FEDERAL v. BROSNAHAN

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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 MICHAEL J. BROSNAHAN, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCATION, Appellee. ) ) ) ) ) ) ) ) ) ) ) No. 1 CA-CV 11-0709 DIVISION ONE FILED: 10/18/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Coconino County Cause No. SO300CV201100749 The Honorable Ted S. Reed, Judge Pro Tempore AFFIRMED McCauley Law Offices, P.C. by Daniel J. McCauley III Attorneys for Appellant Maynard, Cronin, Erickson, Curran & Reiter, P.L.C. by Douglas C. Erickson Jennifer A. Reiter Attorneys for Appellee Cave Creek Phoenix H A L L, Judge ¶1 Michael J. Brosnahan appeals the judgment for Federal National Mortgage Association (Federal) on its claim of forcible detainer. For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND1 ¶2 On detainer September action 1, alleging 2011, that Federal Brosnahan filed was a forcible occupying and refusing to surrender possession of a property Federal purchased in a trustee's sale on February 18, 2011. Federal attached a copy of the trustee's deed to its complaint. ¶3 Two weeks later, the superior court held a hearing where Federal's attorney explained that the process server was unable to permission personally to serve serve Brosnahan. Brosnahan by nail Federal and mail, requested which the superior court granted. ¶4 On September 21, 2011, Brosnahan filed a motion to dismiss alleging lack of jurisdiction, failure to state a claim upon which relief could be granted, lack of standing, "use of fraudulent documents in the foreclosure process," breach of the foreclosure Uniform notice Commercial requirements, Code. In and the breach of the alternative, Arizona Brosnahan requested discovery, disclosure, and a jury trial. ¶5 The same day, the superior court held a hearing on the forcible detainer complaint. 1 After hearing argument from both "We view the facts in the light most favorable to sustaining the trial court's judgment." Southwest Soil Remediation, Inc. v. City of Tucson, 201 Ariz. 438, 440, ¶ 2, 36 P.3d 1208, 1210 (App. 2001). 2 parties, the superior court denied Brosnahan's motion to dismiss and found him guilty of forcible detainer. ¶6 to This appeal followed. Arizona Revised Statutes We have jurisdiction pursuant (A.R.S.) section 12-2101(A)(1) (Supp. 2012). DISCUSSION ¶7 On appeal, Brosnahan raises numerous issues that we distill to the following claims: overlapping (1) Federal s complaint in this action is barred under the doctrine of res judicata, (2) the summons issued is invalid, (3) the service of process is invalid, (4) the notice of trustee s sale is invalid, (5) the deed of trustee s sale is invalid, (6) the foreclosure process violated the Uniform Commercial Code and a Consent Order issued by the United States Department of the Treasury, (7) Federal is not entitled to the evidentiary presumption of A.R.S. § 33-811(B) (2007), and (8) Brosnahan was denied his due process right to a jury trial to present defenses under the Arizona Rules of Procedure for Eviction Actions (RPEA). I. ¶8 Res Judicata Brosnahan argues that Federal s action in this matter is barred under the doctrine of res judicata. ¶9 Before filing its complaint in this case, Federal filed a forcible detainer action against Brosnahan under cause 3 number 2011-00403.2 CV On July 1, 2011, before Brosnahan responded to that pleading, the superior court granted Federal s motion to 41(a)(1) dismiss without (permitting a prejudice. plaintiff See to Ariz. R. voluntarily Civ. dismiss P. a complaint, without court order, at any time before service by the adverse party judgment ). of an Brosnahan answer or contends of that, a motion after for the summary motion to dismiss without prejudice was granted, he timely filed a Notice to Dismiss with Prejudice that included a request for an award of attorneys fees and costs.3 Because Federal did not respond to this filing, Brosnahan claims that his unanswered motion should have been deemed granted and therefore the first forcible detainer action should be regarded as dismissed with prejudice and a bar to this subsequent action. ¶10 Contrary to Brosnahan s claim, Federal s lack of response to his Notice to Dismiss with Prejudice did not bar future litigation and entitle him to an award of fees and costs. Rather, after the first cause of action was dismissed without prejudice, Federal was free to pursue the forcible detainer action under a new cause number, which is what Federal has done 2 Although no portion of CV 2011-00403 is included in the appellate record, we take judicial notice of the case docket in Coconino County Superior Court. See, e.g., City of Phoenix v. Superior Court, 110 Ariz. 155, 157, 515 P.2d 1175, 1177 (1973). 3 The docket reflects a filing by Brosnahan on July 14, 2011, but does not identify the title of the filing. 