Opinion
No. 1 CA-CV 18-0396
06-20-2019
MRH SUB I, LLC, as successor-in-interest to CITIMORTGAGE, INC., Plaintiff/Appellee, v. PETER M. PILAT and SHEILA PILAT, Defendants/Appellants.
COUNSEL Tiffany & Bosco, PA, Phoenix By Leonard J. McDonald, Jr., Michael A. Wrapp, Kevin P. Nelson Counsel for Plaintiff/Appellee Peter M. Pilat, Shelia Pilat, Mesa Defendants/Appellants
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
No. CV2010-016616
The Honorable Karen A. Mullins, Judge
AFFIRMED
COUNSEL Tiffany & Bosco, PA, Phoenix
By Leonard J. McDonald, Jr., Michael A. Wrapp, Kevin P. Nelson
Counsel for Plaintiff/Appellee Peter M. Pilat, Shelia Pilat, Mesa
Defendants/Appellants
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Jennifer M. Perkins joined. WEINZWEIG, Judge:
¶1 Peter and Sheila Pilat appeal the superior court's denial of their motion to strike and motion for new trial, claiming the court misinterpreted the requirements for renewal of a judgment by affidavit under A.R.S. § 12-1612. We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 This case concerns the requirements under Arizona law to renew a judgment by affidavit. American Mortgage Specialists, Inc. ("American") loaned $480,000 to Peter Pilat, secured by a deed of trust on real property. CitiMortgage, Inc. ("Citi") acquired the loan from American. Peter then defaulted, and Citi sued Peter to recover the unpaid principal, interest, and penalties due on the loan. Although Peter was the sole borrower identified in the promissory note and deed of trust, Sheila later joined the lawsuit and filed separate counterclaims against Citi. The superior court granted summary judgment for Citi and against Peter on October 16, 2012 ("2012 judgment"). The court awarded Citi $694,943, including principal ($479,800), accrued interest ($108,054.94), late charges ($5,604), miscellaneous fees and charges ($13,935.78), attorneys' fees and non-taxable costs ($86,242.38), and taxable costs ($1,305.90). The court also foreclosed Peter's interest in the real property, foreclosed the lien created by the deed of trust, authorized the sheriff to sell the property to satisfy the 2012 judgment, and found in favor of Citi on Sheila's counterclaims. The Pilats did not appeal the 2012 judgment.
¶3 MRH Sub I, LLC ("MRH") later acquired the judgment from Citi. MRH Sub I, LLC v. Pilat, 1 CA-CV 14-0573, 2017 WL 712596, at *2, 6, ¶¶ 6, 31 (Ariz. App. Feb. 23, 2017). MRH moved to renew the judgment on October 13, 2017, just three days before it would have expired, when it filed the "Judgment Renewal Affidavit" of April Smith in the superior court (the "Renewal Affidavit").
¶4 The Renewal Affidavit reflected it was made in Maricopa County, and Smith purported to have signed it on October 12 "after being duly sworn" and "pursuant to A.R.S. § 12-1612." The Renewal Affidavit names the debtor and creditor; specifies the exact amount due on the 2012 judgment; describes Smith's authority to sign on MRH's behalf; identifies the amounts awarded in the judgment (such as principal sum, accrued interest and attorneys' fees), the county where recorded and the court where docketed; explains that MRH is "successor-in-interest to [Citi]"; and assures there are no setoffs or counterclaims. At the end, Smith restates that the Affidavit is made "pursuant to A.R.S. § 12-1612 for the purpose of renewing the Judgment." The first reference to a notary appears below Smith's signature: "NOTARY ACKNOWLEDGMENT INCLUDED ON FOLLOWING PAGE." The Renewal Affidavit showed it was "mailed/emailed" to Peter and Sheila on October 13. The Pilats have not argued they did not receive the Affidavit.
¶5 A "California All-Purpose Acknowledgement Form" (the "Form") was attached to the Renewal Affidavit. The Form was signed by a notary public on October 12, 2017, under "PENALTY OF PERJURY under the laws of the State of CALIFORNIA." The Form includes a boilerplate warning under California law that the "notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document." Cal. Civ. Code § 1189(a)(1). The Form indicates that April Smith "personally appeared" before the notary on October 12 and "proved . . . on the basis of satisfactory evidence to be the person" named in the Renewal Affidavit. The Form does not expressly state, however, that the notary administered an oath or affirmation to Smith before Smith signed the Renewal Affidavit.
