THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
BERNT K. LOVENBERG,
DEUTSCHE BANK TRUST COMPANY,
AMERICA, as Trustee Residential
Funding Company, LLC fka
Residential Funding Corporation; )
SUNTRUST MORTGAGE, INC.,
RUTH A. WILLINGHAM,
1 CA-CV 10-0624 A
(Not for Publication Rule 28, Arizona Rules
of Civil Appellate
Appeal from the Superior Court in Maricopa County
Cause No. CV2010-070070
The Honorable Harriett E. Chavez, Judge
Bernt K. Lovenberg
Wolfe & Wyman, LLP
Las Vegas, NV
Colt B. Dodrill
Attorneys for Appellee Deutsche Bank Trust Company, America
Shapiro Van Ess & Sherman, LLP
Christopher R. Perry
Jason P. Sherman
Attorneys for Appellee Suntrust Mortgage, Inc.
O R O Z C O, Judge
dismissing his action for failure to state a claim upon which
relief can be granted.
For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
Deutsche Bank Trust Company, L.L.C. (DeutscheBank) is
the current holder of a promissory note issued by Lovenberg in
exchange for a home loan he used to purchase real property in
Surprise, Arizona (the Property).
against the Property.
The note is secured by a lien
Suntrust Mortgage, Inc. (SunTrust) is the
After falling behind on his payments, Lovenberg entered
into a forbearance agreement with SunTrust.
Pursuant to this
agreement, Lovenberg was required to make six monthly payments of
The agreement provided that upon breach by Lovenberg,
SunTrust “may terminate this agreement and institute foreclosure
Lovenberg timely made five payments, with the sixth and final
payment due on October 21, 2008.
Prior to the sixth payment required by the forbearance
agreement, SunTrust notified Lovenberg that his monthly payments
on the loan would be $3,558.97, starting November 1, 2008, and
that he had a surplus of $2,599.14 in his escrow account.
same notification also indicated that, “Due to the delinquent
status of your account we will retain your surplus.”
next payment was not for $4,213.54 as required by the forbearance
agreement; but rather, it was for $959.83, i.e., $3,558.97 less
the amount of surplus in escrow.1
SunTrust returned the sixth payment, stating that it
was insufficient, and requested payment of the full balance of
the loan, which exceeded thirty-five thousand dollars.
did not contest the foreclosure proceedings and trustee sale that
Lovenberg sued DeutscheBank and SunTrust (collectively,
the Defendants), for breach of contract and implied covenant of
good faith and fair dealing.2
The trial court dismissed the
12(b)6 for failure to state a claim upon which relief can be
Lovenberg timely appealed and we have jurisdiction in
The letter sent by SunTrust rejecting this
indicates that Lovenberg actually tendered $974.59.
Lovenberg’s second claim for relief was amended from lack
of good faith negotiation to breach of the implied covenant of
good faith and fair dealing.
Constitution, and Arizona Revised Statutes (A.R.S.) section 122101.B (2003).
The trial court dismissed Lovenberg’s action because
forbearance agreement, which resulted in SunTrust’s commencing
accordingly waived all of his defenses pursuant to A.R.S. § 33811.C (2007).
“We review an order granting a motion to dismiss for
abuse of discretion, and review issues of law, including issues
of statutory interpretation, de novo.”
Dressler v. Morrison, 212
sufficient but unpled facts establish a legal bar to relief, then
the appropriate motion is under Rule 56.”
Moretto v. Samaritan
Health Sys., 190 Ariz. 343, 346, 947 P.2d 917, 920 (App. 1997).
requires the court to treat the motion to dismiss as a motion for
Dube v. Likins, 216 Ariz. 406, 417 n.2, ¶ 34,
167 P.3d 93, 104 n.2 (App. 2007); accord Blanchard v. Show Low
Planning and Zoning Comm’n, 196 Ariz. 114, 117, ¶ 11, 993 P.2d
1078, 1081 (App. 1999) (“Because the trial court in considering
the motion to dismiss heard evidence extrinsic to the complaint,
Because the trial court relied on facts outside the
complaint, we treat the motion to dismiss as a motion for summary
“A motion for summary judgment should be granted if
‘there is no genuine issue as to any material fact and . . . the
moving party is entitled to judgment as a matter of law.’”
v. CIGNA HealthPlan of Ariz., 203 Ariz. 173, 176, ¶ 8, 52 P.3d
205, 208 (App. 2002) (quoting Ariz. R. Civ. P. 56(c)).
review de novo a grant of summary judgment, viewing the evidence
and reasonable inferences in the light most favorable to the
party opposing the motion.”
Andrews v. Blake, 205 Ariz. 236,
240, ¶ 12, 69 P.3d 7, 11 (2003); accord Blanchard, 196 Ariz. at
reasonable inferences therefrom in the light most favorable to
the party against whom the judgment was entered”).
determine “whether the trial court erred in application of the
Guo v. Maricopa Cnty. Med. Ctr., 196 Ariz. 11, 15, ¶ 16,
992 P.2d 11, 15 (App. 1999).
SunTrust breached the forbearance agreement by refusing his sixth
foreclosing on the Property; (2) SunTrust breached the implied
covenant of good faith and fair dealing by refusing to modify the
DeutscheBank should be compelled to sell the Property back to
Lovenberg for a price equal to its fair market value.
support of his arguments, which are accordingly waived.
