Finwise Bank v. Great American Finance Holdings, LLC

UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
FINWISE BANK,
Plaintiff,
v.
GREAT AMERICAN FINANCE
HOLDINGS, LLC,
Defendant.
MEMORANDUM DECISION AND
ORDER DENYING [50] DEFENDANT’S
MOTION FOR PARTIAL SUMMARY
JUDGMENT
Case No. 2:24-cv-00408-DBB-DBP
District Judge David Barlow
Before the court is Defendant Great American Finance Holdings, LLC’s (“Great
American”) Motion for Partial Summary Judgment.1 Great American moves for partial summary
judgment against Plaintiff FinWise Bank (“FinWise”) on two points. First, Great American
contends that their contract prohibits FinWise from recovering certain fees after their contractual
relationship allegedly ended on May 17, 2024. Second, Great American contends that FinWise
cannot assert an unjust enrichment claim on the same set of facts as its claim for breach of
contract. For the reasons below, the court denies Great American’s motion.2
UNDISPUTED MATERIAL FACTS
FinWise and Great American entered into a Loan Program Agreement (“Program
Agreement”) under which Great American agreed to perform marketing, administrative, and
subservicing services in connection with certain loans originated by FinWise through an online
1 Mot. for Partial Summ. J. (“Mot.”), ECF No. 50, filed Oct. 6, 2025.
2 Having reviewed the briefing and relevant law, the court finds that oral argument would not materially assist in
resolving the matter. See DUCivR 7-1(g).
Case 2:24-cv-00408-DBB Document 60 Filed 01/23/26 PageID.<pageID> Page 1
of 15

lending program.3 Under the Program Agreement, Great American agreed to remit fees to
FinWise as outlined in the Financial Terms Letter Agreement (“FTL Agreement”), which states
that Great American would make two disbursements to FinWise on a monthly basis.4
The first disbursement is “the Minimum Bank Program Fee” (“MBP Fee”). 5 The MBP
Fee is defined in the FTL Agreement as “calculated by adding the amounts resulting from
multiplying the aggregate principal amount of Loans and Draws originated in such month in the
respective tiers in column (B) [Aggregate Principal Amount of Loans and Draws Originated in a
Given Month] by the amounts set forth in column (C) for such tiers (such sum, the “Percentage
Bank Program Fee”) in the following chart.”6 The FTL Agreement provides that the MBP fees
accrue only “during the Term” of the Program Agreement “for each Month thereafter through the
end of the Term.”7
The second disbursement is “Bank Program Expenses” defined, in relevant part, as
“reasonable out-of-pocket costs and expenses incurred by [FinWise] in connection with this
Program Agreement and [FinWise’s] performance under the Program.”8
The parties agreed that the initial term of the Program Agreement would continue “until
December 31, 2024 . . . unless otherwise terminated as provided herein.”9 The Program
Agreement also provides that either party can terminate the Program Agreement as follows:
Upon occurrence and continuance of a material breach of this Program
Agreement (an “Event of Default”) by [either party], the other may terminate this
3 Mot. ¶¶ 1–2.
4 Id. ¶¶ 4–5.
5 See Decl. of Richard Cawley (“Cawley Decl.”), Ex. 2 (“FTL Agreement”) § 1(a)(i), ECF No. 52, filed Oct. 6,
2025.
6 Id. § 2(A).
7 Id. § 2(B).
8 Cawley Decl., Ex. 1 (“Program Agreement”), Schedule 1.
9 Program Agreement § 7.1.
Case 2:24-cv-00408-DBB Document 60 Filed 01/23/26 PageID.<pageID> Page 2
of 15

