FNMA v. DUMONT

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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 DIVISION ONE FILED: 12/27/2012 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE FEDERAL NATIONAL MORTGAGE ASSOCIATION, ) ) ) Plaintiff/Appellee, ) ) v. ) ) RAYMOND DUMONT and KATHLEEN ) DUMONT, ) ) Defendants/Appellants. ) __________________________________) No. 1 CA-CV 11-0713 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2010-024464 The Honorable Benjamin E. Vatz, Judge Pro Tempore AFFIRMED Tiffany & Bosco, P.A. By Leonard J. McDonald, Jr. David W. Cowles Attorneys for Plaintiff/Appellee Rhoads & Associates, PLC By Douglas C. Rhoads Attorneys for Defendants/Appellants Phoenix Paradise Valley S W A N N, Judge ¶1 Raymond Dumont and Kathleen Dumont appeal a judgment in favor of Federal National Mortgage Association ( FNMA ) on its forcible detainer claim. The Dumonts arguments on appeal relate only to the parties may not issue litigate of legitimacy the issue of of title. title in Because a forcible detainer action, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 FNMA filed and served a forcible detainer complaint alleging that the Dumonts were occupying and refusing to surrender real property that FNMA had purchased at a trustee s sale. The superior court entered judgment in favor of FNMA in September 2010. filed a notice protection Months later, in January 2011, the Dumonts representing several days that they before the had sought entry of bankruptcy judgment. Accordingly, the superior court stayed the action and placed it on the inactive calendar. ¶3 from the bankruptcy stay, FNMA served the Dumonts for a second time. The Dumonts court. In July responded 2011, by after filing a obtaining notice of relief removal to federal After the federal court remanded the matter, the Dumonts proceeded to file, concurrently, a Rule 42(f) notice of change of judge and a Notice of Special Appearance asserting a lack of personal service. At a September 19, 2011 hearing, which the Dumonts counsel attended, the court heard argument on the notices and September 22. continued the forcible detainer hearing to Neither the Dumonts nor their counsel appeared at 2 the September 22 hearing, and the court granted judgment in favor of FNMA. ¶4 The Dumonts appeal from that judgment. Though they filed their notice of appeal before the court entered a signed order, there were no matters pending that could have changed the result, and the premature notice of appeal was followed by a final appealable judgment. We therefore have jurisdiction, see Barassi v. Matison, 130 Ariz. 418, 422, 636 P.2d 1200, 1204 (1981), under A.R.S. § 12-2101(A)(1). DISCUSSION ¶5 The Dumonts raise four arguments on appeal. First, they contend that they were not properly served with process. Second, they contend that FNMA failed to meet the pleading and proof of standing requirements of Rule 5 of the Arizona Rules of Procedure for Eviction Actions ( RPEA ). Third, they contend that FNMA s attorneys did not exercise the due diligence and good faith required by RPEA 4. Fourth, they contend that the court s failure to adjudicate the merits of FNMA s claim of title to because the the property issue of amounted title was to a denial incidental of to due the process, issue of possession and was necessary to determine whether FNMA was a bona fide purchaser. and rules de novo. We review the interpretation of statutes Pima Cnty. v. Pima Cnty. Law Enforcement 3 Merit Sys., 211 Ariz. 224, 227, ¶ 13, 119 P.3d 1027, 1030 (2005). I. SERVICE OF PROCESS ¶6 The Dumonts contention that they were not properly served with process is contradicted by the record. Under RPEA 5(f), Rules 4.1 and 4.2 of the Arizona Rules of Civil Procedure govern service of process in forcible detainer actions. Rule 4.1(d), service of process on an individual Under may be accomplished by delivering a copy [of the process] to that individual personally or by leaving copies [of the process] at that individual s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein[.] ¶7 The record reveals two affidavits of service of process. The first states that in September 2010, copies of the complaint and summonses were left at the Dumonts usual place of abode (the subject property) with a person of suitable age and discretion. The second states that in July 2011, copies of the complaint and alias summonses were left at the same address with Mrs. Dumont. Both affidavits compliant with Rule 4.1(d). describe service of process The Dumonts passing assertion that there was a fraudulent affidavit is unsupported by the record 4 -- the record does not reveal any evidence of fraud or even any prior allegation of fraud.1 II. STANDING AND PLEADING ¶8 The Dumonts contend that FNMA failed to meet pleading and proof of standing requirements of RPEA 5. the RPEA 5(b)(1) requires that a complaint in a forcible detainer action [b]e brought in the legal name of the party claiming entitlement to possession of the property[,] and RPEA 5(d)(2), which governs complaints based on circumstances other than nonpayment of rent, requires that the complaint state the reason for the termination of the tenancy with specific facts, including the date, place and circumstances of the reason for termination. FNMA s pleadings met the standards. 1 The record does not include a transcript of the September 19 hearing at which the Dumonts Notice of Special Appearance was argued. The duty to order and include the transcript in the record on appeal was the Dumonts . ARCAP 11(b). We must assume that the missing transcript would support the superior court s implied conclusion that the affidavits of service of process were authentic and accurate. See Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995). Moreover, even if service had been insufficient, the Dumonts various general appearances and conduct in the action prior to their Notice of Special Appearance waived any defect in service. See Kline v. Kline, 221 Ariz. 564, 569, ¶ 18, 212 P.3d 902, 907 (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, 581 P.2d 682, 686 (1978) ( [A] general appearance by a party who has not been properly served has exactly the same effect as a proper, timely and valid service of process. ). 