Deutsche v. Brandeburg

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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, SOLELY AS TRUSTEE AND NOT IN ITS INDIVIDUAL CAPACITY FOR THE HOME EQUITY MORTGAGE LOAN ASSET-BACKED TRUST, SERIES INABS 2006-B UNDER THE POOLING AND SERVICING AGREEMENT DATED MARCH 2006, its assignees and/or Successors, Plaintiff/Appellee, v. KEVIN R. BRANDEBURG and JANE DOE BRANDEBURG, husband and wife, Defendants/Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 03/29/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-CV 10-0779 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Yavapai County Cause No. V1300CV201080500 The Honorable Michael R. Bluff, Judge AFFIRMED McCarthy Holthus Levine By Paul M. Levine Matthew A. Silverman Jessica R. Kenney Lakshmi Jagannath Attorneys for Plaintiff/Appellee Scottsdale Rhoads & Associates, PLC By Douglas C. Rhoads Attorney for Defendants/Appellants Phoenix S W A N N, Judge ¶1 This is a forcible entry and detainer ( FED ) action initiated by Deutsche Bank National Trust Company ( Deutsche Bank ) against Kevin Brandeburg for possession of real property ( the Property ) located in Yavapai County. the superior Brandeburg court s defended by judgment in essentially favor Brandeburg appeals of attacking Deutsche Bank s title to the Property. Deutsche the Bank. validity of Because an FED action is not the proper forum for challenging the validity of title, we affirm the superior court s judgment. FACTS AND PROCEDURAL HISTORY ¶2 had After Brandeburg defaulted on a deed of trust that he executed in connection with the Property, Deutsche Bank purchased the Property at a trustee s sale conducted on August 23, 2010, and received a Trustee s Deed Upon Sale ( Trustee s Deed ). Deed. Four days later, Deutsche Bank recorded the Trustee s Brandeburg received written notice on September 1, 2010, telling him to vacate the Property by September 6. Because Brandeburg did not do so, Deutsche Bank filed a complaint for FED on September 13. Copies of the Trustee s Deed and the written notice were attached to the complaint. 2 ¶3 On Brandeburg seeking September filed a sanctions; jury trial. 21, the motion and day of requesting demanding the the initial case s disclosure, hearing, dismissal; discovery and a Deutsche Bank responded by arguing that Brandeburg raised inappropriate issues regarding Deutsche Bank s title to the Property rather than a Deed s presumptive validity. proper challenge to the Trustee The court denied the motion to dismiss and set the matter for a jury trial. ¶4 all On September 27, Brandeburg filed an answer denying allegations complaint claims. did in not the give complaint. sufficient According notice He also asserted counterclaims.1 of to him, Deutsche the Bank s Deutsche Bank moved to strike the answer and counterclaims, and it moved for a judgment on the pleadings pursuant to Rule 9(d) of the Rules of Procedure for Eviction Actions ( RPEA ). ¶5 At the October superior court answer. But it granted the motion to strike the counterclaims2 denied 4, 2010 Deutsche pretrial Bank s motion conference, to and granted Deutsche Bank judgment on the pleadings. strike the the The court 1 Brandeburg s counterclaims were for wrongful foreclosure; quiet title; breach of contract and breach of implied covenant of good faith and fair dealing; and unjust enrichment. 2 RPEA 8 prohibits counterclaims in FED actions unless specifically allowed by statute. As Deutsche Bank pointed out, Brandeburg s answer did not set forth the statutory basis for counterclaims in this case. 3 entered judgment, finding Brandeburg guilty of forcible detainer and ordering him to surrender possession by October 24 or face a writ of restitution. ¶6 Brandeburg appeals,3 and we have jurisdiction under A.R.S. § 12-2101(A)(1). STANDARD OF REVIEW ¶7 novo. P.2d We review the superior court s conclusions of law de Giles v. Hill Lewis Marce, 195 Ariz. 358, 359, ¶ 2, 988 143, 144 (App. 1999) (citation omitted). But when we review a judgment on the pleadings in favor of a plaintiff, all material allegations assumed to be true. Venture, 129 Ariz. (citation omitted). of the opposing party's pleadings are Food for Health Co., Inc. v. 3839 Joint 103, 106, 628 P.2d 986, 989 (App. 1981) And all allegations of the moving party which have been denied are taken as false so that a motion for judgment on the pleadings is only granted if the moving party is clearly entitled to judgment. Id. DISCUSSION ¶8 Forcible entry and detainer is a statutory proceeding whose object is to provide a summary, speedy and adequate means for obtaining possession of premises by one entitled to actual possession. Colonial Tri-City 3 Ltd. P'ship v. Ben Franklin Brandeburg also sought a stay pending appeal or an opportunity