordinances and administrative rules and orders (that
have the effect of law) as well as all applicable final, nonappealable
opinions.”
    Sundquist cites Epps v. JP Morgan Chase Bank, N.A., 675 F.3d 315
(4th Cir. 2012), for her contention that this choice-of-law provision
should prevent preemption. Epps involved a contract that invoked
federal and state law. Id. at 318. However, unlike the case before us,
the contract in Epps “contained an explicit election of a specific
Maryland statute”: the “CLEC.” Id. at 328. This election was made by
Thompson, the defendant’s (Chase) predecessor-in-interest. Id. This
election was central to the court’s reasoning:
        Here, Thompson (and by extension its successor-in-
        interest, Chase), had the option of either electing to
        have the [contract] governed by the CLEC, or instead
        by [another Maryland statute, the RISA]. Thompson
        chose to adopt the CLEC when it could have made a
        different choice, the RISA. Chase is bound by that
        choice.
Id. (citation omitted). There was no similar choice here. The parties
did not elect to be governed by a specific Utah statute. The contract
generally stated that federal law, as well as the law of the state where
the property is, would govern. Federal law permitted this sale. If
Sundquist believed that the parties agreed that Utah law would
operate at the exclusion of federal law, she should have argued that
in her brief. On the briefing before us, this choice-of-law provision
does not decide the matter.



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                         Opinion of the Court

    ¶ 49 First, the regulation provides that “[a] national bank acts in
a fiduciary capacity in the state in which it accepts the fiduciary
appointment, executes the documents that create the fiduciary
relationship, and makes discretionary decisions regarding the
investment or distribution of fiduciary assets.” 12 C.F.R. § 9.7(d).
Sundquist argues that the drafters of this regulation might not have
had a trustee of a deed of trust in mind. Sundquist also argues that
the regulation is unreasonable because, in the context of a trustee
sale of real property, the sale itself is the most important activity.
Bank of America responds that Sundquist “improperly looks only at
trust relationships involving real property. But . . . section 92a
enumerates a variety of fiduciary roles for national banks, and it was
manifestly reasonable for the Comptroller to define where a national
bank is located by referring to activities that apply to all of these
roles, rather than only some.” (Internal quotation marks omitted.)
Furthermore, Bank of America raises a concern that under
Sundquist’s interpretation a bank might have to be located in
different states for different trust functions while performing
activities for the same trustor. According to Bank of America, this
dynamic makes it reasonable for the Comptroller to base its
regulation on a more general set of fiduciary responsibilities that
results in a national bank applying the same state’s laws to all of
those responsibilities. 7



_____________________________________________________________
   7 The Solicitor General defended the logic of the Comptroller’s
decision in its amicus brief to the United States Supreme Court:
       Under widely accepted principles of trust law, those
       “core functions” [identified in the regulation]
       constitute essential features of a fiduciary relationship:
       its establishment, see Restatement (Second) of Trusts
       § 169 (1959) (trustee’s duty to administer trust begins
       “[u]pon acceptance of the trust by the trustee”); its
       scope, see Restatement (Third) of Trusts § 76(1) (2007)
       (“The trustee has a duty to administer the trust . . . in
       accordance with the terms of the trust.”); and its proper
       administration, see id. § 87 cmt. a (“The most important
       of the discretionary powers in most trusts are those
       having to do with various aspects of the investment
       function, together with, in many trusts, those having to
       do with discretionary distributions.”).
                                                         (continued . . .)

                                   17
                    BANK OF AMERICA v. SUNDQUIST
                         Opinion of the Court

    ¶ 50 We can understand Sundquist’s desire for a test that would,
when determining where a bank is located for the purpose of serving
as a trustee on a deed of trust, be more narrowly focused to that
context. But we cannot say it was unreasonable for the Comptroller
to employ a general framework for all scenarios the statute governs
rather than employ a situation by situation approach. Such an
approach could lead to national banks operating under different sets
of laws in the same state depending on the type of transaction. Even
if we were tempted to draw the lines differently than the
Comptroller, the Comptroller’s “view governs if it is a reasonable
interpretation of the statute—not necessarily the only possible
interpretation, nor even the interpretation deemed most reasonable
by the courts.” See Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218
(2009) (citation omitted). 8
    ¶ 51 Second, Sundquist argues that the regulation is
unreasonable because it “places the national bank above state
banks.” The Supreme Court faced a similar argument about the
National Bank Act in Marquette National Bank of Minneapolis v. First of
Omaha Service Corp., 439 U.S. 299 (1978). In that case, a Nebraska-
based national bank sought to enroll residents of Minnesota in a
credit card plan. Id. at 301–02. Marquette—a bank in Minnesota—
brought suit to enjoin the Nebraska bank “from soliciting in
Minnesota . . . until such time as that program complied with
Minnesota law.” Id. at 304. “Marquette claimed to be losing
customers to [the Nebraska bank] because, unlike the Nebraska
bank, Marquette was forced by the low rate of interest permissible
under Minnesota law to charge a $10 annual fee for the use of its
credit cards.” Id. The Supreme Court concluded that the national
bank could charge the Nebraska interest rate, reasoning that “[s]ince
[the national bank] and its [credit card] program are ‘located’ in
Nebraska, the plain language . . . provides that the bank may charge
‘on any loan’ the rate ‘allowed’ by the State of Nebraska.” Id. at 313.
The Supreme Court was not moved by the argument that this
provided an advantage to the Nebraska bank, concluding that the