4 by instituting this case. appeal the without superior prejudice, Moreover, because Brosnahan did not court s or its order dismissing denial apparent the his of complaint motion to dismiss with prejudice, and the time to do so has passed, any issue relating to filings entered in CV 2011-00403 is not properly before us. II. Validity of the Summons and Service of Process ¶11 Broshnan contends that the summons issued to him was invalid and therefore unenforceable. Specifically, Broshnan asserts that the summons did not meet the statutory requirements of A.R.S. § 12-126 (2003). ¶12 Section 12-126(A) prescribes the form of the superior court s seal, stating the seal shall be the vignette of Abraham Lincoln with the words Seal of the Superior Court of the State of Arizona in and for the County of vignette. seal of . . . . surrounding the Subsection B provides, in relevant part, that the the superior court need not be affixed to any proceedings in the court except a summons or writ[.] ¶13 did The summons issued to Brosnahan on September 1, 2011 not contain the official proscribed by statute. seal of the superior court as Nonetheless, we conclude, as did the superior court, that this omission is a technical defect that does not render the summons invalid. See Mosher v. Wayland, 62 Ariz. 498, 504, 158 P.2d 654, 656 (1945) (concluding that a 5 defect in the title of the court as set forth in the summons, that did not mislead the parties as to the court in which the proceedings are pending, did not invalidate the summons). The summons provided Brosnahan with notice of the proceedings that were being brought against him and informed him of the court in which they were brought. Moreover, the statute does not provide a remedy for noncompliance. Therefore, because the technical defect in the seal did not prejudice Brosnahan s procedural or substantive rights, the summons was enforceable. ¶14 not Next, Brosnahan asserts that service of process was properly effectuated. Citing Arizona Rules of Civil Procedure (Rule) 4.1(d), which governs service upon individuals, Brosnahan argues that service could only be effectuated by delivering a copy to him personally. ¶15 Pursuant to Rule 4.1(m), however, the court may order service by alternative means if the method of service otherwise established by the Rule proves impracticable. In this case, the superior court held a hearing on September 15, 2011 at which Federal s attorney continuing argument, problem the court informed of the service. granted court After Federal s that there hearing request to was a counsel s allow the Coconino County s Sheriff s Office to serve Brosnahan by nail and mail. The appellate record does not include a transcript of the September 15, 2011 hearing, but the transcript from the 6 September 21, 2011 hearing contains a reference by Federal s attorney to the superior court regarding the multiple attempts the process server made to effectuate personal service and the process server s belief that his safety was in danger. Without the relevant transcript, we do not know what evidence or argument was presented at the September 15, 2011 hearing, and we must presume the missing transcript supports the court s order. See Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995). Accordingly, we cannot conclude that the superior court erred by finding personal service impracticable and permitting Federal to accomplish service through an alternative method. ¶16 Moreover, Brosnahan waived both his claim of defective summons and improper dismiss (his jurisdiction service response and to by not the instead limiting complaint) challenging to the his motion to the issue of merits of the complaint. See Kline v. Kline, 221 Ariz. 564, 569, ¶ 18, 212 P.3d 907 902, (App. 2009) ( A party has made a general appearance when he has taken any action, other than objecting to personal jurisdiction, that recognizes the case is pending in court. ); Montano v. Scottsdale Baptist Hosp., Inc., 119 Ariz. 448, 452, appearance 581 by P.2d a 682, party who 686 (1978) has not (explaining been properly a general served has exactly the same effect as a proper, timely and valid service of process ). 7 III. Validity of the Notice of Trustee s Sale ¶17 Brosnahan contends that the Notice of Trustee s Sale is invalid because it did not name the correct beneficiary of the sale as required by statute. ¶18 Pursuant to A.R.S. § 33-808(D) (2007), the notice of trustee s sale is sufficient if it conforms substantially to the sample notice set forth within the subsection. The sample notice of trustee s sale set forth in the statute includes the name and address of the beneficiary of the sale. provides, however, that [a]ny error or Subsection E omission in the information required by subsection [D], other than an error in the legal description of the trust property or an error in the date, time or place of sale, shall not invalidate a trustee s sale. Therefore, even assuming the beneficiary listed on the notice of trustee s sale is erroneous, pursuant to statute, such an error does not invalidate the trustee s sale. IV. ¶19 the Fraud Brosnahan superior next court s raises finding possess the property. several that arguments Federal has challenging the right to He contends that the notice and deed of trustee s sale are invalid because the underlying foreclosure proceedings