¶6 The Pilats moved to strike MRH's Renewal Affidavit as invalid and laden with misrepresentations. They argued the Renewal Affidavit was invalid because it did not meet the formal requirements of A.R.S. § 12-1612; and misrepresented that Sheila was a judgment debtor, that MRH is a judgment creditor, and how much was owed on the 2012 judgment. MRH responded. The superior court denied the motion. It found that the Renewal Affidavit "substantially [met] the requisites of an affidavit . . . in light of the purpose of A.R.S. § 12-1612, which is to notify interested parties of the existence and continued viability of the judgment." The court also rejected the remaining arguments, finding that (1) the Renewal Affidavit identified only Peter as the judgment debtor, (2) the Pilats had "waived their right to contest that MRH has stepped into the shoes of the judgment creditor," and (3) the amount of the judgment is "plainly stated" in the Renewal Affidavit and attachments.
¶7 The Pilats moved for a new trial, re-urging the same arguments they made in their motion to strike. The superior court denied the motion. This timely appeal followed. Since then, the sheriff sold the real property in partial satisfaction of the 2012 judgment. We have jurisdiction under A.R.S. § 12-2101(A)(2), (5)(a).
DISCUSSION
¶8 The Pilats challenge the superior court's conclusion that the Renewal Affidavit met the statutory requirements for renewal of a judgment by affidavit under A.R.S. § 12-1612. We review de novo the court's interpretation and application of A.R.S. § 12-1612. Amadore v. Lifgren, 245 Ariz. 509, 514, ¶ 5 (App. 2018).
¶9 A money judgment lapses unless renewed by the judgment creditor within 10 years of entry. A.R.S. § 12-1551(B) (2017). A judgment can be renewed either by affidavit (if already docketed) or by filing a separate lawsuit. A.R.S. §§ 12-1611, -1612(A), (D) (2017). The legislature has delineated the requirements for "renewal by affidavit," which compel the judgment creditor to "make and file an affidavit" with the following information:
We cite the version of the statute in effect when MRH filed the Renewal Affidavit.
1. The names of the parties, the name of the court in which docketed, if recorded the name of the county in which recorded, the date and amount of the judgment, if recorded, the number and page of the book in which recorded by the county recorder, the name of the owner of the judgment, and his source and succession of title, if not the judgment creditor.
2. That no execution is anywhere outstanding and unreturned upon the judgment, or if any execution is outstanding, that fact shall be stated.
3. The date and amount of all payments upon the judgment and that all payments have been duly credited upon the judgment.
4. That there are no set-offs or counterclaims in favor of the judgment debtor, and if a counterclaim or set-off does exist in favor of the judgment debtor, the amount thereof, if certain, or, if the counterclaim or set-off is unsettled or undetermined, a statement that when it is settled or determined by action or otherwise, it may be allowed as a payment or credit upon the judgment.A.R.S. § 12-1612(B).
5. The exact amount due upon the judgment after allowing all set-offs and counterclaims known to affiant, and other facts or circumstances necessary to a complete disclosure as to the exact condition of the judgment.
¶10 Our supreme court has described "the filing of an affidavit of renewal" as "simply a ministerial action intended in part to alert interested parties to the existence of the judgment." In re Smith, 209 Ariz. 343, 345, ¶ 13 (2004) ("Such a ministerial filing serves a notice function and does not seek to enforce a judgment.").
¶11 Arizona courts have tolerated various technical defects in renewal affidavits where the affidavit still meets the statute's purpose to inform interested parties of the judgment to be renewed, but have required rigid compliance with the statute's timeliness and location of recording requirements. Compare Fay v. Harris, 64 Ariz. 10, 13-14 (1945) (compliance found despite misstatement of amount owing because it could be ascertained), Weltsch v. O'Brien, 25 Ariz. App. 50, 53 (1975) (failure to include "the clerk's docket and page number" was "technical omission or error[]" and "of no practical significance" where affidavit "sufficiently identifies the judgment to be renewed"), and Triple E Produce Corp. v. Valencia, 170 Ariz. 375, 378 (App. 1991) (misstatement in renewal affidavit of balance owed is not fatal "if the correct amount can be ascertained from the face of the affidavit"), with J.C. Penney v. Lane, 197 Ariz. 113, 119, ¶ 31 (App. 1999) (affidavit for renewal ineffective when filed "in a superior court in a county different from that in which its judgment was docketed"), and Indus. Comm'n v. Galloway, 224 Ariz. 325, 330, ¶ 17, n.5 (App. 2010) ("the timeliness of the affidavit is a rigid statutory requirement").
A. Affidavit
¶12 MRH moved to renew the 2012 judgment under Arizona's judgment renewal statutes "by filing an affidavit for renewal with the clerk of the proper court." A.R.S. § 12-1612(A), (D). The Pilats assert that the Renewal Affidavit did not meet the requirements for an affidavit under Arizona law "because it was not made under oath before an officer authorized to administer an oath or affirmation in which the affiant vouches that what is stated is true under the penalty of perjury." MRH counters that the Renewal Affidavit is valid because it "accomplished the purpose of" and "substantially complied with A.R.S. § 12-1612," and "absence of a jurat" is not fatal.