_____________________________________________________________
Brief for the United States as Amicus Curiae at 14–15, Sundquist II,
134 S. Ct. 475 (2014) (No. 13-852), 2014 WL 4979386, at *14–15.
   8 Sundquist further argues that the required actions under Utah
non-judicial foreclosure law occur in Utah. This argument fails for
the same reason. The Comptroller need not tailor the regulation to
non-judicial foreclosures—and certainly not to Utah law.


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                         Opinion of the Court

section of the Act applicable in Marquette “ha[s] been interpreted for
over a century to give ‘advantages to National banks over their State
competitors.’” Id. at 314 (citation omitted).
   ¶ 52 In light of Marquette and the Supreme Court’s rejection of an
argument similar to Sundquist’s, we are hard-pressed to conclude
that the Comptroller’s regulation is unreasonable.
             V. A Trustee Under a Deed of Trust Acts in a
          Fiduciary Capacity for the Purposes of Section 92a
   ¶ 53 Sundquist also argues that a trustee under a deed of trust is
not a fiduciary within the meaning of 12 U.S.C. section 92a.
Sundquist distinguishes a trustee under a deed of trust from a
trustee of a fiduciary trust, arguing that:
       The former [type of trust] is not a trust in the
       traditional sense, but merely a device used in some
       states as a substitute for a traditional mortgage on real
       property for purposes of debt collection. Under a deed
       of trust, a “trustee” nominally holds legal title to a
       property to secure a loan and conveys title to the
       owner upon repayment or, in the event of default,
       commences foreclosure proceedings, either judicially
       or, where authorized, through a non-judicial trustee’s
       sale to collect the debt owed. The property is no more
       held in trust than is a property subject to a traditional
       mortgage.
   ¶ 54 In response, Bank of America argues that the Comptroller
“has . . . long interpreted section 92a(a) to encompass trustees on
deeds of trust.”
    ¶ 55 Section 92a(a) applies to “the right to act as trustee, executor,
administrator, registrar of stocks and bonds, guardian of estates,
assignee, receiver, or in any other fiduciary capacity.” And the
Comptroller has determined that the statute covers a fiduciary of a
deed of trust. Michael Patriarca, OCC Interpretive Letter, 1986 WL
143993, at *1–2 (June 13, 1986) (“We agree that the proposed
activities [regarding deeds of trust] are permissible for a national
bank as an aspect of trust powers granted by 12 U.S.C. § 92a.”). 9

_____________________________________________________________
   9 The United States Supreme Court has determined that the
Comptroller’s “deliberative conclusions” receive Chevron deference.
NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251,
                                                         (continued . . .)

                                   19
                    BANK OF AMERICA v. SUNDQUIST
                          Opinion of the Court

    ¶ 56 We again turn to Chevron to determine whether we must
credit the Comptroller’s interpretation. 10 First, it is not clear from the
statute’s text whether “the right to act as trustee, executor,
administrator, registrar of stocks and bonds, guardian of estates,
assignee, receiver, or in any other fiduciary capacity,” 12 U.S.C.
§ 92a(a), includes trustees of deeds of trust.. These trustees might be
included in either the term “trustee” or the catch-all “in any other
fiduciary capacity.” As noted above, Sundquist plausibly argues
why we might treat these trustees differently. But Bank of America
also provides a compelling interpretation: “[Congress’s] use of the
phrase ‘trustee . . . or . . . any other fiduciary capacity’ strongly
suggests that Congress regarded any ‘trustee’ as a ‘fiduciary
capacity.’” (Omissions in original) (Quoting id.) The statute, on its
face, is ambiguous.
   ¶ 57 And the Comptroller’s interpretation—that the term
“trustee” includes trustees of a deed of trust—is reasonable. See
Michael Patriarca, OCC Interpretive Letter, 1986 WL 143993, at *1–2
(June 13, 1986). It is perfectly logical to read “trustee” to include all
trustees rather than only traditional ones. And the fact that Texas
and Utah law might see it differently does not make this regulation
unreasonable. 11



