Petition for Writ of Certiorari — Maher v. Bank One, N.A.
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Suprem
P ie Court, US.
10-690 MAY 28 2010
No. OFFICE OF THE CLERK
In the
Supreme Court of the United States
STEVEN A. MAHER,
Petitioner,
VS.
BANK ONE, N.A., and BENJAMIN T. RUBAL and
KATHY G. RUBAL, husband and wife,
Respondents.
On Petition for a Writ of Certiorari
To the Arizona State Supreme Court and the
Arizona Court of Appeals
PETITION FOR A WRIT OF CERTIORARI
Steven A. Maher
PO Box 1061
Safford, Arizona 85548
(928) 428-1203
In propria persona
QUESTIONS PRESENTED
1. Dothe Arizona statutes governing trustee's sales
and trustee’s deeds upon sale, which have been
interpreted by the Arizona courts as requiring that any
and all challenges to the validity of a sale be made
prior to the day of the sale and result in the issuance
of a judicial injunction prohibiting the sale, violate the
due process clause of the 14° Amendment to the
United States Constitution, either in general or as
specifically applied to Petitioner?
2. Does a lender's violation of the debt validation
provisions of the Fair Debt Collection Practices Act, 15
U.S.C. §1692¢(b), render void or voidable subsequent
attempts to collect the debt, including the conducting
of a trustee's sale under state law, in addition to
providing the debtor a damages remedy?
TABLE OF CONTENTS
QUESTIONS PRESENTED.................. ine
8 Sle 00 AY Y | 0). AV
PETITION FOR A WRIT OF CERTIORARI. ........ ]
SE ]
I ]
CONST. AND STAT. PROVISIONS INVOLVED... 1
EME 2 09 EREIG CADIS, .... 1... eee 2
MT SPE PACS... 2.2... ee ek
REASONS FOR GRANTING THE PETITION. .... 7
A. Arizona State Statutes Governing Challenges to
the Sale of Real Property at Trustee’s Sales, as
Interpreted by the Arizona Courts, Violate Due
Process Under the United States Constitution
Because They Provide an Inadequate Process for such
ry
Challenges to be Judicially Reviewed............ 7
B. The Fair Debt Collection Practices Act (FDCPA)
Should be Interpreted such that Actions Taken in
Violation of Provisions of the FDCPA Requiring a
Debt Collector to Verify the Validity of the Debt or
Cease Collection of the Debt are Void and of No
CONCLUSION. LS
APPENDIX A.... | ee
APPENDIX B. .. rree oe
APPENDIX C. . a ead y ee fa)
APPENDIX D...... are ere aa : D-1
APPENDIX E... . a ) Poe re
APPENDIX F.... FN be be RC F-]
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Fae er Peete A «ooo 0 oo oe ee gts ee ee
M11
TABLE OF AUTHORITIES
Cases
Breedlove v. America’s Servicing Company, et al,
No. CV09-8135-PCT-JAT (D.Ariz., March 31,
ee ee ee a ee ees 13
Coleman v. American Home Mortgage Servicing,
Inc., No. CV09-2692-PHX-DGC (D. Ariz., March 29,
BIR Nagel Da apt ape beara hel Pe Maret pao 12
Eardley v. Greenberg, 164 Ariz. 261, 792 P.2d 724
(CR pads alla tai tetl os itagt ata ane LUA mien OO een AE 9
Fuentes v. Shevin, 407 U.S. 67, (1972)... ..... ee
Heintz v. Jenkins, 46 F.3d 645 (7 Cir., 1995)... .14
Krohn v. Sweetheart Properties, LTD, 203 Ariz. 205,
Wi, a ee a a re ee 8,10
Kromko v. City of Tucson, 202 Ariz. 499, P.3d 1137
CS gor a Oey ee oa SN ee ee 11
Lafaro v. Cahill, 203 Ariz. 482, P.3d 56 (App.
SS er eee es oa Ua eg oe 11
Martenson v. RG Financing, 2010 WL 334648 (D.
Avis. damaaty 72, DOW. . 2. oon on va cv esas iz
Mitchell v. W.T. Grant, 416 U.S. 600 (1974). ..... 11
iV
Mullane v. Central Hanover Bank & Trust, 339 U.S.
rey ee Re Le it eee eS a 8
North Georgia inishing v. Di-Chem, 419 U.S. 601
a Met nen i a rs ees 11
Patton v. First Federal Savings, 118 Ariz. 473, 578
Ce I ea al a Me 9
Roads v. Washington Mutual Bank, No. CV10-0197-
PHX-NVW (D. Ariz., April 6, 2010)............. 12
Schaeffer v. Chapman, 176 Ariz. 326, 329,861 P2d,
ook oan awed Rta ee ay 9
Searles v. First Nat! Bank, 127 Ariz. 240, 619 P.2d
sal a eka rata Ae nae SAC mma vectie Ar 11
Shapiro & Mernhold v. Zartman, 823 P.2d 120 (Colo.
(RS Are gas Ses Aes ee el een UN GSAS Slircretal amet 4 14
Sniadach v. Family Finance Corp. 395 U.S. 337
ee i vse ae eis 11
Taylor v. Perrin, Landry, deLaunay & Durand, 103
We 2aee Oe 0, SOO, ee ec taacscs 13 (FN 1)
Tolentino v. Friedman, 46 F.3d 645 (7™ Cir.,
ERE RR ara Pare St ae aA an ea is Need ere 14
Valler v. Lee, 190 Ariz. 391, 949 P.2d 51 (Ariz. App.
yp NIE erer gn er ats oer Ren Oe ora cen ered aN 4
Rules
U.S. Supreme Court Rule 29.4(c).........0000... 1
Rule 65, Arizona Rules of Civil Procedure......... 9
Statutes
Le ee 9,10
Pg Sk). Sr a re 4
ARS. § S3°B11(C)........5...... 1,2,4,6,9,10,11,12
RE Ls eee an rare 1
gs ns oa ve4 a eae 4a ews 1
ROG Se 2,3,4,13,14
BG UC, © TORO). wo cc ccc cae cence nccen 2,13
ek Pa a a re 14
Constitutional Provisions
U.S. Constitution, 14 Amendment.............. 7
Arizona Constitution, Art. 2, Sec. 4.............. 7
V1
PETITION FOR A WRIT OF CERTIORARI
Steven A. Maher respectfully petitions for a writ
of certiorari to review the unreported Memorandum
Decision of Division Two of the Arizona Court of
Appeals and the discretionary denial of relief on
Petition for Review by the Arizona State Supreme
Court.
OPINIONS BELOW
The opinions below are unreported. The orders
of the courts below are included in Appendices B, C, D,
and E. An order in a related case is included in
Appendix A.
JURISDICTION AND COMPLIANCE WITH
RULE 29.4 (c)
The Arizona Supreme Court denied review on
March 2, 2010. See Appendix B. The jurisdiction of
this Court is invoked under 28 U.S.C. § 1257.
Because the Petition challenges the
constitutionality of an Arizona state statute, A.R.S.
§33-811(C), and no agency, officer, or employee of the
State of Arizona is a party to this proceeding, 28
U.S.C. § 2403 (b) may apply. A’ copy of the Petition
has, therefore, been served on the Attorney General of
the State of Arizona, as required by U.S. Supreme
Court Rule 29.4(c).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
This Petition involves the due process clause of
the United States Constitution, 14% Amendment, and
the Fair Debt Collection Practices Act, 15 U.S.C. §
1692¢(b). The text of the constitutional provision is
attached as Appendix F and the text of the statutory
provision is attached as Appendix G. The text ofa
pertinent section of the Arizona Revised Statutes,
A.R.S. §§33-811(B) and 33-811(C), is attached as
Exhibit H.
I. STATEMENT OF THE CASE
Petitioner Steven A. Maher filed a civil action
against Respondents in Arizona state court in 2006,
challenging the taking of his residence by trustee’s
sale and forcible entry in 2003. The trial court denied
his motion for summary judgment and granted
Respondents’ cross-motions for summary judgment.
Maher’s appeal to the Arizona Court of Appeals,
Division Two, was denied in an _ unpublished
Memorandum Decision. Maher’s Petition for Review
to the Arizona Supreme Court was denied. Before the
trial court and state appellate court, Maher raised
various federal issues, including the constitutionality
of the state statute at issue and the effect the Fair
Debt Collection Practices Act.
Il. STATEMENT OF FACTS
In 1999, Maher obtained a loan on his residence
from Bank One Arizona, N.A., secured by a deed of
2
trust. In 2003, a dispute developed between Maher
and the bank relating to the bank’s release of
confidential information about the loan. Maher
withheld payments and attempted to resolve the
dispute. Another entity, Bank One, N.A., engaged in
debt collection activity, then noticed a trustee’s sale in
July, 2003. Despite Maher’s objections, the sale went
forward in October, 2003.
In November, 2003 Bank One, N.A., filed an
forcible entry action for possession, alleging it was
successor by merger to Bank One Arizona, N.A. In
defense, Maher alleged, inter alia, that the bank
lacked title to the property, because Bank One, N.A.,
was not the successor by merger to Bank One Arizona,
N.A., and had not acquired any rights under the deed
of trust. The Arizona Superior Court rejected Maher’s
arguments and issued a writ of restitution. Maher was
dispossessed in April, 2004, and the bank sold the
property to Kathy and Benjamin Rubal.
The Arizona Court of Appeals dismissed Maher’s
appeal as moot, ruling that he could not raise these
defenses in a forcible entry action, though he could do
so in a separate quiet title or damages action.
Appendix A at p. 6, n 1.
Maher filed a civil action in the Arizona
Superior Court in 2006. Chase Home Finance (CHF)
answered as successor by merger to Bank One, N.A.
Maher sought to quiet title in CHF and the Rubals
and to recover damages from CHF for breach of
contract, violation ofthe Fair Debt Collection Practices
Act (FDCPA), 15 U.S.C. §1692g(b), violation of
provisions of Arizona state law relating to trustee’s
sales, and under tort theories. The parties filed cross
motions for summary judgment. Maher produced
3
supporting documents including documents obtained
from the United States Office of the Comptroller of the
Currency (OCC) regarding the 2001 merger that had
purportedly created Bank One, N.A. Merger
documents referred the entity as “Bank One, N.A.,
Chicago, Illinois.” Based on this and other evidence,
Maher argued that: (1) Bank One, N.A. lacked
standing to enforce the deed of trust; (2) the Rubals
were not bona fide purchasers for value and even if
they were, were not protected from a quiet title action;
(3) the bank violated the FDCPA; and (4) the bank
violated provisions of A.R.S., Title 33, Chapter 6.1
relating to trustee’s sales.
CHF and the Rubals argued that Bank One,
N.A., had standing because it was the successor by
merger to Bank One Arizona, N.A., and because
issuance of a trustee’s deed created a presumption of
compliance with the statutory requirements, citing
A.R.S. §§33-811(B) and 33-811(C). Despite discovery
requests, CHF produced no documents to show that
Bank One, N.A., was the successor to Bank One
Arizona, N.A.'
The trial court granted summary judgment in
favor of Respondents, denying Maher his right to a
jury trial under the state and federal constitutions.
See Valler v. Lee, 190 Ariz. 391, 949 P.2d 51 (Ariz.
'The reference in the trial judge’s orders to “two letter” showing
that the true name of the bank was “Bank One, N.A.,” is misleading.
