Opinion
No. 2 CA-CV 2018-0107
02-26-2019
STEPHEN M. BAQUET, MARLENE C. BAQUET, AND CHRIS M. NERO, Plaintiffs/Appellants, v. V.I.P. MORTGAGE, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC.; JPMORGAN CHASE BANK, N.A.; BAYVIEW LOAN SERVICING, LLC, Defendants/Appellees.
COUNSEL Stephen M. Baquet, Tucson Marlene C. Baquet, Tucson Chris M. Nero, Tucson In Propria Personae Bossé Rollman PC, Tucson By Richard M. Rollman Counsel for Defendant/Appellee V.I.P. Mortgage Inc. Bryan Cave Leighton Paisner LLP, Phoenix By Jacob A. Maskovich and Daniel P. Crane Counsel for Defendant/Appellee JPMorgan Chase Bank N.A. Houser & Allison APC, Phoenix By Robert W. Norman and Solomon S. Krotzer Counsel for Defendants/Appellees Bayview Loan Servicing LLC and Mortgage Electronic Registration Systems Inc.
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. C20180362
The Honorable Leslie Miller, Judge
APPEAL DISMISSED
COUNSEL Stephen M. Baquet, Tucson
Marlene C. Baquet, Tucson
Chris M. Nero, Tucson
In Propria Personae Bossé Rollman PC, Tucson
By Richard M. Rollman
Counsel for Defendant/Appellee V.I.P. Mortgage Inc. Bryan Cave Leighton Paisner LLP, Phoenix
By Jacob A. Maskovich and Daniel P. Crane
Counsel for Defendant/Appellee JPMorgan Chase Bank N.A. Houser & Allison APC, Phoenix
By Robert W. Norman and Solomon S. Krotzer
Counsel for Defendants/Appellees Bayview Loan Servicing LLC and Mortgage Electronic Registration Systems Inc.
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Stephen Baquet, Marlene Baquet, and Chris Nero (collectively, "Appellants") appeal the trial court's judgment dismissing their complaint against V.I.P. Mortgage Inc. ("V.I.P."), Mortgage Electronic Registration Systems Inc. ("MERS"), JPMorgan Chase Bank N.A. ("Chase"), and Bayview Loan Servicing LLC ("Bayview"). Because we lack jurisdiction, we dismiss the appeal.
Factual and Procedural Background
¶2 We relate only the facts pertinent to our disposition of this appeal. In 2012, Stephen and Marlene Baquet obtained a mortgage from V.I.P. to finance the purchase of real property. The Baquets signed a promissory note secured by a deed of trust, which identifies V.I.P. as the "Lender," and MERS as the "beneficiary" and "nominee" for V.I.P. Consistent with the loan documents, which allowed for sale of the note or any partial interest therein, MERS transferred its interest to Chase in June 2017. Chase then transferred its interest to Bayview in November of that year.
Appellants' opening brief does not provide an adequate statement of facts with appropriate citations to the record as required by Rule 13(a)(4), Ariz. R. Civ. App. P.; we therefore rely on the facts provided by the appellees and our own review of the record. Sholes v. Fernando, 228 Ariz. 455, n.2 (App. 2011).
¶3 In December 2017, after the Baquets had accumulated arrearages, Bayview sent the couple a Notice of Default and Intent to Accelerate, giving them until January 8, 2018 to cure the default before Bayview would begin foreclosure proceedings. On January 23, 2018, the Baquets and Chris Nero filed a complaint against V.I.P., MERS, Chase, and Bayview alleging unconscionable contract, breach of fiduciary duty, and negligence. They also sought a declaratory judgment that the defendants had "no interest estate, right, title[,] or interest in the subject property," and upwards of $100,000 in monetary relief. Shortly after the suit commenced, the Baquets transferred a ten-percent interest in the property to Nero via quitclaim deed.
¶4 Defendants all filed motions to dismiss asserting failure to state a claim and lack of standing as to Nero. The trial court granted all of the motions in one ruling, "[b]ecause Defendants assert[ed] similar arguments and Plaintiffs . . . filed nearly identical Responses." Appellants timely appealed.
Jurisdiction
¶5 This court has an independent duty to examine its jurisdiction, Desert Palm Surgical Grp., P.L.C. v. Petta, 236 Ariz. 568, ¶ 15 (App. 2015), and, after determining the trial court's judgments did not comply with Rule 54(c), Ariz. R. Civ. P., we ordered the appeal suspended. Appellants, however, were permitted to cure the jurisdictional defects at the trial court level, or, at minimum, file a status report within twenty days of the issuance of our order. Appellants failed to comply, instead filing inconsequential documents in the trial court and an irrelevant and untimely reply to our order with this court. Accordingly, the appeal is dismissed. Baker v. Bradley, 231 Ariz. 475, ¶ 8 (App. 2013) ("Our jurisdiction is defined by statute, and we must dismiss an appeal over which we lack jurisdiction.").
Fees
¶6 Appellee V.I.P. requests in its answering brief attorney fees "incurred in litigating this appeal," pursuant to A.R.S. § 12-341.01. Although we lack jurisdiction over the appeal, we nonetheless have the authority to grant V.I.P.'s request for an award of attorney fees. See Lightning A Ranch Venture v. Tankersley, 161 Ariz. 497, 500 (App. 1989) (awarding attorney fees although no jurisdiction over appeal); see also In re Marriage of Kassa, 231 Ariz. 592, ¶¶ 6-7 (App. 2013). Because V.I.P. prevailed at the trial court, and this appeal is dismissed for Appellants' lack of compliance with our order, we award V.I.P. its reasonable attorney fees on appeal pursuant to § 12-341.01 and upon its compliance with Rule 21, Ariz. R. Civ. App. P.
Disposition
¶7 For the foregoing reasons, the appeal is dismissed.