_____________________________________________________________
256–57 (1995) (“The Comptroller of the Currency is charged with the
enforcement of banking laws to an extent that warrants the
invocation of [deference] with respect to his deliberative conclusions
as to the meaning of these laws.” (citation omitted)).
   10 By way of reminder, Chevron, U.S.A., Inc. v. National Resource
Defense Council, Inc., provides a framework for when to defer to
agency interpretations. 467 U.S. 837 (1984). First, this court must ask
if Congress has spoken clearly, and if so, give effect to “the
unambiguously expressed intent of Congress.” Id. at 842–43. If the
statute is ambiguous, however, we then defer to the agency only if
its interpretation “is based on a permissible construction of the
statute.” Id.
   11 Sundquist also argues that we should not defer to the
Comptroller because defining “fiduciary” is not within its realm of
expertise. Sundquist cites two cases for the proposition that agencies
are not entitled to deference for interpreting law outside their
expertise. But Sundquist offers no analysis of how these cases apply
                                                       (continued . . .)

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                         Opinion of the Court

    ¶ 58 Whether trustees of deeds of trust function in a fiduciary
capacity under 12 U.S.C. section 92a(a) is not clear from the statute’s
text. We therefore defer to the Comptroller’s interpretation that the
statute’s reference to trustees includes trustees on a deed of trust.
      VI. We Remand to Permit the District Court to Evaluate
     Where ReconTrust Is Located Under the Correct Standard
    ¶ 59 We conclude that section 92a(a) applies and that ReconTrust
is located where “the bank acts in a fiduciary capacity for that
relationship.” 12 C.F.R. § 9.7(d). We are bound to interpret “located”
in harmony with the Comptroller’s instruction that a “national bank
acts in a fiduciary capacity in the state in which it accepts the
fiduciary appointment, executes the documents that create the
fiduciary relationship, and makes discretionary decisions regarding
the investment or distribution of fiduciary assets.” Id.
    ¶ 60 ReconTrust asserts that under that definition, it is located in
Texas. Sundquist argues that under the Comptroller’s test,
ReconTrust is not located in Texas. Specifically, Sundquist argues
that a bank is “appointed trustee of a trust deed does not ‘execute’
any documents creating a fiduciary relationship, nor does it ‘accept’
a fiduciary appointment in any location distinct from that where the
deed is filed; and a trust deed trustee makes no ‘discretionary
decisions regarding the investment of fiduciary assets.’”
   ¶ 61 Bank of America disputes this, arguing that the record
shows that ReconTrust performed all three of these actions in Texas.
Because the district court, following our lead from Sundquist I,
applied Utah law to the dispute, it has not considered Sundquist’s

_____________________________________________________________
here, or why interpretation of “fiduciary” would fall outside the
Comptroller’s expertise.
    “[A]n appellant who fails to adequately brief an issue ‘will almost
certainly fail to carry its burden of persuasion on appeal.’” Bank of
Am. v. Adamson, 2017 UT 2, ¶ 12, 391 P.3d 196 (citation omitted).
“The argument must explain, with reasoned analysis supported by
citations to legal authority and the record, why the party should
prevail on appeal.” UTAH R. APP. P. 24(a)(8). “‘[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.”’” Adamson, 2017 UT 2, ¶ 11
(second alteration in original) (quoting State v. Timmerman, 2009 UT
58, ¶ 25 n.5, 218 P.3d 590).


                                  21
                   BANK OF AMERICA v. SUNDQUIST
                        Opinion of the Court

argument on this point. Because the district court has not had the
opportunity to address this issue and because of the potential need
for factual findings, we remand for the district court to consider this
argument.
                           CONCLUSION
    ¶ 62 What Congress meant by the term “located” in the National
Bank Act cannot be determined from the statute’s plain language.
Because this is a federal statute accompanied by an agency’s
interpretation of the ambiguous language, Chevron requires us to
defer to the “not unreasonable” interpretation the agency has
provided. Because the Comptroller’s interpretation of where a bank
is “located” is reasonable, we reverse and remand. On remand, the
district court should apply section 92(a), as interpreted by the
Comptroller, to determine where ReconTrust is located and apply
the law of that jurisdiction.




                                  22
