Opinion
No. 1 CA-CV 16-0588
12-05-2017
COLA ALLEN and LISA ALLEN, Plaintiffs/Appellants, v. WELLS FARGO BANK, N.A., as Trustee in trust for the Registered Holders of Park Place Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2004-WCW2, Defendant/Appellee.
COUNSEL Cola Allen, Lisa Allen, Littleton, CO Plaintiffs/Appellants Wright, Finlay & Zak, LLP, Scottsdale By Kim R. Lepore, Jamin S. Neil Counsel for Defendant/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Yavapai County
No. V1300CV201680194
The Honorable Jeffrey G. Paupore, Judge Pro Tempore
AFFIRMED
COUNSEL
Cola Allen, Lisa Allen, Littleton, CO
Plaintiffs/Appellants
Wright, Finlay & Zak, LLP, Scottsdale
By Kim R. Lepore, Jamin S. Neil
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge James P. Beene and Judge Kent E. Cattani joined.
HOWE, Judge:
¶1 Cola and Lisa Allen (the "Allens") appeal the trial court's dismissal with prejudice of their complaint against Wells Fargo Bank, N.A., as Trustee in trust for the Registered Holders of Park Place Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2004-WCW2 ("Wells Fargo"). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Wells Fargo is the beneficiary on the deed of trust attached to the Allens's property. After the Allens defaulted on their loan, the trustee filed a notice of trustee's sale scheduled for July 18, 2016. On July 14, the Allens sued Wells Fargo to either vacate or void the notice of trustee's sale and for "recoupment, fraud in the inducement." Concurrently, the Allens applied for a temporary restraining order ("TRO") to enjoin the trustee's sale from occurring.
¶3 After considering the Allens's application for a TRO, the trial court ordered the Allens to post a $25,000 security bond before the TRO would take effect. The Allens then requested a hearing on the bond amount, arguing that they could not afford the bond amount and that Wells Fargo's potential costs and damages were less than $25,000. Citing Arizona Rule of Civil Procedure 65(E) (2016), the court stated that the amount of the bond "is determined by what the Court believes are the costs and damages that Wells Fargo may incur if it's determined that they were wrongfully enjoined." In the court's subsequent minute entry, it stated that it had "considered [the Allens's] argument that they could not afford to post a $25,000 bond and their opinion that [Wells Fargo] would suffer little financial loss if they were wrongfully enjoined." The court then reduced the security bond to $10,000 and set an order-to-show-cause hearing for July 27.
¶4 The trustee's sale was continued until July 20. The day before the sale, the Allens objected to the security bond price, arguing that the requirement to post security to obtain a TRO under A.R.S. § 33-811(C) was
unconstitutional. The trial court viewed the objection as a motion for reconsideration and denied it. The Allens failed to post the required bond and the trustee's sale subsequently took place.
¶5 Following the trustee's sale, Wells Fargo moved to dismiss the Allens's complaint for failure to state a claim under Rule 12(b)(6). Wells Fargo argued that because the Allens failed to obtain a TRO pursuant to A.R.S. § 33-811(C) their claims were now waived. The Allens responded and agreed with Wells Fargo that their claims were waived under A.R.S. § 33-811(C). They contended, however, that § 33-811(C)'s waiver provision was "facially unconstitutional or unconstitutional as applied" to them. The trial court found that the Allens failed to enjoin the trustee's sale as § 33-811(C) requires and therefore "lost the ability to raise defenses and objections to title or claims against the sale." Consequently, the trial court granted the motion to dismiss with prejudice. The Allens timely appealed.
DISCUSSION
¶6 The Allens argue that A.R.S. § 33-811(C) violates their due process and equal protection rights and that we should remand this case for the trial court to adjudicate their claims. They contend that the requirement to post a security bond to enjoin the trustee's sale violated their constitutional rights. The Allens acknowledge, however, that under the statute, the failure to post a bond waives the right to challenge a completed trustee's sale. Thus, their remedy to seek to overturn the trial court's ruling regarding the bond requirement was necessarily through a pre-sale proceeding, i.e. a special action under A.R.S. § 12-120.21. See Elizabeth W. v. Georgini, 230 Ariz. 527, 529 ¶ 5 (App. 2012) (finding special action review "particularly appropriate" when the question presented is purely legal).
¶7 Having failed to pursue such a remedy, the Allens's requested relief is moot. See Arpaio v. Maricopa Cty. Bd. of Supervisors, 225 Ariz. 358, 361 ¶ 7 (App. 2010) ("A case becomes moot when an event occurs which would cause the outcome of the appeal to have no practical effect on the parties."). And as a matter of judicial restraint, this Court typically declines to consider moot issues. Kondaur Capital Corp. v. Pinal Cty., 235 Ariz. 189, 193 ¶ 8 (App. 2014). An exception exists "if there is either an issue of great public importance or an issue capable of repetition yet evading review." Id. Because neither exception is applicable, and any outcome would have no practical effect on the Allens, the appeal is moot.
¶8 The Allens's claims are not of great public importance and instead simply involved the application of a statutory scheme that they
agreed would govern a contract they entered into. Further, although such claims may arise in other cases, they will not evade review if timely and properly pursued. Should the situation arise where a trustor is unable to fulfill the requirements of obtaining a TRO pursuant to A.R.S. § 33-811(C), the trustor can seek special action review from this Court, which can stay the trustee's sale so that this Court may consider the trustor's claims and provide effective relief, if warranted. Accordingly, neither exception to the mootness doctrine is applicable here.
CONCLUSION
¶9 For the foregoing reasons, we decline to consider the issues in this appeal, which are moot, and affirm the trial court's dismissal of the complaint with prejudice.