These were subsequent references in unofficial notification letters that
referred back to earlier parts of the letters in which the bank was
identified by its true name, which was “Bank One, National Association,
Chicago, Illinois.” There “hereinafter” references provided no support
for the Respondents’ position.
App. 1997). The court ruled that Maher could not
raise the Title 33 claims because he had not filed a
prior legal action to stop the sale. The court also ruled
that, as to these claims, the trustee’s deed upon sale
established a presumption, perhaps conclusive, of the
regularity of the sale and compliance with statutory
procedures. ‘The court rejected Maher's FDCPA
allegations, stating that the Act did not apply to a
creditor attempting to collect its own debt. However,
on the standing issue, the court reached the facts and
ruled in favor of Appellees on grounds that there were
no material issues of fact and they were entitled to
judgment as a matter of law. Appendix E.
During briefing of the cross-motions, Maher’s
discovery requests to Appellees became due. These
sought information about the merger and CHF’s claim
that its predecessor was the successor in interest to
Bank One Arizona, N.A. This discovery was never
answered. At the oral argument, Maher called this to
the trial court’s attention and asked it to defer ruling.
Maher renewed this request on motion for new trial.
The discovery was never produced.
Maher filed two motions for new trial. With the
motions, Maher provided newly discovered documents
from the title company and real estate brokerage that
handled the sale to the Rubals. He argued that Bank
One, N.A., was not an entity that came from the
merger of 2001, and that, therefore, CHF’s assertion
that it was the successor by merger to Bank One
Arizona, N.A., failed. -Maher also argued that the
court should not have decided the cross-motions for
summary judgment while discovery was pending,
because that discovery related to Bank One, N.A.’s
authority to enforce the original contact. Maher
provided the tnal court with substantial evidence that
the entity to emerge from the 2001 merger was called
Bank One, N.A., Chicago I}linois, not Bank One, N.A.
Maher also showed that Bank One, N.A., Chicago,
Ilinois, lacked authority to transact business in
Arizona for ten years prior to September, 2008.
The court relied on a single reference in a letter
from the OCC to Bank One Corporation which, after
referring to the new entity by its correct name, Bank
One, N.A., Chicago, Illinois, used the short-hand
reference, “Bank One, N.A.” On this basis, the trial
court denied Maher’s motion for new trial, finding that
summary judgment must stand on the strength of the
letter from the OCC referring to “Bank One, N.A.”
Implicitly, the court found that this letter removed any
issue of disputed fact as to the legal authority of the
bank to conduct a trustee’s sale, issue a deed, obtain
a writ of restitution, dispossess Maher, and sell the
property. Appendix D
Maher's second motion for new trial included an
official OCC decision approving the 2004 merger of
Bank One, N.A., Chicago, Illinois and Bank One, N.A.,
Columbus, Ohio, with J.P. Morgan Chase Bank,
providing further factual support for Maher's position
This motion was also denied and judgment was
entered in Respondents’ favor. Appendix JD.
The Arizona Court of Appeals upheld the
judgment. Appendix C. The appellate court never
reached the factual issues upon which the trial court
ruled. Rather, it ruled that, pursuant to A.R.S. §33
811(C), Maher had waived any claim of relief related
to the trustee's sale by failing to obtain a preliminary
injunction prior to the sale. Appendix C, 420. The
appellate court rejected on other grounds Maher's
claims under the FDCPA and for breach of contract
and his challenge to the trial court’s failure to require
Appellee’s to respond to discovery. Appendix C, 4/4/25,
29-31.
Maher sought discretionary review by the
Arizona Supreme Court, the highest state appellate
court. He raised the following issues, inter alia: (1) if
A.R.S. §33-811(c) was correctly interpreted by the trial
court and the court of appeals to bar any challenge to
a trustee’s sale if an injunction 1s not obtained prior to
the sale, the statute violated Maher’s due process
rights to notice and a meaningful opportunity to be
heard under the 14 Amendment to the U-S.
Constitution; (2) collection actions taken in violation of
the FDCPA verification provisions were void and of no
legal effect, rendering the purported sale of the
property at trustee’s sale and the issuance of a
trustee’s deed upon sale a nullity. The Arizona
Supreme Court denied jurisdiction of the Petition for
Review without further comment. Appendix B.
III. REASONS FOR GRANTING THE PETITION
A. Arizona State Statutes Governing Challenges to
the Sale of Real Property at Trustee’s Sales, as
Interpreted by the Arizona Courts, Violate Due
Process Under the United States Constitution
Because They Provide an Inadequate Process for such
Challenges to be Judicially Reviewed.
The Fourteenth Amendment's due process
clause provides that no state shall “deprive any person
of life, iberty, or property without due process of law.”
J.S. Constitution, 14" Amendment, §1. See also
7
Arizona Constitution, Art. 2, §4.
Due process requires meaningful notice and
opportunity to defend these protected rights. Mullane
v. Central Hanover Bank & Trust, 339 U.S. 306, 314
(1950). In that case, this Court defined due process
notice requirements:
Notice reasonably calculated, under all
the circumstances, to apprise interested
parties of the pendency of the action and
afford them an opportunity to present
their objections. The notice must be of
such nature as reasonably to convey the
required information ...andit must afford
a reasonable time for those interested to
make their appearance.
Id.
Deeds of trust, rather than mortgages, are the
primary instrument used in Arizona to secure
financing liens on both residential and commercial real
property. Deeds of trust are enforced by trustee’s
‘sales. When the lender (beneficiary and trustee under
the deed) believes the borrower/property owner (the
trustor) has violated the terms of the deed of trust, the
lender may initiate a trustee’s sale, which results in
the issuance of a trustee’s deed upon sale, transferring
title of the property from the borrower to the lender.
Unlike mortgage foreclosure, this is entirely an extra-
judicial process, taking place without judicial oversight
or review. See Krohn v. Sweetheart Properties, LTD,
203 Ariz. 205, 52 P.3d 774 (2003).
Arizona statutes govern the issuance of deeds of
trust and the conduct of trustee’s sales and issuance of
trustee’s deeds upon sale. This statutory scheme,
found in Title 33, Chapter 6.1, Arizona Revised
8
Statutes, contains various’ protections for
homeowner's whose property may be taken pursuant
to a deed of trust. For example, notice must be
provided to the property owner by certified mail and
the notice must be recorded. Notice must also be
published. A.R.S. §33-809. Arizona courts have
repeated held that these requirements must be strictly
complhled with. See Eardley v. Greenberg, 164 Ariz.
261, 792 P.2d 724 (1890); Patton v. First Federal
Savings, 118 Ariz. 473, 578 P.2d 152 (1978). See also
Schaeffer v. Chapman, 176 Ariz. 326, 329, 861 P.2d
611, 614 (1993) (contractual rights to notice and cure
must be satisfied before breach is ripe and property
may be sold at trustee’s sale).
In 2002, Arizona enacted, as part of this
statutory scheme, A.R.S. §33-811(C). This section
states as follows:
The Trustor, its successor or assigns, and
all persons to whom the trustee mails a
notice of sale under a deed of trust pursuant
to §33-809 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 under Rule 65, Arizona Rules
of Civil Procedure, entered before 5:00 p.m.
mountain standard time on the last business
day before the scheduled day of the sale.
The plain language of this section appears to preclude
any defenses or objections to the sale unless the person
who has been mailed notice (not necessarily received
it) is successful in obtaining a preliminary injunction
stopping the sale the day before the sale takes place.
No exception is made for (1) persons who were mailed
but did not receive the notice; (2) defenses or
9
objections, the basis for which was not known prior to
the day of the sale; or (3) defenses or objections that
did not arise until the day of the sale, such as sale for
a “grossly inadequate price.” See Krohn v. Sweetheart
Properties, LTD, supra (establishing right, under
Arizona law, to challenge sale price bid at trustee’s
sale as “grossly inadequate.”)
As interpreted by the Arizona Courts, A.R.S.
§33-811(C) violates Maher’s due process property
rights. Maher’s property was taken without affording
him an adequate opportunity to show that the party
taking the property had no right to do so. The notice
conveyed inadequate information and_ provided
inadequate time to respond and defend. Later, when
Maher was able to develop necessary evidence to
defend himself, he was denied an opportunity to have
it considered by a court. A.R.S. §33-811(C) nullifies
the protections of both state law and due process. It
also deprives property owner’s of the protection of
federal consumer law, such as the FDCPA.
A.R.S. §33-811(C) requires only that two notices
of a trustee’s sale be sent, the earlier as little as 85
days before the sale. See A.R.S. §33-809. There is no
requirement that the owner actually receive the
notices. No allowance is made for owners who,
through no fault of their own, fail to receive notice.
Moreover, the statute does not merely require
exhaustion of remedies. The owner must nct just
attempt to obtain injunctive relief under Ariz.R.Civ.P.,
Rule 65, he must succeed. Thus, the owner must post
security and show (1) a strong likelihood of success on
the merits: (2) the possibility of irreparable harm if the
relief is not granted: (3) a balance of hardships in his
favor; (4) when appropriate, advancement of the public
10
interest. E.g., Lafaro v. Cahill, 203 Ariz. 482, 56 P.3d
56 (App. 2002); Kromko v. City of Tucson, 202 Ariz.
499, 47 P.3d 1137 (App. 2002). This sets the bar too
high. Few homeowners, however legitimate their
claims, could stop a wrongful trustee’s sale under this
standard.
A.R.S. §33-811(C) creates due process problems
similar to those found in provisional remedies cases
decided by this Court. In Sniadach v. Family Finance
Corp., 395 U.S. 337 (1969), a Wisconsin statute that
allowed garnishment of a debtor’s wages without
notice or an opportunity to be heard was found to
violate due process. See a/so Fuentes v. Shevin, 407
U.S. 67, 96 (1972); Mitchell v. W.T. Grant, 416 U.S.
600 (1974); North Georgia Finishing v. Di-Chem, 419
U.S. 601 (19785).
Arizona courts upheld a provisional remedies
statute against a due process challenge where these
standards were met. In Searles v. First Nat’? Bank,
127 Ariz. 240, 619 P.2d 749 (App. 1980), the Arizona
provisional remedies statute was upheld because it
provided significant procedural protections, including
a bond requirement and judicial review, guided by
particular standards, before the property could be
taken. The person whose property was taken could
also immediately move to quash the order after it was
issued and could obtain its return by posting a bond.
Id., 127 Ariz. at 245-246.
A.R.S. §33-811(C), however, provides no such
safeguards. The sending of notice, recording of notice,
conduct of the sale, issuance of the deed — all occur
outside the view of any neutral tribunal. There is no
right to set aside the sale once it has occurred. The
opportunity for post-sale review is essential. If the
1]
statue precludes any such review, it violates due
process under the standards set forth in the above
cases.
Recently, several judges of the United States
District Court, District of Arizona, have had occasion
to consider the meaning and constitutionality of A.R.S.
§33-811(C), in matters originating in federal court.
These judges have reached differing and contradictory
results.
In Martenson v. RG Financing, 2010 WL 334648
(D. Ariz., January 22, 2010), property was sold at
trustee’s sale following several bankruptcy-related
postponements. Plaintiff/homeowner filed a civil
action in U.S. District Court after the trustee’s sale
and sought a preliminary injunction. Following
evidentiary hearing, the District Court granted the
injunction, rejecting the financing company’s
argument that the plaintiff had waived any objections
to the trustee’s sale because she had not obtained an
injunction prior to the sale, pursuant to A.R.S. §33-
811(C). The District Court, after reviewing the
legislative history of the statute, termed the
defendants’ interpretation “improbable,” finding that
such a broad interpretation would contradict other
provisions of the statute and overturn established case
law. The Court did not reach the due process issue.
