Leafty v. Aussie Sonoran Capital, LLC

• Decision Date: 15 November 2012
• Docket Number: 1 CA-CV 11-0366
• Parties: ANNA LEAFTY, Real Party in Interest, Plaintiff/Appellant, v. AUSSIE SONORAN CAPITAL, LLC fna DOS MATES LLC; KONDAUR CAPITAL CORPORATION; STEPHEN D. COCHRAN; LIQUIDATION PROPERTIES; CITI RESIDENTIAL LENDING, INC.; CR TITLE SERVICES, INC., Defendants/Appellees.
• Court: Arizona Court of Appeals

ANNA LEAFTY, Real Party in Interest, Plaintiff/Appellant, v. AUSSIE SONORAN CAPITAL, LLC fna DOS MATES LLC KONDAUR CAPITAL CORPORATION; STEPHEN D. COCHRAN LIQUIDATION PROPERTIES; CITI RESIDENTIAL LENDING, INC. CR TITLE SERVICES, INC., Defendants/Appellees.

1 CA-CV 11-0366

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT A

FILED: November 15, 2012

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); C ARCAP 28(c);

C Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

(Not for Publication -

C Rule 28, Arizona Rules of

Civil Appellate Procedure)

Appeal from the Superior Court in Maricopa County

Cause No. CV2010-015409

The Honorable J. Kenneth Mangum

APPEAL DISMISSED IN PART; AFFIRMED IN PART

Anna Leafty

In Propria Persona

Scottsdale

Altfeld & Bataille, PLC

By Clifford B. Altfeld

Maya Y. Kashak

Attorneys for Defendant/Appellee Aussie Sonoran

Tucson

Gust Rosenfeld PLC

By Mark L. Collins

Robert M. Savage

Attorneys for Defendant/Appellee Kondaur Capital Corporation

Tucson

Miles, Bauer, Bergstrom & Winters, LLP

By Jeremy T. Bergstrom

Steven E. Stern

Attorneys for Defendants/Appellees

Cochran, Liquidation Properties, Citi Residential, CR Title

Henderson, NV

TIMMER, Presiding Judge

¶1 Anna Leafty appeals the superior court's dismissal of her second amended complaint. For the reasons that follow, we dismiss the appeal to the extent it challenges dismissal of the second amended complaint as to all defendants except Aussie Sonoran Capital, LLC ("Aussie"). We lack jurisdiction to consider this aspect of the court's ruling. We affirm dismissal as to Aussie.

BACKGROUND

¶2 In June 2007, Leafty executed a promissory note ("Note") for more than $300,000 in favor of Argent Mortgage Company, LLC ("Argent"). The Note was secured by a deed of trust ("DOT") recorded against Leafty's home located in Scottsdale (the "Property"). Leafty stopped paying on the Note in August 2008. Four months later, Argent assigned the Note and DOT to Citigroup Global, which immediately recorded a notice of trustee's sale. Before the scheduled sale date, the Note and DOT were sequentially assigned to a number of entities endingwith Aussie.¹ Leafty filed for Chapter 13 bankruptcy protection, and the trustee's sale was delayed due to the automatic stay.

¶3 In June 2010, after the bankruptcy court had lifted its stay, Leafty initiated this lawsuit asserting a myriad of claims against several entities and individuals all concerning the propriety of the trustee's sale. Leafty simultaneously obtained ex parte a temporary restraining order preventing the sale until a hearing for a preliminary injunction. In September, after Leafty had amended her complaint, the court dismissed the amended complaint but granted Leafty another opportunity to amend her complaint.

¶4 In October, Leafty filed a second amended complaint (the "Complaint") that again alleged multiple claims against several parties in an effort to both stop the trustee's sale then scheduled for March 2011 and recover damages. On the defendants' motions filed pursuant to Arizona Rule of Civil Procedure ("Rule") 12(b)(6), the court entered an unsigned minute entry dismissing the Complaint with prejudice as against all defendants. After a series of filings, the court ultimately entered a signed judgment in March 2011 dismissing the Complaint as to Aussie only, awarding Aussie $24,000 in attorney's fees,and stating pursuant to Rule 54(b) that no reason existed to delay entry of final judgment as to Aussie. That same month, Aussie purchased the Property at a trustee's sale. In April, Leafty filed her notice of appeal challenging the court's dismissal of the Complaint as to all defendants.

JURISDICTION

¶5 Pursuant to our independent duty to ensure our jurisdiction over a particular appeal, Catalina Foothills Unified Sch. Dist. No. 16 v. La Paloma Prop. Owners Ass'n, Inc., 229 Ariz. 525, 528, ¶ 6, 278 P.3d 303, 306 (App. 2012), we determine this court has jurisdiction only to review dismissal of the Complaint as to Aussie. With exceptions not applicable here, we only have jurisdiction to consider appeals taken from final judgments disposing of all claims and all parties, unless the court includes Rule 54(b) language in the judgment. Id. at ¶ 7; Ariz. Rev. Stat. ("A.R.S.") § 12-2101(A)(1) (West 2012); Ariz. R. Civ. P. 54(b).² Although the judgment dismissing the Complaint as to Aussie did not dispose of all claims and all parties, because it included Rule 54(b) language, we have jurisdiction to consider Leafty's appeal from that judgment.