Program Agreement following the provision of written notice identifying the
material breach and the defaulting Party’s failure to cure the same within (30)
days of such notice.”10
Finally, the Program Agreement states that “termination of this Program Agreement shall not
terminate, effect or impair any rights, obligations or liabilities of either Party hereto that may
have accrued prior to such termination or that, under the terms of this Program Agreement,
continue after the termination.”11
By January 2024, Great American was in arrears on three payments to FinWise.12 On
April 17, 2024, FinWise delivered a “Notice of Breach of Contract” to Great American (the
“Notice”), notifying Great American that it was in breach of its obligations to pay FinWise its
fees and to reimburse it for its expenses.13 The Notice specified that Great American’s breach
“constitutes an Event of Default under the [Program Agreement]” and the “current amount due to
[FinWise] is $313,117.41.”14
Fifty days after it delivered the Notice, FinWise filed the Complaint in this action,
asserting a claim for breach of both the Program Agreement and FTL Agreement, as well as a
claim for unjust enrichment.15 In its Complaint, FinWise alleges that “it would be unjust and
inequitable to allow Great American to benefit from retaining fees with respect to the Program
and refusing to reimburse FinWise for its expenses under the Program Agreement.”16 The
Complaint also states that Great American has been unjustly enriched in an amount in excess of
10 Program Agreement § 8.1(a)(i).
11 Id. § 7.1.
12 Pl.’s Opp’n to Mot. for Partial Summ. J. 10, ECF No. 53, filed Nov. 3, 2025; Def.’s Reply to Opp’n to Mot. for
Partial Summ. J. 4, ECF No. 57, filed Nov. 17, 2025.
13 Cawley Decl., Ex. 3 (“Notice”).
14 Id.
15 Compl., ECF No. 1, filed June 6, 2024.
16 Id. ¶ 24.
Case 2:24-cv-00408-DBB Document 60 Filed 01/23/26 PageID.<pageID> Page 3
of 15

$313,117.41.17 In its initial disclosures, FinWise states that it seeks to recover both Bank
Program Expenses and MBP Fees from December 31, 2023 through December 31, 2024, subject
to the terms of the Program Agreement and FTL Agreement.18
Finally, the Program Agreement contains a choice-of-law provision providing that the
“Program Agreement and the Sale Agreement shall be construed in accordance with the laws of
the State of Utah.”19
STANDARD
Summary judgment is proper under Federal Rule of Civil Procedure 56(a) “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”20 “[T]he ‘mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.’”21 “To determine whether a
‘genuine issue’ as to a material fact exists, [the court] consider[s] ‘whether the evidence presents
a sufficient disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.’”22 “Mere allegations unsupported by further evidence . . .
17 See id. ¶ 25.
18 See App. to Mot. (“App.”), Ex. 5 § 3, ECF No. 51, filed Oct. 6, 2025.
19 Program Agreement § 10.3.
20 Fed. R. Civ. P. 56(a).
21 Klein v. Roe, 76 F.4th 1020, 1028 (10th Cir. 2023) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)); see N.M.
Oncology & Hematology Consultants, Ltd. v. Presbyterian Healthcare Servs., 994 F.3d 1166, 1171–72 (10th Cir.
2021) (“To survive a motion for summary judgment, the nonmoving party must show more than ‘[t]he mere
existence of a scintilla of evidence in support of the [nonmoving party’s] position . . . there must be evidence on
which the jury could reasonably find for the [nonmoving party].’” (alterations in original) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986))).
22 Klein, 76 F.4th at 1028 (quoting Anderson, 477 U.S. at 252). Relevant evidence includes “pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits.” Baca v. Sklar, 398 F.3d 1210, 1216
(10th Cir. 2005) (citing Fed. R. Civ. P. 56(c)).
Case 2:24-cv-00408-DBB Document 60 Filed 01/23/26 PageID.<pageID> Page 4
of 15

are insufficient to survive . . . summary judgment.”23 “The movant bears the initial burden of
demonstrating the absence of a genuine issue of material fact, but once the moving party has
done so, the burden shifts to the non-movant to establish a genuine issue of fact.”24 The court
“view[s] the evidence and draw[s] all reasonable inferences in favor of the nonmoving party.”25
DISCUSSION
Great American seeks summary judgment on two issues. First, Great American alleges
that FinWise is precluded from seeking recovery of MBP fees after May 17, 2024 because the
Program Agreement terminated on that date, when the cure period expired.26 Second, Great
American alleges that FinWise cannot seek recovery for unjust enrichment because that claim is
based upon the same set of facts as FinWise’s claim for breach of the Program Agreement and
because there is an express contract that covers the subject matter of the claim.27 The court
addresses each issue in turn.
I. 	Great American Is Not Entitled to Summary Judgment on post-May 17, 2024 MBP
Fees
“In interpreting a contract, the intentions of the parties are controlling.”28 “And the best
indication of the parties’ intent is the ordinary meaning of the contract’s terms.”29 Therefore, a
court will “look first to the contractual language itself and ‘consider each contract provision in
relation to all of the others, with a view toward giving effect to all and ignoring none.’”30
23 James v. Wadas, 724 F.3d 1312, 1319–20 (10th Cir. 2013) (citation omitted).
24 Georgelas v. Desert Hill Ventures, Inc., 45 F.4th 1193, 1197 (10th Cir. 2022) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)).
25 Butler v. Daimler Trucks N. Am., LLC, 74 F.4th 1131, 1140 (10th Cir. 2023).
26 Mot. 1–2, 9–12.
27 Id. 2, 12–13.
28 WebBank v. Am. Gen. Annuity Serv. Corp., 2002 UT 88, ¶ 17, 54 P.3d 1139 (cleaned up).
29 Mind & Motion Utah Invs., LLC v. Celtic Bank Corp., 2016 UT 6, ¶ 24, 367 P.3d 994.
30 Vanderwood v. Woodward, 2019 UT App 140, ¶ 24, 449 P.3d 983 (quoting McNeil Eng’g & Land Surveying, LLC
v. Bennett, 2011 UT App 423, ¶ 8, 268 P.3d 854).
Case 2:24-cv-00408-DBB Document 60 Filed 01/23/26 PageID.<pageID> Page 5
of 15