Roads v. Washington Mutual Bank, No. CV10-0197-
PHX-NVW (D. Ariz., April 6, 2010).
However, in Coleman v. American Home
Mortgage Servicing, Inc., No. CV09-2692-PHX-DGC
(D. Ariz. March 29, 2010), the Court rejected a
constitutional challenge to A.R.S. §33-811(C) on
grounds that it did “not provide a remedy for fraud.”
The Court held that the remedy was available
12
——
provided it was exercised prior to the sale. It is
unclear whether or what extent the plaintiff in that
case raised a due process challenge to the statute. See
also Breedlove v. America’s Servicing Company, etal,
No. CV09-8135-PCT-JAT (D.Ariz., March 31, 2010).
B. The Fair Debt Collection Practices Act (FDCPA)
Should be Interpreted such that Actions Taken in
Violation of Provisions of the FDCPA Requiring a
Debt Collector to Verify the Validity of the Debt or
Cease Collection of the Debt are Void and of no Effect.
The FDCPA, 15 U.S.C. §§1692, et seg, sets forth
strict requirements for debt collectors, including, in
some circumstances, creditors attempting to collect
their own debts.” These include the requirement that
if a person receiving a communication from a debt
collector challenges the validity of the debt, all debt
collection activity must cease until the collector
supphes the consumer with verification. 15
U.S.C.§1692¢(b).
Maher showed that he received a
communication from the bank’s agent and successor
trustee and challenged the debt within the 30-day
window, but that before the time expired and without
providing verification, the bank noticed the trustee’s
sale and afterward filed the forcible entry action. The
*Maher alleged that Bank One, N.A., was a “debt
collector” under the FDCPA, 15 U.S.C. §1692a (6), because it
acted through an agent/successor trustee, using a name other
than its own and thereby falsely indicating that a third party
was attempting to collect the debt. See 7aylor v. Perrin,
Landry, deLaunay & Durand, 103 F.3d 1232 (5™ Cir., 1997).
13
bank never provided the required verification.
A trustee’s sale is collection activity covered by
the FDCPA. See Shapiro & Meinhold v. Zartman, 823
P.2d 120 (Colo. 1992). Litigation may also be subject
to FDCPA requirements. See Heintz v. Jenkins, 514
U.S. 291 (1995); Tolentino v. Friedman, 46 F.3d 645
(7 Cir., 1995) (notice served with summons must
meet FDCPA requirements). Although 15 U.S.C.
§1692¢(b) may not prohibit the filing of a lawsuit
before obtaining validation, other collection activity,
including a trustee’s sale, would be prohibited.
Neither the trial nor the appellate court
considered whether Bank One, N.A., had legal
authority to take collection action when it had failed to
verify the validity of the debt. The bank’s failure to
meet these legal requirements invalidated any title it
obtained from the trustee’s sale. See 15 U.S.C. §1692n
(FDCPA preempts state laws providing less
protection).
Petitioner is aware of no reported federal case
addressing the issue of whether violation of this
section, or any section, of the FDCPA precludes and
nullifies further collection activity, in addition to
creating a claim for damages or the grounds for
injunctive relief. Considering the broad remedial
purpose of the FDCPA, this Court should interpret the
Act to include such preclusive effect.
IV. CONCLUSION
The petition for writ of certiorari should be
granted.
Respectfully submitted,
PO Box 1061
Safford, Arizona 85548
(928) 428-1203
in propria persona
APPENDIX A
TABLE OF CONTENTS
MEMORANDUM DECISION
en ee a be ke oy 64 8 08 Al
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO
BANK ON, NA, successor )
by merger to Bank One, _) 2CA-CV 2004-0201
N.A., a national banking ) DEPARTMENT A
association, )
)
Plaintiff/Appellee, ) MEMORANDUM
) DECISION
V. ) Not for Publication
) Rule 28, Rules of
STEVEN MAHER, ) Civil Appellate
) Procedure
Defendant/Appellant )
)
APPEAL FROM THE SUPERIOR COURT OF
GRAHAM COUNTY
Cause No. CV2003-165
Honorable C. Robert Pursley, Judge Pro Tempore
APPEAL DISMISSED
Poh & Ball, P.L.C.
By James B. Ball and Kimberly A. Baxter Phoenix
Attorneys for
Plaintiff/Appellee
David Lipartito Tucson
Attorney for
Defendant/Appellant
KHCKERSTROM, Judge.
41 Appellant Steven A. Maher, the defendant in
this forcible detainer action instituted by
plaintiff/appellee Bank One, NA (Bank One),
challenges the trial court’s order requiring
him to vacate the subject property. But,
because the property has been sold to a third
party, and therefore Maher could not regain
possession, the only remedy in a forcible
detainer action, we dismiss the appeal as
moot.
{2 Bank One, Arizona, N.A. (Bank One, Arizona)
became the trustee of Maher’s home in 1999
when he opened a home equity line of credit
with the bank. In March 2003, Maher stopped
making payments on the account. Maher
claimed that the bank gave his estranged wife
information about the account and thereby
violated its duty to maintain the
confidentiality of his financial information.
Maher asserted that the provisions of his
contract with Bank One, Arizona entitled him
to withhold payments when he had a billing
dispute and he maintained that the alleged
violation of his confidentiality created such a
dispute.
{3
14
The house was sold to Bank One at a trustee's
sale in October 2003. Bank One filed a
forcible detainer action after Maher failed to
vacate the premises. In response, Maher
contested the validity of the trustee’s sale,
claiming that Bank One had no right to
conduct the sale because it was a different
entity than Bank One, Arizona, the entity he
had contracted with, and that Bank One
blatantly had violated not only conditions of
the contract, but also Arizona Law, federal
Jaw, and the bank’s own charter. Maher
admitted that he had violated the agreement
by not making payments and did not claim he
had any dispute about the amount owed or
credit for payments made.
The trial court found Maher guilty of forcible
detainer and ordered him to vacate the
premises. Maher filed a notice of appeal,
along with a document entitle “Appeal Bond,”
in which he attempted to use the property in
question as a bond. The trial court ruled that
Maher could not pledge the property as his
bond and that pursuant to Rule 10, Ariz. R.
Jiv. App. P., 17B A.R.S., he needed to post a
bond in the amount of $500 to cover the costs
on appeal. After Maher paid the bond, the
trial court “stayled] the execution of the
judgment until further notice of the Court. of
Appeals.” The next day, however, the court
issued a minute entry stating that it “was
unaware when it issued its earlier stay of
execution that, in accordance with the earlier
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order of the Court, the judgment had been
executed and ownership and possession of the
property transferred to [Bank One|” and that
any further request for relief would have to be
from this court. The trial court later noted
that it had not considered the $500 bond a
supersedeas bond, but rather, a cost bond
15 This court dismissed the appeal sua sponte, as
we found that Maher had not filed a timely
notice of appeal. Thereafter, when no stay
was in place, Bank One sold the property to a
third party. Maher than moved this court for
permission to file a delayed appeal, and we
denied the motion “with leave to seek rehef in
Graham Co. Superior Court.” The trial court
found that because it had treated Maher's
motions for reconsideration as motions for
new trial, which tolled the time for filing a
note of appeal, Maher's notice of appeal had
been timely filed. This appeal followed
-
6 Maher argues, as he did below, that the
trustee’s sale was invalid, and therefore the
trial court erred by terminating his right to
possession because Maher did not receive
notice of Bank One's merger with Bank One,
Arizona or notice of the trustee's sale, and
because Bank One, Arizona’s breach of
confidentiality was a legitimate basis for him
to withhold payments. Maher also argues
that the trial court erred by denying his
second motion for continuance and by not
holding an evidentiary hearing on the
A-4
17
defenses and counterclaims he had raised.
Finally, he alleges that Bank One violated the
stay of execution, requesting that this court
impose sanctions against it.
The only issue to be decided in a forcible
detainer action is whether the plaintiff has
the right of actual possession. A.R.S. § 12-
1177(A); United Effort Plan Trust v. Holm,
209 Ariz. 347, § 21, 101 P.3d 641, 645 (App.
2004). Accordingly, “the only appropriate
judgment is the dismissal of the complaint or
the grant of possession to the plaintiff.” Holm,
209 Ariz. 347, § 21, 101 P.3d at 645. Because
Bank One has sold the property to a third
party and because dismissal of Bank One’s
complaint would not entitle Maher to re-enter
that third party’s property, the appeal is moot.
See Hall v. World Sav. & Loan Ass’n, 189
Ariz. 495, 504, 943 P.2d 855, 864 (App.
1997)(case moot where change in
circumstances would render action by
reviewing court useless); Contempo-Tempe
Mobile Home Owners Ass’n v. Steinert, 144
Ariz. 227, 229, 696 P.2d 1376, 1378 (App.
1985)(“A case is moot when it seeks to
determine an abstract question which does
not arise upon existing facts or rights.”
Maher argues that “[dlifficulties in
formulating a remedy, even a partial one, do
not render a controversy moot.” But he cites
no Arizona case for that proposition, and the
cases he relies on from other jurisdictions do
not involve forcible detainer, or any other such
A-5
18
limited action. Nor does he articulate a
concrete legal theory under which we could
formulate a remedy. Thus, we do not find his
position persuasive.
Relying on Pointe Resorts, Inc. V. Culbertson,
158 Ariz. 137, 141, 761 P.2d 1041, 1045
(1988), Maher also argues that “[a] litigant
cannot, by its own voluntary conduct, ‘moot’ a
case and deprive a court of jurisdiction.” But
that case merely stated, without analysis, that
“usually a defendant cannot by its own
voluntary conduct ‘moot’ a case.” Jd.
(Emphasis added). We find that reasoning
inapplicable to this case for several reasons.
First, Bank One was not the defendant in the
underlying lawsuit, but rather, the plaintiff
and the prevailing party below. Second,
Pointe Resorts emphasized that the doctrine
of mootness is “founded in part on policy
considerations and the questions of mootness
is one of convenience and judicial discretion.”
Id. Thus, the supreme court viewed the
voluntary conduct question as merely one
public policy factor a court must “usually”
consider in determining whether to address
the issue. Third, it was Maher’s own conduct
in failing to secure the appropriate stay that
caused his claim to become moot—not Bank
One’s conduct in exercising its lawful right to
sell property that belonged to it. Under the
circumstances, we can discern no logical
public policy consideration that would cause
us to address the moot dispute in this case.
A-6
|9
See Fraternal Order of Police Lodge 2 v.
Phoenix Employee Relations bd., 133 Ariz.
126, 127, 650 P.2d 428, 429 (1982) (courts
should refrain from considering moot
questions except to consider question of “great
public importance” or “one which is likely to
recur’).
Maher maintains that the trial court
considered the defenses and counterclaims he
had raised on their merits and that Bank One
had litigated them and, thus, we should now
consider them on appeal. However, in an
action for forcible detainer, “counterclaims,
offsets and cross complaints are not available
either as a defense or for affirmative relief in
such action.” Olds Bros. Lumber Co. V.
