Medley v. First Horizon

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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 DIVISION ONE FILED: 05-27-2010 PHILIP G. URRY,CLERK BY: GH RON E. MEDLEY dba CONSUMER ) 1 CA-CV 09-0514 FORECLOSURE SERVICES, an Arizona ) company, ) DEPARTMENT A ) Plaintiff/Appellant, ) MEMORANDUM DECISION ) (Not for Publication v. ) Rule 28, ARCAP) ) FIRST HORIZON HOME LOAN, a ) division of FIRST TENNESSEE BANK ) NATIONAL ASSOCIATION, ) ) Defendant/Appellee. ) ) Appeal from the Superior Court in Maricopa County Cause No. CV2008-093273 The Honorable Joseph C. Kreamer, Judge AFFIRMED Ron E. Medley Plaintiff/Appellant In Propria Person Queen Creek Gust Rosenfeld P.L.C. by Christopher M. McNichol Attorneys for Defendant/Appellee Phoenix W I N T H R O P, Judge ¶1 Ron E. Medley Consumer Foreclosure ( Appellant ), Services, appeals doing the business superior as court s grant of First Horizon Home Loan s ( First Horizon ) Rule 12(c) motion for judgment on the pleadings and award of appellee s attorneys fees and costs. See Ariz. R. Civ. P. 12(c). For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 The property at issue in this case is located in Queen Creek, Arizona. residence ( the On December borrowers ) 21, 2005, obtained an the owners adjustable of rate the loan secured by a deed of trust in favor of Homeowners Financial Group USA, LLC ( HFG ). its interest and On January 5, 2006, HFG both recorded assigned the deed to First Horizon, the appellee. ¶3 The borrowers defaulted on their Horizon commenced foreclosure proceedings. loan and First On April 16, 2008, it filed notice of a trustee s sale, and on July 25, 2008, the sale took place. First Horizon purchased the property at the sale, and recorded its ownership interest on August 6, 2008. ¶4 Nearly three months later, on October 28, 2008, Appellant filed the complaint at issue in this appeal. he alleged that First Horizon wrongfully foreclosed In it, on the property, thereby infringing on Appellant s equitable interest in the property. Appellant claimed that his interest arose when, on June 21, 2008, he entered into a purchase agreement 2 with the borrowers. Appellant asked the superior court to quiet title to the property in his name. ¶5 After answering Appellant s complaint, First Horizon moved for judgment on the pleadings pursuant to Rule 12(c) of the Arizona Rules of Civil Procedure. In a June 12, 2009 minute entry, First the superior court granted Horizon s motion, holding that the trustee s sale of the property extinguished any interest Appellant may have had in the property. Appellant subsequently filed a motion for reconsideration 1 and also lodged objections to First Horizon s proposed form of judgment and application for attorneys fees and costs. ¶6 and Appellant filed a notice of appeal on July 18, 2009, on July 24, 2009, the superior court entered a final judgment consistent with its earlier minute entry order. 2 have jurisdiction pursuant to Arizona Revised We Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003) and 12-2101 (2003). 1 The superior court denied Appellant s Motion for Reconsideration or Certification for Interlocutory Appeal on July 22, 2009. 2 Although Appellant s notice of appeal was premature, it was followed by entry of an appealable order. Barassi v. Matison, 130 Ariz. 418, 422, 636 P.2d 1200, 1204 (1981); Schwab v. Ames Constr., 207 Ariz. 56, 58, ¶ 9, 83 P.3d 56, 58 (App. 2004). Accordingly, this appeal became effective on July 24, 2009, the date the appealable order was entered. 3 ANALYSIS I. ¶7 Judgment on the Pleadings Appellant argues that the superior court erred in granting First Horizon s Rule 12(c) motion for judgment on the pleadings. 3 A motion for judgment on the pleadings tests the sufficiency of the complaint, and requires a court to enter judgment for the defendant if the complaint fails to state a claim for relief. Giles v. Hill Lewis Marce, 195 Ariz. 358, 359, ¶ 2, 988 P.2d 143, 144 (App. 1999) (citations omitted). In reviewing allegations of a the conclusions of law. ¶8 judgment on complaint the as pleadings, true, but we will treat not the accept Id. (citation omitted). In granting First Horizon s motion, the superior court found that the Trustee s Sale extinguished any interest that [Appellant] might have in the property. ¶9 We agree. With respect to trustee s sales, Arizona s statutory framework is explicit: The trustee s deed shall operate to convey to the purchaser the title, interest and claim of the trustee, . . . their respective successors in interest 3 Although it was a motion for judgment on the pleadings, Appellant refers to the motion as a motion for summary judgment. If a court considers matters outside the record when reviewing a Rule 12(c) motion, then such motion is generally treated as one for summary judgment under Rule 56 of the Arizona Rules of Civil Procedure. See Am. Fed n of State, County & Mun. Employees, AFL-CIO, Council 97 v. Lewis, 165 Ariz. 149, 151, 797 P.2d 6, 8 (App. 1990). In this case, the superior court s ruling was based upon the pleadings alone. 