“Where ‘the language within the four corners of the contract is unambiguous, the parties’
intentions are determined from the plain meaning of the contractual language, and the contract
may be interpreted as a matter of law.’”31 “But where a contractual term or provision is
ambiguous as to what the parties intended, the question becomes a question of fact to be
determined by the fact-finder.”32 And, as mentioned above, when “the evidence presents a
sufficient disagreement to require submission to a jury,” a party cannot prevail on that claim as a
matter of law.’”33
Great American’s argument on damages relies on two assumptions: the Program
Agreement automatically terminated on May 17, 2024, and MBP Fees are lost profits.34 The
court addresses each issue in turn.
A. 	Termination of the Program Agreement
Great American alleges that the Program Agreement terminated when the notice and cure
period ended, on May 17, 2024, pursuant to sections 3.3(i)(f) and 8.1(a)(i) of the Program
Agreement.35 In response, FinWise argues that the Program Agreement did not automatically
31 Café Rio, Inc. v. Larkin-Gifford-Overton, LLC, 2009 UT 27, ¶ 25, 207 P.3d 1235 (quoting Green River Canal Co.
v. Thayn, 2003 UT 50, ¶ 17, 84 P.3d 1134).
32 Brady v. Park, 2019 UT 16, ¶ 53, 445 P.3d 395.
33 Klein, 76 F.4th at 1028 (quoting Anderson, 477 U.S. at 252).
34 For the first time in its reply, Great American argues the distinction between direct damages and lost profits is one
without a difference and cites Tenth Circuit cases applying Kansas and Colorado law that equate lost profits with
direct damages. See Reply 13 (citing SOLIDFX, LLC v. Jeppesen Sanderson, Inc., 841 F.3d 827, 839 (10th Cir.
2016) (“[L]ost profits can be either direct or consequential damages.”; Penncro Assocs., Inc. v. Spring Spectrum, LP,
499 F.3d 1161, 1156 (10th Cir. 2007) (“Lost profits, under appropriate circumstances, can be recoverable as a
component of either (and both) direct and consequential damages.”). The court declines to consider Great
American’s argument and case law on this point, however, because the Tenth Circuit generally does not allow
parties to raise arguments for the first time in a reply. “The reasons for our general rule are two-fold. First to allow
[a party] to raise an argument for the first time in a reply brief would be manifestly unfair to the [opposing side]
who, under our rules, has no opportunity for a written response. Second, the rule also protects us from issuing an
improvident or ill-advised opinion because we did not have the benefit of the adversarial process.” United States v.
Leffler, 942 F.3d 1192, 1197–98 (10th Cir. 2019) (cleaned up).
35 Mot. 10–11.
Case 2:24-cv-00408-DBB Document 60 Filed 01/23/26 PageID.<pageID> Page 6
of 15