Rushing, 64 Ariz. 199, 205, 167 P.2d 394, 399
(1946). And, for us to address Maher’s other
arguments would defeat the purpose of a
forcible detainer action, which is to “afford a
summary, speedy and adequate remedy for
obtaining possession of the premises
lwrongfully] withheld.”’ Phoenix-Sunflower
Indus., Inc. V. Hughes, 105 Ariz. 334, 336, 464
P.2d 617, 619 (1970). In any event, the record
does not support Maher’s conclusion that the
trial court ruled on the merits of his defenses
'Bank One is correct in noting that Maher can bring a separate
action to quiet title, in which he can litigate his other issues. See Mason
v. Cansino, 195 Ariz. 465, 4 8, 990 P.2d 666, 669 (App. 1999) (issues of
title cannot be litigated in forcible detainer action; appropriate vehicle
separate action to quiet title).
A-7
{10
ql
and counterclaims. Rather, the court
addressed such issues only to the extent
necessary to find them irrelevant to the right
of possession.
Maher also claims that a stay was in place
and that Bank One violated that stay when it
sold the property, thus creating the mootness
“through its wrongful action.” But Bank One
did not cause the case to become moot by
violating a stay. Although the trial court’s
initial order purporting to stay execution of
the judgment may have been misleading, the
court retracted tit the next day and clarified
in an order signed one week later that it had
not considered the $500 a supersedeas bond,
but a cost bond. A supersedeas bond would
have been required to stay execution of the
writ of restitution that evicted Maher from the
property. See Anderson v. Pickrell), 115 Ariz.
589, 590, 566 P.2d 1335, 1336 (1977)(filing
supersedeas bond stays execution of
judgement pending appeal). With no stay in
place, Bank One was entitled to sell the
property, and therefore, it did not create the
mootness through any wrongful conduct. To
the contrary, it was incumbent on Maher to
seek the appropriate stay against Bank One if
he wished to prevent Bank One from
exercising its legal right to dispose of its
property as it saw fit.
In the same vein, Maher asks us to sanction
Bank One for selling the underlying property
A-8
on the grounds that it did so in violation of a
stay. As noted above, however, Maher had not
properly stayed enforcement of the trial
court’s order. Therefore, Bank One engaged
in no conduct we would sanction on that
ground.
{12 Because the dispute in this case has been
rendered moot by Bank One’s lawful sale of
the underlying property to a third party, we
dismiss Maher’s appeal.
PETER J. ECKERSTROM, Judge
CONCURRING:
JOSEPH W. HOWARD, Presiding Judge
J. WILLIAM BRAMMER, JR. Judge
A-9
APPENDIX B
TABLE OF CONTENTS
Order denying Appellant’s Petition for Review. . .B-1
SUPREME COURT
STATE OF ARIZONA
March 38, 2010
RE: STEVEN MAHER v BANK/RUBAL
Arizona Supreme Court No. CV-09-0300-PR
Graham County Superior court No.
CV2006193
GREETINGS;
The following action was taken by the Supreme
Court of the State of Arizona on March 2, 2010, in
regard to the above-referenced cause:
ORDERED: Appellant’s Petition for Review =
DENIED.
Record returned to the Court of Appeals, Division
Two, Tucson, this 3°? day of March, 2010.
Rachelle M. Resnick, Clerk
TO: |
Jeffrey P Handler
Roger W Frazier
Jonathan Brinson
Jeffrey P Handler
adc
B-1]
APPENDIX C
TABLE OF CONTENTS
MEMORANDUM DECISION
ee ey ea ae ee h ee es C-]
IN THE COURT OF APPEALS
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO
STEVEN MAHER,
Plaintiff/Appellant,
V.
BANK ONE, N.A., a
foreign corporation;
BENJAMIN T. RUBAL
and KATHY G. RUBAL,
husband and wife,
Defendants/Appellees.
2 CA-CV 2008-0193
DEPARTMENT B
MEMORANDUM
DECISION
Not for Publication
Rule 28, Rules of
Civil Appellate
Procedure
i ee a i a a a ae ae a a ae ae ee ee
APPEAL FROM THE SUPERIOR COURT OF
GRAHAM COUNTY
Cause No. CV2006-193
Honorable C. Robert Pursley, Judge Pro Tempore
AFFIRMED
C-]
David Lipartito Tucson
Attorney for Appellant
Bryan Cave LLP Phoenix
By Jonathan G. Brinson
and Steven A. Hirsch Attorneys for Defendant/
Appellee Bank One
Gust Rosenfeld, P.L.C. Tucson
By Roger W. Frazier
and Mark L. Collins Attorneys for Defendants/
Appellees Rubal
BRAMMER, Judge.
41 This case arises from the foreclosure by
appellee Bank One, N.A. (Bank One) of a deed
of trust on a house owned by appellant Steven
Maher, and the subsequent purchase of the
house by appellees Benjamin and Kathy
Rubal (the Rubals). Maher filed an action
raising various claims against Bank One and
the Rubals, and seeking to restore title to the
house in his name and recover damages. On
appeal, Maher asserts the trial court erred in
granting summary judgment in favor of Bank
One and the Rubals. We affirm.
Factual and Procedural Background
2 The following facts are undisputed. In 1999,
Bank One, Arizona, N.A. (Bank One, Arizona)
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{3
became the trustee under a deed of trust on
Maher’s house in Safford, Arizona, securing a
home equity line of credit he had obtained
from the bank. In March 2003, Maher
stopped making payments on the line of
credit’s outstanding loan balance. Maher
claimed the bank had given his wife
information about the account and thereby
violated its duty to maintain the
confidentiality of his financial information.
Maher asserted the provisions of his contract.
with Bank One, Arizona entitled him to
withhold payments when he had a billing
dispute and that the alleged violation of his
confidentiality created such a dispute.
From April through June, 2003, Bank One,
acting as successor in interest to Bank One,
Arizona, sent Maher at least eight letters from
its Wisconsin and Illinois offices, notifying
him his account was past due and requesting
he contact the bank so it could “discuss [his]
situation and offer solutions to help resolve
thle] matter.” The bank apologized for having
sent Maher’s wife information about his
account and assured him it would no longer do
so, but stated it would “not relieve [him] of
fhis] contractual obligation to satisfy the
[loan].” In response, Maher alleged that,
because he had only contacted Bank One
representatives in Arizona and Illinois, he
“hald] no idea” who had sent the Wisconsin
letters or whether they were “for real.” Maher
stated he would “consider any future
C-3
{4
15
communications from [the Wisconsin office] as
harassment” and refused to make any loan
payments.
In July 2003, Bank One recorded a “Notice of
Trustee’s Sale,” stating Maher’s house would
be sold at auction on October 16, 2003. Also
in July, Bank One sent Maher several] Jetters
by certified mail informing him of the planned
sale, but each letter was returned as
“unclaimed.” The bank published the notice of
sale in the local newspaper in Safford once a
week for four weeks in August and September
2003. In September, Bank One sent Maher a
“remindler]” that his house would be sold in
Octcber and requested that he “vacatle] the
premises.” Although Maher attended the
trustee’s sale and “objectled] to it,” his house
was sold to Bank One.
After Maher failed to leave the house, Bank
One filed a forcible detainer action against
him. In response, Maher contested the
validity of the trustee’s sale, claiming that
Bank One had no right to conduct the sale
because it was a different entity than Bank
One, Arizona, the entity with which he had
contracted, and that Bank One had violated
not only conditions of the contract but also
Arizona law, federal law, and the bank’s own
charter. Maher admitted that he had violated
the agreement by not making payments and
did not claim he had any dispute about the
amount owed.
1/6
17
The trial court found Maher guilty of forcible
detainer and ordered him to vacate the
premises. Thereafter, Bank One sold the
house to the Rubals. On appeal from the trial
court’s decision, Maher argued, inter alia, that
the trustee’s sale was invalid and, therefore,
the trial court had erred by terminating his
right to possession because he had not
received notice of Bank One’s merger with
Bank One, Arizona or notice of the trustee’s
sale, and because Bank One, Arizona’s breach
of confidentiality was a legitimate basis for
him to withhold payments. In a
memorandum decision, we determined that
the “only issue to be decided in a forcible
detainer action is whether the plaintiff has
the right of actual possession” of the property.
Bank One, N.A. v. Maher, No. 2CA-CV 2004:
0201, 4 7 (memorandum decision filed Sept.
30, 2005). And, “[blecause Bank One hald]
sold the property to [the Rubals] and because
dismissal of Bank One’s complaint would not
entitle Maher to re-enter that third party's
property, the appeal [wals moot.” /d. We
noted, however, that Maher could “litigate his
other issues” in “a separate action to quiet
title.” Jd.n.10.
In July 2006, Maher filed a complaint against
Bank One seeking to quiet title to the house.
As additional causes of action, Maher claimed
Bank One had breached its contract with him;
had trespassed on and wrongfully converted
his property; had violated the federal Fair
C-5
8
19
Debt Collection Practices Act G7 DCPA), 15
U.S.C. §§ 1692 through 1692p; and had
violated various provisions of Title 33, A.R.S.
Maher requested damages for each of these
additional claims and also sought punitive
damages “lals to all counts...in an amount
sufficient to deter [Bank One] and others from
similar acts in the future.” He also asserted
Title 33 required the court to “declare
the...trustee’s deed, and all subsequent
conveyances, void and of no effect.”. Maher
later amended his quiet title complaint to add
the Rubals as defendants.
Maher moved for summary judgment on all
counts, arguing the law and evidence showed:
Bank One was not entitled to foreclose its
deed of trust on his house because it was not
the successor in interest to Bank One,
Arizona; the Rubals were not bona fide
purchasers of the house; Bank One improperly
foreclosed its deed of trust while his dispute
was still pending; Bank One had engaged in
unfair debt-collection practices; and Bank One
had failed properly to notify him of the
trustee’s sale. Bank One and the Rubals both
filed cross-motions for summary judgment
against Maher.
After oral argument, the trial court entered
summary judgment in favor of Bank One and
the Rubals, awarded them their costs and
attorney fees, and ordered Bank One “to
prepare a form of judgment, attaching thereto
410
J11
affidavits from both [it and the Rubals]
regarding attorney's fees.” Maher twice
moved for a new trial pursuant to Rules 59
and 60, Ariz. R. Civ. P., and the court denied
both motions. The court then entered final
judgment in favor of Bank One and the
Rubals, awarding them a collective total of
$87,191.10 in costs and attorney fees. This
appeal followed.
Discussion
Maher contends the trial court erred in
granting summary judgment in favor of Bank
One and the Rubals. Summary judgment is
proper when “there is no genuine issue as to
any material fact and...the moving party is
entitled to a judgment as a matter of law.”
Ariz. R. Civ. P. 56(c)(1). A court should grant
summary judgment “if the facts produced in
support of the claim or defense have so little
probative value, given the quantum of
evidence required, that reasonable people
could not agree with the conclusion advanced
by the proponent of the claim or defense.”
Orme Sch.v. Reeves, 166 Ariz.
301,309,802P.2d 1000, 1008 (1990). We
review de novo whether there are any genuine
issues of material fact and whether the trial
court applied the law properly. Brookover v.
Roberts Enters., Inc., 215 Ariz. 52, 48, 156
P.3d 1157, 1160 (App.2007).
