Reply Brief of Appellant

Appellate Case: 10-4117 Document: 01018526530 Date Filed: 11/03/2010 Page: 1
Case No. 10-4117
IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

__________________________________________________________________
PENI COX,
Plaintiff-Appellant
vs.
RECONTRUST COMPANY, N.A.; BANK OF AMERICA HOME LOANS

SERVICING, LP; BANK OF AMERICA, FSB; NEW LINE MORTGAGE,
DIVISION OF REPULIC MORTGAGE HOME LOANS, LLC; MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC., AND DOES 1-5,
Defendants-Appellee
__________________________________________________________________
Interlocutory Appeal from an Order of the United States District Court For The
District of Utah, Central Division No. 2:10-CV-00492-SA Hon. Clark Waddoups
_____________________
REPLY BRIEF OF APPELLANT

_____________________
JOHN CHRISTIAN BARLOW E.CRAIG SMAY

CAMERON SORAN (Law Student) Attorney for Plaintiff/Appellant
Attorney for Plaintiff/Appellant 174 E. South Temple
40 North 300 East, Suite 101 Salt Lake City, UT 84111-1102
St. George, UT 84770 Telephone: 801-539-8515
Telephone: (435)634-1200
ORAL ARGUMENT REQUESTED
Courtesy of www.4closureFraud.org
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................ i

TABLE OF AUTHORITIES ................................................................................... iii
INTRODUCTION .....................................................................................................1
RESPONSE TO COUNTERSTATEMENT OF THE ISSUES PRESENTED ON
APPEAL.....................................................................................................................3
RESPONSE TO STANDARD OF REVIEW............................................................6
SUMMARY OF ARGUMENT .................................................................................6
ARGUMENT .............................................................................................................9
I. THE DISTRICT COURT SHOULD ONLY HAVE EXERCISED
JURISDICTION IN THIS CASE IF THE NATIONAL BANK ACT
COMPLETELY PREEMPTED THE RELEVANT UTAH STATUTES ...........10
II. THE NATIONAL BANK ACT DOES NOT PREEMPT EITHER UTAH
STATUTE .............................................................................................................12
A. The Presumption Against Preemption Applies in this Case .......................12
B. As Stated Previously, the NBA does not Preempt either Utah Statute .......14
C. Defendants‟ Analysis of 12 U.S.C. § 92a and Associated Regulations is
Incorrect .............................................................................................................14
D. Defendants Reliance on the OCC Interpretive Letters is Unavailing .........17
E. Defendants‟ Other Arguments are Unavailing ............................................19
F. The National Bank Act does not Completely Preempt both Utah Statutes
20
III. THE PREMISE OF RECONTRUST‟S ARGUMENT IS THAT STATE
LAWS DO NOT APPLY TO NATIONAL BANKS ...........................................21
A. The Historical Overview of the Subjection of National Banks to State
Laws According to the Supreme Court .............................................................21
B. The Correct Interpretation of How Utah State Laws Apply to National
Banks .................................................................................................................23
CONCLUSION ........................................................................................................26
STATEMENT REGARDING ORAL ARGUMENT .............................................26
ATTACHMENTS
1. Defendant‟s Memorandum in Opposition to Plaintiff Peni Cox‟s Motion for

Partial Summary Judgment
2. Declaration of Richard F. Ensor Requesting Judicial Notice in Connection

with Reply Brief in Support of Motion to Dismiss
3. Peni Cox Deed of Trust
ii
TABLE OF AUTHORITIES
Cases
770 PPR, LLC v. TJCV Land Trust, 30 So.3d 613 (Fla. App. 2010) ......................19
American Bush v. City of South Salt Lake, 42 Fed.Appx. 308 (2002) ....................11
Anderson Nat. Bank v. Luckett, 321 U.S. 233 (1944) ..............................................22
Attorney General of Oklahoma v. Tyson Foods, Inc., 565 F.3d 769 (2009) .............6
Bank of Am. v. City & County of San Francisco, 309 F.3d 551 (9th Cir. 2002) .....24
Barnett Bank of Marion County v. Nelson, 517 U.S. 25(1996) ........................ 12, 22
Bauchman ex rel. Bauchman v. West High Sch., 132 F.3d 542 (10th Cir.1997) ....10
Beneficial Nat’l Bank v. Anderson, 539 U.S. 1 (2003) ..................... 9, 10, 11, 20, 21
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (1988) ......................................7, 10
Caterpillar Inc. v. Williams, 482 U.S. 386, (1999) ..................................................21
Christensen v. Harris County, 529 U.S. 576 (2000) ...............................................18
City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973) ...................13
Cuomo v. Clearing House Ass'n, L.L.C., 129 S. Ct. 2710, 2720-21 (2009) .... passim
Enterprise Intern., Inc. v. Corporation Estatal Petrolera Ecuatoriana, 762 F.2d
464 (5th Cir. 1985) ..................................................................................................4
First Nat'l Bank v. Dickinson, 396 U.S. 122 (1969) ................................................23
First National Bank in St. Louis v. Missouri, 263 U.S. 640, (1924) .......................23
Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963) ..................13
iii
Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern
Cal.,463 U.S. 1 (1983)..........................................................................................21
Indiana National Bank v. Roberts, 326 So.2d 802 (Miss. 1976) .............................19
Jones v. Rath Packing Co., 430 U.S. 519 (1977) ............................................. 12, 13
National Bank v. Commonwealth, 9 Wall. 353 (1870) ............................... 13, 22, 23
Nat'l State Bank v. Long, 630 F.2d 981 (3d Cir.1980) ............................................24
Perdue v. Crocker Nat'l Bank, 38 Cal.3d 913 (1985) ..............................................24
Pullman Co. v. Jenkins, 305 U.S. 534 (1939) ..........................................................10
Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) .................................... 12, 13
United States v. Bass, 404 U.S. 336 (1971) .............................................................12
United States v. Mead Corp., 533 U.S. 218 (2001) .................................................18
Waite v. Dowley, 94 U.S. 527, (1876)......................................................................22
Watters v. Wachovia Bank, N.A., 550 U.S. 1 (2007) .................................. 12, 14, 23
Wells Fargo Bank N.A. v. Boutris, 419 F.3d 949 (9th Cir. 2005) ...........................19
Statutes
12 U.S.C. § 43 ..........................................................................................................18
12 U.S.C. 92a ................................................................................................... passim
28 U.S.C. § 1292…………………………………………………………………...4
28 U.S.C. § 1367 ......................................................................................................11
28 U.S.C. § 1441 ........................................................................................... 2, 10, 11
iv
Utah Code § 7-1-704 ................................................................................................25
Utah Code § 16-10a-1501 ........................................................................... 14, 19, 25
Utah Code § 16-10a-1502 ..........................................................................................4
Utah Code § 16-10a-1505 ....................................................................................5, 14
Utah Code § 57-1-21 ......................................................................................... 14, 25
Rules
Fed. R. App. P. Rule 28(c) .........................................................................................1
Regulations
12 C.F.R. § 9.7……………………………………………………......15, 16, 23, 24
12 C.F.R. § 5.34...…………………………………………………………………19
12 C.F.R. § 557……………………………………………………………………15
Other Authorities
Activities Permissible for a National Bank..............................................................16
Comptroller‟s Licensing Manual, Fiduciary Powers ...............................................16
OCC Interp. Letter No. 1103 ...................................................................................18
Case No. 10-4117
IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

__________________________________________________________________
PENI COX,
Plaintiff-Appellant
vs.
RECONTRUST COMPANY, N.A.; BANK OF AMERICA HOME LOANS