4 and all persons claiming the trust property sold by or through them. . . . That conveyance shall be absolute without right of redemption and clear of all liens, claims or interests that have a priority subordinate to the deed of trust. A.R.S. § 33-811(E) (2007). First Horizon s interest in the property dates to 2006, when HFG transferred its interest in the property to First Horizon. First Horizon filed its notice of sale on April 16, 2008, and it was not until over two months later, June 21, 2008, that Appellant purportedly obtained his interest in the property. interest, as the interest, was Under A.R.S. § 33-811(E), Appellant s later-acquired extinguished by and the therefore trustee s subordinate sale. First Horizon s purchase of the property at the trustee s sale was absolute and clear of all . . . interests priority subordinate to the deed of trust. that have a See A.R.S. § 33- 412(A) (2007). ¶10 Further, Arizona s statutory scheme obviates any objection Appellant may have to the manner in which the sale was conducted. Under Arizona law, a trustee s deed creates a presumption of compliance, and is conclusive evidence that a trustee s sale accordance of with deed the of trust required property statutory was conducted notice in provisions. A.R.S. § 33-811(B); see Triano v. First Am. Title Ins. Co. of Arizona, 131 (holding that Ariz. 581, issuance 583, of 643 P.2d trustee s 5 26, deed to 28 (App. 1982) purchasers is conclusive evidence that statutory requirements were satisfied). Moreover, Appellant waived any objections to the sale by failing to formally raise them before the sale took place. Section 33- 811(C) confirms, The trustor, its successors or assigns, and all persons to whom the trustee mails a notice of a sale under a trust deed . . . shall waive all defenses and objections to the sale not raised in an action that results in the issuance of a court order granting relief before the scheduled sale. Section 33-809(B)(2) (Supp. 2009) details who is actually entitled to notice: each person who, at the time of recording of the notice of sale, appears on the records of the county recorder in the county in which any part of the trust property is situated to have an interest in any of the trust property. Appellant was not entitled to receive notice of the sale under the statute because, on April 16, 2008, he had no interest in the property. Regardless of whether Appellant was entitled to notice, however, he is presumed to have received notice of the sale by virtue of its recordation. 4 court-ordered In failing to intervene or otherwise obtain relief, Appellant waived his objections to the sale. 4 Further, as a purported assignee of the borrowers, Appellant stands in their shoes and is therefore presumed to have received the same notice the borrowers received of the trustee s sale. 6 ¶11 Finally, Appellant contends First Horizon had an obligation to voluntarily postpone the trustee s sale after he contacted First Horizon s trustee on June 22, 2008 - the day after obtaining regarding his payoff purported and interest accounting of in the property mortgage[.] - Merely contacting the trustee, however, does not change the fact that, without a court order granting relief, Appellant, by operation of law, waived property. ¶12 his objections to the trustee s sale of the See A.R.S. § 33-811(C). For the foregoing reasons, we court s grant of First Horizon s motion. affirm the superior We also note that Appellant makes a series of additional arguments on appeal. To the extent that such arguments are discernible, they are either frivolous and/or mooted by operation of § 33-811(E). II. Attorneys Fees ¶13 Appellant also argues that the superior court erred in awarding First costs. Horizon a portion of its attorneys fees and An award of attorneys fees and costs is left to the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Hale v. Amphitheater School Dist. No. 10 of Pima County, 192 Ariz. 111, 117, ¶ 20, 961 P.2d 1059, 1065 (App. 1998) (citation omitted); see also McEvoy v. Aerotek, 201 Ariz. 300, 302, ¶ 9, 34 P.3d 979, 981 (App. 2001) (citations omitted). 7 Section 12-341 (2003) provides, The successful party to a civil action shall recover from his adversary all costs expended or incurred therein unless otherwise provided by law. Further, In any contested action arising out of a contract, express or implied, the court may award the successful § 12-341.01 (2003). party reasonable As First attorney fees. Horizon successfully A.R.S. defended Appellant s challenge to its foreclosure action, the superior court was within its discretion when it awarded First Horizon attorneys fees and costs. ¶14 We will not disturb the award. First Horizon also requests attorneys fees on appeal. In the exercise of our discretion, we grant their request upon compliance with Rule 21 of the Arizona Rules of Civil Appellate Procedure. CONCLUSION ¶15 For the aforementioned reasons, we affirm the superior court s order and judgment. ___________/S/_______________ LAWRENCE F. WINTHROP, Judge CONCURRING: _________________/S/________________ PATRICIA A. OROZCO, Presiding Judge ________________/S/_________________ DANIEL A. BARKER, Judge 8

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