fraud. upon He which also they asserts are that predicated the were allegedly tainted by fraudulent foreclosure process violated the Uniform Commercial Code and a 8 Consent Order issued by the United States Department of the Treasury on April 13, 2011 (requiring J.P. Morgan Chase Bank to submit its foreclosure actions or proceedings to an independent review). Moreover, he argues that Federal is not entitled to the evidentiary presumption of A.R.S. § 33-811(B) because of its status as a foreclosure industry insider. ¶20 A person is guilty of forcible detainer by retaining possession of possession trustee s a property and sale chapter 6.1. the under real a after receiving property deed of has trust written been demand through sold pursuant to A.R.S. § 12-1173.01(A)(2) (2003). of a title 33, Under such circumstances, the person entitled to possession may institute a summary forcible detainer immediately restored. ¶21 proceeding to have the premises A.R.S. § 12-1175 (2003). The purpose of a forcible detainer action is to afford a summary, speedy and adequate remedy for obtaining possession of withheld premises. United Effort Plan Trust v. Holm, 209 Ariz. 347, 351, ¶ 21, 101 P.3d 641, 645 (App. 2004). summary forcible detainer action "does not bar Because a subsequent proceedings between the parties to determine issues other than the immediate right to possession, [issues regarding the validity of title] are better resolved in proceedings designed to allow full exploration of the issues involved." Morris, 184 Ariz. 393, 398, 909 9 P.2d 460, 465 Curtis v. (App. 1995) (Curtis I). title may Accordingly, the validity of a plaintiff's claim of not be litigated in a forcible detainer action. A.R.S. § 12-1177(A) (2003) ( On the trial of an action of . . . forcible detainer, the only issue shall be the right of actual possession and the merits of title shall not be inquired into."); see also Curtis v. Morris, 186 Ariz. 534, 535, 925 P.2d 259, 260 (1996) (Curtis II). As a corollary, a defendant may not assert counterclaims, off-sets, third-party claims or crosscomplaints as a defense or for affirmative relief in a forcible detainer action. Curtis II, 186 Ariz. at 535, 925 P.2d at 260; Holm, 209 Ariz. at 351, ¶ 21, 101 P.3d at 645. ¶22 As recently explained by the supreme court, under A.R.S. § 33-811, "a person who has defenses or objections to a properly noticed trustee's sale has one avenue for challenging the sale: filing for injunctive relief." BT Capital, LLC v. TD Service Co., of Arizona, 229 Ariz. 299, 301, ¶ 10, 275 P.3d 598, 600 (2012); see also A.R.S. § 33-811(C) (stating that 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 date of the sale ). ¶23 Brosnahan does not dispute that he received notice of the trustee s sale. Cf. Madison v. Groseth, 230 Ariz. 8, 12-13, 10 ¶¶ 11-15, 279 P.3d 633, 637-38 (App. 2012) (explaining that pursuant to A.R.S. § 33-811(C) a mortgagor waive[s] all defenses and objections to the sale by failing to obtain an injunction prior to notice of the sale). waived all failing to claims raise the sale when the mortgagor had actual Applying A.R.S. § 33-811(C), Brosnahan has related them "in to the foreclosure an action that proceedings result[ed] in by the issuance of a court order granting relief . . . before the scheduled date of the sale." See also BT Capital, 229 Ariz. at 307, ¶ 11, 275 P.3d at 600 (explaining that a party subject to A.R.S. § "based on because 33-811 cannot pre-sale Brosnahan challenge defenses did not or seek a completed trustee's objections"). and obtain sale Accordingly, injunctive relief before the trustee s sale, and because his arguments regarding title are not triable in a forcible detainer action, the superior court did not err in granting judgment in favor of Federal.4 V. Jury Trial ¶24 Finally, Brosnahan asserts that he was entitled to a jury trial pursuant to RPEA 11(b)(1), which requires a trial on the merits if the court determines that a defense or proper 4 Because the fraud claim could not be raised and, therefore, has not been adjudicated in this forcible detainer action, our decision would have no preclusive effect should the same claim be raised in another forum. 11 counterclaim may exist to the factual and legal allegations raised in the complaint. viable defense properly be or Because Brosnahan did not raise a counterclaim considered in a to the forcible complaint detainer that could action, the superior court did not err by proceeding without a jury trial. VI. ¶25 Attorneys Fees Federal has requested, without elaboration, its attorneys fees and costs incurred on appeal pursuant to A.R.S. §§ 12-341.01(C) and -349(A) (2003). We deny its request for attorneys fees and grant its request for costs in an amount to be determined upon its compliance with Arizona Rule of Civil Appellate Procedure 21. CONCLUSION ¶26 For the foregoing reasons, we affirm. _/s/_________________________ PHILIP HALL, Presiding Judge CONCURRING: _/s/___________________________ PETER B. SWANN, Judge _/s/___________________________ SAMUEL A. THUMMA, Judge 12

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