SERVICING, LP; BANK OF AMERICA, FSB; NEW LINE MORTGAGE,
DIVISION OF REPULIC MORTGAGE HOME LOANS, LLC; MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC., AND DOES 1-5,
Defendants-Appellee
__________________________________________________________________
Interlocutory Appeal from an Order of the United States District Court

for the District of Utah, Central Division
Hon. Clark Waddoups

_____________________
REPLY BRIEF OF APPELLANT

_____________________
INTRODUCTION
Plaintiff-Appellant Peni Cox (“Cox”) submits this Reply Brief pursuant to
Fed. R. App. P. Rule 28(c).Cox clarifies the issue presented by the Defendant-
Appellees, ReconTrust, Bank of America, and Mortgage Electronic Registration
Systems. For the purpose of this reply brief, Defendant-Appellees shall be known
as ReconTrust, although they are separate entities.
This is an appeal of an Interlocutory Decision by the District Court that
lifted an injunction issued by the State Court.
This Court has jurisdiction under 28 U.S.C. § 1441(b).
Except as provided in subsections (c) and (d) of this section, the

courts of appeals shall have jurisdiction of appeals from: (1)
Interlocutory orders of the district courts of the United States, … of
the judges thereof, granting, continuing, modifying, refusing or
dissolving injunctions, or refusing to dissolve or modify injunctions,
except where a direct review may be had in the Supreme Court[.]
This section, under which Cox appeals, allows this court to review an interlocutory
order of a district court that dissolved an injunction. The District Court entered an
Interlocutory order in which it ruled it had jurisdiction to lift the State Court
injunction based upon the fact the preemption exists which allows ReconTrust to
operate in the State of Utah without being subject to state laws because ReconTrust
is a National Bank. This court need not review the merits of the injunction itself
because that is not the basis of this appeal, but this court must review the District
Court‟s decision upon which the District Court determined the State Court
Injunction invalid.
Cox submits to this Court that there are three possible scenarios presented by
this appeal:
(1) The District Court lacks jurisdiction. This being so, the case should
be remanded to the State Court, Injunction intact.
(2) The District Court has jurisdiction but made an error in its interpretation
of the National Bank Act and the ability of a National Bank to preempt State
statutes. The result would be that the District court retains jurisdiction, but, based
on Utah law, the injunction must be reinstated or a new injunction issued.
(3) The District Court has jurisdiction and did not error in its interpretation
of the National Bank Act. This is the position of ReconTrust which Cox wholly
disputes.
Cox declines to argue the merits of the injunction because the injunction
itself is not the basis of the appeal, but a more substantial issue of preemption1 that
was addressed in the Interlocutory order is what Cox submits to this court as the
basis of appeal.
RESPONSE TO COUNTERSTATEMENT OF THE ISSUES PRESENTED ON

APPEAL
The Defendants suggest that Plaintiff Cox filed the appeal to decide whether
the district court abused its discretion when it dissolved the state court injunction.
See Respondent‟s Brief p. 3. This is incorrect. “The threshold question here is
whether the [district] court has subject matter jurisdiction over this action.” District
Court Memo. Dec. at 2. Plaintiff filed an interlocutory appeal pursuant to 28
1
“The question becomes whether the National Banking Act completely preempts these Utah
causes of action allowing for removal in this case.” Appellant Brief Attachment 1, Memo. Dec.
p. 8.
3
U.S.C. 1292(a) for this court to review an interlocutory order of a district court that
dissolved an injunction.
The threshold question for modification of an injunction is whether the
district court has jurisdiction, not whether the district court abused its discretion in
dissolving the injunction. See Enterprise Intern., Inc. v. Corporation Estatal
Petrolera Ecuatoriana, 762 F.2d 464, 470-71 (5th Cir. 1985) (a district court must
have valid jurisdiction before entering an order respecting interlocutory injunctive
relief); Respondent‟s Brief p. 13 (agreeing with this point). The district court ruled
that it held jurisdiction on the sole grounds of complete preemption of both Utah
statutes. District Court Memorandum Opinion p. 2
Defendants contend that the injunction as a result of their failure to register
as a foreign corporation is procedurally invalid. The State Court correctly issued
the injunction. The Defendants reach their conclusion as a result of their flawed
reading of the statute.
The Utah registration statute is stated thusly:
16-10a-1502. Consequences of transacting business without

authority.
(5) Upon a finding by the court that a foreign corporation or any of its
officers or agents have transacted business in this state in violation of
this part, the court shall issue, in addition to or instead of a civil
penalty, an injunction restraining the further transaction of the
business of the foreign corporation and the further exercise of any
corporate rights and privileges in this state. Upon issuance of the
injunction, the foreign corporation shall be enjoined from transacting
business in this state until all civil penalties have been paid, plus any
4
interest and court costs assessed by the court, and until the foreign
corporation has otherwise complied with the provisions of this part.
The State Court received evidence that ReconTrust, Bank of America, and
MERS are not registered to do business in the State of Utah. The State Court then
issued an injunction as it is directed to do so under the statute.
ReconTrust reads the statute thusly:
If a foreign corporation is found to be in violation of these provisions,

section 1502(5) permits a court issue “an injunction restraining the
further transaction of the business of the foreign corporation and the
further transaction of the business of the foreign corporation and the
further exercise of any corporate rights and privileges in this state.”
Respondents Brief Foot note 6 page 32.
ReconTrust believes that the injunction was permissive, and ReconTrust
wants this court to think that the State Court was outside its boundaries when it
issued the injunction. According to the plain language of the statute, an injunction
was mandatory. If ReconTrust has issue with the fact that the statute requires an
injunction they need to challenge the statute in court, not simply try to convince
this Court that the statute says something other than what it actually does.
Thus, the question of whether the District Court properly exercised
jurisdiction is the only question on appeal which this Court must answer. This
Court need not determine the validity of the injunction issued by the State Court.
RESPONSE TO STANDARD OF REVIEW
Defendants argue that the standard of review in this case is “abuse of
discretion.” See Respondent‟s Brief p. 13. Defendants are incorrect. The standard
of review for this case is de novo. See Appellants Brief p. 2. Even assuming
Defendants‟ view of the issues on appeal is correct, the standard of review is still
de novo. Attorney General of Oklahoma v. Tyson Foods, Inc., 565 F.3d 769, 776
(10 Cir. 2009).
SUMMARY OF ARGUMENT
The District Court did not have the power to dissolve the Injunction issued
by the State Court. The District Court claimed that complete preemption existed
making Plaintiff‟s claims federal, and that it had jurisdiction over the issues
enabling it to enter a ruling dissolving the injunction. District Court Memo. Dec.
at 17. The District Court held that there are only two possible grounds for
concluding that the court could retain jurisdiction and dissolve the injunction.
District Court Memo. Dec. at 3. First, if supplemental jurisdiction existed, then the
District Court could have exercised jurisdiction. Id. Second, if the National Bank
Act (NBA) completely preempted both Utah statutes, then the District Court could
have exercised jurisdiction. Id. Neither supplemental jurisdiction nor complete
preemption however, is present in this case.
First, there was no supplemental jurisdiction at the time of removal, since
Plaintiff‟s state law claims were not so related to her RESPA claim that they
formed part of the same case or controversy. District Court Memo. Dec. at 3.
Even if they did, a District Court should not exercise supplemental jurisdiction
when the federal law claims are no longer present. Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350 (1988).
Second, the NBA does not “completely preempt” both Utah statutes.
Plaintiff has already thoroughly demonstrated this point in the original brief, and
all of Defendants‟ arguments in their response are unavailing.
(1) Despite the Defendant‟s assertions to the contrary, the presumption
against preemption does apply here. Cuomo v. Clearing House Ass’n,
L.L.C., 129 S. Ct. 2710, 2720-21 (2009).
(2) Moreover, 12 U.S.C. 92a and associated regulations do not preempt both
Utah statutes, since neither statue is an exercise of visitorial powers nor
specifically preempted by 12 U.S.C. 92a and associated regulations.
Indeed, the only interpretation that would allow for 12 U.S.C. 92a and
associated regulations to preempt both Utah statutes would make national
banks completely immune to all State laws, a clearly absurd result.
(3) Nor is the Defendants‟ reliance on the OCC interpretation letters
particularly persuasive, since they are neither binding, nor do they
specifically address the question at issue.
(4) Defendants‟ other arguments are neither persuasive nor on point.
(5) Defendant now serially shifts positions to disguise the fact that no similar
institution, state or federally chartered, is given power of sale as trustee
of a trust deed by Utah law. First defendant claimed to be a “depository
institution”2 in obtaining reversal of the state court injunction. Next,
Defendants claimed to be a “Trust (Non-Deposit)” and a “non-depository
institution.”3 It appearing that trust companies also lack power of sale
under Utah law, defendant now claims that federally chartered trust
companies have power of sale by implication from their trust powers,
though state trust companies do not.
(6) Lastly Defendants position is undermined by the very instrument they
wish to enforce, the Deed of Trust. Under paragraph 16 of the Deed of