¶13 Although an "affidavit" is required under A.R.S. § 12-1612, no definition of "affidavit" is provided. We interpret Arizona statutes to enforce their clear and unambiguous language. BSI Holdings, LLC v. Ariz. Dep't of Transp., 244 Ariz. 17, 19, ¶ 9 (2018).
¶14 Our supreme court has defined "affidavit" as "a signed, written statement, made under oath before an officer authorized to administer an oath or affirmation in which the affiant vouches that what is stated is true." In re Wetzel, 143 Ariz. 35, 43 (1984); see also Affidavit, Black's Law Dictionary (9th ed. 2009) (an affidavit is "[a] voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths").
¶15 The Pilats argue the Renewal Affidavit is not an affidavit because MRH provided no written statement from persons authorized to administer an oath or affirmation avowing that they administered the oath to Smith before she signed the document.
¶16 We agree that the Renewal Affidavit would not qualify as an affidavit under the statute unless Smith was sworn, and the notary public administered the oath. Wetzel, 143 Ariz. at 43. For two reasons, however, we disagree that the Renewal Affidavit was unsworn and invalid.
¶17 First, the only evidence in the record is that Smith was sworn before she signed. Indeed, Smith states in the very first sentence that her statements were made "after being duly sworn." To be sure, the better practice would have been for the notary to expressly avow that she administered an oath to the witness, but an affiant can still establish that an oath was duly administered. And here, that evidence is available on the face of Smith's affidavit.
¶18 Second, the Renewal Affidavit meets the statute's ministerial purpose and function of "alert[ing] interested parties to the existence of the judgment." Smith, 209 Ariz. at 345, ¶ 13. The judgment debtor and interested third parties could identify the judgment to be renewed and determine the balance due from the face of the affidavit. Valencia, 170 Ariz. at 378. The Pilats do not argue otherwise. Given the statement that Smith was "duly sworn," the alleged defect (failure of the notary to confirm) is similar to technical defects that did not defeat renewal in prior cases. E.g., id.; Weltsch, 25 Ariz. App. at 53.
We acknowledge, however, that things could be different if the Renewal Affidavit had not stated that Smith was "duly sworn" because, in that case, interested parties might have had reason to doubt the statement's veracity, which would thus defeat the statutory purpose of disseminating information about the judgment to be renewed.
¶19 The only record evidence to question whether Smith was sworn is the boxed statement at the top of the notary's acknowledgement, which says the notary only verified Smith's identity "and not the truthfulness, accuracy, or validity of th[e] [Affidavit]." But that statement is pulled verbatim from a California statute that requires all notaries to cut and paste the statement into all acknowledgements. Cal. Civ. Code § 1189(a)(1); see also id. § 1195(c); Cal. Gov't Code § 8202(b). The language says nothing about what the notary did here. Nor does it mean the witness was not sworn. The language merely represents a boilerplate warning that California notaries have not investigated and cannot confirm the accuracy of the affiant's statements.
¶20 In sum, the superior court did not err in finding the Renewal Affidavit was valid.
B. Other Arguments
¶21 The Pilats also claim the Renewal Affidavit mispresents the judgment debtor's identity and amount due on the loan, and fails to prove MRH's source and succession of title. They first contend that Sheila is improperly named as a judgment debtor who was ordered in the 2012 judgment to repay the debt. We find no error. Though it defines "Judgment Debtors" to include Sheila and Peter, the Renewal Affidavit explains that the superior court "award[ed] amounts in favor of Judgment Creditor and against Peter M. Pilat." MRH also attached the 2012 judgment itself, which identifies only Peter as the judgment debtor.
¶22 The Pilats next argue the Renewal Affidavit misstates the amount due on the 2012 judgment. We are not persuaded. At a minimum, the Renewal Affidavit includes enough information to determine the exact balance. Nothing more is required. See Fay, 64 Ariz. at 13-14 (concluding creditor followed the statute's terms even though the creditor "failed to show the exact balance due, through errors in computation," because "the exact balance could be determined" from the face of the affidavit). MRH also attached the judgment, leaving no doubt about what is owed.
¶23 And last, the Pilats claim the Renewal Affidavit is invalid because MRH never proves or establishes its source and succession of title. The relevant statute, however, only requires MRH to "set[] forth," not prove or establish, its source and succession of title, A.R.S. § 12-1612(B), an issue the Pilats never address or explore in their briefing, Jones v. Burk, 164 Ariz. 595, 597 (App. 1990) ("Issues not clearly raised and argued in a party's appellate brief constitute waiver of error on review.").
CONCLUSION
¶24 We affirm the superior court's denial of the Pilats' motion to strike and motion for new trial. MRH requests an award of attorneys' fees and costs under A.R.S. § 12-341 and § 12-341.01. We decline its request for attorneys' fees in our discretion, but MRH is entitled to its taxable costs upon compliance with ARCAP 21.