FNMA v. EPPERSON

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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 FEDERAL NATIONAL MORTGAGE ASSOCIATION, ) ) ) Plaintiff/Appellee, ) ) v. ) ) HAROLD EPPERSON and LEA EPPERSON, ) ) Defendants/Appellants. ) ) ) ) DIVISION ONE FILED: 10/1/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CV 12-0570 DEPARTMENT C MEMORANDUM DECISION (Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2012-005014 The Honorable James R. Morrow, Judge Pro Tempore AFFIRMED ________________________________________________________________ Tiffany & Bosco, P.A. By David Cowles William M. Fischbach, III Attorneys for Plaintiff/Appellee Phoenix Rhoads & Associates, PLC Phoenix By Douglas C. Rhoads Attorney for Defendants/Appellants _________________________________________________________________ O R O Z C O, Judge ¶1 Harold judgment in and favor Lea of Epperson Federal (the National (FNMA) on its forcible detainer claim. Eppersons) Mortgage appeal a Association The Eppersons' arguments on appeal relate primarily to the issue of the legitimacy of title. The Eppersons also argue that the judgment of eviction was void because the trial court was deprived of jurisdiction by their pending appeal to the Ninth Circuit of a non-appealable remand order. title in retained a Because parties may not litigate the issue of forcible jurisdiction detainer over action, the case and the despite the trial court Eppersons improper appeal, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 FNMA filed and served a forcible detainer complaint alleging the Eppersons refused to surrender real property that FNMA had purchased at a trustee's sale. The Eppersons responded by filing a notice of removal to federal court. The federal court remanded the matter to the trial court for lack of federal jurisdiction. the Ninth The Eppersons purported to appeal the remand to Circuit Court of Appeals. The Ninth Circuit instructed the Eppersons to show cause why the appeal should not be dismissed for lack of jurisdiction. 2 In the meantime, in the trial court, the Eppersons filed a motion to dismiss for lack of jurisdiction based upon their appeal of the district court s remand order. continued to Notwithstanding participate their before the motion, trial the court Eppersons by making various filings, including a motion to strike the complaint and exhibits, and a supplemental answer and counterclaim. ¶3 FNMA moved for dismiss the counterclaim.1 judgment on the pleadings and to The trial court denied the Eppersons motion to dismiss and their motion to strike. It granted FNMA's motions to dismiss the counterclaim and for judgment on the pleadings, finding the Eppersons guilty of forcible detainer and awarding FNMA immediate possession of the property. ¶4 pursuant The Eppersons timely appealed. to Arizona Revised We have jurisdiction Statutes (A.R.S.) 12- 2101(A)(1)(Supp. 2012). DISCUSSION ¶5 The Eppersons contend that the trial court lacked jurisdiction because they were not properly served by the real party in interest, and they had appealed the federal court s 1 Rule of Procedure for Eviction Actions (RPEA) 8 prohibits counterclaims in forcible detainer actions unless specifically allowed by statute. The Eppersons answer and counterclaim did not set forth the statutory basis that would authorize any counterclaim. 3 remand order to the Ninth Circuit. The Eppersons also contend that the documents used by FNMA to foreclose on their home were fabricated, thus they had the right to litigate whether FNMA had standing to foreclose. They further assert that their due process rights were violated because FNMA's attorneys did not exercise the due diligence and good faith required by the Rules of Procedure for Eviction Actions (RPEA) 4(a)-(b) and RPEA 11. Specifically, the Eppersons argue that FNMA s required to examine the recorded documents. Eppersons argue, FNMA would have attorneys were If they had, the detected the alleged fabrication and the invalidity of FNMA s title to the property prior to filing the action. Finally, the Eppersons maintain that FNMA lacked standing because it was not the real party in interest, again, based upon the alleged improprieties of the underlying non-judicial foreclosure. ¶6 Our review of a judgment on the pleadings requires us to treat the allegations of the complaint as true, but we review issues of law de novo. Giles v. Hill Lewis Marce, 195 Ariz. 358, 359, 988 P.2d 143, 144 (App. 1999); Nielson v. Patterson, 204 Ariz. 530, 531, ¶ 5, 65 P.3d 911, 912 (2003). Title May Not Be Litigated in a Forcible Detainer Action 4 ¶7 Most of the Eppersons arguments are premised on