5 ¶9 The Dumonts arguments under RPEA 5(b)(1) and 5(d)(2) are based on their theory that FNMA lacked title to the property -- and as discussed below, title is not litigable in a forcible detainer action. arguments But even if we were to entertain the Dumonts concerning standing and pleading, both standing and adequate pleading. the record shows The complaint named FNMA as the sole plaintiff, and a trustee s deed attached to the complaint valuable stated that consideration FNMA at had an purchased August 4, the 2010 property trustee s for sale. FNMA complied with the requirements of A.R.S. § 12-1173.01 and the RPEA, and the trustee s deed was entitled to the presumption of compliance afforded by A.R.S. § 33-811(B). Further, the verified complaint was sufficiently specific: it alleged that FNMA purchased the property at the trustee s sale and gave the Dumonts written notice demanding possession of the property, but the Dumonts refused to comply. copy of the written demand. The complaint also included a Nothing more was required to show both standing and adequate pleading. III. ¶10 DUE DILIGENCE AND GOOD FAITH The Dumonts further contend that FNMA and its attorneys violated the due diligence and good faith requirements of RPEA 4(a) and (b), arguing that an objective attorney . . . would have immediately discovered . . . that there is an irregularity with the Assignment and Substitution of Trustee. 6 The record does not support the Dumonts contentions. The Dumonts specific allegations of irregularity describe technical deficiencies in an assignment and substitution of trustee that is not part of the record, and the balance of their arguments consists of nothing more than vague general criticisms of the mortgage system and speculation about what might have happened. We decline to address those arguments, pursuant to ARCAP 13(a)(6). IV. TITLE MAY NOT BE LITIGATED IN A FORCIBLE DETAINER ACTION. ¶11 It is well-settled in Arizona that issues concerning title cannot be considered in a forcible detainer action. The purpose of a forcible detainer action is limited to providing 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) (citation omitted). Accordingly, A.R.S. § 12-1177(A) provides that the only issue that may be contested in a forcible detainer action is possession -- title is not litigable. ( On the trial of an action of forcible A.R.S. § 12-1177(A) entry or forcible detainer, the only issue shall be the right of actual possession and the merits of title shall not be inquired into. ); see also, e.g., Mason v. Cansino, 195 Ariz. 465, 468, ¶ 8, 990 P.2d 666, 669 (App. 1999) ( [O]ne cannot try title in a forcible detainer action. ); United Effort Plan Trust, 209 Ariz. at 351, ¶ 21, 101 7 P.3d at 645 ( The only issue to be decided in [a forcible detainer action] is the right of actual possession. Thus the only appropriate judgment is the dismissal of the complaint or the grant of possession to the plaintiff. ). As a corollary, no counterclaims, offsets or cross complaints are available either as a defense or for affirmative relief . . . . United Effort Plan Trust, 209 Ariz. at 351, ¶ 21, 101 P.3d at 645 (quoting Olds Bros. Lumber Co. v. Rushing, 64 Ariz. 199, 205, 167 P.2d 394, 397 (1946)). ¶12 All of the Dumonts arguments are based on their theory that FNMA lacks valid title because of alleged fraud perpetrated in connection with the underlying trustee s sale. Under Arizona law, the superior court could not consider those arguments in the forcible action.2 detainer The Dumonts contention that this limitation violated their constitutional due process rights is unfounded. The Dumonts were free to challenge the trustee s authority and raise other defenses and objections by filing for injunctive occurred. See Hogan v. Wash. Mutual Bank, N.A., __ Ariz. __, 2 relief before the sale The Dumonts urge that we should adopt the approach of a similar and much older California statute that allows a limited factual inquiry into the bona fides of the purchaser in a forcible detainer action. We are not free to do so. The law of other states cannot alter our legislature s clear command that the merits of title shall not be inquired into. A.R.S. § 12-1177(A). 8 __, ¶ 8, 277 P.3d 781, 783 (2012); BT Capital, LLC v. TD Serv. Co. of Ariz., 229 Ariz. 299, 301, ¶¶ 10-11, 275 P.3d 598, 600 (2012). CONCLUSION ¶13 We deny the Dumonts request that we stay this appeal and seek an advisory opinion from the state attorney general s office regarding undisclosed putative conflicts. We are unaware of any authority that would authorize or justify such a procedure. ¶14 We affirm the reasons set forth above. superior court s judgment for the We award FNMA its costs pursuant to A.R.S. § 12-341, and, in our discretion, grant FNMA s request for its attorney s fees pursuant to A.R.S. § 12-349, with both the fees and the costs to be paid by subject to FNMA s compliance with ARCAP 21. 9 the Dumonts counsel ¶15 We direct counsel rather than the Dumonts to pay the fees and costs because the arguments as to title asserted in this case are plainly meritless, without substantial justification, aimed at creating unreasonable delay, and counsel has made them in several cases before this court. Because the frivolousness of the title arguments is both clear-cut and longstanding, we conclude that it is appropriate that counsel bear the burden of the fees and costs in this appeal. /s/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ PHILIP HALL, Presiding Judge /s/ ____________________________________ SAMUEL A. THUMMA, Judge 10

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