ARCAP 13(a)6. (a brief shall contain arguments with citations to
Cullum v. Cullum, 215 Ariz. 352, 355 n.5, ¶ 14, 160 P.3d 231, 234
n.5 (App. 2007) (appellate courts will not consider arguments
posited without authority).
Nevertheless, because we prefer to
decide cases on the merits, in the exercise of our discretion we
choose to decide this case on the merits.
See Clemens v. Clark,
101 Ariz. 413, 414, 420 P.2d 284, 285 (1966) (“we remain inclined
to decide cases on their merits”).
Because the trial court’s
dismissal is predicated on application of A.R.S. § 33-811, which
is a question of law, we review it de novo.
See Dressler, 212
Ariz. at 281, ¶ 11, 130 P.3d at 980.
language of the statute itself.”
Lincoln v. Holt, 215 Ariz. 21,
24, ¶ 7, 156 P.3d 438, 441 (App. 2007) (citation and quotation
“Words are given their ordinary meaning unless
the context of the statute requires otherwise.”
Inc. v. First Franklin Fin. Corp., 199 Ariz. 361, 364, ¶ 10, 18
P.3d 155, 158 (App. 2001).
“[A] statute should be construed in
conjunction with other statutes that relate to the same subject
or purpose . . . .”
Johnson v. Mohave Cnty., 206 Ariz. 330, 333,
¶ 11, 78 P.3d 1051, 1054 (App. 2003).
“In construing statutes we
give full effect to the intent of the lawmaker, and each word,
phrase, clause and sentence must be given meaning so that no part
will be void, inert, redundant or trivial.”
Lincoln, 215 Ariz.
omitted); accord Mejak v. Granville, 212 Ariz. 555, 557, ¶ 9, 136
P.3d 874, 876 (2006) (“We must interpret the statute so that no
provision is rendered meaningless, insignificant, or void.”).
In part, A.R.S. § 33-811.C states that “[t]he trustor .
. . shall waive all defenses and objections to the sale not
raised in an action that results in the issuance of a court order
granting [injunction] entered before . . . the last business day
Additionally, § 33-811.B reads, in part:
requirements of the deed of trust and this
chapter relating to the exercise of the
power of sale and the sale of the trust
property. . . . A trustee's deed shall
meeting of those requirements in favor of
purchasers . . . without actual notice.
objection to a trustee sale is waived unless an injunction is
sought prior to the sale.
Moreover, § 33-811.B implies that
after a trustee sale, all requirements of the sale are presumed
to have been conclusively met in favor of the purchaser, unless
the purchaser had actual notice of a defect.
See Sec. Sav. &
Loan Ass’n v. Milton, 171 Ariz. 75, 76, 828 P.2d 1216, 1217 (App.
trustee sale challenge based on the presumption contained within
A.R.S. § 33-811); Triano v. First Am. Title Ins. Co. of Ariz.,
131 Ariz. 581, 583, 643 P.2d 26, 28 (App. 1982) (“issuance of the
trustee's deed to the appellees-purchasers is conclusive evidence
that the statutory requirements were satisfied”).
It follows that the trustee sale is intended to be
final once completed, regardless of any alleged defect, unless
the purchaser had actual knowledge of such defect.
in order to challenge a trustee sale on appeal, the trustor must
have first sought to enjoin the sale prior to its completion.
hold otherwise would render the language pertaining to injunction
in § 33-811.C a practical nullity.
In this case, it is undisputed that Lovenberg did not
seek, nor did he obtain an injunction of the trustee sale.
fact, Lovenberg states in his opening brief that he “does not
challenge” the trustee sale, “but accepts it.”
states that the trustee sale was a “natural, legal and . . .
objections and defenses to the trustee sale.
Nevertheless, though he does not allege there was a
defect, Lovenberg’s claims for relief are essentially objections
to the trustee sale because the relief sought, i.e., title to the
Property, is what Lovenberg would be entitled to had he prevailed
on a trustee sale challenge.
That is, but for the facts pleaded
by Lovenberg supporting the claims for relief alleged in his
complaint, there would not have been a trustee sale; Lovenberg’s
success on the merits of his claims would defeat the grounds for
having the trustee sale in the first place.
Thus, the trial
substantiate a genuine issue of material fact because, by failing
to seek injunction prior to the sale, Lovenberg waived any and
all objections to the trustee sale, and Defendants are entitled
to judgment as a matter of law.
For the foregoing reasons, the trial court’s order of
dismissal is affirmed.
The Defendants are entitled to their
Appellate Procedure 21.
PATRICIA A. OROZCO, Presiding Judge
DONN KESSLER, Judge
MICHAEL J. BROWN, Judge