terminate on May 17, 2024 because section 3.3(i)(f) is not a termination clause and because
section 8.1(a)(i) provides a discretionary right to terminate that it did not invoke.36 Thus, this
issue hinges on the interplay of sections 3.3(i)(f) and 8.1(a)(i) of the Program Agreement.
First, Section 3.3(i)(f) is cited in context as follows:
Section 3.3 Conditions Precedent.
(i) Conditions Precedent to the Obligations of [FinWise]. The obligations of
[FinWise] in this Program Agreement to extend credit to Applicants are subject to
the satisfaction of the following conditions precedent on or prior to [FinWise’s]
funding of a Loan:
. . . .
(f) There is no continuing Event of Default under this Program Agreement beyond
any applicable notice and cure period.37
Next, Section 8.1(a) falls under “ARTICLE VIII. TERMINATION” and states as
follows:
(i) Event of Default. Upon occurrence and continuance of a material breach of this
Program Agreement (an “Event of Default”) by Service Agent or Bank, the other
may terminate this Program Agreement following the provision of written notice
identifying the material breach and the defaulting Party’s failure to cure the same
within thirty (30) days of such notice.”38
According to FinWise, section 3.3(i)(f) “has nothing to do with termination rights under
the Program Agreement—it only applies to FinWise’s obligations to extend credit.”39 Great
American responds that the distinction is without a difference because when FinWise’s
36 Opp’n 13–23.
37 Program Agreement § 3.3.
38 Id. § 8.1.
39 Opp’n 17.
Case 2:24-cv-00408-DBB Document 60 Filed 01/23/26 PageID.<pageID> Page 7
of 15

obligations ended, there was no longer a valid contract since “each party must be bound to give
some legal consideration to the other” for a contract to be binding.40
“Under Utah law, a party’s intent to terminate a contract must be ‘unequivocal’ and
‘unconditional.’”41 “Ambiguous conduct and language intended to signal contract termination
will be deemed not to have terminated the contract.”42 “Notice of termination or cancellation of a
contract must be clear and unequivocal, and if it isn’t, it doesn’t operate to cancel the contract.”43
In C.W. Mining Co., the Tenth Circuit applied Utah law to a similar contractual question
about whether a provision provided a discretionary right to terminate or terminated the contract
automatically.44 The provision at issue stated, in relevant part, as follows:
If [a party] shall not comply with any of the provisions, or covenants, or
agreements herein written and contained, and such default shall continue for a
period of 60 days after service of written notice, by certified or registered mail, by
[nonbreaching party] identifying the default . . . then and in such event this
Agreement may be terminated and all of the rights of [the breaching party] shall
cease and be wholly determined and [the nonbreaching party] may at once take
possession of any or all of the properties herein described.45
The court held that the “conditional language ‘may be terminated’ gives [the nonbreaching party]
the option to terminate; it does not provide for automatic termination when the 60-day notice
period ends.”46
40 See Reply 11 (quoting Manwill v. Oyler, 361 P.2d 177, 178 (Utah 1961)).
41 Adv. Recovery Sys., LLC v. Am. Agencies, LLC, No. 2:13-cv-283, 2016 WL 6916539, at *8 (D. Utah Sept. 28,
2016) (quoting Glenn v. Reese, 2009 UT 80, ¶ 19, 225 P.3d 185).
42 Glenn, 2009 UT 80, ¶ 19 (internal quotation marks and citation omitted).
43 Stein Eriksen Lodge Owners Ass’n Inc. v. MX Techs. Inc., 2022 UT App 30, ¶ 69, 508 P.3d 138 (internal quotation
marks and citation omitted).
44 In re C.W. Mining Co., 641 F.3d 1235, 1241–42 (10th Cir. 2011).
45 Id. at 1241.
46 Id. at 1242.
Case 2:24-cv-00408-DBB Document 60 Filed 01/23/26 PageID.<pageID> Page 8
of 15

So too here. The conditional language of section 8.1(a)(i) provides discretionary authority
to terminate but does not automatically terminate the contract by stating that upon default, the
nonbreaching party “may terminate this Program Agreement following the provision of written
notice identifying the material breach and the defaulting Party’s failure to cure the same within
thirty (30) days of such notice.”47 Great American has not established that FinWise signalled
through “conduct or language” a clear intent to terminate the Program Agreement.48 It simply
provided notice to Great American of its breach. That notice, together with the passage of the 30-
day cure period—were simply necessary predicates to any termination of the Program
Agreement. Because Great American has not shown that FinWise exercised its discretionary
right to terminate the Program Agreement, there is no basis for concluding that the contract
terminated at the end of the cure period.
The section 3.3(i) argument is a non-starter. Unlike section 8.1(a)(1), which is under the
article titled “Termination,” section 3.3(1) deals with “Conditions Precedent to the Obligations of
the Bank.” Great American notes that the headings are not dispositive. But the text of the cited
section offers no support for Great American’s automatic termination reading because it is not
about termination. Instead, the section makes plain that it is about the “obligations of the Bank in
this Program Agreement to extend credit” and set forth “the satisfaction of [] conditions
precedent on or prior to Bank’s funding of a loan.” The question before the court is not whether
the Bank was required to extend credit or fund a loan. There is no ambiguity here—the language
cited by Great American simply cannot support its argument.
47 Program Agreement § 8.1 (emphasis supplied).
48 Glenn, 2009 UT 80, ¶ 19 (internal quotation marks and citation omitted).
Case 2:24-cv-00408-DBB Document 60 Filed 01/23/26 PageID.<pageID> Page 9
of 15

