Opinion
2 CA-CV 2023-0058
07-17-2024
Citibank, N.A., as Trustee, in Trust for Registered Holders of WaMu Asset-Backed Certificates WaMu Series 2007-HE2 Trust, its successors and/or assigns Plaintiff/Appellee, v. Joseph Alosi and Joyce M. Alosi, Defendants/Appellants.
Aldridge Pite LLP, San Diego, California Laurel I. Handley and Janet M. Spears Counsel for Plaintiff/Appellee Ahwatukee Legal Office P.C., Phoenix By David L. Abney Counsel for Defendants/Appellants
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CV2022014889 The Honorable Mary C. Cronin, Judge Pro Tempore
Aldridge Pite LLP, San Diego, California
Laurel I. Handley and Janet M. Spears
Counsel for Plaintiff/Appellee
Ahwatukee Legal Office P.C., Phoenix
By David L. Abney
Counsel for Defendants/Appellants
Judge Brearcliffe authored the decision of the Court, in which Vice Chief Judge Eppich and Presiding Judge Sklar concurred.
MEMORANDUM DECISION
BREARCLIFFE, Judge:
¶1 In this forcible detainer action, Joseph and Joyce Alosi appeal from the superior court's judgment in favor of Citibank, N.A. The Alosis claim that the court violated their due process rights, including those under the Americans with Disabilities Act (ADA), by failing to grant their requested hearing continuance. For the following reasons, we affirm.
Factual and Procedural Background
Earlier Actions
¶2 This is the third appeal involving Citibank's eight-year attempt to obtain possession of the Alosis' home following the Alosis' default under a promissory note and deed of trust. Many of the following facts as to the background of this case are drawn from this court's two prior decisions.
Alosi v. Citibank, N.A., No. 1 CA-CV 19-0405, (Ariz. App. Mar. 19, 2020) (mem. decision); Alosi v. Citibank, N.A., No. 1 CA-CV 21-0266 (Ariz. App. May 24, 2022) (mem. decision).
¶3 In January 2007, the Alosis signed a promissory note secured by a deed of trust for their home in favor of lender Washington Mutual Bank ("WaMu"). WaMu later transferred its assets to J.P. Morgan Chase Bank, which then transferred the Alosis' note to Citibank. The Alosis eventually defaulted on the note.
¶4 Following that default, in November 2016, Joseph Alosi unsuccessfully sought an injunction to prevent Citibank's loan servicer from foreclosing on the home. And thereafter, the Alosis jointly sued Citibank challenging its authority under the loan and security documents. In 2018, Citibank prevailed on summary judgment, with the superior court concluding that Citibank was the proper party to collect on the note and foreclose on the deed of trust. The Alosis did not appeal that 2018 judgment.
¶5 A few months later, however, in early 2019, the Alosis sought to prevent a trustee's sale of the home and set aside the judgment, seemingly under Rule 60 on the grounds of fraud, which the superior court denied. The Alosis appealed that ruling, but were unsuccessful. This court concluded that the Alosis had failed to demonstrate under Rule 60 that Citibank had engaged in misconduct in obtaining the 2018 judgment.
¶6 In 2020, the Alosis again filed suit, claiming that Chase never acquired the rights to the Alsosis' note from WaMu and therefore that Citibank ultimately did not either. The superior court determined that the claims in the second suit were barred by claim preclusion, having been fully resolved in the first suit. The Alosis appealed the dismissal, and this court affirmed. The Alosis petitioned the supreme court for review, which it denied on November 8, 2022.
Current Action
¶7 We view the facts in the light most favorable to sustaining the superior court's judgment. Walkeng Min. Co. v. Covey, 88 Ariz. 80, 82 (1960). On January 11, 2022, Citibank purchased the Alosis' property at a trustee's sale. The trustee's deed upon sale was recorded with the Maricopa County Recorder on January 14, 2022. On June 10, 2022, Citibank attempted to personally serve a "Notice Requiring Delivery of Possession of Premises" ("demand for possession") on the Alosis at the subject home where they still resided. The process server was unable to personally serve the demand and instead posted a copy of the demand for possession "in a conspicuous place on the property" and thereafter mailed a copy to the Alosis.
¶8 Five months after the posting of the notice, Citibank filed a complaint in forcible detainer ("FED") against the Alosis. The Alosis answered the complaint and asserted affirmative defenses, including a claim of insufficient service of the demand for possession under A.R.S. § 12-1173.01.
