Opinion
No. 1 CA-CV 16-0630
10-03-2017
WELLS FARGO BANK NA, AS TRUSTEE, FOR PARK PLACE SECURITIES, INC ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2004-WCW2, Plaintiff/Appellee, v. COLA DAVID ALLEN, et al., Defendants/Appellants.
COUNSEL Wright, Finlay & Zak, LLP, Scottsdale By Kim R. Lepore and Jamin S. Neil Counsel for Plaintiff/Appellee Cola David Allen and Lisa Allen, Littleton, CO 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Yavapai County
No. V1300-CV-201680268
The Honorable Jeffrey G. Paupore, Judge Pro Tem
AFFIRMED
COUNSEL Wright, Finlay & Zak, LLP, Scottsdale
By Kim R. Lepore and Jamin S. Neil
Counsel for Plaintiff/Appellee Cola David Allen and Lisa Allen, Littleton, CO
Defendants/Appellants
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge Peter B. Swann joined. PORTLEY, Judge:
The Honorable Maurice Portley, Retired Judge of the Court of Appeals, Division One, has been authorized to sit in this matter pursuant to Article VI, Section 3 of the Arizona Constitution.
¶1 Cola Allen and Lisa Allen (the "Allens") appeal from the entry of a forcible entry and detainer ("FED") judgment in favor of Wells Fargo Bank NA, as Trustee for Park Place Securities, Inc Asset-Backed Pass-Through Certificates, Series 2004-WCW2 ("Wells Fargo"). For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Wells Fargo purchased a house in Cottonwood, Arizona (the "Property") at a trustee's sale in July 2016. Wells Fargo subsequently demanded the Allens vacate the Property, and when they did not, filed a FED action on September 22, 2016.
¶3 The Allens filed an unsuccessful motion to dismiss. The superior court, however, granted the Allens' request for a trial on whether Wells Fargo had standing to bring the FED action. At trial, the Allens asserted that because Wells Fargo did not bring the FED action under its legal name it lacked the capacity to sue. The court found that Wells Fargo was entitled to possession of the Property, and the Allens subsequently vacated the Property.
Although we could find the appeal has been mooted because the Allens vacated the property, Bank of N.Y. Mellon v. De Meo, 227 Ariz. 192, 194, ¶ 8 (App. 2011) (an issue may be moot when a possessor abandons property after a judgment granting the property owner possession), we will address their substantive arguments.
¶4 The Allens timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1) (2017).
We cite to the current version of statutes unless otherwise noted.
DISCUSSION
¶5 "Forcible detainer is a summary and speedy remedy for obtaining possession, and the only issue to be determined in the action is the right to actual possession." Andreola v. Ariz. Bank, 26 Ariz. App. 556, 557 (1976); see A.R.S. § 12-1177(A) ("[T]he only issue shall be the right of actual possession and the merits of title shall not be inquired into."). Although the merits of title may not be litigated, the fact of title may be shown as a matter incidental to demonstrating right of possession by an owner. Taylor v. Stanford, 100 Ariz. 346, 349-50 (1966). And on appeal we view the facts in the light most favorable to sustaining the superior court's judgment and defer to the court's factual findings. Pueblo Santa Fe Townhomes Owners' Ass'n v. Transcon. Ins. Co, 218 Ariz. 13, 18, ¶ 19 (App. 2008).
¶6 On appeal, the Allens' argue that the superior court erred by (1) finding they waived their objection to standing because it was not raised at the time of sale; (2) requiring them to prove that Wells Fargo is not a valid entity; (3) finding that Wells Fargo used its legal name when the caption matched the name on the deed and thus it had the right to possession; (4) denying a trial on the merits; and (5) preventing Lisa Allen from speaking at trial. The arguments do not require the reversal of the judgment.
¶7 To the extent the Allens asserted Wells Fargo was not the legal owner of the Property, the superior court correctly determined that their argument was untimely. "[T]he only issue shall be the right of actual possession and the merits of title shall not be inquired into." A.R.S. § 12-1177(A). Wells Fargo presented evidence it had purchased title to the Property, and thus had right of possession. If the Allens wanted to challenge the legality of the trustee's sale, by claiming that the trustee-purchaser was a non-existent entity, the time for that claim was before the time of sale. See A.R.S. § 33-811(C) ("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 . . . before the scheduled date of the sale."); BT Capital, LLC v. TD Serv. Co. of Ariz., 229 Ariz. 299, 301, ¶ 10 (2012) ("[A] person who has defenses or objections to a properly noticed trustee's sale has one avenue for challenging the sale: filing for injunctive relief.").
¶8 The Allens correctly note that, when the issue is properly raised, plaintiffs bear the burden of proving the capacity to sue. Aranda v. Cardenas, 215 Ariz. 210, 218, ¶ 28 (App. 2007). However, to properly raise the issue of capacity to sue or the legal existence of a party, "a party must do so by a specific denial, which must state any supporting facts that are peculiarly within the party's knowledge." Ariz. R. Civ. P. 9(a)(2). The Allens failed to raise the issue and did not make a specific denial with supporting facts. The only evidence the Allens presented amounted to a difference of six words in the captions of various cases involving Wells Fargo. In contrast, Wells Fargo provided various documents supporting the existence of both Wells Fargo Bank and Park Place Securities, including the Pooling and Servicing Agreement between the two companies. Consequently, we find no error in the court's ruling that Wells Fargo was a proper entity with standing to sue to recover possession of the Property.
Here, Wells Fargo is listed as "Wells Fargo Bank NA, as Trustee for Park Place Securities, Inc Asset-Backed Pass-Through Certificates, Series 2004-WCW2." In the other litigation referenced by the Allens, Wells Fargo is described as "Wells Fargo Bank NA, in Trust for the Registered Holders of Park Place Securities, Inc. Asset-Backed Pass-Through Certificates, Series 2004-WCW2." --------
¶9 The Allens' third argument on appeal, that Wells Fargo was not entitled to possession, similarly fails. The only issue in a FED action is the right of actual possession. A.R.S. § 12-1177(A). The Trustee's Deed lists the owner of the Property as "Wells Fargo Bank NA, as Trustee, for Park Place Securities, Inc. Asset-Backed Pass-Through Certificates, Series 2004-WCW2." The name matches that of the plaintiff in this FED action, Wells Fargo. As owner of the Property, Wells Fargo has the right to actual possession.
¶10 Finally, the Allens' claims regarding the trial do not require reversal. The assertion that the Allens were denied a trial on the merits is unsupported by the record. The Allens were given the opportunity to present evidence and argue the issues. Moreover, although the court did not allow Lisa Allen to testify at trial, the Allens did not make an offer of proof or otherwise specify what her testimony would be or that it would be different from her husband's. The court can control the proceedings under Arizona Rule of Evidence 611, and has discretion to exclude cumulative evidence. Ariz. R. Evid. 403; Elia v. Pifer, 194 Ariz. 74, 83, ¶ 42 (App. 1998). Consequently, given the summary nature of the proceeding and the lack of an offer of proof, the court did not abuse its discretion by not allowing Lisa Allen to testify.
CONCLUSION
¶11 Based on the foregoing reasons, we affirm the judgment.