We first observe that, although all the parties
C-7
generally requested judgment in their favor
on all claims, none of the parties specifically
discussed two of Maher’s claims in their
summary judgment or new trial motions and
responses filed below: Maher’s claim that
Bank One was liable for conversion and
trespass for holding the trustee’s sale,
pursuing the forcible detainer action to evict
him from the property, and subsequently
selling the property to the Rubals; and his
claim that Bank One breached its contract
with him by “failing and refusing to send
[him] notices...at his correct address” despite
his having provided Bank One a new mailing
address. Nor did the trial court discuss these
claims in its orders granting Bank One’s and
the Rubals’ motions for summary judgment or
in denying Maher’s motions for new trial. The
court, nonetheless, granted final judgment in
favor of Bank One and the Rubals on “the
Complaint filed by...Maher.” Because Maher
does not argue on appeal that the court erred
in doing so, he has abandoned these claims,
and we do not address them.
Sections 33-811(C), A.R.S.
q12
Bank One and the Rubals assert that,
pursuant to § 33-811(c), Maher waived his
remaining claims by failing to seek a
preliminary injunction before the sale.’
‘Although the Rubals raised § 33-811(c) below as a bar to
(continued...)
C-8
Section 33-811(c) reads in pertinent part:
The trustor, its successors or assigns,
and all persons to whom the trustee
mails a notice of a sale under a trust
deed pursuant to [A.R.S.] § 33-809 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.
413 Itis undisputed that Maher did not seek,
much less obtain, a preliminary injunction
pursuant to Rule 65, Ariz. R. Civ. P., before
the October 2003 trustee’s sale. Thus, by the
statute’s plain language, he has waived any
defense or objection to the sale. Maher
asserts, however, that § 33-811(c) does not
apply to his claims because the trustee’s sale
is void.”
'(...continued)
Maher’s claims, the trial court did not rely on that subsection in granting
judgment in favor of the defendants. We may nonctheless affirm the
court’s ruling for any reason supported by the record. City of Tempe v.
Outdoor Sys., Inc., 201 Ariz. 106, 4 14, 32 P.3d 31, 36 (App.2001).
*Maher argues that sale is void for two reasons: (1) Bank One
lacked authority to conduct the sale because it was not the same entity
with which he had contracted, and (2) Bank One had failed to comply
(continued...)
C-9
He reasons—absent any citation to
authority—that “a procedural statute such as §
33-811[(C)] cannot create title where none
exists” and “[t]he voidness of the sale can be
raised at any time.” See Ariz. R. Civ. App.P.
13(a)(6) (appellant’s brief shall contain
citation to authority). But Maher’s proposed
limitation on the scope of § 33-811(C) is
unreasonable in any event.
9714 Itis true that the provisions governing
trustee’s sales must be strictly observed or
any sale is void. Patton v. First Fed. Sav. &
Loan Ass'n of Phoenix, 118 Ariz. 473, 476, 578
P.2d 152, 155 (1978). Thus, a trustee’s failure
to comply with those provisions is a defense or
ground for objection to the sale, but, under §
33-811(C), the objecting party must seek an
injunction pursuant to Rule 65 before the sale
is held. To permit a trustor to void a sale
based on a claim that those provisions were
violated, after the trustor failed to seek and
obtain a preliminary injunction, would render
§ 33-811(C) a practical nullity. See Mejak
v.Granville, 212 Ariz. 555, 99, 136 P.3d 874,
876 (2006) (“We must interpret the statute so
that no provision is rendered meaningless,
insignificant, or void.”)
{15 Notably, subsection (C) was added to § 33-811
in 2002-—nearly a quarter-century after Patton
“(...continued)
with various notice requirements enumerated in Title 33.
C-10
16
was decided. See 2002 Ariz. Sess. Laws, ch.
259, § 3. We presume the legislature is aware
of existing law and of court decisions
interpreting a statute and it intends to change
the law when it amends a statute. See Daou
v. Harris, 139 Ariz. 353, 357, 678 P.2d 934,
938 (1984) (“[W]e presume that the
legislature, when it passes a statute, knows
the existing laws.”); Ariz. Press Club, Inc. V.
Ariz. Bd. Of Tax Appeals, 113 Ariz. 545, 548,
558 P.2d 697, 700 (1976) ([“I]t is a principle of
statutory construction that the legislature is
presumed to be aware of court decisions
interpreting the language of [a] statue...”);
State v. Hamblin, 217 Ariz. 481, 411, 176 P.3d
49, 52 (App. 2008) (we presume legislature
intends to change law when it substantively
changes statutory language). Therefore, given
the legislature’s awareness that certain
objections or defenses to a trustee’s sale would
provide a basis to void the sale under Patton,
had it intended for the waiver provision in §
33-811(C) not to apply to such objections and
defenses, it would have said so specifically.
Moreover, Maher cites no authority
suggesting a claim of title under an otherwise-
invalid conveyance or deed cannot be
validated by operation of statute; indeed, his
position is contradicted by existing law. For
example, a person may, with the passage of
time, obtain good title to property, even when
that person originally held void or defective
title or even no title at all. See A.R.S. § 12-
C-11
417
523(A) (prescribing statute of limitations for
“action to recover real property from a person
in peaceable and adverse possession under
title or color of title”); A.R.S. § 12-524 (statute
of limitations to “recover a lot located in a city
or town from a person having a recorded deed
therefor, who claims ownership and has paid
the taxes thereon”): A.R.S. § 12-526(A)
(statute of limitations for action to recover
land “from a person having peaceable and
adverse possession thereof’); Nicholas v. Giles,
102 Ariz. 130, 133-134, 426 P.2d 398, 401-02
(1967) (void deed qualifies as recorded deed
under § 12-524, which allows claimant to
bring action for title after paying taxes on
property); Henderson v. Tejada, 26 Ariz. App.
462, 466, 549 P.2d 242, 246 (1976) (color of
title “requires a chin of title back to the
sovereign of the soil, although the chain may
be defective”). Thus, it is plainly within the
legislature’s power to allow a person to
acquire good title to real property based on
another’s failure to act timely. We therefore
find no reasoned basis to restrict the
application of § 33-811(C) in the fashion
Maher urges.
Maher additionally asserts § 33-811(C) coes
not apply to his claims because he “did not
receive proper advance notice of the sale.” But
§ 33-811(C) does not require that the trustor
have had actual notice of the sale for its
waiver provision to apply. We recognize,
however, that the absence of a notice
C-12
418
requirement in § 33°811(C) raises possible due
process concerns.* See Curtis v. Richardson,
212 Ariz. 308, J 16, 131 P.3d 480, 484
(App.2006) (“Due process entitles a party to
notice and an opportunity to be heard ata
meaningful time and in a meaningful
manner.”). But it is plain from the
record—viewed in the light most favorable to
Maher-—that he had, at a minimum, actual
notice of the sale approximately one month
before it occurred. On September 28, 2003,
Maher sent a letter to Bank One’s attorney
acknowledging his receipt of a letter dated
September 16 reminding him of the date of
the sale.
Bank One also complied with the requirement
in A.R.S. § 33-809‘C) that, within five days of
recording the notice of sale, it mail a copy of
the notice to Maher “by certified or registered
mail.” Maher failed to accept or claim the
letter containing that notice or any of the
subsequent correspondence sent to him by
certified mil. But, in a July 16 letter to Bank
One, he ad:nitted he had received at least one
notice from: the United States Postal Service
of a certified letter for him from Bank One’s
attorney. Cf. Transamerica Fin. Servs., Inc.
V. Lafferty, 175 Ariz. 310, 313-14, 856 P.2d
1188, 1191-82 (App. 1993) (sending trustee’s
>To the extent Maher argues his due process rights would be
violated if § 33-811(C) applied to bar his claims, he cites no supporting
authority. See Ariz. R.Civ.App.P.13(a)(6).
C-13
419
420
notice of sale to trustor’s last known address
complied with statutory requirements despite
notice’s being returned undelivered).
Plainly, any delay in Maher’s receiving notice
of the sale was a result of his intransigence
and not Bank One’s failure to comply with
governing law. Thus, the lack of an explicit
notice requirement in § 33-811(C) raises no
due process concerns here. See Dixon v.
Picopa Constr. Co., 160 Ariz. 251, 261, 772
P.2d 1104 (1989) (“Due process commands
that ‘notice be reasonably calculated, under
all circumstances, to apprise interested
parties of the pendency of the action...””),
quoting Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950) (alteration
in Dixon); cf. Jay v. Kreigh, 110 Ariz. 299,
303, 518 P.2d 122, 126 (1974) (party not
injured by allegedly unconstitutional statute
lacks standing to challenge its
constitutionality).
Maher cites several cases in which a party
was permitted to bring an action to set aside a
trustee’s sale after the sale had occurred,
reasoning that §33-811(C) therefore cannot
bar his claims. But each of the cases Maher
cites addressed events that occurred before §
33-811 was amended to add the waiver
provision in subsection (C). See 2002 Ariz.
Sess. Laws, ch. 259, § 3; Arohn v. Sweetheart
Props., LTD, 203 Ariz. 205, J 4, 52 P.3d 774,
775-76 (2002); Eardley v. Greenberg, 164 Ariz.
C-14
261, 263, 792 P.2d 724, 726 (1990); Jn re Hills.
299 B.R. 581, 582-83 (Bankr. D. Ariz. 2002).
The cases are therefore inapposite.
Accordingly, we conclude Maher has waived
any objection or defense to the trustee’s sale
because he failed to seek a preliminary
injunction pursuant to Rule 65 before the sale
was held. We now examine each of his
remaining claims in turn to determine if it is
an objection or defense to the sale and
therefore waived.
Quiet Title and Title 33 Claims
21 Maher’s first claim, for quiet title, alleges
Bank One was not the successor in interest to
Bank One, Arizona and therefore lacked
authority to conduct the trustee’s sale. The
relief Maher seeks is to have the sale set asise
and title restored to him. His quiet title claim
is clearly barred by § 33-811(C). He also seeks
rescission of the sale as a remedy for Bank
One’s alleged violations of Title 33. He has
waived that claim as well. That Maher is also
seeking damages for the alleged Title 33
violations does not change this result. Section
33-811(C) waives “all defenses and objections
to the sale,” without limiting that waiver to a
particular action or according to the specific
relief sought; it does not, for example,
differentiate an action seeking to set aside a
sale from a action seeking damages. We find
no authority, and Maher cites none,
suggesting we should interpret the waiver
C-15
ae ea. ..0
provision in § 33-811(C) so narrowly. Indeed,
to do so would contravene the purpose of the
statutes governing deeds of trust and trustee’s
sales—“to provide relatively inexpensive and
speedy foreclosure proceedings.” Andreola v.
Ariz. Bank, 26 Ariz. Apop. 556, 559, 550 P.2d
110, 113 (1976); see also LeDesma v. Pioneer
Nat! Title Ins. Co., 129 Ariz. 171, 173-74, 629
P.2d 1007, 1009-10 (App. 1981). Thus,
because Maher has waived any defense or
objection to the sale pursuant to § 33-811(C),
we conclude he has also necessarily waived
any claim for damages dependent on facts he
could have raised as a defense or objection to
the sale.
Contract Claims
422
Maher asserts Bank One breached the home
equity loan agreement by instituting the
trustee’s sale despite his ongoing dispute with
the bank over its disclosure of confidential
account information to his spouse. Although
he does not seek rescission of the sale as a
remedy on this claim, the claim nonetheless
requires Maher to prove the sale was
improper. And, were the sale improper, he
could have raised the impropriety in an action
to enjoin the sale. See generally A.R.S. §§ 12-
1801, 12-1805. He has therefore waived this
breach of contract claim.* See § 33-811(C).
‘This claim fails on its merits in any event. Maher asserts that,
(continued...)