2
“Utah Code § 57-1-21 provides a list of persons eligible to act as trustees in Utah. These
include members of the Utah state bar, depository institutions, and title insurance companies.
Utah Code § 57-1-21. ReconTrust is not permitted to serve as a trustee under this Utah
regulation. This restriction on ReconTrust‟s ability to act as a trustee clearly conflicts with 12
U.S.C. § 92a(b) because Utah Code § 57-1-21 “allows a „depository institution,‟ which is
unquestionably a competitor of a national bank, to act as a trustee.” (Memo. Dec. [Doc. # 45] at
14.) Preemption principles thus bar the application of § 57-1-21 to ReconTrust, and Plaintiff‟s
request for summary judgment on her claim based on that statute must be denied.” Defendants‟
Memo. in Opp., [Doc. #58] at 6, Attach. 1.
3
“The Court can take judicial notice of the fact that ReconTrust Company, N.A. is a non-
depository institution as that fact is set forth in the public records.” Dec. Richard Ensor [Doc. #
66] at 2, par. 2, Attach. 2.
8
Trust states “This Security Instrument shall be governed by federal law
and the law of the jurisdiction in which the property is located.” Attach.3.
Even if the NBA did preempt either Utah statute, the NBA does not
“completely preempt” them. Federal preemption requires that the State statute
conflicts with the federal statute, but “complete preemption” requires that the NBA
provide “the exclusive cause of action for the claim asserted and also set forth
procedures and remedies governing that cause of action.” Beneficial Nat’l Bank v.
Anderson, 539 U.S. 1, 8 (2003) (emphasis added). This standard, as articulated by
the Supreme Court, is simply not present in this case.
Thus, the District Court incorrectly exercised jurisdiction in this case, and
this Court should remand this case to the State trial court, or in the alternative issue
an order to the District Court to correct its ruling.
ARGUMENT
Plaintiff will not restate all of the same arguments already presented within
Plaintiff‟s opening brief. Rather, Plaintiff will only focus on responding to
arguments that Respondent raises that the Plaintiff has not already covered in the
opening brief.
I. THE DISTRICT COURT SHOULD ONLY HAVE EXERCISED

JURISDICTION IN THIS CASE IF THE NATIONAL BANK ACT
COMPLETELY PREEMPTED THE RELEVANT UTAH STATUTES
A defendant may remove a civil action filed in state court to federal court if
a claim arises under federal law. 28 U.S.C. § 1441(b) (2010). In determining “if a
claim arises under federal law, courts examine the „well pleaded‟ allegations of the
complaint and ignore potential defenses.” Beneficial Nat’l Bank v. Anderson, 539
U.S. 1, 6 (2003) and 28 U.S.C. § 1441 (2010). The action here was removed solely
on the basis of an original claim under RESPA. Since Cox amended her complaint
to voluntarily dismiss the RESPA claim and include only state claims, there are
only two possible grounds for the District Court to retain jurisdiction. Removal is
not available to re-institute the RESPA claim for decision.
(1)The court may exercise supplemental jurisdiction if it concludes that the
state law claims “are so related to” her RESPA claim “that they form part of the
same case or controversy.” 28 U.S.C. § 1367(a) (2010). It is not necessary that the
plaintiff alleges no federal claim now, since the court must determine the right to
remove at the time of the petition for removal. Pullman Co. v. Jenkins, 305 U.S.
534, 537 (1939). However, the District Court should refuse supplemental
jurisdiction if the federal claims are no longer present. Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350 (1988); Bauchman ex rel. Bauchman v. West High
Sch., 132 F.3d 542, 549 (10th Cir.1997); American Bush v. City of South Salt Lake,
10
42 Fed.Appx. 308, 310 (2002). The cases cited by defendant (e.g. Boelens, 759
F.2d 504 (5 Cir. 1985); Westmoreland, 605 F.2d 119 (3 Cir. 1979)) nowhere
suggest that voluntary dismissal of a federal claim after removal leaves the federal
court with jurisdiction to review and reverse prior state law decisions of the state
court. Such decisions would be protected by at least comity and the law of the
case.
Bank of America‟s alleged RESPA and TILA violations, that were dropped
from Cox‟s amended complaint, are not related to ReconTrust‟s power to sell Ms.
Cox‟s home, let alone so related “that they form part of the same case or
controversy.” 28 U.S.C. § 1367(a) (2010). Indeed, the District Court concluded
that it would be incorrect to exercise supplemental jurisdiction in this case. District
Court Memorandum opinion at 3.
(2) The defendant may remove to federal court when a federal statute wholly
displaces a State law cause of action through complete preemption.4 Beneficial
Nat’l Bankv. Anderson, 539 U.S. 1, 8 (2003) and 28 U.S.C. § 1441 (2010).
Complete preemption only occurs when the federal statutes at issue provide “the
exclusive cause of action for the claim asserted and also set forth procedures and
remedies governing that cause of action.” Beneficial Nat’l Bank v. Anderson, 539
4
Diversity of citizenship was not asserted as a ground for removal. Further, diversity may not be
resorted to for removal of a matter in which the state court has ruled on a state law issue, to
obtain review of that decision by the federal court.
11
U.S. 1, 8 (2003) (emphasis added). In other words, the cause of action, “even if
pleaded in terms of state law, is in reality based on federal law.” Id.
Thus, in order for complete preemption to occur here, the NBA must not
simply interfere with the state law claims, but the NBA must completely control
this specific cause of action by the Plaintiff. In this case it does not. See for
example Cuomo at 2720-21, “States…have always enforced their general laws
against national banks--and have enforced their banking-related laws against
national banks”; Watters, at 12; and Barnett Bank of Marion County v. Nelson, 517
U.S. 25, 31 stating the NBA preempts state law whenever a state law directly
conflicts with a specific federal statute, or the state law would “significantly
impair” a specific federal statute.
II. THE NATIONAL BANK ACT DOES NOT PREEMPT EITHER

