SOUTHWEST SAVINGS AND LOAN ASSOCIATION v. Mason

156 Ariz. 210 (1988)

751 P.2d 526

SOUTHWEST SAVINGS AND LOAN ASSOCIATION, an Arizona corporation, fka Catalina Savings and Loan Association, a corporation, Plaintiff/Appellant, v. Barbara A. MASON, the spouse of Michael T. Mason, as her sole and separate property; Michael T. Mason; George Mason and Dorothy E. Mason, husband and wife; Richard G. Mohr and Marilyn M. Mohr, husband and wife; Deanne R. Mohr Grabinski, a married woman in her sole and separate right, Defendants/Appellees.

No. CV-87-0455-PR.

Supreme Court of Arizona, En Banc.

March 10, 1988.

Chandler, Tullar, Udall & Redhair by Edwin M. Gaines, Jr., Tucson, for defendants/appellees George and Dorothy E. Mason.

King & Frisch, P.C. by Ronald N. Allen, Tucson, for defendants/appellees Mohr and Grabinski.

Aboud & Aboud, P.C. by Michael J. Aboud, Tucson, for plaintiff/appellant.

Dennis A. Rosen, Ltd. by Gayle D. Reay, Tucson, for defendants/appellees Barbara A. and Michael T. Mason.

FELDMAN, Vice Chief Justice.

In this case a lender holding a note evidencing and mortgage securing a debt for purchase of a single family residence has attempted to waive the security of the mortgage and sue the obligors in debt. A.R.S. § 33-729(A) prohibits those holding purchase money mortgages on certain types of residential property from enforcing the judgment obtained in a foreclosure action against "any other property of the judgment debtor." It further provides that no "general execution [may] be issued" to enforce such judgment, "notwithstanding any agreement to the contrary."

On the other hand, A.R.S. § 33-722, passed many years before § 33-729, provides that where a plaintiff brings separate actions on the debt and to foreclose, "plaintiff shall elect" which action to prosecute and the other must be dismissed. Of course, an election to waive the mortgage and sue on the debt is a useless act unless the judgment obtained in such an action may be enforced against property other than the mortgaged premises.

The court of appeals held that, notwithstanding A.R.S. § 33-729, a lender/mortgagee might waive the security of the mortgage and bring an action to collect the debt. Southwest Savings & Loan Association v. Mason, 155 Ariz. 443, 747 P.2d 604 (Ct.App. 1987). In their petition for review, the obligors have urged that the court of appeals incorrectly decided this important issue of law. We granted their petition for review. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.

*211 Shortly after we accepted review, counsel advised the court that the parties had reached a settlement of all issues. The parties have now filed the appropriate stipulation. The parties having so stipulated, the matter will be dismissed with prejudice, each party to bear its own fees and costs. Review having been granted, we exercise our discretion to order that the opinion of the court of appeals be vacated.

GORDON, C.J., and CAMERON, HOLOHAN and MOELLER, JJ., concur.