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Martinie v. Fed. Nat'l Mortg. Ass'n

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 26, 2014
No. 1 CA-CV 13-0490 (Ariz. Ct. App. Jun. 26, 2014)

Opinion

No. 1 CA-CV 13-0490

06-26-2014

FORREST FRANKLIN MARTINIE, Plaintiff/Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendant/Appellee.

Forrest Franklin Martinie, Phoenix Appellant RCO Legal P.S., Phoenix By Robert R. Hall Counsel for Appellee


NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 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. CV2013-051685

The Honorable Colleen L. French, Judge Pro Tempore


AFFIRMED


COUNSEL

Forrest Franklin Martinie, Phoenix
Appellant
RCO Legal P.S., Phoenix
By Robert R. Hall
Counsel for Appellee

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Patricia K. Norris and Judge Kent E. Cattani joined. THUMMA, Judge:

¶1 Forrest Franklin Martinie (Martinie) appeals from the superior court's dismissal of his complaint against Federal National Mortgage Association (FNMA) for failure to state a claim. Finding no error, the dismissal is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 This case arises out of a trustee's sale of real property in November 2012. For many years prior to that sale, Martinie and/or his wife owned the property, with ownership transferring more than once between the two by quitclaim deed. In 2006, Ms. Martinie held the property in her name and signed a Deed of Trust to secure a loan on the property. In 2010, GMAC Mortgage, LLC (GMAC) entered into a loan modification agreement with Ms. Martinie, who was the sole owner of the property at the time. In December 2011, Ms. Martinie transferred the property to Martinie in a quitclaim deed.

The superior court properly took judicial notice of United States Bankruptcy Court filings indicating Martinie filed for bankruptcy once in 2008, twice in 2011 and twice in 2012. See Ariz. R. Evid. 201. Those bankruptcy proceedings have been dismissed and no bankruptcy stay is applicable to this appeal.

¶3 In February 2012, Executive Trustee Services, LLC (Executive Trustee) the appointed trustee under the Deed of Trust, recorded a Notice of Trustee's Sale. The property sold at a Trustee's sale on November 19, 2012 to Executive Trustee for a credit bid of $301,606.72. Days later, Executive Trustee conveyed the property to GMAC, which in turn conveyed the property to FNMA.

¶4 In January 2013, FNMA filed a separate Forcible Entry and Detainer (FED) action seeking possession of the property. On April 5, 2013, FNMA obtained judgment in the FED action, with a writ of restitution to issue on or after April 15, 2013. Martinie did not appeal from the judgment in the FED action and the time to do so has passed. Ariz. R. Civ. App. P. 9(a).

¶5 On April 17, 2013, Martinie filed this action against FNMA. Although titled an "Action to Quiet Title," the complaint challenged actions leading up to and at the Trustee's sale. Claiming GMAC informed Martinie that it "did not actually own the loan," the complaint alleged Executive Trustee (on behalf of GMAC) was not a "beneficiary" under the Deed of Trust and, accordingly, could not make a credit bid pursuant to Arizona Revised Statutes (A.R.S.) section 33-810(A) (2014). As a result, the complaint alleged "[t]he foreclosure process conducted in regard [to] the property was improper and thus deficient." Therefore, the complaint alleged FNMA did not "have proper title to" the property, meaning the property "should therefore revert back to" Martinie "as his sole and separate property." Martinie emphasizes, however, that the issue on appeal "is not one of improper notice," and nothing in the record suggests that Martinie did not have proper notice of the foreclosure sale.

Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.

¶6 On April 17, 2013, Martinie filed an ex-parte petition for injunctive relief, asking that he be allowed to remain in physical possession of the property until the case was resolved. Treating the petition as a request for a temporary restraining order, the superior court denied the request in a signed Minute Entry, noting (1) Martinie had not complied with Arizona Rule of Civil Procedure 65(d); (2) the request was premised on an improper sale pursuant to a deed of trust, but such objections had been waived pursuant to A.R.S. § 33-811 and (3) the request improperly sought to enjoin the separate FED proceedings. Martinie did not appeal from that ruling, but instead filed an amended ex-parte petition for injunctive relief, which the court ultimately set for a hearing scheduled to be held on June 14, 2013.

On May 21, 2013, Martinie also filed an emergency ex parte petition for injunctive relief which the superior court denied the next day, a ruling not challenged on appeal.

¶7 On May 20, 2013, FNMA moved to dismiss Martinie's amended complaint for failure to state a claim and asked the court to take judicial notice of various publicly-recorded documents. See Ariz. R. Civ. P. 12(b)(6); Ariz. R. Evid. 201. On June 4, 2013, Martinie filed an opposition to FNMA's motion to dismiss and request for judicial notice. Based on these filings, in Minute Entries dated June 13, 2013, the superior court granted FNMA's request for judicial notice, granted FNMA's motion to dismiss with prejudice and vacated the hearing scheduled for the next day. From Martinie's timely appeal, this court has jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

On appeal, Martinie argues the superior court did not consider his response to the motion to dismiss and that the order granting FNMA's motion to dismiss "was entered prior to the court even receiving [his] timely filed response." In fact, however, the superior court granted FNMA's motion ten days after Martinie filed his opposition and, in doing so, stated it had "received and reviewed . . . [Martinie's] Response to Motion to Dismiss filed June 4, 2013."