UTAH STATUTE
A. The Presumption Against Preemption Applies in this Case
The presumption against preemption applies when the area of law is
historically under the States‟ police powers. Rice v. Santa Fe Elevator Corp., 331
U.S. 218, 230 (1947). “This assumption provides assurance that "the federal-state
balance," United States v. Bass, 404 U.S. 336, 349 (1971), will not be disturbed
unintentionally by Congress or unnecessarily by the courts.” Jones v. Rath Packing
Co., 430 U.S. 519, 525 (1977).
12
This presumption against preemption however, does not apply “when
Congress has „unmistakably… ordained,‟ Florida Lime & Avocado Growers,
Inc. v. Paul, 373 U.S. 132, 142 (1963), that its enactments alone are to regulate a
part of commerce, state laws regulating that aspect of commerce must fall. This
result is compelled whether Congress' command is explicitly stated in the statute's
language or implicitly contained in its structure and purpose. City of
Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 633 (1973); Rice at 230;
Jones at 525. However, “States, on the other hand, have always enforced their
general laws against national banks--and have enforced their banking-related laws
against national banks.” Cuomo at 2720-21. As both Utah statutes are general laws,
applying to national banks and non-national banks alike, they merit presumption
against preemption under the Court‟s analysis.
Furthermore, “[N]ational Banks „acquisition and transfer of property [are]
based on state law.‟” Watters at 6, quoting National Bank v. Commonwealth, 9
Wall. 353, 362 (1870). Therefore, since both Utah statutes concern the acquisition
and transfer of property within their borders, they fall within the traditional police
powers of the States. Thus, these statutes merit presumption against preemption
under the Court‟s analysis.
13
B. As Stated Previously, the NBA does not Preempt either Utah Statute
As originally stated in the Appellant‟s Brief, the NBA only preempts a State
statute in two instances. First, when the state exercises visitorial powers. Cuomo at
2721, and Watters at 6. The Supreme Court has defined visitorial powers as a
sovereign‟s supervisory powers over corporations, including any form of
administrative oversight that allows a sovereign to inspect books and records on
demand. Cuomo, at 2721. But since neither Utah Code § 16-10a-15015 nor § 57-1-
21(3) are an exercise of visitorial powers, the NBA cannot preempt them.
Second, the NBA preempts state law whenever a state law directly conflicts
with a specific federal statute, or the state law would “significantly impair” a
specific federal statute. Watters, at 12 and Barnett at 31. However, there is no
specific federal statute that would preempt either State statute.
Consequently, the NBA does not preempt either Utah statute.
C. Defendants‟ Analysis of 12 U.S.C. § 92a and Associated Regulations

is Incorrect
Section 92a addresses the applicability of state laws to a national bank's trust
powers:
(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
5
16-10a-1505(3) This chapter does not authorize this state to regulate the organization or
internal affairs of a foreign corporation authorized to transact business in this state.
14
of State or local law, the right to act as trustee, executor,

administrator, registrar of stocks and bonds, guardian of estates,
assignee, receiver, committee of estates of lunatics, 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. (emphasis added). 12 U.S.C. § 92a(a).
Therefore, a national bank may receive the legal status as a trustee from the
Comptroller “when not in contravention of State or local law” within the State in
which it is “located.”
The Definition of “Located.”
Looking at the plain language of the statute we can determine the definition
of the word “located”.
(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 trustee,…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. (emphasis added). 12 U.S.C. § 92a(a).
“Located” refers to any State where the national bank is in competition with State
banks.
The OCC interprets “locate” not as defining situs in one state, but in any
State in which the national bank is in competition with State banks. To clarify
“locate” the Comptroller promulgated 12 C.F.R. § 9.7. “The state laws that apply
to a national bank's fiduciary activities by virtue of 12 U.S.C. 92a are the laws of
15
the State in which the bank acts in a fiduciary capacity.” 12 C.F.R. 9.7 (e). A
national bank acts in 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).
Under the title Fiduciary Activities in Activities Permissible for a National
Bank, published in April of 2010, the OCC says:
Fiduciary Activities, In Gerneral. National banks with fiduciary

powers (which may be granted at the time of the chartering or
subsequently on application to the OCC) are subject to federal rules
that define fiduciary standards and authorize national banks to operate
in the same capacities as fiduciaries are permitted to operate6in the
States7 where the bank conducts its trust activities(emphasis
added). 12 USC 92a and 12 CFR 9. (P.42)
In the Comptroller’s Licensing Manual, Fiduciary Powers, published in June 2002,
the OCC says:
Fiduciary powers mean the authority the OCC permits a bank to

exercise pursuant to 12 USC 92a. The extent of fiduciary powers is
the same for out-of-state national banks as for instate national banks
and that extent depends upon what powers the state grants to the
fiduciaries in the state with which the national banks compete. (p.2).
A bank with existing fiduciary powers may offer services in
multiple states through branches, trust offices, or trust representative
offices in such states. Such a bank may exercise any of the fiduciary
powers granted in 12 USC 92a(a) in any state, unless that state
6
In Watters the Supreme Court used the word “operate” interchangeably with locate when
discussing an analogous situation involving the location of a subsidiary bank.
7
Note that “States” is plural, meaning that the bank can operate and conduct its activities in more
than one State.
16
prohibits both national banks and competing institutions in its own

state from exercising that fiduciary power. (p.3).
Where is ReconTrust “Located”?
ReconTrust, as a national bank comes into competition with which State
banks? Utah State banks. ReconTrust is not competing with California State
banks in Utah. ReconTrust is not competing with Texas State banks in Utah.
ReconTrust is not competing with Utah State banks in Texas or California.
ReconTrust is competing with Utah State banks and/or trust companies.
ReconTrust is located in Utah.
ReconTrust is Located in Utah, California, Texas, Arizona, Alaska, Arkansas,

