Opinion
No. 1 CA-CV13-0114
03-04-2014
PAUL N. PAPAS II; KATHRINA H. TOBIAS, Plaintiffs/Appellants, v. PEOPLES MORTGAGE COMPANY; GMAC MORTGAGE, LLC, Defendants/Appellees.
Paul N. Papas, II, Kathrina H. Tobias, Phoenix Plaintiffs/Appellants In Propria Persona Wolfe & Wyman LLP, Phoenix By Colt B. Dodrill Clark Hill PLC, Scottsdale By Robert G. Anderson Counsel for Defendants/Appellees
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CV2012-051622
The Honorable Michael R. McVey, Judge
AFFIRMED
COUNSEL
Paul N. Papas, II, Kathrina H. Tobias, Phoenix
Plaintiffs/Appellants In Propria Persona
Wolfe & Wyman LLP, Phoenix
By Colt B. Dodrill
Clark Hill PLC, Scottsdale
By Robert G. Anderson
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge John C. Gemmill joined.
HOWE, Judge:
¶1 Paul N. Papas II and Kathrina H. Tobias (collectively, "Papas/Tobias") appeal from the superior court's dismissal of their complaint against Peoples Mortgage Company ("PMC") and GMAC Mortgage, LLC ("GMACM"). Finding no error, we affirm.
FACTS & PROCEDURAL HISTORY
¶2 Derek D. Moss and Tobias jointly owned real property in Scottsdale. Tobias transferred her interest in the property to Moss by a recorded quitclaim deed in 2005. Moss then borrowed $383,150 from PMC, secured by a recorded deed of trust encumbering the property that named Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for PMC.
¶3 In 2008, Moss transferred his interest in the property by warranty deed to himself and Tobias as "Community Property with Right of Survivorship." When Moss died later that year, Tobias became the sole owner of the property, subject to PMC's deed of trust.
¶4 When the loan went into default, MERS substituted Executive Trustee Services, LLC ("ETS") as the trustee under the deed of trust. ETS recorded and served a notice of default.
¶5 On January 8, 2010, MERS recorded a notice of trustee's sale. MERS assigned the deed of trust to GMACM on January 15, 2010. On November 18, 2011, ETS recorded a second notice of trustee's sale.
¶6 On March 2, 2012, Tobias recorded a document titled "Notice Of Option Contract For Sale and Purchase," purporting to give Papas an option to purchase the property that expired on February 15, 2013. On March 8, 2012, Papas/Tobias sued PMC, "seek[ing] declaratory relief[,] setting aside, voiding, and invalidating the fraudulent title transfers initiated pursuant to the Trustee's Notice of Sale. . . ." On May 11, 2012, the superior court granted PMC's motion to dismiss, finding
that Papas/Tobias's complaint failed to state a claim for which relief may be granted.
¶7 GMACM purchased the property at a trustee's sale held on June 22, 2012. On June 29, 2012, GMACM recorded the trustee's deed upon sale to the property.
¶8 On July 23, 2012, Papas/Tobias moved to enjoin their eviction from the property, which the superior court denied, finding "no basis to preclude a bona fide purchaser from proceeding with an eviction action now that the trustee sale has occurred." Because Papas/Tobias had not applied for a temporary restraining order before the trustee's sale, the superior court also concluded that Papas/Tobias "waived all defenses and objections to the sale not raised in an action that results in the issuance of a court order" granting such relief.
¶9 Papas/Tobias moved to reconsider the superior court's ruling, which the superior court denied. Papas/Tobias then requested that the superior court make findings of fact and conclusion of law on the denial of its motion for reconsideration, which the court also denied.
¶10 On December 12, 2012, GMACM moved to quash a lis pendens, which the superior court later granted.
DISCUSSION
¶11 At the outset, we note that Papas/Tobias's opening brief does not comply with applicable rules, including a requirement to provide relevant record cites and legal authority. See ARCAP 13(a)(6) (the opening brief shall contain argument with "citations to the authorities, statutes and parts of the record relied on"). Papas/Tobias's failure to comply with these rules limits our ability to evaluate their arguments or otherwise address their claims. See, e.g., In re U.S. Currency in the Amount of $26,980.00, 199 Ariz. 291, 299 ¶ 28, 18 P.3d 85, 93 (App. 2000) (refusing to consider bald assertions offered without elaboration or citation to legal authority); Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 93 ¶ 50, 977 P.2d 807, 815 (App. 1998) (rejecting assertions made without supporting argument or citation to authority).