But assume for a moment that it somehow inexplicably could. The section still could not
automatically terminate the contractual relationship between the parties because it must be
interpreted in harmony with section 8.1(a)(i). Utah courts “consider each contract provision in
relation to all of the others, with a view toward giving effect to all and ignoring none.”49 Great
American’s creative interpretation of section 3.3(i)(f)—as terminating the Program Agreement
automatically—fails to give effect to section 8.1(a)(i)’s conditional language that provides only
discretionary authority to terminate. Furthermore, section 3.3(i)(f) must be viewed in light of
section 7.1, which states that “termination of this Program Agreement shall not terminate, effect
or impair any rights, obligations or liabilities of either Party hereto that may have accrued prior
to such termination or that, under the terms of this Program Agreement, continue after the
termination.”50 Accordingly, section 3.3(i)(f) cannot be interpreted as an canceling the parties’
“rights, obligations, or liabilities” and essentially dissolving the contract.51
For all of these reasons, Great American’s termination argument fails.
B. 	Definition of MBP Fees
Great American next argues that FinWise cannot recover MBP Fees claimed after May
17, 2024, because lost profits are prohibited under Section 10.2 and the MBP Fees “are the
profits FinWise anticipated under the Program Agreement.”52 In response, FinWise claims they
are not lost profits, but “recoverable direct damages” that stem directly from Great American’s
breach.53
49 McNeil Eng’g & Land Surveying, LLC v. Bennett, 2011 UT App 423, ¶ 8, 268 P.3d 854 (quoting Green River
Canal Co. v. Thayn, 2003 UT 50, ¶ 17, 84 P.3d 1134) (cleaned up).
50 Program Agreement § 7.1.
51 Id.
52 Mot. 8–12.
53 Opp’n 17–23.
Case 2:24-cv-00408-DBB Document 60 Filed 01/23/26 PageID.<pageID> Page 10
of 15

In its entirety, Section 10.2 states as follows:
Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE
CONTRARY OR INCONSISTENT IN THIS PROGRAM AGREEMENT OR
THE SALE AGREEMENT, BUT EXCEPT AS TO A BREACH BY A PARTY
OF 10.4 OR 10.5, NEITHER PARTY SHALL BE LIABLE TO THE OTHER
PARTY FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE,
CONSEQUENTIAL, OR EXEMPLARY DAMAGES OR LOST PROFITS
(EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES) ARISING OUT OF OR IN CONNECTION WITH THIS
PROGRAM AGREEMENT AND THE SALE AGREEMENT; PROVIDED,
HOWEVER, THAT NOTIFICATION RELATED COSTS SHALL NOT BE
DEEMED INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE,
CONSEQUENTIAL, OR EXEMPLARY DAMGES.54
The provision expressly bars “lost profits” and “indirect, special, incidental, punitive,
consequential, or exemplary damages,” but it does not prohibit direct damages.55
Under Utah law, the “primary remedy for economic losses caused by the non-
performance of contracts is an action for damages for breach.”56 “Damages recoverable for
breach of contract include both general [or direct] damages, i.e., those flowing naturally from the
breach.”57 Unlike direct damages, “consequential damages, or special damages, are damages that
do not directly flow from a breach of contract.”58 In other words, “[c]onsequential damages are
damages that are not the direct and immediate result of the injury, but depend in part on factors
outside the control or expectation of the parties.”59
54 Program Agreement § 10.2 (emphases in original).
55 Id.
56 Kraatz v. Heritage Imports, 2003 UT App 201, ¶ 4, 71 P.3d 188.
57 McCleve Props., LLC v. D. Ray Hult Fam. Ltd. P’ship, 2013 UT App 185, ¶ 17, 307 P.3d 650 (internal quotation
marks and citation omitted); see also Beck v. Farmers Ins. Exh., 701 P.2d 795, 801 (Utah 1985) (defining general
damages as “those resulting from the ordinary and obvious purpose of the contract”).
58 22 Am. Jur. 2d Damages, § 42 (Nov. 2025 update) (cleaned up); see also McCleve Props.¸ 2013 UT App ¶ 17
(stating that consequential or special damages are those which “arise from the special circumstances of the case”).
59 United States v. Wilfong, 551 F.3d 1182, 1187 (10th Cir. 2008) (citing Black’s Law Dictionary 394 (8th ed.
2004)).
Case 2:24-cv-00408-DBB Document 60 Filed 01/23/26 PageID.<pageID> Page 11
of 15