DISCUSSION

¶8 This court reviews de novo the grant of a motion to dismiss for failure to state a claim. Coleman v. City of Mesa, 230 Ariz. 352, 355 ¶ 8, 284 P.3d 863, 866 (2012). This court may affirm the grant of a motion to dismiss for any reason supported by the record. See Coronado Co. v. Jacome's Dep't Store, Inc., 129 Ariz. 137, 139, 629 P.2d 553, 555 (App. 1981). In reviewing a superior court's finding that a complaint failed to state a claim, this court looks to the pleading itself, as well as to documents properly considered by the superior court, including items for which judicial notice was taken. See Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419 ¶ 7, 189 P.3d 344, 346 (2008). This court assumes the truth of all well-pled factual allegations and reasonable inferences from those allegations. Id.

¶9 Martinie argues that a credit bid may only be made by a beneficiary of the Deed of Trust; that FNMA (not GMAC) was the beneficiary of the Deed of Trust at the time of the Trustee's Sale and, accordingly, Executive Trustee could not properly have purchased the property at the Trustee's Sale for a credit bid on GMAC's behalf. Martinie bases this argument on an allegation that, at some point before the 2010 loan modification was not continued, GMAC "informed" him "that they did not have the authority to continue the loan modification as they did not actually own the loan, that the loan was in fact owned by" FNMA. Martinie's argument fails as a factual matter and, independently, under A.R.S. § 33-811(C).

¶10 Martinie does not challenge the superior court taking judicial notice of, and considering, various recorded documents making clear that GMAC was the beneficiary of the Deed of Trust at all times relevant here. These documents show that GMAC was the beneficiary of the Deed of Trust in February 2012, as reflected in the Notice of Trustee's Sale, and on November 21, 2012, as reflected in the Trustee's Deed Upon Sale. These documents demonstrate that GMAC was the beneficiary of the Deed of Trust on November 19, 2012, when the Trustee's Sale occurred. Accordingly, the superior court did not err in rejecting Martinie's argument that Executive Trustee, on behalf of GMAC, could not properly have purchased the property for a credit bid.

¶11 Independent of these documents, "[w]hen parties execute a deed of trust and the debtor thereafter defaults" the trustee is able "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). As applicable here, to avoid waiving his claim to title, Martinie was required by A.R.S. § 33-811(C) to take action before the Trustee's Sale:

The trustor . . . shall waive all defenses and objections to the sale not raised in an action that results in the issuance of a court order granting relief pursuant to rule 65, Arizona rules of civil procedure, entered before 5:00 p.m. mountain standard time on the last business day before the scheduled date of the sale. A copy of the order, the application for the order and the complaint shall be delivered to the trustee within twenty-four hours after entering the order.
A.R.S. § 33-811(C). Martinie did not obtain injunctive relief that prevented the Trustee's Sale, and he thus waived the quiet title claim he seeks to press here. See id.; see also Morgan AZ Fin., L.L.C. v. Gotses, 1 CA-CV 13-0046, 2014 WL 1910967, at *2 ¶ 8 (Ariz. App. May 13, 2014) (noting A.R.S. § 33-811(C) prescribes waiver of defenses and objections "'to the sale,' and we must strictly construe this language in favor of trustors"); Sitton v. Deutsche Bank Nat'l Trust Co., 233 Ariz. 215, 218, 311 P.3d 237, 240 (App. 2013) ("If a trustor fails to obtain injunctive relief and a trustee's sale is completed, she waives all claims to title of the property."); A.R.S. § 33-811(B) ("The trustee's deed shall raise the presumption of compliance with the requirements of the deed of trust."). For this independent reason, under A.R.S. § 33-811(C), Martinie cannot obtain the quiet title relief he seeks in this case.

Martinie filed a supplement attaching Johnson v. JPMorgan Chase Bank, CV-13-01217-PHX-ROS (D. Ariz. Mar. 31, 2014). This unpublished decision cannot properly be cited in this court. See Ariz. R. Civ. App. P. 28(c); Walden Books Co. v. Dep't of Revenue, 198 Ariz. 584, 589 ¶ 23, 12 P.3d 809, 814 (App. 2000). Moreover, because this unpublished decision addresses issues different than those that are dispositive of this appeal, even if citable, it would not change the outcome of this appeal.
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¶12 Finally, Martinie appears to argue that the superior court erred in granting the motion to dismiss without a hearing and then vacating the hearing scheduled on the request for injunctive relief. Having found the superior court properly granted the motion to dismiss, which mooted the request for injunctive relief, this court need only address whether Martinie had a right to a hearing on the motion to dismiss. Martinie has not argued that he was precluded from presenting necessary evidence or argument to the superior court. Nor has he argued that he had a right to oral argument under the Arizona Rules of Civil Procedure. As applicable here, "[t]he court may, in its discretion, order, allow, or deny oral argument on any motion consistent with the Arizona Rules of Civil Procedure." Maricopa County Rule 3.2(d). Martinie has not shown an abuse of discretion by the superior court deciding the motion to dismiss without oral argument or a hearing on the motion.

CONCLUSION

¶13 The superior court's order granting FNMA's motion to dismiss with prejudice is affirmed. FNMA has requested an award of attorneys' fees and costs incurred on appeal. Because FNMA cites no provision "authorizing an award of attorneys' fees," Arizona Rule of Civil Appellate Procedure 21(a)(2), its request for fees is denied. As the prevailing party on appeal, FNMA is awarded its costs upon compliance with Arizona Rule of Civil Appellate Procedure 21(c).


Summaries of

Martinie v. Fed. Nat'l Mortg. Ass'n

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 26, 2014
No. 1 CA-CV 13-0490 (Ariz. Ct. App. Jun. 26, 2014)
Case details for

Martinie v. Fed. Nat'l Mortg. Ass'n

Case Details

Full title:FORREST FRANKLIN MARTINIE, Plaintiff/Appellant, v. FEDERAL NATIONAL…

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Jun 26, 2014

Citations

No. 1 CA-CV 13-0490 (Ariz. Ct. App. Jun. 26, 2014)