Bank of NY v. Robinson

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NOTICE: 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 DIVISION ONE THE BANK OF NEW YORK MELLON, ) successor in interest to ) JPMorgan Chase Bank, as Trustee ) for the Registered Holders of ) NovaStar Mortgage Funding Trust,) Series 2004-2 NovaStar Home ) Equity Loan Asset-Backed ) Certificates, Series 2004-2, its) assignees and/or successors-in- ) interest, ) ) Plaintiff/Appellee,) v. ) ) RAMONA ROBINSON, ) ) Defendant/Appellant.) ________________________________) DIVISION ONE FILED: 03/27/2012 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-CV 11-0325 DEPARTMENT E MEMORANDUM DECISION Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2011-006014 The Honorable Benjamin E. Vatz, Commissioner AFFIRMED Shapiro, Van Ess & Sherman, LLP By Jason P. Sherman Kristine E. Mathers Attorneys for Plaintiff/Appellee Phoenix Ramona Robinson In Propria Persona Appellant Phoenix G E M M I L L, Judge ¶1 Ramona Robinson ( Robinson ) appeals from the trial court s finding in favor of The Bank of New York Mellon (the Bank ), successor in interest to JP Morgan Chase Bank, in a forcible entry and detainer ( FED ) action. FACTS AND PROCEDURAL HISTORY ¶2 The Bank was the successful bidder at a Trustee s sale of real property, legally described as Lot 28, Estates at the Ranch, a Subdivision recorded in Book 441 of Maps, Page 40, Records of Maricopa January 2011. County, Arizona (the Property ), in The Bank filed an FED action against Robinson on March 4, 2011, alleging that the Bank had made written demand on Robinson to vacate and surrender possession of the Property and Robinson refused. Also on March 4, a summons was issued notifying Robinson that she had to appear on March 21, 2011. ¶3 On March alternative 18, methods 2011, of the Bank service, moved for providing unsuccessful attempts to serve Robinson. approval evidence of of On March 21, the trial court ordered that service of process could be made by sending a copy of the summons and regular first class mail attempt to serve Robinson complaint to the and by certified was unsuccessful. Property, mail, The if by both another Bank again moved for approval of alternative methods of service on March 21. ¶4 At the March 21 hearing, the court granted the Bank s motion for alternative service and continued the hearing until 2 April 7. On April 7, Robinson appeared and pled not guilty, and the trial court set the matter for trial. day trial on April 14. The court held a one- The trial court found that Robinson was guilty of forcible detainer and awarded the Bank immediate and exclusive possession of the Property. ¶5 2011, Robinson filed a timely notice of appeal on April 21, and we have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) section 12-2101(A)(1) (Supp. 2011). ¶6 the Following Robinson s notice of appeal, in May 2011, court Robinson s scheduled motion to oral set argument supersedeas for May bond. 24, 2011, on This court has jurisdiction to review only the FED ruling. DISCUSSION ¶7 Robinson presents two arguments on appeal. First, she argues that the court lacked subject matter jurisdiction because the FED action took place outside of the statutory time limits. Second, Robinson argues that attorneys fees cannot be included by the trial court in the supersedeas bond. ¶8 The Bank counters that Robinson provided no legal support for the proposition that any delay divested the lower court of subject matter jurisdiction, that the expansion of time only prejudiced the Bank, and the Bank requested one continuance to effectuate service of process. this court does not have The Bank further asserts that jurisdiction 3 to decide Robinson s argument regarding the supersedeas bond. If the court decides jurisdiction is appropriate, the Bank argues that this court must presume the trial court acted within its discretion due to the lack of a complete record. ¶9 issued In a forcible detainer action, the summons shall be no later than the A.R.S. § 12-1175 (2003). 