¶6 The court never entered a judgment regarding the remaining defendants. To constitute a "judgment," a finalruling must be in writing and signed by a judicial officer. Ariz. R. Civ. P. 58(a). Thus, the court's unsigned minute entry dismissing the Complaint against all defendants does not constitute an appealable judgment. We issued an order pursuant to Eaton Fruit Co. v. California Spray-Chemical Corp., 102 Ariz. 129, 426 P.2d 397 (1967), allowing Leafty an opportunity to obtain a final signed judgment as to the other defendants. To date, Leafty has not obtained such a judgment, and we therefore dismiss this appeal as to all defendants, except Aussie, for lack of jurisdiction.

DISCUSSION

¶7 We review the superior court's dismissal of the Complaint pursuant to Rule 12(b)(6) de novo as an issue of law. Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7, 284 P.3d 863, 866 (2012). We accept as true all facts alleged in the Complaint, and we will affirm the dismissal only if Leafty would not be entitled to relief under any interpretation of the facts susceptible of proof. Id. at 356, ¶¶ 8-9, 284 P.3d at 867. But we do not accept as true allegations consisting of legal conclusions, unfounded inferences, or unreasonable conclusions. Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, 389, ¶ 4, 121 P.3d 1256, 1259 (App. 2005). With these principles in mind, we consider Leafty's arguments in turn.

I. Insufficient review

¶8 Leafty initially argues the superior court erred by either failing to read the Complaint and attached exhibits or by "[misunderstanding] the facts of the case." For support, she points to the court's misstatement in the minute entry ruling that the Note and DOT were assigned twice rather than four times. But Leafty fails to explain the significance of this factual error, and we do not discern any. The court's analysis in its ruling did not turn on the number of assignments. Additionally, the detailed analysis set forth in the court's ruling belies Leafty's assertion the court did not read the Complaint or misunderstood the facts of the case. We therefore reject her argument.

II. Challenge to foreclosure sale

¶9 Leafty devotes most of her brief to arguing that the trustee's sale held in March 2011 was invalid. Specifically, she argues the sale was "irregular" due to fraudulent and forged documents underlying the sale, multiple assignments of the Note and DOT without her knowledge, and abuses of the foreclosure process that deprived her of substantive and procedural due process. She concludes these "irregularities" "clearly establish[] that the lower court should overturn the Trustee's Sale." We reject Leafty's argument for two reasons.

¶10 First, Leafty's argument concerning the "irregularity" of the trustee's sale was not raised to the superior court, and is therefore waived. We generally do not consider issues, even constitutional issues, raised for the first time on appeal. Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768 (App. 2000). We decline to do so here, particularly as the trustee's sale had not occurred at the time the court ruled on the motion to dismiss.

¶11 Second, although Leafty asserted similar and other arguments to the superior court in an attempt to preliminarily enjoin and eventually cancel the trustee's sale, those arguments were mooted by completion of the sale. As Aussie points out, A.R.S. § 33-811(C) provides as follows:

The trustor [Leafty] . . . 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 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.

Although Leafty sought to obtain a preliminary injunction of the trustee's sale, she was not successful. Consequently, she has waived all defenses and objections to the sale, and her arguments are therefore moot. Upon issuance of the trustee's deed to Aussie, Leafty's interest in and claims to the Propertywere extinguished. Madison v. Groseth, 230 Ariz. 8, 13, ¶ 15, 279 P.3d 633, 638 (App. 2012).

¶12 Leafty argues § 33-811(C) cannot be applied to waive her defenses to the trustee's sale because to do so would "open[] the door to fraud with no recourse" and conflict with the principle that the deed-of-trust statutes must be strictly construed to favor the borrower. ³ We disagree. Nothing in § 33-811(C) precludes a borrower from obtaining relief from a sale for fraud committed by a lender; § 33-811(C) simply provides that grounds for such relief must be sufficiently shown to convince the superior court to preliminarily enjoin the trustee's sale. Leafty had that opportunity in this case but failed to obtain a preliminary injunction. Also, nothing in § 33-811(C) prevents a claim for damages based on a lender's fraud committed in making or servicing a loan.

¶13 Although § 33-811(C) must be strictly construed to favor the borrower, Patton v. First Fed. Sav. & Loan Ass'n, 118 Ariz. 473, 477, 578 P.2d 152, 156 (1978), we also are bound to interpret the provision according to its plain language.

Mathews ex rel. Mathews v. Life Care Ctrs. of Am., Inc., 217 Ariz. 606, 608, ¶ 6, 177 P.3d 867, 869 (App. 2008) (stating court looks first to the plain language of a statute to discern its meaning). The plain language of §...