their contention that FNMA lacks valid title to the property because of alleged fraud perpetrated in connection with the underlying trustee s sale. It is well established in Arizona, however, that issues concerning title cannot be considered in a forcible detainer action. See Andreola v. Arizona Bank, 26 Ariz. App. 556, 557, 550 P.2d 110, 111 (1976). ¶8 The Eppersons urge that under A.R.S. § 12-1177(A), a trial court "can legitimately explore title where such issue is incidental to the issue of possession." To the contrary, the statute expressly states: "On the trial of an action of forcible entry or forcible detainer, the only issue shall be the right of actual possession and the merits of title shall not be inquired into." A.R.S. § 12-1177(A)(emphasis added). The law is clear that title cannot be litigated in a forcible detainer action. 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 v. Holm, 209 Ariz. 347, ¶ 21, 351, 101 P.3d 641, 645 (App. 2004) ("The only issue to be decided in [a forcible detainer action] is the right of actual possession. Thus the only appropriate judgment is the 5 dismissal of the complaint or the grant of possession to the plaintiff."). ¶9 to The purpose of a forcible detainer action is limited providing obtaining a "summary, possession of speedy, premises and adequate remedy" being withheld by for another. Phoenix-Sunflower Indus., Inc. v. Hughes, 105 Ariz. 334, 336, 464 P.2d 617, 619 (1970). detainer action is so In fact, the focus of a forcible restricted that, with exceptions not relevant here, no counterclaims, offsets or cross claims may be plead, either as a defense or for affirmative relief. United Effort Plan Trust, 209 Ariz. at 351, ¶ 21, 101 P.3d at 645. All of the Eppersons arguments based on the premise that FNMA lacks valid title to the property because of alleged fraud perpetrated in connection with the underlying trustee's sale therefore fail. ¶10 The Eppersons' further contention that this limitation violated their constitutional due process rights has no merit. The Eppersons could have raised the defenses and objections they raise now by seeking injunctive relief prior to the trustee s sale. Because they failed to obtain a court order preventing the trustee s sale, the Eppersons have waived all defenses and objections to the sale under A.R.S. § 33-811(C). See Madison v. Groseth, 230 Ariz. 8, 13, ¶ 15, 279 P.3d 633, 638 (App. 2012) 6 (holding homeowner waived all defenses and objections to the sale of the property because she failed to obtain an injunction prior to the trustee s sale). Trial Court Retained Jurisdiction ¶11 the The only argument the Eppersons properly raised with trial court and to enter jurisdiction pending appeal remand order. to on appeal the the is judgment Ninth Circuit whether of of the eviction the court given federal had their court s The law is clear that a federal court s remand order is not appealable. See 28 U.S.C. § 1447(d)(2011); Levin Metals Corp. v. Parr-Richmond Terminal Co., 799 F.2d 1312, 1315 (9th Cir. 1986). A trial court is not divested of jurisdiction by a party s appeal of a non-appealable order. Yaeger v. Vance, 20 Ariz. App. 399, 400, 513 P.2d 688, 689 (1973). Accordingly, the trial court clearly had jurisdiction to enter the judgment of eviction; despite the Eppersons arguments to the contrary, that judgment was not void. CONCLUSION ¶12 awarded The costs trial court s pursuant to judgment A.R.S. is § affirmed. 12-342(B). FNMA is In our discretion, we grant FNMA s request for reasonable attorneys fees pursuant to A.R.S. § 12-349, and direct that the Eppersons 7 counsel personally pay both the fees and costs, subject to FNMA s compliance with ARCAP 21. We direct counsel rather than the and Eppersons to pay the fees costs because the title arguments asserted in this case clearly lack merit, were without substantial justification, unreasonable delay. and Counsel were has designed made the same to create arguments, unsuccessfully, in another case before this court, and has been personally sanctioned for doing so.2 are clearly meritless and have Because counsel s arguments been rejected repeatedly, we conclude that it is appropriate that counsel personally bear the burden of the fees and costs in this appeal. /S/ ___________________________________ PATRICIA A. OROZCO, Judge CONCURRING: /S/ ____________________________________ SAMUEL A. THUMMA, Presiding Judge /S/ ____________________________________ DIANE M. JOHNSEN, Chief Judge 2 See 2525 S. McClintock, LLC v. James, 1 CA-CV 11-0801, 2012 WL 5269674, at *6, ¶ 24 (Ariz. App Oct. 25, 2012) (mem. Decision). 8

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