¶12 Although Papas/Tobias are non-lawyers representing themselves, they are held to the same standards as a qualified attorney. See, e.g., Old Pueblo Plastic Surgery, P.C v. Fields, 146 Ariz. 178, 179, 704 P.2d 819, 820 (App. 1985). Nevertheless, because we prefer to decide cases on the merits, in the exercise of our discretion, we will attempt to discern and
address the substance of Papas/Tobias's arguments, which fall into three categories. See Clemens v. Clark, 101 Ariz. 413, 414, 420 P.2d 284, 285 (1966).
¶13 Papas/Tobias first argue that the trial court erred by dismissing their wrongful foreclosure suit. We review a trial court's order granting a motion to dismiss de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355-56 ¶¶ 7, 8, 284 P.3d 863, 866-67 (2012). We will "uphold dismissal only if the plaintiff[ ] would not be entitled to relief under any facts susceptible of proof in the statement of the claim." Id. (quoting Mohave Disposal, Inc. v. City of Kingman, 186 Ariz. 343, 346, 922 P.2d 308, 311 (1996)).
¶14 "When parties execute a deed of trust and the debtor thereafter defaults, A.R.S. § 33-807 empowers the trustee to sell the real property securing the underlying note through a non-judicial sale." Hogan v. Wash. Mut. Bank, N.A., 230 Ariz. 584, 585-86 ¶ 5, 277 P.3d 781, 782-83 (2012). Section 33-807 provides in pertinent part: "By virtue of his position, a power of sale is conferred upon the trustee of a trust deed under which the trust property may be sold, in the manner provided in this chapter, after a breach or default in performance of the contract or contracts, for which the trust property is conveyed as security, or a breach or default of the trust deed."
¶15 Here, Tobias defaulted on her loan, which empowered ETS to sell the property at a trustee's sale. Because Papas/Tobias failed to properly enjoin the trustee's sale by applying for a temporary restraining order, and the trustee's sale occurred and resulted in a recorded trustee's deed, they have waived any defenses as a matter of law. A.R.S. § 33-811(B) ("The trustee's deed shall raise the presumption of compliance with the requirements of the deed of trust . . . relating to the exercise of the power of sale and the sale of the trust property, including recording, mailing, publishing and posting of notice of sale and the conduct of sale. A trustee's deed shall constitute conclusive evidence of the meeting of those requirements . . . ."). Accordingly, the superior court did not err when it dismissed Papas/Tobias's wrongful foreclosure suit.
¶16 Papas/Tobias next argue that GMACM "is selling and transferring assets that it does not own." Papas/Tobias have failed to articulate how GMACM lacked authority to proceed with the trustee's sale. Arizona law does not require presentation of the original note before commencing non-judicial foreclosure proceedings. Hogan, 230 Ariz. at 586 ¶ 6, 277 P.3d 783. Although a plaintiff need only set forth a "short and plain statement of the claim showing that [he] is entitled to relief," Ariz. R.
Civ. P. 8(a)(2), the truth of which we assume when analyzing a complaint for failure to state a claim under Rule 12(b)(6), Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419 ¶ 7, 189 P.3d 344, 346 (2008), we will affirm a dismissal when "the plaintiff should be denied relief as a matter of law given the facts alleged," Logan v. Forever Living Products Int'l, Inc., 203 Ariz. 191, 193 ¶ 7, 52 P.3d 760, 762 (2002).
¶17 Even if we assumed Papas/Tobias's factual allegations to be true, they are not entitled to relief because the deed of trust statutes impose no obligation on the beneficiary to "show the note" before the trustee conducts a non-judicial foreclosure. Hogan, 230 Ariz. at 586 ¶ 8, 277 P.3d at 783. The only proof of authority the trustee's sales statutes require is a statement indicating the basis for the trustee's authority. See A.R.S. § 33-808(C)(5) (requiring the notice to set forth "the basis for the trustee's qualification pursuant to § 33-803, subsection A"); see also A.R.S. § 33-807(A) (granting the trustee the "power of sale"). Because Papas/Tobias's complaints do not dispute that the trustee's sale was noticed by a trustee who had recorded an instrument demonstrating that it was a successor in interest to the original trustee, the superior court did not err.
¶18 Finally, Papas/Tobias argue that PMC and GMACM violated several of their federal constitutional rights. Because Papas/Tobias failed to raise these arguments before the trial court, we do not consider them on appeal. Englert v. Carondelet Health Network, 199 Ariz. 21, 26-27 ¶ 13, 13 P.3d 763, 768-69 (App. 2000) ("[W]e generally do not consider issues, even constitutional issues, raised for the first time on appeal.").
CONCLUSION
¶19 For the foregoing reasons, we affirm.