Under Utah law, lost profits are a “common form of consequential damages.”60 In Trans-
Western Petroleum, Inc. v. United States Gypsum Company, the Utah Supreme Court offered a
hypothetical to illustrate how “not all lost gains are lost profits” under Utah law:61
[T]he plaintiff contracts to purchase Blackacre for $10,000 and at the time of
performance its market value is $20,000, then the plaintiff surely has an
expectancy; but since that expectancy reflects a market gain in the very
performance contracted for, it is an item of general damages,” not consequential
damages . . . . Alternatively, suppose a plaintiff owns a movie theater and leases
property next to the theater from a landlord for parking, and the landlord then
denies plaintiff access to the parking lot, thereby breaching the lease. Without
convenient parking, film enthusiasts take their business elsewhere. The plaintiff
sues for the movie theater's lost profits, which are consequential damages.62
The Supreme Court concluded that, unlike its breach of contract claims, the plaintiff’s claim
involving lost profit “from a hypothetical sale of its lease to a third party” constituted a claim for
lost profits or consequential damages.63
Likewise, the MBP Fees in this matter are more akin to the damages in the first
hypothetical, which involved a real estate contract and damages flowing from the obligation
between the two parties. Unlike the damages in the second hypothetical—involving loss in
revenue due to a breach in a collateral contract— Great American’s breach was a failure to pay
FinWise the MBP Fees, which represent FinWise’s primary benefit of the Program Agreement
and Great American’s core obligation under it. Moreover, the MBP Fees are not speculative, nor
are they related to a sale.64 Instead, they are bargained-for compensation defined under the
60 Trans-Western Petroleum, Inc. v. U.S. Gypsum Co., 2016 UT 27, ¶ 19 n.13, 379 P.3d 1200 (citation omitted).
61 Id.
62 Id.
63 Id. at ¶ 19.
64 See “Lost Profits,” Black’s Law Dictionary 1852 (12th ed. 2024) (defining lost profits in a contract case as “[a]
measure of damages that allows a seller to collect the profits that would have been made on the sale if the buyer had
not breached”).
Case 2:24-cv-00408-DBB Document 60 Filed 01/23/26 PageID.<pageID> Page 12
of 15

contract that do not involve a third party or depend on the outcome of the Program Agreement.
Therefore, the MBP Fees that FinWise seeks to recover are not lost profits or consequential
damages, but rather direct damages “flowing naturally from the breach.”65
In sum, Great American failed to show that the Program Agreement automatically
terminated on May 17, 2024. Great American did not establish that FinWise used the
discretionary authority provided in the termination provision to terminate the Program
Agreement. And the automatic termination reading of the contract Great American proposes is
not supported by the contract. Additionally, Great America failed to show that the MBP Fees are
precluded lost profits. Accordingly, summary judgment on post-May 17, 2024 MBP Fees is
denied.
II. 	Great American Is Not Entitled to Summary Judgment on Unjust Enrichment
Great American also contends that, as a matter of law, FinWise cannot plead an unjust
enrichment claim upon the same set of facts as its breach of contract claim where there is an
express contract regarding the subject matter of the claim.66 In response, FinWise argues that the
unjust enrichment claim is properly pled as an inconsistent theory of recovery in the alternative
and that the dispute over the scope of the Program Agreement precludes summary judgment.67
To prevail on a claim for unjust enrichment, a party must show that a benefit has been
“conferred by one [party] on another,” that “the conferee must appreciate or have knowledge of
the benefit,” and that “there must be acceptance or retention by the conferee of the benefit under
such circumstances as to make it inequitable for the conferee to retain the benefit without
65 McCleve Props.¸ 2013 UT App ¶ 17.
66 Mot. 2, 12–13.
67 Opp’n 23–24.
Case 2:24-cv-00408-DBB Document 60 Filed 01/23/26 PageID.<pageID> Page 13
of 15