¶9 A telephonic initial appearance hearing was held on December 6, 2022. Joseph Alosi appeared, acting pro se, but Joyce Alosi did not appear either telephonically or through counsel. Joseph Alosi was sworn in, and Citibank presented "an overview of the case." Joseph Alosi then testified that he had filed an answer the day before and that there was a "separate pending case on Appeal"-identifying case number CV-2017-055664, the subject of the Alosis' petition for review of their 2022 appeal- "which could impact this case." After the superior court, counsel, and Joseph Alosi discussed "the potential impact" of the appeal, Citibank requested a continuance of the hearing, which the court granted, continuing the hearing to January 23, 2023, via telephone or video.
No transcript of the first day of the hearing was provided in the record on appeal, and therefore we refer only to the unsigned minute entry in the record.
¶10 On January 19, 2023, Citibank filed a notice with the superior court informing it that the pending appeal discussed at the December 6, 2022, hearing had been fully resolved by a denial of the Alosis' petition for review in November 2022. Citibank asserted that "[a]ccordingly, there was no appeal pending at the time of the December 6, 2022 hearing" and it was therefore "entitled to judgment in its favor at the January 23, 2023 hearing."
¶11 The Alosis did not appear on the date set for the continued hearing. Instead, Michael Alosi, the Alosis' oldest son, attempted to appear for them. After Michael Alosi informed the superior court that he was not an attorney, he told the court that his parents were in Florida and that they had filed something with the court and mailed it to Citibank the previous Friday. The court found the filing and provided a copy to Citibank.Michael Alosi told the court that his father asked him to appear at the hearing for them and ask for a continuance of fifteen to twenty days.
The filing was presumably the Alosis' Motion to Continue.
¶12 After Michael Alosi explained his father's medical condition, the superior court extended its sympathies, but stated that, in light of his condition, even if the court were to continue the matter for twenty days, Joseph Alosi would likely not be able to appear even then. Citibank then informed the court that the only reason it had agreed to the first continuance in December was to allow it to ensure that the Alosis' petition for review had been resolved and thus would not interfere with the resolution of the case. But Citibank's counsel informed the court that the petition for review had been denied in early November 2022 and that, "currently, there's no stay in place. There's no-there's no active court case ongoing. And my client is entitled to possession of the property." Citibank told the court that it was willing to allow the effective date of the writ of possession to be set for thirty days out rather than immediate.
¶13 The superior court then informed Michael Alosi that because his parents had not appeared, the court was entitled to go forward with the proceeding. The court stated that it had reviewed the Court of Appeals ruling in the matter and that Citibank has "a valid claim on the property; and there's no evidence to the contrary." It further concluded that "there's nothing that is precluding me from entering judgment in favor of [Citibank] against [the Alosis]" and that "the only issue we have here is whether [Citibank is] entitled to possession, and the evidence clearly shows that [Citibank is] entitled to possession of the property."
¶14 The superior court then informed Michael Alosi that it would sign the judgment when submitted by Citibank but that the Alosis would have "30 days to vacate the premises." The court entered judgment, expressly finding that the Alosis were properly served and that all of the allegations contained in Citibank's complaint were true and indicating that the writ of restitution would be issued February 22, 2023-30 days from the hearing. The Alosis appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A), 12-2101(A)(1).
Discussion
¶15 On appeal, the Alosis argue that the superior court violated their due process rights by failing to grant their motion to continue due to medical reasons. They argue that they "were deprived of due process of law in several important ways," to include being deprived of benefits from a public entity in violation of the ADA. Moreover, they argue that, as pro se litigants, they were denied the "professional courtesy" of a continuance afforded to licensed attorneys. They assert that, had the continuance been granted, they could have pursued their reasonable defense. We review a superior court's denial of a motion to continue for an abuse of discretion. Nordale v. Fisher, 93 Ariz. 342, 345 (1963).
¶16 Among other purposes, a FED action is used to secure possession of property, which has been sold through a trustee's sale, from any present occupant. § 12-1173.01(A)(2). FED actions are statutory, summary proceedings, governed by the Rules of Procedure for Eviction Actions. RPEA 1, 2. A FED action is intended to provide a speedy and adequate remedy for obtaining possession of real property. Olds Bros. Lumber Co. v. Rushing, 64 Ariz. 199, 204 (1946); see also Curtis v. Morris, 184 Ariz. 393, 395 (App. 1995). In a FED action, the right to possession is the only issue to be determined. A.R.S. § 12-1177(A); RPEA 2; see also Curtis, 184 Ariz. at 398-99.
