Deutsche Bank v. Tapper

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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 DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee of the Residential Asset Securitization Trust 2007-A7, Mortgage Pass-Through Certificates, Series 2007-G under the Pooling and Servicing Agreement dated May 1, 2007, its assignees and/or successors-in-interest, ) ) ) ) ) ) ) ) ) ) Plaintiff/Appellee, ) ) v. ) ) HENRY TAPPER, Occupants and ) Parties-in-Possession, ) ) Defendant/Appellant. ) ) __________________________________) DIVISION ONE FILED: 11/17/2011 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-CV 11-0070 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV 2010-030347 The Honorable Jay L. Davis, Judge Pro Tem The Honorable Richard L. Nothwehr, Judge Pro Tem AFFIRMED Campbell & Coombs P.C. By Harold E. Campbell Ryan M. Hicks Attorneys for Defendant/Appellant Mesa Quarles & Brady L.L.P. By John M. O Neal Ryan S. Patterson Attorneys for Plaintiff/Appellee Phoenix D O W N I E, Judge ¶1 Henry request in a Tapper appeals forcible from detainer the denial action, as of his as from well determination that he was guilty of forcible detainer. stay the For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Tapper owned real property subject to a $750,000 promissory note in favor of IndyMac Bank that was secured by a deed of trust. Tapper defaulted on the loan, and a Notice of Trustee s Sale was recorded. Deutsche Bank was the successful bidder and recorded a Trustee s Deed. demand on Tapper to vacate and The bank served written surrender possession of the property, but he refused to do so. ¶3 and In November 2010, Deutsche Bank filed a forcible entry detainer asserting follow that proper complaint the against trustee s procedures, sale failure Tapper. Tapper was for to void comply with answered, failure [the to Home Affordable Modification Program ( HAMP )] Supplemental Directive 10-02, Note. failure to Deutsche show Bank [Deutsche moved for Bank] is judgment the on owner the of the pleadings, arguing it was entitled to possession by virtue of the Trustee s 2 Deed and that disputes over title could not be litigated in a forcible detainer action. ¶4 Tapper admitted that IndyMac had complied with statutory requirements for the trustee s sale, but explained a perceived defect in IndyMac s authority to conduct the sale. Tapper urged the court to deny the motion for judgment on the pleadings because it would be inequitable and unjust to allow [Deustche Bank] to forcibly evict him. Tapper also requested a stay of the forcible detainer proceedings until his separatelyfiled quiet denied the title stay action request was and resolved. found The Tapper superior guilty of court forcible detainer. Tapper timely appealed. 1 ¶5 to Arizona Revised Statutes We have jurisdiction pursuant ( A.R.S. ) sections 12-2101(A)(1) and -120.21(A)(1). DISCUSSION ¶6 Tapper request. Whether to grant a stay is within the trial court s discretion. discretion exercised on challenges the denial of his stay State v. Ott, 167 Ariz. 420, 428, 808 P.2d 305, 313 (App. 1990). of first We will affirm the superior court s exercise unless untenable it is manifestly grounds, 1 or for unreasonable, untenable or reasons. The court stayed issuance of the writ of restitution when Tapper filed this appeal and posted a supersedeas bond. 3 Quigley v. City Court of Tucson, 132 Ariz. 35, 37, 643 P.2d 738, 740 (App. 1982). ¶7 A forcible detainer proceeding is an action created by statute to provide a summary, speedy remedy to gain possession of property. Mason v. Cansino, 195 Ariz. 465, 466, ¶ 5, 990 P.2d 666, 667 (App. 1999). the court s proceeding. inquiry is As we discuss infra, the scope of quite narrow in a forcible detainer It would be entirely inconsistent with the purposes and goals of forcible detainer proceedings to order them stayed pending resolution of disputes over title. We find no abuse of discretion in the denial of Tapper s stay request. ¶8 Tapper next contends the superior court hear arguments related to [the] HAMP violations. failed to The alleged HAMP violations, though, were irrelevant to the narrow issue before the court in the forcible detainer action. The only issue to be litigated in that proceeding was the right of actual possession. See A.R.S. § 12-1177(A) (in a forcible detainer action, the only issue shall be the right of actual possession and the merits of title shall not be inquired into ). 2 2 Tapper s reliance on United Effort Plan Trust v. Holm, 209 Ariz. 347, 101 P.3d 641 (App. 2004), is unpersuasive. In that case, Holm had permission to build a home on trust property, but no tenancy contract existed between the parties. Id. at 348-49, ¶¶ 5, 9, 101 P.3d at 642-43. This Court affirmed the dismissal of a forcible detainer action against Holm because it was based on statutes regulating landlord-tenant relationships, and it was unclear whether such a relationship existed. Id. at 4 ¶9 Moreover, Tapper had available legal remedies that he could have pursued to enjoin the trustee s sale. His failure to do so waived any defenses or objections to the sale. A.R.S. § 33-811(C) (a trustor waives 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 ). ¶10 the For similar reasons, we reject Tapper s argument that court erred by failing to consider his title issues. Arizona statutes and case law make clear that the merits of title may not be litigated in forcible detainer actions. See A.R.S. § 12-1177(A); see also Mason, 195 Ariz. at 466, ¶ 8, 990 P.2d at 669 ( [o]ne cannot try title in a forcible detainer action. ); Holm, 209 Ariz. at 351, ¶ 21, 101 P.3d at 645 ( The only issue possession. to be decided . . . is the right of actual Thus the only appropriate judgment is the dismissal of the complaint or the grant of possession to the plaintiff. ). 350-51, ¶¶ 21, 24, 101 P.3d at 644-45. In the case at bar, there is no such threshold ambiguity. Tapper s loan default and the ensuing trustee s sale triggered application of the forcible detainer statutes when Tapper refused to vacate the premises. See A.R.S. § 12-1173.01(A) (defining forcible detainer to include situations where one holds over in possession after property has been sold through foreclosure or trustee s sale). 5 Tapper s arguments regarding ownership of properly addressed in a quiet title action. the property are Mason, 195 Ariz. at 468, ¶ 8, 990 P.2d at 669. CONCLUSION ¶11 For the reasons stated, we affirm the judgment of the superior court. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ DIANE M. JOHNSEN, Presiding Judge /s/ PATRICIA A. OROZCO, Judge 6

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