Idaho, Mississippi, Montana, Nebraska, Nevada, Oregon, Tennessee, Virginia,
and Washington.
According to the ReconTrust website, ReconTrust is located in 15 States.
ReconTrust claims it is “headquartered in California and its trust operations for
Utah foreclosures take place in Texas.” Appellee Brief pg. 41. ReconTrust at least
admits to being located in at least two places, California and Texas.
D. Defendants Reliance on the OCC Interpretive Letters is Unavailing
Defendants incorrectly rely on the OCC interpretive letters. See
Respondent‟s Brief at p. 34-35.
First, the OCC Interpretive Letters are not binding. The 1994 amendments
on the NBA recognized that the OCC had been issuing interpretive letters on
17
federal preemption. See 12 U.S.C. § 43. However, by its own language, § 43 does
not confer any authority on the OCC to make binding determinations concerning
statutory preemption. Id. Rather, § 43(a) requires the OCC to follow notice-and-
comment procedures before issuing “any opinion letter or interpretive rule that
concludes that Federal law preempts the application to a national bank of any State
law regarding community reinvestment, consumer protection, fair lending, or the
establishment of intrastate branches.” The crucial phrase here, “opinion letter or
interpretive rule,” makes it clear that these types of administrative actions do not
have any force of law and generally are not eligible for Chevron deference.
See United States v. Mead Corp., 533 U.S. 218 (2001); Christensen v. Harris
County, 529 U.S. 576 (2000).
Second, Defendants appear to over-read these OCC interpretive letters. In
each instance, the OCC appears to adhere to the analysis that the Plaintiff set out in
the original brief. See Petitioner‟s Brief at p. 14-15. The NBA preempts State law
when it attempts to exercise visitorial powers, or when there is a specific federal
law on point. See OCC Interp. Letter No. 1103 (North Carolina law specifically
conflicting with 12 U.S.C. 92a). As stated previously, neither situation is present
here. See Petitioner‟s Brief.
18
E. Defendants‟ Other Arguments are Unavailing
First, Defendants‟ argue that Utah Code § 16-10a-1501 is an exercise of
visitorial powers. However, for the reasons stated in the Petitioner‟s original brief,
this argument is unpersuasive.
Second, Defendants‟ urge reliance on three more non-binding cases that they
believe to be persuasive in this case: Wells Fargo Bank N.A. v. Boutris, 419 F.3d
949 (9th Cir. 2005); 770 PPR, LLC v. TJCV Land Trust, 30 So.3d 613 (Fla. App.
2010); Indiana National Bank v. Roberts, 326 So.2d 802 (Miss. 1976). Not only
are these cases non-binding, they are not particularly persuasive.
Boutris held that the OCC‟s extensive regulation concerning operating
subsidiaries of a national bank (12 C.F.R. § 5.34) preempted a blatant exercise of
visitorial powers over a subsidiary of a national bank. Boutris, 419 F.3d at 949-70.
Both TJCV and Roberts held that a State cannot prohibit a national bank from
filing suit or being sued due to a specific federal law stating to the contrary. It is
not clear how these cases are particularly analogous, let alone persuasive, to the
current dispute.
19
Third, Defendant argues that Plaintiff Cox uses this appeal as a challenge to
remand ruling. This is incorrect. Plaintiff filed this appeal to challenge the district
court‟s ruling that the NBA completely preempted both Utah statutes. Such a
decision implies that State regulations concerning commercial and real property
law cannot apply to national banks, a completely absurd result and one that
conflicts with the long history of federal law concerning State regulation of
national banks.
F. The National Bank Act does not Completely Preempt both Utah
Statutes
As stated above, the NBA does not preempt either Utah statute. However,
the standard here is not that the National Bank Act must preempt these statutes, but
that they must “completely preempt” them. Complete preemption only occurs
when the federal statutes at issue provide “the exclusive cause of action for the
claim asserted and also set forth procedures and remedies governing that cause of
action.” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003) (emphasis added).
In other words, the cause of action, “even if pleaded in terms of State law, is in
reality based on federal law.” Id.
Under the well-pleaded-complaint rule, “a federal court does not have
original jurisdiction over a case in which the complaint presents a State-law cause
of action, but also asserts that federal law deprives the defendant of a defense he
20
may raise, ... or that a federal defense the defendant may raise is not sufficient to
defeat the claim.” Franchise Tax Bd. of Cal. v. Construction Laborers Vacation
Trust for Southern Cal., 463 U.S. 1, 10 (1983). “[A] case may not be removed to
federal court on the basis of ... the defense of pre-emption ....” Caterpillar Inc. v.
Williams, 482 U.S. 386, 393, 107 S.Ct. 2425 (1999). To be sure, preemption
requires a State court to dismiss a particular claim filed under State law, but it does
not, as a general matter, provide grounds for removal.
Even assuming arguendo that Defendant ReconTrust is correct in asserting
that the National Bank Act preempts both Utah statutes, the National Bank Act
does not provide for “the exclusive cause of action for the claim asserted and also
set forth procedures and remedies governing that cause of action” in all State
agency registration and trustee power of sale cases based on State law. (Emphasis
added). Beneficial at 8.
Therefore, the District Court incorrectly ruled that the National Bank Act
“completely preempts” both Utah statutes.
III. THE PREMISE OF RECONTRUST’S ARGUMENT IS THAT STATE

LAWS DO NOT APPLY TO NATIONAL BANKS
A. The Historical Overview of the Subjection of National Banks to State
Laws According to the Supreme Court
“So of the banks. They are subject to the laws of the State, and are
governed in their daily course of business far more by the laws of the
State than of the Nation. *** It is only when the State law
21
incapacitates the banks from discharging their duties to the

government that it becomes unconstitutional.” National Bank v.
Commonwealth, 76 U.S. 353, 362 (1869).
“We have more than once held in this court that the national banks
organized under the acts of Congress are subject to State Legislation,
except were such legislation is in conflict with some act of Congress,
or where it tends to impair or destroy the utility of such banks, as
agents or instrumentalities of the United States, or interferes with the
purposes of their creation.” Waite v. Dowley, 94 U.S. 527, 533
(1876).
“National banks are brought into existence under the federal

legislation, are instrumentalities of the federal government and are
necessarily subject to the paramount authority of the United States.
Nevertheless, national banks are subject to the laws of a state in
respect of their affairs, unless such laws interfere with the purposes of
their creation, tend to impair or destroy their efficiency as federal
agencies, or conflict with the paramount law of the United States.”
First National Bank in St. Louis v. Missouri, 263 U.S. 640, 656
(1924).
“This Court has often pointed out that national banks are subject to
state laws, unless those laws infringe the national banking laws or
impose an undue burden on the performance of the banks' functions.”
Anderson Nat. Bank v. Luckett, 321 U.S. 233, 248 (1944).
“In defining the pre-emptive scope of statutes and regulations granting

a power to national banks, these cases take the view that normally
Congress would not want States to forbid, or to impair significantly,
the exercise of a power that Congress explicitly granted. To say this is
not to deprive States of the power to regulate national banks, where
(unlike here) doing so does not prevent or significantly interfere with
the national bank's exercise of its powers.” Barnett Bank of Marion
County v. Nelson, 517 U.S. 25, 33 (1996).
“Federally chartered banks are subject to state laws of general

application in their daily business to the extent such laws do not
conflict with the letter or the general purposes of the NBA. States are
permitted to regulate the activities of national banks where doing so
22
does not prevent or significantly interfere with the national bank's or

the national bank regulator's exercise of its powers.”Watters v.
Wachovia Bank, 550 U.S. 1, 11, 12 (2007).
“No one denies that the National Bank Act leaves in place some state
substantive laws affecting banks. This [national banking] system
echoes many other mixed state/federal regimes in which the Federal
Government exercises general oversight while leaving state
substantive law in place.”Cuomo v. The Clearing House Association,
L.L. C. and Office of the Comptroller of the Currency, 129 S. Ct.
2710, 2717-18 (2009).
B. The Correct Interpretation of How Utah State Laws Apply to National Banks
Trustee Status in Utah