1 next day following the complaint. The summons shall be served at least two days before the return day, and return made thereof on the day assigned for trial. Id. In addition, the trial date shall be no more than five judicial days after the aggrieved party files the complaint. A.R.S. § 12-1176(A) (Supp. 2011). For good cause shown, supported by affidavit, the trial may be postponed for a time not to exceed three calendar days in a justice court or ten calendar A.R.S. § 12-1177 (2003). days in the superior court. Further, pursuant to Arizona Rule of Procedure for Eviction Actions ( RPEA ) 3(b): Except as specifically provided for by statute or these rules, the time for doing any of the acts provided for in these rules or by order of the court may be shortened or extended by the court upon stipulation or upon motion for good cause shown. ¶10 Robinson argues that after the complaint was filed. the trial took place 41 days While A.R.S. § 12-1176(A) states 1 Unless otherwise specified, we cite the current versions of statutes when no material revisions have been enacted since the events in question. 4 that the trial date should be no more than five judicial days after the aggrieved party files the complaint, some delay is permissible in accordance with A.R.S. § 12-1177 and RPEA 3(b) and 5(g). The complaint was filed March 4, 2011, and the summons issued that same day, in compliance with A.R.S. § 121175. A delay then occurred because the Bank was unsuccessful in serving Robinson, and the Bank filed two motions requesting approval of alternative methods of service. the trial court, noting good cause On March 21, 2011, appearing, Bank s motion for alternative service. granted the Pursuant to RPEA, this delay was permitted due to good cause being shown. court then continued the hearing until April 7. The trial At the April 7 hearing, Robinson appeared and requested a trial. The court set the trial date for April 14. ¶11 Robinson has not cited any authority for the proposition that these statutory time limits are jurisdictional, and we are not aware of any. To the extent Robinson is arguing that the trial court lacked jurisdiction to conduct the hearing beyond the time period specifically mentioned in A.R.S. § 121176(A), we reject this argument. As explained above, the delay in the FED hearing was permitted under the applicable statutes and rules as jurisdiction applied to to conduct appropriate judgment. these the facts. FED The hearing trial and to court enter had an Cf. State v. Valenzuela, 23 Ariz. App. 5 608, 608, 535 P.2d 28, 28 (1975) (sentencing of defendant five days after time period provided in then-existing Rule 26.3 of the Arizona Rules of Criminal Procedure did not deprive court of jurisdiction; noting also that defendant failed to show any prejudice from delay); State v. Carter, 151 Ariz. 532, 534, 729 P.2d 336, speedy 338 trial Detainers was (App. 1986) requirements not a (whether State of Interstate the jurisdictional has issue); complied with Agreement State v. On Camino 118 Ariz. 89, 91, 574 P.2d 1308, 1310 (App. 1977) (time limits not jurisdictional pursuant to then-existing Rule 26.3 of the Arizona Rules of Criminal Procedure). ¶12 Furthermore, any prejudice affected the Bank, not Robinson. caused by the delay The delay in the proceedings merely caused a delay in the Bank obtaining possession of the Property. Robinson has not demonstrated any prejudice by the delay in the trial. ¶13 Turning to Robinson s second argument that attorneys fees cannot be included by the trial court in the supersedeas bond we lack jurisdiction to address this issue. The trial court s decision regarding the supersedeas bond was made after the notice of appeal, which was filed on April 21, 2011. Robinson s notice of appeal mentions an appeal of the April 15, 2011 ruling and all issues contained therein. Our record on appeal concludes with the trial court setting oral 6 argument on Robinson s motion to set supersedeas bond for May 24, 2011. We cannot review this ruling because we do not possess it in our record on appeal, nor can we ordinarily review any ruling on a motion made subsequent to the filing of the notice of appeal. Furthermore, Robinson has not filed an amended notice of appeal or a new notice of appeal to thereby initiate an appeal of this post-judgment ruling. On this record, we lack jurisdiction to consider any rulings made after the filing of the notice of appeal. See Lee v. Lee, 133 Ariz. 118, 124, 649 P.2d 997, 1003 (App. 1982) ( The court of appeals acquires no jurisdiction to review matters not contained in the notice of appeal. ). CONCLUSION ¶14 For the foregoing reasons, we affirm the trial court s ruling in favor of the Bank in this FED action. _____/s/________________________ JOHN C. GEMMILL, Judge CONCURRING: ___/s/_____________________________ PATRICIA A. OROZCO, Presiding Judge ___/s/_____________________________ PHILIP HALL, Judge 7

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