C-16
His remaining breach of contract claim—that
Bank One violated the contract’s terms by
failing to notify him of Bank One’s merger
with Bank One, Arizona—would not, however,
provide a valid defense to the sale. Therefore,
his breach of contract claim based on that
allegation is not barred by § 33-811(C).
423 Nonetheless, the trial court did not err in
granting summary judgment in favor of Bank
One on this claim. Maher’s loan agreement
with Bank One, Arizona states the contract
“may not be supplemented or modified except
in writing.” Maher asserts this provision
required Bank One to notify him of “material]
changes to the contract,” specifically including
its merger with Bank One, Arizona. But this
provision cannot reasonably be read as
requiring Bank One to give Maher notice of
the merger. It instead is part of an
integration clause that precludes as additional
contract terms any previous extrinsic or
collateral representations or any subsequent
changes to the contract not agreed to by both
parties in writing. See generally Arthur L.
‘(...continued)
under the contract, he was permitted to withhold loan payments while any
dispute with the bank was pending, and, therefore, he properly withheld
loan payments because Bank One had not, at least to his satisfaction,
resolved his complaint that it wrongly had disclosed confidential
information to his spouse. But the contract provision on which Maher
relies clearly applies only to disputes over the amount of the payment due
and not to the type of dispute Maher describes.
C-17
124
|25
Corbin, Corbin on Contracts §578 (interim ed.
2002)(“If a written document...declares in
express terms that it contains the entire
agreement of the parties, and that there are
no antecedent or extrinsic representations,
warranties, or collateral provisions..., this
declaration is conclusive...”).
Even assuming Bank One were required to
notify Maher of an material change to the
contract, the merger did not constitute such a
change. Under federal law governing the
merger and consolidation of bank, see
generally 12 U.S.C. §§ 215 through 215c,
Bank One is “deemed to be the same
corporation” as Bank One, Arizona, with Bank
One having the same “rights, franchises, and
interests of [Bank One, Arizona] in and to
every type of property (real, personal, and
mixed) and choses in action shall be
transferred to and vested in [Bank One] by
virtue of such consolidation without any deed
or other transfer.” 12 U.S.C. § 215(e); cf
A.R.S. §6-212 (rights and liabilities of state
bank merging with national bank “prescribed
at the time of the action by the law of the
United States”); A.R.S. § 6-216 (resulting
bank “shall be considered the same business
and corporate entity as each merging bank or
converting bank”).
Moreover, even if the merger could be
considered a material change in the contract
because it arguably transferred rights from
C-18
Bank One, Arizona to Bank One, the contract
expressly reserved to Bank One, Arizona the
right to “sell or transfer [Maher's] Credit Lien
Account to another lender, entity, or person,
and to assign [its] rights under this
Agreement and the Deed of Trust”“[wJithout
notice or prior approval from [Maher].” This
specific provision qualifies any genera] duty
Bank One might otherwise have had under
the contract to notify Maher of the merger.
See Guo v. Maricopa County Med. Ctr., 196
Ariz. 11, § 17, 992 P.2d 11,15 (App. 1999)
(“Where there is inconsistency between two
provisions in a contract, we will construe the
more specific provision to qualify the more
general provision.”). In short, under any
reasonable interpretation of the contract,
Bank One was not required to give Maher
notice of the merger and could not have
breached the contract by failing tu do so.
KDCPA Claims
26
Last, Maher’s damages claims in count four,
alleging Bank One violated the FDCPA, would
not provide a basis to prevent or set aside the
trustee's sale; therefore, he has not waived
these claims under § 33-811(C). This
conclusion, however, does not end our inquiry.
Maher’s FDCPA claims concerned actions
taken in 2003 by Bank One through its
attorney Larry Folks. The trial court
dismissed those claims after concluding, inter
alia, that they were barred because Maher
C-19
27
had failed to bring them within the applicable
one-year statute of limitations. See 15 U.S.C
§ 1692k(d). Maher does not dispute this
conclusion in his opening brief. Nonetheless
he claims in his reply brief that the statute of
limitations does not bar his FDCPA claims
Apparently referring to the fact that Folks
was Bank One’s attorney and had been named
by the bank as the successor trustee on
Maher's deed of trust, Maher argues that he
“had no reason or way to know’ the
relationship between Folks and Bank One
“until after he was able to conduct discovery.”
We generally consider arguments raised for
the first time ina reply brief waived. See
Duwyenie v. Moran, 220 Ariz. 501, n.3, 207
P.3d 754, 756 n.3 (app. 2009). Maher,
moreover, has failed to cite any authority in
support of his argument or to develop it in any
meaningful way. See Lohmeier v. Hammer,
214 Ariz. 57, n.5, 148 P3d 101, 108 n.5(App.
2006) (undeveloped arguments waived; /n re
$26,980.00 U.S. Currency, 199 Ariz. 291, 9 28,
18 P.3d 85,93 (App. 2000)(same). In any
event, even assuming Maher's knowing the
nature of the relationship between Bank One
and Folks was material to his discovering this
KDCPA claims against the bank and that the
statute of limitations should not bepin to run
until he learned that information, the trial
court correctly concluded his claim was time
barred
128
129
We review de novo a trial court’s grant of
summary judgment based on the statute of
limitations. See Andrews v. Eddie's Place,
Inc., 199 Ariz. 240, § 1, 16 P.3d 801, 802 (App.
2000). Generally, a plaintiff must file claims
under the FDCPA within one year of the
violation. 15 U.S.C. § 1692k(d). However, the
statute of limitations under § 1692k(d) may be
tolled until the plaintiff “discovered or had
reasonable opportunity to discover’ the facts
underlying his or her claims. Foster v. D.B.S.
Collection Agency, 463 F. Supp. 2d 783, 799-
800 (S.D. Ohio 2006); see generally CDT, Inc.
V. Addison, Roberts & Ludvig, C.P.A., P.C.,,
198 Ariz. 173, 9 7, 7 p.3d 979, 982 (App. 2000)
(under “discovery rule,” statute of limitations
begins to run when plaintiff knew or should
have known of cause of action).
Maher does not specify when he “discoverled]”
the relationship between Bank One and Folks,
other than asserting he did not learn of it
“until soon before he filed the present lawsuit
in 2006.”. But Maher cites, and we have
found, nothing in the records supporting that
assertion. In exhibits submitted to the trial
court, Maher acknowledged receipt in July
2003 of a debt-collection letter from Folks, in
which Folks identified himself as an attorney
“representling] Bank One.” In Maher's
opening brief, filed in March 2004 in his
previous appeal before this court, Maher noted
that Folks had been appointed successor
trustee under the deed of trust to Maher's
house. Maher does not dispute that he knew
all other facts necessary to the discovery of his
FDCPA claims by at least that date. Thus,
Maher had discovered the facts underlying
those claims by March 2004 at the latest. But
he did not file his complaint in this case until
July 2006, more than two years after his
FDCPA claims had accrued. Consequently,
we cannot say the trial court erred in
concluding § 1692k(d) barred Maher’s FDCPA
claims and therefore granting summary
judgment in favor of Bank One on those
claims.
Motion to Continue
]30
Maher additionally argues the trial court
erred in granting summary judgment “without
requiring [Bank One] to provide relevant
discovery.” However, nothing in the record
suggests that the evidence sought by Maher's
pending discovery requests would have been
relevant to his two claims not barred by § 33-
811(C). Even assuming the evidence would be
relevant to those claims, the trial court did not
err. Before oral argument on the motions for
summary judgment, Maher asked the court to
delay its decision on those motions to give
Bank One more time to respond to his pending
discovery requests, asserting the requested
information was relevant to his claims. But a
party seeking to defer a summary judgment
ruling because it “cannot...present by affidavit
facts essential to justify lits] opposition” to
C-22
0 bt hat
]31
4/32
summary judgment, Ariz. R. Civ. P. 56(f),
must file an affidavit in support of that
request “specifically describing the reasons
justifying delay,” including what the party
believes the evidence would reveal. Grand v.
Nacchio, 214 Ariz. 9, 4/72, 147 P.3d 763, 783
(App. 2006); see also Magellan S. Mountain
Ltd. P'’ship v. Maricopa County, 192 Ariz. 499,
{| 10, 968 P.2d 103, 106 (App. 1998). Maher
filed no such affidavit.
Moreover, the information he sought was
equally relevant to his own pending motion for
summary judgment, which he had filed before
either Bank One or the Rubals had filed their
motions. Rule 56(f) only permits granting a
continuance to a party opposing summary
judgment. The trial court was not required to
delay its ruling because Maher had
insufficient evidence available to support his
position on factual issues he initially had
raised in his own motion for summary
judgment. For these reasons, the trial court
did not abuse its discretion in denying
Maher's request to delay its ruling on the
summary judgment motions. See Maricopa
Coutny v. Kinko’s Inc., 203 Ariz. 496, ¥ 19, 56
P.3d 70, 75 (App. 2002)(“We apply an abuse of
discretion standard of review to a denial of
relief under Rule 56(0.”).
Disposition
We affirm the trial court’s grant of summary
C-23
judgment in favor of Bank One and the
Rubals. We grant Bank One’s request for
reasonable attorney fees on appeal pursuant
to the provisions of the contract and deed of
trust, pending Bank One’s compliance with
Rule 21(c), Ariz. R. Civ. App. P. We deny the
Rubals’ request for attorney fees made
pursuant to A.R.S. § 12-349. Maher's
arguments on appeal, although unavailing,
were not frivolous, and nothing in the record
suggests he brought his appeal “solely or
primarily for delay or harassment” or that he
“luJnreasonably expandled] or delayled] the
proceedings.” § 12-349(A). And, in our
discretion, we deny the Rubals’ request for
attorney fees pursuant to A.R.S. § 12-341.01.
J. WILLLAM BRAMMER. JR. |
Judge
CONCURRING:
PETER J. ECKERSTROM, Presiding Judge
GARYE L. VASQUEZ, Judge
C-24
APPENDIX D
TABLE OF CONTENTS
ORDER, Scmtenoer 20, 2G: ceca ck sess can ccne es D-]
ORDER, October 14, 2008. ............ Aut kit Weg aie oo a
IN THE SUPERIOR COURT OF THE STATE OF
ARIZONA
IN AND FOR THE COUNTY OF GRAHAM
STEVEN MAHER,
No. CV2006-193
Plaintiff,
ORDER
VS.
BANK ONE, N.A., a
foreign corporation; Does
<'
Defendants.
a4 . 3 ee or . ’ o My y) ,
This Court has previously issued its Order in this
matter granting Summary Judgment to both Defendants,
denying Plaintiff's Motion for Summary Judgment and
ordering Plaintiff to pay Defendants’ legal costs and
attorney’s fees. Subsequently a Motion for New Trial was
filed by Plaintiff asking this Court to review its previous
Order and enumerating perceived errors, both in law and
facts, which would justify revision or withdrawal of the
earlrer Order.
Hearing has been held and numerous documents and
memoranda have been filed by all parties and reviewed by
this Court. Three areas are alleged as causes for reversal: (1)
irregularity in proceeding; (2) newly discovered evidence;
and (3) findings not justified by evidence or contrary to law.
These appear to break down into issues regarding the
D-1
trustee’s sale (the major area of argument); newly discovered
evidence dealing with information given or available to the
Rubals when they purchased the property; and disagreements
with the findings of the Court in areas of dispute. No
procedural irregularities are asserted
Oral argument was held in which these issues were
presented and additional documents and arguments received
following those proceedings and these have also been
considered and studied by the Court.