to post bond before the writ of restitution issued. The court held a hearing and set a $10,000 bond. 4 Stores, Inc., 179 Ariz. 428, 433, 880 P.2d 648, 653 (App. 1993). In such a proceeding, the only issue before the court is the right of actual possession -- the court may not inquire into the merits of title. A.R.S. § 12-1177(A); Curtis v. Morris, 186 Ariz. 534, 534, 925 P.2d 259, 259 (1996). ¶9 As evidence of its right to actual possession, Deutsche Bank provided the superior court with a copy of the executed, acknowledged Trustee s Deed as well as a copy of the written notice to Brandeburg to vacate the Property. The complaint alleged that Brandeburg failed to vacate the Property and was therefore guilty of forcible detainer. Under A.R.S. § 33-811(B), a trustee s deed raises the presumption of compliance with the requirements of the deed of trust relating to the exercise of the property. 4 presumption Deutsche power Brandeburg of Bank of not and presented compliance did sale or have any a no the evidence other right sale of to evidence to actual the trust rebut this that showed possession. Brandeburg s general denial based on the purported vagueness of the complaint is insufficient to avoid judgment on the pleadings because the complaint adequately alleged the facts necessary to an FED claim. See Walker v. Estavillo, 73 Ariz. 211, 215, 240 4 Deutsche Bank therefore had standing to seek possession as the holder of the Trustee s Deed, which it obtained after purchasing the Property at the trustee s sale. 5 P.2d 173, 176 (1952); Food for Health, 129 Ariz. at 106, 628 P.2d at 989 (App. 1981). ¶10 Brandeburg argued to the superior court that the Trustee s Deed was invalid because Deutsche Bank was not a bona fide purchaser for value due to defects and irregularities in the recordings, including possibly fraudulent documents. appeal, he superior makes these court s process. 5 These same assertions in violated his proceedings issues, however, relate arguing to On that the right to due the merits of Deutsche Bank s title, and the superior court s decision to not address them in the FED action was proper. See Morris, 186 Ariz. at 534, 925 P.2d at 259. Further, based on the unrebutted allegations no in the complaint, triable issue existed, Deutsche Bank was entitled to judgment on the pleadings. RPEA 11(d). and See Accordingly, we reject Brandeburg s argument that he was entitled to a jury trial.6 5 In violation of our procedural rules, Brandeburg also fails to cite any controlling authority to support his contention that the FED proceeding violated his due process rights. See ARCAP 13(a)(6). 6 Brandeburg argues that Deutsche Bank filed this action in bad faith under RPEA 4(a) and (b) and improperly verified the complaint under RPEA 5(b)(8). He also argues that because the notice to vacate referred to an entity other than Deutsche Bank, the notice was rendered invalid under RPEA 5(b)(1), which requires the legal name of the party claiming entitlement to possession. These arguments are outside the scope of FED actions, they are not supported by controlling authority and Brandeburg does not include appropriate citations to the record. 6 ¶11 error Finally, for the Brandeburg court to asserts remark in that its it final was reversible judgment that Brandeburg was properly served by Deutsche Banks s posting of the requisite legal papers at his front door and subsequent certified mailing. The court s remark was a mistake because the record reflects that Brandeburg was served pursuant to Ariz. R. Civ. P. 4.1(d) by service upon an occupant of suitable age and discretion. This court suspended the appeal and revested jurisdiction in the superior court to consider Deutsche Bank s motion to correct this clerical mistake pursuant to Ariz. R. Civ. P. 60(a). The superior court did so. We decline to reverse on this basis. We therefore decline to address these arguments. See ARCAP 13(a)(6). We note that if the notice to vacate did improperly refer to an entity other than Deutsche Bank, Brandeburg could not reasonably have been confused about who was seeking possession of the Property -- Deutsche Bank is named as the grantee in the Trustee s Deed and is the named plaintiff in this FED action. 7 CONCLUSION ¶12 The judgment is affirmed. Because he is not the prevailing party, Brandeburg s request for attorney s fees on appeal is denied. Deutsche Bank requests its appellate fees pursuant 25. to ARCAP This appeal merits such an award contingent upon Deutsche Bank s compliance with ARCAP 21. /s/ _______________________________ PETER B. SWANN, Presiding Judge CONCURRING: /s/ _______________________________ MICHAEL J. BROWN, Judge /s/ _______________________________ JON W. THOMPSON, Judge 8

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