¶17 At the initial hearing on the FED complaint, "[i]f the defendant appears and contests any of the factual or legal allegations in the complaint" the superior court is to determine whether there is a legal defense to the complaint by, at a minimum, reviewing the defendant's answer. RPEA 11(c)(1). If the court determines that a defense may exist, the court must order a trial on the merits. Id. If the defendant fails to appear at the initial hearing, the court may enter a default judgment, Rule 13(b)(3), RPEA, and award possession of the property to the plaintiff. RPEA 13(c)(1)(A). The court will thereafter issue a writ of restitution in favor of the plaintiff. RPEA 14; A.R.S. § 12-1178.
At the continued initial hearing, although the Alosis' son appeared for them, he could not legally represent their interests. RPEA 11(b)(1) ("no property manager or other agent shall be allowed to represent a party unless he or she is the property owner, a sub lessor entitled to possession, or an attorney licensed to practice law").
¶18 Pursuant to Rule 11, "[w]henever possible, the trial" in an eviction action "should be held on the initial return date." But "the court may order the continuance of a trial date by up to . . . ten days in superior court on the request of a party for good cause shown." RPEA 11(d). And "[n]o continuance of more than . . . ten days in superior courts may be ordered unless both parties are in agreement." Id.
¶19 The Alosis first argue that the superior court (or Citibank) was required to extend them the "professional courtesy" of granting a second continuance of the hearing and they were denied it only because they were pro se litigants. Although it is true that unrepresented litigants in Arizona are held to the same standards as attorneys, Flynn v. Campbell, 243 Ariz. 76, ¶ 24 (2017), the extension of courtesy, professional or otherwise, is expected and encouraged but not mandated, even between attorneys. Given that no additional continuance could be granted here without Citibank's consent, and that the Alosis cite no authority compelling Citibank to give its consent, the court did not abuse its discretion in denying the Alosis' request for a second continuance and resolving the matter in their absence. See Bloch v. Bentfield, 1 Ariz.App. 412, 418 (1965) (where party to civil action fails to appear for bench trial, court may proceed with trial). This is especially so in light of the purposes and summary nature of FED actions.
¶20 Although the Alosis' answer asserted improper service of the demand for possession, they failed to present evidence in support of that defense at either one of the bifurcated initial hearings. It was their failure to appear at the January 2023 hearing that deprived them of the opportunity to pursue this defense below. See Nat'l Homes Corp. v. Totem Mobile Home Sales, Inc., 140 Ariz. 434, 438 (App. 1984) (defense of insufficient service of process is waived if party fails to pursue defense before matter resolved on the merits); Hill Bros. Chem. Co. v. Grandinetti, 123 Ariz. 84, 88 (App. 1979) (even when denial of motion to dismiss on ground of improper service erroneous, "if a defendant has appeared and been given a full opportunity to defend then defects in service of process do not render the judgment void and subject to subsequent attack"). Thus, the superior court had no factual basis to find the allegations in the complaint were defective. See Montano v. Luff, 250 Ariz. 401, ¶ 13 (App. 2020) (superior court's determination that FED action not subject to jury trial implied its finding that "there was no basis for a factual defense to the complaint"). The court's findings were sufficient to support its determination that the conditions of Rule 13(a)(1)- (4) had been satisfied and that it could enter judgment.
It is unclear whether the Alosis are asserting defective service as an error on appeal or merely claiming that they would have raised it had they been granted a continuance. If the former, that has been waived due to their non-appearance and commensurate failure to raise the issue with the superior court. See Nat'l Homes Corp., at 438.
¶21 Next, the Alosis argue that, because Joseph Alosi is a disabled military veteran who had been receiving treatment for a terminal illness, the superior court's denial of the second continuance violated his right to "due process" and "reasonable accommodation" under the ADA. The Alosis fail to meaningfully develop this argument and instead provide only general conclusory statements. The Alosis' failure to develop any relevant argument waives this issue on appeal. See Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009).
Disposition
¶22 For the foregoing reasons we affirm. The Alosis request their costs on appeal; Citibank request neither fees nor costs. The Alosis are not the prevailing parties on appeal, so we deny their request for costs. See A.R.S. § 12-341. Citibank, as the prevailing party, is entitled to its costs upon compliance with Rule 21. Id.