Defendants suggest that State laws concerning the acquisition and transfer of
property do not apply to national banks. That would mean that Utah could regulate
how individuals and State banks acquire and transfer property, but that these laws
could not apply to national banks. Not only does this run afoul of Supreme Court
case law (“[N]ational Banks acquisition and transfer of property [are] based on
State law.” Watters at 6, quoting National Bank v. Commonwealth, 9 Wall. 353,
362 (1870)), but it also violates States police powers8 and allows national banks to
completely ignore State law. See 12 C.F.R. 9.7 (d).
8
“See, e.g., 12 C.F.R. §§ 557.13(a) & 560.2(c) (state laws pertaining to contract and commercial
law, tort law, criminal law, real property law, and homestead law are not preempted by OTS
regulations); de la Cuesta, 458 U.S. at 172, 102 S.Ct. 3014 (“Nothing in the language of ...
HOLA ... suggests that Congress intended to permit the [OTS] to displace local laws, such as tax
statutes and zoning ordinances, not directly related to savings and loan practices.”) (O'Connor, J.,
concurring); First Nat'l Bank v. Dickinson, 396 U.S. 122, 90 S.Ct. 337, 24 L.Ed.2d 312 (1969)
(allowing application of a Florida branch bank statute to national banks in the state); Franklin
Nat. Bank v. New York, 347 U.S. 373, 378 n. 7, 74 S.Ct. 550, 98 L.Ed. 767 (1954) ( “[N]ational
banks may be subject to some state laws in the normal course of business if there is no conflict
23
The Defendants also contend that 12 CFR 9.7(e) grants them the power of
sale. Both the plain and correct reading of this statute is that federal law limits the
assignment to national banks of authority to act only “when not in contravention of
State or local law.” A federally chartered trust company can have no power
conferred upon it by the comptroller which is not conferred by State law, such as §
57-1-21, UCA (1953), upon similar State chartered institutions.
But the Defendants then take this regulation to justify that they may ignore
any State law that they believe “limits” or establishes “preconditions” on their
ability to act as a trustee. The Defendants completely misunderstand 9.7(e). This
regulation was meant to ensure that national banks may have the legal authority to
act as a trustee (among the other fiduciary capacities) - not to ignore the laws of the
States in which they do business. If ReconTrust‟s reading was correct, then a
national bank could ignore all State laws since they would potentially “limit” or
establish “preconditions” on their ability to act in fiduciary capacity. Indeed, it is
difficult to imagine a single economic or property regulation that a State could
promulgate that would not in some way “limit” a national bank‟s ability to act in
one of its eight fiduciary capacities.
with federal law.”); see also Nat'l State Bank v. Long, 630 F.2d 981, 985 (3d Cir.1980)
(“[R]egulation of banking has been one of dual [federal-state] control since the passage of the
first National Bank Act in 1863.”); Perdue v. Crocker Nat'l Bank, 38 Cal.3d 913, 937, 216
Cal.Rptr. 345, 702 P.2d 503 (1985) (“Congress has declined to provide an entire system of
federal law to govern every aspect of national bank operations.”), appeal dismissed, 475 U.S.
1001, 106 S.Ct. 1170, 89 L.Ed.2d 290 (1986) (noting lack of jurisdiction).”
Bank of Am. v. City & County of San Francisco, 309 F.3d 551, 566 (9th Cir. 2002)
24
The correct reading is that a national bank may receive the legal status as a
trustee from the Comptroller “when not in contravention of State or local law” of
the State in which it acts with fiduciary capacity. However, a national bank must
still respect the method in which a State regulates the acquisition and transfer of
property.
Registration of Foreign Corporations in Utah
ReconTrust claims that the Utah registration statute inhibits the OCC‟s
ability to authorize a national bank to conduct the business of banking. Appellee‟s
Brief p. 32-3. Once again, this is an overgeneralization.
Utah Code Section 16-10a-1501(1) requires foreign corporations to register
with the division [of corporations]. Utah Code Section 7-1-704 requires financial
institutions to register with the State Department of Financial Institutions. The
irony here is that Countrywide Home Loans, of which ReconTrust is a subsidiary,
or which is also a subsidiary of BAC, and doing business in the State of Utah, is
registered with both State agencies.
Registration with the State is not a licensing activity. No requirements are
made. Everyone can register any business entity they want. The cost is $70.00.
Articles of Incorporation must be filed and the Registered Agent must be
identified.
25
The public policy under this statute is that registration makes it easier for
citizens to obtain service of process on out-of-state corporations doing business in
the State.
The OCC may give ReconTrust the necessary authority to carry on business
as a National Bank. However, the status of national bank is not license for
ReconTrust to operate in any fashion it wants. Necessary does not equate to
sufficient. As Plaintiff stated previously in Cox‟s opening brief, the Utah statute
requiring registration of a Foreign Corporation does not require any visitation, and
the policy behind the statute is that it makes it easier for citizens to obtain service
of process on out-of-state corporations doing business in Utah.
CONCLUSION
For the foregoing reasons, this Court must reverse the order of the District
Court in which it retains jurisdiction, and remand to the State trial Court. Or,
alternatively issue an order to the District Court to correct its ruling.
STATEMENT REGARDING ORAL ARGUMENT
Since this case presents certain key issues concerning the National Bank Act
and its relationship to State law within the Tenth Circuit, we believe that Oral
Argument is necessary.
DATED this _3___ day of November, 2010.

/s/ John Christian Barlow
John Christian Barlow
Attorney for Plaintiff/Appellant
26
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
1. This brief complies with the type-volume limitations of Fed. R. App. P.

32(a)(7)(B) because it contains 6312 words, excluding the parts of the brief
exempted by Fed R. App. P. 32(a)(7)(B)(iii), as counted by Microsoft Word 2007
the word processing software used to prepare this brief.
2. This brief complies with the typeface requirements of the Fed. R. App. P.
32(a)(5) & (6) because it has been prepared in 14 point Times New Roman—a
plain, Roman, proportionally spaced typeface—using Microsoft Word 2007, the
word processing software used to create prepare this brief.
DATED this __3__ day of November, 2010.

27
CERTIFICATE OF COMPLIANCE WITH THE GENERAL ORDER ON

ELECTRONIC FILING
This brief complies with this Court‟s March 18, 2009 general order
regarding electronic filing because:
(1) all required privacy redactions have been made;
(2) the ECF submission is an exact copy of the 7 hard copies of this brief
and documents, which will be submitted within 2 business days of the ECF
filing;
(3) the ECF submission was scanned for viruses with the most recent version
of AVG, and according to the program is free of viruses.
DATED this __3__ day of November, 2010.

28
CERTIFICATE OF SERVICE
I do hereby certify that on this _3___ day of November, 2010, I caused to be

electronically served a true and correct copy of the foregoing REPLY BRIEF OF
APPELLANT to the following:
E. Craig Smay
174 E. South Temple
Salt Lake City, UT 84111 Amir Shlesinger (Admitted pro hac
(801) 539-8515 vice)
Fax: (801) 539-8544 REED SMITH LLP
355 South Grand Avenue, Suite 2900
Cameron Soran (Law Student) Los Angeles, CA 90071-1514
40 N. 300 E. # 101 Telephone: (213) 457-8000
Saint George, Utah 84771 Facsimile: (213) 457-8080
Telephone: (253) 250-9449
James Martin
Michael Huber Reed Smith LLP
8170 S. Highland Drive, Suite E5 225 Fifth Avenue
Sandy, Utah 84093 Pittsburgh, Pennsylvania
JMartin@ReedSmith.com
Richard F. Ensor (10877) Phone: (412) 288-3131
VANTUS LAW GROUP, P.C.
3165 East Millrock Drive, Suite 160 David Bird
Salt Lake City, Utah 84121 Reed Smith LLP
Telephone: (801) 833-0500 225 Fifth Avenue
Facsimile: (801) 931-2500 Pittsburgh, Pennsylvania
DBird@ReedSmith.com
Roy W. Arnold (Admitted pro hac Phone: (412) 288-3131
vice)
REED SMITH LLP
Reed Smith Centre
225 Fifth Avenue /s/ John Christian Barlow
Pittsburgh, PA 15222
Telephone: (412) 288-3916
Facsimile: (412) 288-3063
29
ATTACHMENT 1
Case 2:10-cv-00492-CW-SA Document 58 Filed 07/08/10 Page 1 of 7
Richard F. Ensor (10877)

3165 East Millrock Drive, Suite 160
Salt Lake City, Utah 84121
Telephone: (801) 833-0500
Facsimile: (801) 931-2500
Roy W. Arnold (Admitted pro hac vice)

REED SMITH LLP
Reed Smith Centre
225 Fifth Avenue
Telephone: (412) 288-3916
Facsimile: (412) 288-3063
Amir Shlesinger (Admitted pro hac vice)

REED SMITH LLP
Los Angeles, CA 90071-1514
Telephone: (213) 457-8000
Facsimile: (213) 457-8080
Attorneys for Defendants ReconTrust Company, N.A., BAC Home Loans Servicing, LP
(erroneously sued as “Bank of America Home Loans Servicing, LP”), Bank of America, N.A.
(erroneously sued as “Bank of America, FSB”), and Mortgage Electronic Registration Systems,
Inc.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH -

CENTRAL DIVISION
PENI COX, an individual,

DEFENDANTS’ MEMORANDUM IN
Plaintiff, OPPOSITION TO PLAINTIFF PENI
v. COX’S MOTION FOR PARTIAL
SUMMARY JUDGMENT
RECONTRUST COMPANY, N.A., BANK
OF AMERICA HOME LOANS SERVICING, Case No. 10-cv-00492
LP; BANK OF AMERICA, FSB, NEW LINE
MORTGAGE, DIVISION OF REPUBLIC, Honorable Clark Waddoups
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.; AND Magistrate Judge Alba
DOES 1-5,
Defendants.
I. INTRODUCTION
On June 7, 2010, only a month after serving her complaint on ReconTrust, N.A.
(“ReconTrust”), Plaintiff Peni Cox (“Plaintiff”) filed an “emergency” motion for partial
summary judgment seeking an adjudication of her first and second claims which allege that
ReconTrust violated registration and trustee qualification requirements set forth in Utah Code §§
57-1-21 and 16-10a-1501.
Plaintiff’s motion raises the same issues previously addressed by this Court in connection
with the motion to dissolve the preliminary injunction filed by ReconTrust and other defendants.
After hearing oral argument, on June 11, 2010, the Court granted the motion to dissolve the
injunction finding that Utah Code §§ 57-1-21 and 16-10a-1501 are preempted by federal law.
(6/11/10 Order [Doc. # 42]; Memo. Dec. [Doc. # 45].) The Court’s order and its conclusion that
these statutory provisions are preempted by federal law are dispositive of Plaintiff’s first and
second claims. Therefore, this Court should deny Plaintiff’s motion for partial summary
judgment.1
II. RESPONSE TO PLAINTIFF’S STATEMENT OF UNDISPUTED FACTS
Plaintiff’s motion is not supported by any competent affidavits, deposition testimony, or
any admissible evidence. Indeed, the motion fails to establish any material facts necessary to
state any claim against ReconTrust, let alone establish any entitlement to judgment against
ReconTrust. Plaintiff does not present evidence to establish even the basic elements of her
claim; namely, that ReconTrust foreclosed on her home in violation Utah Code §§ 57-1-21 and
16-10a-1501. Plaintiff’s alleged undisputed material “facts” are primarily comprised of

improper legal assumptions and conclusions. Paragraphs 4 through 11, for instance, include
1
Subsequent to filing her motion for partial summary judgment, Plaintiff moved to dismiss her third, fourth and fifth
claims from the amended complaint, as well as New Line Mortgage as a defendant. (Motion to Amend [Doc. # 49].)
Accordingly, Plaintiff’s first and second claims are the only remaining claims in this action, and ReconTrust and the
other remaining defendants filed a motion to dismiss those claims. (Motion to Dismiss [Doc. # 52]; Memo. In
Support [Doc # 53].)
2
citations to Utah Code §§ 57-1-21 and 16-10a-1501, as well as citation to inapposite case law
which does not support her motion. Because Plaintiff’s motion is not supported by any
admissible evidence, it should be denied for this reason alone. 2 In any event, for reasons set
forth below, Plaintiff’s motion also should be denied because her claims are preempted by
federal law.
III. LEGAL ANALYSIS AND ARGUMENT
A. Legal Standard Governing Rule 56 Motion For Summary Judgment.
Federal Rules of Civil Procedure 56 provides that summary judgment can be granted only
“if the pleadings, the discovery and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c) (emphasis added). When applying this standard, a court
should review the factual record in the light most favorable to the party opposing summary
judgment. Wilkerson v. Shinseki, 606 F.3d 1256, 1262 (10th Cir. 2010). For purposes of
summary judgment, the court should deny a motion for summary judgment if a reasonable jury
could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). Summary judgment will not be granted, even if there is no genuine issue as to any
material fact, where a moving party is not entitled to judgment as a matter of law. See Applied
Genetics Intern., Inc. v. First Affiliated Securities, Inc., 912 F.2d 1238, 1242 (10th Cir. 1990)
2
To the extent Plaintiff’s statement of facts warrant a specific response under Local Rule 56(c), ReconTrust
responds as follows:
Plaintiff Fact No. 1: Disputed. ReconTrust is a national banking association and is a wholly owned
subsidiary of Bank of America, N.A. (Aff. Of Jeffrey Aiken [Doc. # 20].) Furthermore, based on the Court's
previous ruling in this case and the arguments below, ReconTrust is authorized to conduct foreclosures in the state
of Utah. (6/11/10 Order [Doc. # 42]; Memo. Dec. [Doc. # 45].)
Plaintiff Fact No. 2-3: Undisputed. These facts are not material to Plaintiff’s motion.
Plaintiff Fact Nos. 4-11: Disputed: Plaintiff's assertions are not facts, but rather legal conclusions which
are disputed as set forth below.
3
(even if no genuine issue of material fact in dispute, district court must still correctly apply
substantive law); APC Operating Partnership v Mackey, 841 F.2d 1031, 1033 (10th Cir. 1988)
(same); see also Fed. R. Civ. P. 56(c). Where a plaintiff seeks summary judgment of state-law
claims which are preempted by federal law, summary judgment must be denied. See Dadoub v.
Gibbons, 42 F.3d 285, 290 (5th Cir. 1995) (affirming summary judgment for defendant where
plaintiff's state copyright claims preempted by Federal Copyright Act).
B. Plaintiff’s First And Second Claims Against ReconTrust Are Preempted By

The National Bank Act.
Despite this Court’s preemption analysis, Plaintiff continues to argue that ReconTrust’s
foreclosure of her home violates Utah Code §§ 57-1-21 and 16-10a-1501. Plaintiff’s motion as
to her first and second claims fails as a matter of law, however, because this Court already found
that her claims, based on Utah Code § 57-1-21 and Utah Code § 16-10a-1501, are preempted by
the National Bank Act. (Memo. Dec. [Doc. # 45] at 8-15.)
1. The National Bank Act Specifically Authorizes ReconTrust To
Conduct Foreclosures In Utah.
This Court should deny Plaintiff’s motion for summary judgment with respect to her first
claim under Utah Code § 16-10a-1501 because this Court previously held that Congress intended
“to completely preempt the area of requirements a national bank must meet before conducting
business nationwide.” (Memo. Dec. [Doc. # 45] at 13.)

Utah Code §§ 1501 and 1502 purport to regulate a national bank’s ability to transact
business in Utah. Specifically, section 1501 mandates that a “foreign corporation may not
transact business in this state until its application for authority to transact business is filed by the
division.” Utah Code § 16-10a-1501. Where a foreign corporation’s application is not approved
and filed by the appropriate division, that corporation may not maintain a proceeding in any Utah
state court. Utah Code § 16-10a-1502(1). Moreover, if a foreign corporation is found to be in
4
violation of these provisions, section 1502(5) permits a court to issue “an injunction restraining
the further transaction of the business of the foreign corporation and the further exercise of any
corporate rights and privileges in this state.” Utah Code § 16-10a-1502(5).
These statutes “set out competing state requirements for a bank to transact business,
assign a competing authority to judge if the requirements are met, and provide for competing
remedies for a banks’ failure to meet the state’s requirements.” (Memo. Dec. [Doc. # 45] at 10.)
However, sections “26, 27, and 42 of the National Bank Act leave no room for Utah Code Ann.
§§ 16-10a-1501 and 1502” to regulate national banks. Id. Thus, Plaintiff’s claims based on Utah
Code §§ 16-10a-1501 and 1502 are preempted because the Comptroller is “intended to be the
exclusive authority on what a national bank must do to transact business in any state” under 12
U.S.C. §§ 26-27, 42. Id. at 11. Plaintiff’s motion based on this statute accordingly should be
denied.
2. Section 92a Of The National Bank Act Authorizes ReconTrust To