Virtually the entire matter boils down to the legality
and validity of the Trustee’s Sale. If that is accepted by the
Court nearly all the claims by the Plaintiff become irrelevant.
Clearly if the sale was valid the claims against Rubals cannot
survive since Plaintiff would have not standing to object to
the sale of the property owned by the Bank. Also, if the sale
is legal, the claims under the Fair Debt Collections Practice
[sic] Act do not apply since they should have been raised
prior to the sale, not afterward. Even without that fact,
claims under that Act have a one year statute of limitations
which would bar raising them at this stage of the case (15
U.S.C. Sec. 1692k). Once the valid Trustee’s Sale is
accomplished, Title 33 presumptively establishes that the
requirements under Arizona deed of trust and foreclosures
statutes have been met (Security Savings and Loan
Association y. Milton, 171 Ariz/.75. 828 P.2d 1216; Hills y.
Ocwen, 299 B.R. 581): A.R.S. 33-811(B).
The Court finds that the Trustee’s Sale was legal and
valid. The Court repeats its earlier findings that the
contractual agreement between Plaintiff and Defendant Bank
granted Bank permission to, without notice, transfer or sell
his account to any other person or institution. This was done
when Bank One of Arizona (which had previously been
Valley National Bank; apparently Plaintiff had no problem
when that change occurred because he continued to bank in
the same bank with the same people) merged with Bank One
D-2
of Utah, N.A. to create a new entity: Bank One, N.A. Two
letters from the United States Office of the Comptroller of
Currency confirm the name of that entity as Bank One, N.A.
(Plaintiff's Exhibit J and Chase Home Finance Supplemental
Submission, Exhibit 1). This is the same name that was on
the Complaint filed herein and the same name placed on the
Notice of Trustee’s Sale and notices to Plaintiff regarding
that sale (See Notice of Breach of Non-Performance, Rubals’
Exhibit 11 and Notice of Substitution of Trustee, and Notice
of Trustee Sale, Rubals’ Exhibit 5).
The evidence is not disputed that Plaintiff had
utilized the bank’s service for 16 months during which there
had been an unauthorized disclosure of confidential
information to his wife and the bank had accepted his:
payments, credited them appropnately to his account,
charged the proper interest and he suffered no damages to
that account during this time. After complaining about this
breach of confidentiality the bank moved within a short time
to correct the situation, removed the information from the
wife’s account and apologized. Plaintiff insisted the bank
zero out his line of credit account (then showing a debt of
over $50,000) to compensate him for his perceived damages
before he would resume his regular payments. On several
occasions he was told the bank would not grant him this
request and that he needed to resume payments or suffer the
consequences. The Court has already found that there was
no legal justification for his refusal to pay in that the
argument he had with the bank was over the breach of
confidentiality and not over the account which was disclosed.
There is ample evidence that Plaintiff was notified several
times of his need to pay on the account, that a Trustee’s Sale
would be held, and that he refused to accept certified letters
to that effect. He was, however, physically present at the sale
and his letters show he knew of the pending sale at least a
month ahead of time and, although he objected at the sale, he
D-3
made no legal efforts to stop the sale or contest its legality.
Letters of complaint to the bank or vocal objections at the
sale do not constitute legal action under the law.
The Court has also found that failure to notify
Plaintiff of a change in name caused by a merger is not
grounds for “modification of the contract” between him and
the bank. He still maintained a satisfactory relationship with
the bank, the personnel were the same, the location was the
same, and aside from the confidentiality situation, no
complaints were registered. The bank’s right to sell or
transfer the account is a specific right while the right to be
informed of any significant change in the contract is a
general statement which is subject to the exceptions set forth
in the contract and also agreed to by both parties.
The legality of the Trustee’s Sale is established by the
Trustee’s Deed which issued after the sale. By statute and
judicial decisions it presumptively establishes that all
procedural matters were complied with and the sale was
conducted regularly and in accordance with the required
statutory notice provisions (See prior citations).
For all the above reasons the Court reaffirms its prior
order with one exception. In the first Order the Court
awarded legal costs and attorney’s fees to both Defendants.
The Court, after further consideration is unable to find legal
justification for attorney’s fees to Defendants Rubal. The
action involving them is not based on contractual issues as 1s
the dispute between Plaintiffs and Bank One. No legal basis
has been brought forward by Rubals or their counsel to
suggest otherwise. Consequently, both Defendants are
awarded Summary Judgment in this case while Plaintiffs
Motion. for Summary Judgment and Partial Summary
Judgment is denied. The Court further awards both
Defendants their legal costs and the Bank is awarded
reasonable attorney’s fees herein. Affidavits of costs and
expenses previously submitted need not be duplicated and
D-4
additional expenses should be filed within ten (10) days of
this order. Plaintiff shall have ten (10) days after receipt of
the claimed expenses to file objections.
Dated this 18" day of September, 2008
C. Robert Pursley
Judge of the Superior Court
Copies of the above mailed
this___ Day of September, 2008, to:
David Lipartito
Attorney for Plaintiff
177 N. Church St.
Tucson, AZ 85701
Bryan Cave
Attorney for Defendant Chase
Two North Central Ave., Suite 2200
Phoenix, AZ 85004-4496
Roger Frazier
Attorney for Defendants Rubal
One S. Church St., Suite 1900
Tucson, AZ 85701-1627
IN THE SUPERIOR COURT OF THE STATE OF
ARIZONA
IN AND FOR THE COUNTY OF GRAHAM
STEVEN MAHER,
No. CV2006-193
Plaintiff,
ORDER
VS.
BANK ONE, N.A., a
foreign corporation; Does
1-5.
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
The Court has been advised that some pleadings filed
herein failed to be property placed in the County’s files and
may not have been seen prior to the Court’s Order of
September 18, 2008. The Court has now reviewed again the
documents in this case, including Plaintiffs Notice of Filing
Exhibits filed on September 1], 2008, and affirms that those
were read and considered prior to its Order.
One document was found which had not previously
been examined. This was Defendant Rubals’ Memorandum
in Support of Attorney’s Fees. It was specifically mentioned
in the Order denying attorney’s fees that no “suggestions”
had been made by Rubals’ counsel to aid the Court in
determining justification for an award of attorney’s fees
inasmuch as no contractual relationship existed between
them and Plaintiff. After review of the Memorandum and
D-6
the cases and statutes cited therein, the Court hereby finds
that this case has its genesis in a contractual relationship
between Plaintiff and Bank and without that relationship the
Rubals could not have been sued separately. Consequently
they are entitle to an award of attorney’s fees as originally
ordered by this Court. Defendants Rubal are to file a second
affidavit of legal costs and attorney’s fees incurred as a result
of the Plainuff's Motion for New Trial. This affidavit is to
be received by this Court prior to 5:00 p.m., October 24,
2008.
The Court has examined the file and can find no
affidavit of costs and legal fees from Chase Bank regarding
those costs incurred as a result of the Motion for New Trial.
It is possible that is one of the misplaced documents and has
not yet been located. If such is the case, and one was
submitted within the 10 days allotted by the Court, a copy
must be filed again with this Court on or before 5:00 p.m.
October 24, 2008. This is not an extension of time originally
given and if not earlier filing occurred the Court will use the
figures previously provided to determine a fair order for
attorney’s fees and legal costs.
The Court has seen and examined Plaintiff's Second
Motion for New Trial, filed on October 14, 2008. That
Motion is denied as the issues raised have been argued
previously on several occasions and have been denied.
Plaintiff has filed a Motion to Supplement Record on
Appeal (filed October 9, 2008) and a Notice of Appeal (filed
October 14, 2008). Normally the filing of a Notice of
Appeal immediately transfers jurisdiction from the trial court
to the Court of Appeals. In this case, however, there is no
final Order to appeal. Until the Court issues a Judgment re
costs and attorney’s fees it is this Court’s opinion that there
is no appealable Order. Unless convinced otherwise, this
Court will hold the Notice of Appeal until the final Order
and Judgment are entered and will then consider it filed
D-7
officially and bepin the appellate process. The Motion to
Supplement the Record on Appeal must be directed to the
Court of Appeal following the Notice of Appeal and not to
the Superior court.
DATED this 14" day of October, 2008
(. Robert Pursley
ludge of the Superior Court
Copics of the above mailed to
David Lipartito
177 N. Church St.
Tucson, AZ 8570)
Attorney for Plaintiff
Gust Rosenfeld
One S. Church St
Tucson, AZ 85701-1627
Attorney for Defendants Rubal
Bryan Cave
2 N. Central Ave., Ste 2200
Phoenix, AZ 85004-4404
Attorney for Defendant Chase Bank
IN THE SUPERIOR COURT OF THE STATE OF
ARIZONA
IN AND FOR THE COUNTY OF GRAHAM
STEVEN MAHER, )
) No. CV2006-193
Plaintiff, )
) ORDER
VS. )
)
BANK ONE, N.A., a )
foreign corporation; Does )
1-S. )
)
Defendants. )
There are no serious contentions regarding the facts
of this case and ‘‘is Court adopts the time sequence as set
forth in Plaintift s “Time Line” submitted to the Court at its
last hearing in order to provide a reference as to all events
involved in this lengthy proceeding. Exhibits referred to
herein will be based on the number provided by Plaintiff in
his Notice of Filing Exhibits filed on November 11, 2007,
unless other wise note.
FACTS:
On or about April 15, 1999, Plainuff contracted with
Bank of Arizona, Safford Branch, for a Home Equity Line of
Credit (Exhibit B) and borrowed $97,500 using his residence
as collateral and secured by a Deed of Trust (See Affidavit of
Plaintiff filed November 14, 2006, page 2). This home was
Plaintiff's sole and separate property and Plaintiff requested
that the bank not disclose any information regarding this loan
to his then-present wife. Plaintiff's Affidavit further asserts
that he chose this bank because of prior dealings and its
status as a “local” bank where he trusted the employees. He
initially made his regular payments on time (sometimes
before due and for more than the payment required).
On approximately November 9, 2001, Bank One of
Arizona merged with another bank (the details of this
transaction are unclear as to the exact parties but the
institution was known as Bank One and for convenience this
Order will use “Bank” generically unless otherwise stated).
Plaintiff was not personally advised of this change of
ownership. On November 26, 2001, this new institution
attempted to consolidate some of its accounts and in doing so
disclosed to Plaintiff's wife information regarding this
account which he had specifically asked to be kept from her.
This was not discovered by Plaintiff until February 18, 2003,
nearly 16 months after the breach of confidentiality began.
During these 16 months al] payments on the account had
been made regularly and in full and Plaintiff received credit
in full for each and every payment made. On March 3, 2003,
after voicing his complaint about the breach of
confidentiality to the bank in February, Plaintiff began
withholding payments on the account and no further
payments were ever made. There is no dispute that
Plaintiff's payments were property credited to his account
and that the balance left unpaid was never paid or reduced by
further payments by him.
Plaintiff refused to make further payments relying on
a clause in his contract (Exhibit B, page 6) regarding conflict
resolutions. It reads as follows: “If you think your bill is
wrong, or if you need more information about a transaction
on your bill, write us on a separate sheet at 321 Main St.,
E-2
Safford, AZ 85546 or at the address on your bill...After we
receive your letter, we cannot try to collect any amount you
questions, or report you as delinquent. We can continue to
bill you for the amount you questions, including finance
charges, and we can apply any unpaid amount against your
Credit Limit. You do not have to pay any questioned amount
while we are investigating, but you are still obligated to pay
the parts of your bill that are not in question.” It is Plaintiff's
position that his matter was never resolved and that he was
theretore not required to make any payments until it was
settled.