payment of its value.”68 “Unjust enrichment ‘is designed to provide an equitable remedy where
one does not exist at law.’”69 Therefore, “a prerequisite for recovery on an unjust enrichment
theory is the absence of an enforceable contract governing the rights and obligations of the
parties relating to the conduct at issue” because “[i]f there were a contract, it, rather than the law
of restitution, would govern the parties’ rights and determine their recovery.”70 Generally, then,
“a party may recover in quantum meruit only after legal remedies have been exhausted.”71
Utah law, however, “supports the proposition that even where there is an express
contract, an equitable claim may be viable, under specific factual circumstances, if the equitable
claim is based on a separate representation or misleading act arising independently of the express
contract.”72 FinWise does not invoke this exception.73 Instead, it argues that the parties’ dispute
about the scope and enforceability of the Agreement makes it inappropriate to dismiss an unjust
enrichment claim at this stage.74
In Utah, it is premature to dismiss an unjust enrichment claim at summary judgment
“while questions regarding the validity of the contract remain unresolved.”75 Here, it is
undisputed that until May 17, 2024, there was a valid contract governing the payment of MBP
Fees.76 After that date, however, the parties disagree on whether they were still governed by an
68 Allen v. Hall, 2006 UT 70, ¶ 26, 148 P.3d 939.
69 AGTC Inc. v. CoBon Energy LLC, 2019 UT App 124, ¶ 19, 447 P.3d 123 (quoting Am. Towers Owners Ass’n v.
CCI Mech., Inc., 930 P.2d 1182, 1193 (Utah 1996), abrogated on other grounds by Davencourt at Pilgrims Landing
Homeowners Ass’n v. Davencourt at Pilgrims Landing, LC, 2009 UT 65, 221 P.3d 234.
70 Ashby v. Ashby, 2010 UT 7, ¶ 14, 227 P.3d 426.
71 Gulf Coast Shippers Ltd. P’ship v. DHL Exp. (USA), Inc., No. 2:09-cv-00221, 2015 WL 4557573, at *19 (D. Utah
July 28, 2015).
72 Hillcrest Inv. Co. LLC v. Dep’t of Transp., 2015 UT App 140, ¶ 16, 352 P.3d 128 (quoting E & M Sales W., Inc. v.
Diversified Metal Prods., Inc., 2009 UT App 299, ¶ 8, 221 P.3d 838).
73 Opp’n 23–24.
74 Id. 24.
75 Id. at ¶ 23.
76 Mot. 13, Opp’n 24.
Case 2:24-cv-00408-DBB Document 60 Filed 01/23/26 PageID.<pageID> Page 14
of 15

enforceable contract. Unjust enrichment generally is not available when there is an express
contract, but “the fact that the parties acknowledged and agreed that a contract existed between
them does not necessarily lead to the conclusion that it was an enforceable contract that
effectively governed their rights and obligations with respect to the subject matter of the case.”77
Accordingly, the court declines to dismiss FinWise’s unjust enrichment claim at this stage when
the Program Agreement’s enforceability or scope is disputed by Great American.78 Therefore,
summary judgment is denied on FinWise’s unjust enrichment claim.
ORDER
Accordingly, Great American’s Motion for Partial Summary Judgment is DENIED in its
entirety.79
Signed January 23, 2026.
BY THE COURT
________________________________________
David Barlow
United States District Judge
77 AGTC Inc. v. CoBon Energy LLC, 2019 UT App 124, ¶ 22, 447 P.3d 123.
78 See, e.g., Gulf Coast Shippers Ltd. P’ship v. DHL Exp. (USA), Inc., No. 2:09-cv-00221, 2015 WL 4557573, at *19
(D. Utah July 28, 2015) (allowing plaintiff to “pursue its legal and equitable claims until a jury determines the
enforceability of the Agreement”).
79 ECF No. 50.
Case 2:24-cv-00408-DBB Document 60 Filed 01/23/26 PageID.<pageID> Page 15
of 15