Conduct A Foreclosure In Utah As A Trustee.
This Court also should deny Plaintiff’s motion for summary judgment with respect to her
second claim under Utah Code § 57-1-21 because 12 U.S.C. § 92a preempts section 57-1-21.
(Memo. Dec. [Doc. # 45] at 14.) Section 92a provides that a national bank’s position as a trustee
“shall not be deemed to be in contravention of State or local law” if a “state allows a competitor
of a national bank to act as a trustee.” Id.; 12 U.S.C. § 92a(b). In other words, where a state law
regulation allows a national bank’s competitor to act as a trustee, a national bank may also act as
a trustee pursuant to section 92a. (Memo. Dec. [Doc. # 45] at 14.) Thus, where state regulation
allows a competitor to act as a trustee, but prohibits a national bank from doing so, section 92a
preempts the state law regulation and permits a national bank to act as a trustee. Id.; see also
Zabriskie v. ReconTrust, et al., Case No. 2:08-CV-00155-BSJ (Doc. No. 31, dated Nov. 12,
2008).
5
Utah Code § 57-1-21 provides a list of persons eligible to act as trustees in Utah. These
include members of the Utah state bar, depository institutions, and title insurance companies.
Utah Code § 57-1-21. ReconTrust is not permitted to serve as a trustee under this Utah
regulation. This restriction on ReconTrust’s ability to act as a trustee clearly conflicts with 12
U.S.C. § 92a(b) because Utah Code § 57-1-21 “allows a ‘depository institution,’ which is
unquestionably a competitor of a national bank, to act as a trustee.” (Memo. Dec. [Doc. # 45] at
14.) Preemption principles thus bar the application of § 57-1-21 to ReconTrust, and Plaintiff’s
request for summary judgment on her claim based on that statute must be denied.
IV. CONCLUSION
Plaintiff’s motion for partial summary judgment fails. This Court’s June 11, 2010
Memorandum Opinion clearly establishes that the National Bank Act preempts Plaintiff’s claims
under Utah Code §§ 57-1-21 and 16-10a-1501. Accordingly, Plaintiff fails to establish an
entitlement to judgment on those claims, and this Court should deny Plaintiff’s Motion.
DATED: July 8, 2010 VANTUS LAW GROUP, P.C.
By /s/ Richard F. Ensor

Attorneys for Defendants ReconTrust Company,
N.A., BAC Home Loans Servicing, LP
(erroneously sued as “Bank of America Home
Loans Servicing, LP”), Bank of America, N.A.
(erroneously sued as “Bank of America, FSB”),
and Mortgage Electronic Registration Systems,
Inc.
6
THE UNDERSIGNED CERTIFIES that on this 8th day of July 2010, a true and correct
copy of the foregoing was filed with the Clerk of Court via ECF and was therefore served by
electronic mail to the following:

ENVISION LAW FIRM
40 North 300 East, Suite 101
St. George, Utah 84770
Michael Huber
8170 S. Highland Drive, Suite E5
Sandy, Utah 84093
/s/ Richard F. Ensor
ATTACHMENT 2
Richard F. Ensor (10877)

3165 East Millrock Drive, Suite 160
Telephone: (801) 833-0500
Facsimile: (801) 931-2500
Roy W. Arnold (Admitted pro hac vice)

REED SMITH LLP
Reed Smith Centre
225 Fifth Avenue
Telephone: (412) 288-3916
Facsimile: (412) 288-3063
Amir Shlesinger (Admitted pro hac vice)

REED SMITH LLP
Los Angeles, CA 90071-1514
Telephone: (213) 457-8000
Facsimile: (213) 457-8080
Attorneys for Defendants ReconTrust Company, N.A., BAC Home Loans Servicing, LP
(erroneously sued as “Bank of America Home Loans Servicing, LP”), Bank of America, N.A.
(erroneously sued as “Bank of America, FSB”), and Mortgage Electronic Registration Systems,
Inc.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH,

CENTRAL DIVISION
PENI COX, an individual,

Plaintiff, DECLARATION OF RICHARD F. ENSOR
v. REQUESTING JUDICIAL NOTICE IN
RECONTRUST COMPANY, N.A., BANK CONNECTION WITH REPLY BRIEF IN
OF AMERICA HOME LOANS SERVICING, SUPPORT OF MOTION TO DISMISS
LP; BANK OF AMERICA, FSB, NEW LINE
MORTGAGE, DIVISION OF REPUBLIC, Case No. 10-cv-00492
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.; AND Honorable Clark Waddoups
DOES 1-5,
Magistrate Judge Alba
Defendants.
I, Richard F. Ensor, declare as follows:
1. I am an attorney duly licensed to practice before this Court. I am the attorney for
Defendants ReconTrust Company, N.A., BAC Home Loans Servicing, LP (erroneously sued as
“Bank of America Home Loans Servicing, LP”), Bank of America, N.A. (erroneously sued as
“Bank of America FSB”), and Mortgage Electronic Registration Systems, Inc. in this action, and
am competent to testify regarding the matters set forth herein.
2. The Court can take judicial notice of the fact that ReconTrust Company, N.A. is a
non-depository institution as that fact is set forth in the public records.
3. The fact that ReconTrust is a non-depository institution is capable of accurate and
ready determination by resorting to sources whose accuracy cannot reasonably be questioned,
such as the Office of Comptrollers’ Quarterly Journal or on Westlaw.
4. Specifically, the following attached documents establish that this fact cannot be
disputed:
a. Attached hereto as Exhibit A is a true and accurate print out of the Office
of the Comptroller of the Currency’s Application for New, Limited-
Purpose National Bank Charters, Approved and Denied, by State, July 1 to
December 31, 2004. Exhibit A states, under type of bank, that
ReconTrust is “Trust (Non-Deposit).”
b. Attached hereto as Exhibit B is a true and accurate copy of the Office of
Comptroller Report on New, Limited-Purpose National Bank Charters
issued January 1, 2005 to June 30, 2005. Exhibit B states that
ReconTrust’s charter has been issued as “Trust (non-deposit).”
c. Attached hereto as Exhibit C is a true and accurate copy of the Office of
Comptroller of the Currency’s Conditional Approval letter to Bank of
America, dated April 23, 2009. Page 7 of Exhibit C states, in pertinent
part, that “Following the conversion of Country wide into BANA-
Colorado, and BANA-Colorado’s merger into BANA, BANA will retain
ReconTrust Company, National Association, an uninsured, nondepository
national bank with trust powers headquartered in Thousand Oaks,
California (“Recon NA”).”
5. The citations listed on the upper left corner of the exhibits identify the specific
citation where these documents can be located in the public record.
6. I declare under penalty of perjury and under the laws of the State of Utah that the
foregoing is true and correct.
EXECUTED this 26th day of July 2010 in Salt Lake City, Utah.
Respectfully submitted,
By: /s/ Richard F. Ensor

Counsel for Defendants
THE UNDERSIGNED CERTIFIES that on this 26th day of July 2010, a true and correct
copy of the foregoing was filed with the Clerk of Court via ECF and was therefore served by
electronic mail to the following:

ENVISION LAW FIRM
40 North 300 East, Suite 101
St. George, Utah 84770
Craig Smay
174 East South Temple
Michael Huber
8170 S. Highland Drive, Suite E5
Sandy, Utah 84093
/s/ Richard F. Ensor
ATTACHMENT 3

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Appellate Case: 10-4117 Document: 01018526530 Date Filed: 11/03/2010 Page: 1

Case No. 10-4117

IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

RECONTRUST COMPANY, N.A.; BANK OF AMERICA HOME LOANS