After several letters seeking payment Bank recorded
on July 16, 2003, a Notice of Trustee’s Sale (Exhibit F)
along with a Notice of a substitution trustee (Exhibit G of
Bank’s Controverting Statement of Facts in Opposition to
Plaintiff's Motion for Partial Summary Judgment, filed Jan.
18, 2008). In these letters the Bank advised Plaintiff that it
had confirmed that the unauthorized disclosure of
information had been halted and that they had closed out
their investigation of his complaint. On September 28, 2003,
Plaintiff wrote to Bank stating that he was aware of the
scheduled Trustees Sale on October 16, 2003. Apparently at
least two registered mail letters notifying Plaintiff of these
filings were sent and both returned “Unclaimed”.
A Trustee’s Sale was held as scheduled, Plaintiff
being present at the time, and the home was sold to Bank for
the amount then owed. Plaintiff refused to vacate the
property and a Forcible Entry and Detainer action was filed
by Bank on November 12, 2003, with a hearing on December
4, 2003 (Graham County Action CV2003-165) and ruling
was made in favor of Bank. This matter was appealed and
the Court of Appeals affirmed the ruling. Further post-trial
hearings were held to clarify the trial court’s rulings, all
resulting in sustaining the legality of the foreclosure and
subsequent trustee’s sale. On June 8, 2004 the sale of the
E-3
property to Defendants [sic]Jubal was closed and they
became the owners after purchasing it from Bank.
ARGUMENT:
Plaintiff seeks to set aside the Trustee’s Sale and the
subsequent sale of the home to Jubals [sic] based on his
interpretation of the contract between him and the Bank
which authorized him to withhold payments as long as the
dispute remains unresolved regarding “...any amount you (the
borrower) question”. He argues that (1) the merger into
another legal entity violated his contract in that he received
no notice prior to it being done, and (2) the unauthorized
disclosure of confidential information was never resolved.
There are a number of allegations of legal challenges to the
later sale of the Property to Jubals [sic], but they all hinge on
the invalidity of the Trustee Sale. If that sale was legal then
the Bank was the owner and had every right to sell their
property. Both parties have filed Motions for Summary
Judgment (or Partial Summary Judgment) dealing with these
issues and so the Court will address those matters first.
The question of failure to notify Plaintiff of the
merger is dealt with by reference to the contract entered into
between him and the Bank (Exhibit B, page 5-note: page 5 is
missing from the Court’s copy of Exhibit B but can be found
in other exhibits filed herein by other parties). This Transfer
or Assignments clause states that “without pnor notice or
approval from you (borrower), we (lenders) reserve the right
to sell or transfer your Credit Line Account to another lender,
entity or person, and to assign your rights under the
Agreement and the Deed of Trust.” (Emphasis added)
Assuming Plaintiff read his contract as carefully as he
indicates he entered into this agreement he would have been
advised at the outset that this was a possibility, and not only
could it have been transferred to another bank but to an
E-4
“entity or person”. Arguments related to the merger and
which Bank One was which are therefore meaningless. So
long as Plaintiff was given proper credit for any payments
made it mattered not who owned the papers on the debt. By
signing this agreement Plaintiff gave up his rights to notice
of the merger. It should also be pointed out that he continued
for over a year doing business with the same individuals,
with the same satisfactory result, even after the merger
without neticing the difference. It was only the breach of
confidentia.ity that made him aware of the change of
ownership, and even that was much later in these
proceedings. Finally, Plaintiff states that if he had been
given notice he could have done any number of things to
protect himself (change banks, pay off the debt, refinance,
etc.), but the fact is that he did none of those things when he
discovered the facts. He merely continued to argue with the
bank and ignore his opportunities to do anything he
mentioned and keep his home.
The problem seems to be that he had convinced
himself that he could avoid a legal debt by continuing to
argue with Bank. His theory seems to be that until he is
satisfied he had a right to stop payments. The contract does
not justify his position and neither does common sense in
regard to business affairs. If Bank had to satisfy all their
customers on any disagreement before it could collect its
payments, even when pertaining to subjects unrelated to the
payments themselves, they would be hard pressed to stay in
business.
The dispute he had was not a dispute about the
account on the loan. Apparently it was the disclosure of this
account to his wife that triggered the dispute, but it had
nothing to do with the account itself. Plaintiff has agreed
that he has no quarrel with the total amount owed, the
crediting of payments or the calculations of interest or any
other matters relevant to the account itself. It is further
E-5
impossible to tell what he expected Bank to do about his
complaint. In the correspondence there were apologies by
Bank, there is nothing about damages suffered as a result of
the breach of confidentiality that could be addressed by
Bank, and the Bank said clearly at least twice that their
investigation into his complaints were terminated and there
was nothing more they could do and that Plaintiff should
resume his payments. In spite of his vehement assertions of
misbehavior on the part of Bank there is no indication that he
wanted anything from Bank other than forgiveness of nearly
fifty thousand dollars of debt. He told the Court that he
“assumed” that Bank had stopped the improper disclosures
when requested, but had made no effort to determine if that
were true. He made no effort to take legal steps to stop the
Trustee’s Sale from going through in spite of knowing well
over a month in advance that it was scheduled. While
Plaintiff insists that the “entire amount owed” was in dispute
in his correspondence he has also admitted that nothing in
the account was in error. Consequently the Court can find no
justification for failure to make his required payments to
Bank.
The Court further finds that the Fair Debt Collections
Practices Act does not apply to a foreclosure of a loan
secured by a Deed of Trust which is covered by its own
statutory requirements. The Trustee’s Deed Upon Sale
establishes evidence of Bank’s compliance with those
foreclosure statutes (A.R.S. 33-811(B)).
Accordingly the Court denies Plaintiff's Motion for
Partial Summary Judgment and grants Bank’s Motion for
Summary Judgment.
Considering the above ruling, and the fact that there
is a presumption (conclusive or not) of validity of a Trustee
Sale (A.R.S. 33-811(c), the Court also grants Defendants
Jubal [sic] their Motion for Summary Judgment in that
Plaintiff has not overcome that presumption and therefore the
E-6
Bank was the legal owner at the time of sale to Jubals [sic].
The Court therefore rules in favor of Defendants and
against Plaintiff and awards all Defendants their Jegal costs,
including reasonable attorney’s fees since this is basically an
action based on contractual issues. Counsel for Chase is
ordered to prepare a form of judgment, attaching thereto
affidavits from both defense counse] regarding attorney’s
fees and provide a copy to Plaintif“s Counsel. Objections
must be filed in accordance with th.2 Rules ef Civil
Procedure or the proposed Judgment will be signed as
presented.
Note: this Court has delayed issuing this Order for
two weeks at the request of Plaintiff, but can find no
justification for delaying longer since they have filed nothing
in the interim. The issues they seek to respond refer only to
the merger of the Bank that issue is not considered
significant by this Court in reaching its conclusions.
DATED this 16" day of July, 2008.
C. Robert Pursley
Judge of the Superior Court
Copies of the above mailed
this 16" day of July, 2008, to:
David Lipartito
Attorney for Plaintiff
177 N. Church St.
Tucson, AZ 85701
Bryan Cave
Attorney for Defendant Chase
E-7
Two North Central Ave., Suite 2200
Phoenix, AZ 85004-4496
Roger Frazier
Attorney for Defendants Rubal!
One S. Church St., Suite 1900
Tucson, AZ 85701-1627
APPENDIX Ff
TABLE OF CONTENTS
14° AMENDMENT TO THE UNITED STATES
CONSTITUTION. ......... PP ee eT
14" AMENDMENT TO THE UNITED STATES
CONSTITUTION (SECTION 1)
All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
k-]
APPENDIX G
TABLE OF CONTENTS
15 U.S.C.§ 1692g (a) and (b)
(a)
(b)
15 U.S.C. § 1692p (a) and (b)
Within five days after the initial communication with
a consumer in connection with the collection of any
debt, a debt collector shall, unless the following
information is contained in the initial communication
or the consumer has paid the debt, send the consumer
a written notice containing
(1)
(2)
(3)
(4)
(5)
the amount of the debt;
the name of the creditor to whom the debt is
owed;
a statement that unless the consumer, within
thirty days after receipt of the notice, disputes
the validity of the debt, or any portion thereof,
the debt will be assumed to be valid by the
debt collector;
a statement that if the consumer notifies the
debt collector in writing within the thirty-day
period that the debt, or any portion thereof, 1s
disputed, the debt collector will obtain
verification of the debt or a copy of a
judgment against the consumer and a copy of
such verification or judgment will be mailed
to the consumer by the debt collector; and
a statement that, upon the consumer’s written
request within the thirty-day period, the debt
collector will provide the consumer with the
name and address of the original creditor, if
different from the current creditor.
If the consumer notifies the debt collector in writing
within the thirty-day period described in subsection
(a) that the debt, or any portion thereof, is disputed,
G-]
or that the consumer requests the name and address of
the original creditor, the debt collector shall cease
collection of the debt, or any disputed portion thereof,
until the debt collector obtains verification of the debt
or any copy of a judgment, or the name and address
of the original creditor, and a copy of such
verification or judgment, or name and address of the
original creditor, is mailed to the consumer by the
debt collector. Collection activities and
communications that do not otherwise violate this
litle may continue during the 30-day period referred
to in subsection (a) unless the consumer has notified
the debt collector in writing that the debt, or any
portion of the debt, is disputed or that the consumer
requests the name and address of the original creditor.
Any collection activities and communication during
the 30-day period may not overshadow or be
inconsistent with the disclosure of the consumer’s
right to dispute the debt or request the name and
address of the original creditor.
APPENDIX If
LABLE OF CONTENTS
ARS §33-811 (3) and (C)
ARS §33-811(B) and (C)
ARS §33-811(B) and (C)
lhe price bid shall be paid at the office of the trustee
or the trustee’s ageit, or any other reasonable place
destgnated by the trustee. The payment of the bid
price may be made at a later time if agreed upon in
writing by the trustee. The trustee shall execute and
deliver the trustee’s deed to the purchaser within
seven business days after receipt of payment by the
trustee or the trustee’s agent made in a form that is
satisfactory to the trustee. The recording of the
trustee’s deed upon sale may also constitute deliver
of the deed to the purchaser. The trustee is not liable
for any damages resulting from the failure to record
the trustee’s deed upon sale after physical delivery of
the deed to the purchaser. The trustee is not liable for
any damages resulting from the failure to record the
trustee's deed upon sale after physical delivery of the
deed to the purchaser. The trustee’s deed shall raise
the presumption of compliance with the requirements
»f the deed of trust and this chapter relating to the
exercise of the power of sale and the sale of the trust
property, including recording, mailing, publishing
and posting of notice of sale and the conduct of the
sale. A trustee’s deed shall constitute conclusive
evidence of the meeting of those requirements 1n
favor of purchasers or encumbrancers for value and
without actual notice. Knowledge of the trustee shall!
not be imputed to the beneficiary.
The trustor, its successors or assigns, and all persons
to whom the trustee mails a notice of a sale under a
trust deed pursuant to section 33-809 shall waive all!
defenses and objections to the sale not raised in an
action that results in the issuance of a court order
H-]
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
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.