                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


 GARY I. GLAVA and SUSAN S. GLAVA, his wife, Plaintiffs/Appellants,

                                        v.

          JPMORGAN CHASE BANK, N.A., Defendant/Appellee.

                             No. 1 CA-CV 13-0719
                               FILED 2-26-2015


           Appeal from the Superior Court in Maricopa County
                          No. CV2013-010051
              The Honorable Robert H. Oberbillig, Judge

      AFFIRMED IN PART; REVERSED IN PART; REMANDED


                                   COUNSEL

Law Offices of Ronald W. Meyer, Phoenix
By Ronald W. Meyer
Counsel for Plaintiffs/Appellants

Maynard Cronin Erickson Curran & Reiter PLC, Phoenix
By Douglas C. Erickson
Counsel for Defendant/Appellee
                          GLAVA v. JPMORGAN
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge John C. Gemmill and Judge Donn Kessler joined.


J O N E S, Judge:

¶1             Gary and Susan Glava appeal from the dismissal of their
complaint against JPMorgan Chase Bank (the Bank), which alleged various
misconduct by the Bank related to the execution and performance of a
Home Affordable Modification Program (HAMP) agreement that
ultimately led to a trustee’s sale of their home. The Glavas argue their
claims do not concern the validity of the trustee’s sale, and the trial court
erred in determining they were barred by Arizona Revised Statutes (A.R.S.)
section 33-811(C).1 For the following reasons, we affirm the dismissal of the
Glavas’ claims for recording false documents, wrongful forfeiture, breach
of fiduciary relationship, and intentional infliction of mental distress, but
reverse the dismissal and remand for further proceedings with respect to
their claims for breach of contract, breach of the covenant of good faith and
fair dealing, fraud, and consumer fraud.

                FACTS2 AND PROCEDURAL HISTORY

¶2            The Glavas owned residential real property subject to a
mortgage held by the Bank. In 2012, they applied for a loan modification
through HAMP. During the application process, the Bank represented that,
if the loan modification was approved, a previously recorded Notice of
Trustee’s Sale, dated February 26, 2010, and arising from an alleged breach
of the original loan agreement, would be cancelled. The HAMP agreement


1     Absent material revisions from the relevant date, we cite a statute’s
current version.

2      In reviewing a motion to dismiss, “we review the well-pleaded facts
alleged in the complaint as true,” Jeter v. Mayo Clinic Ariz., 211 Ariz. 386,
389, ¶ 4, 121 P.3d 1256, 1259 (App. 2005), and resolve all reasonable
inferences in favor of the plaintiff. McDonald v. City of Prescott, 197 Ariz.
566, 567, ¶ 5, 5 P.3d 900, 901 (App. 2000).




                                     2
                          GLAVA v. JPMORGAN
                           Decision of the Court

was ultimately approved, and pursuant to its terms, became effective
automatically when the Bank signed and returned it to the Glavas on
September 7, 2012. The first payment was due September 1, 2012.

¶3             The Glavas did not make any payments from September
through December 2012, without any objection or notification of default
from the Bank. They attempted to make payments in January, February,
and March 2013, but the funds were returned by the Bank without
explanation. When prompted for a reason, the Bank stated it had
incorrectly calculated the monthly payment amount, and thereafter
provided a revised payment coupon-book reflecting the corrected amount.
Still, no default was asserted.

¶4            The Glavas then attempted to make payments for April, May,
and June 2013. These funds were again returned without explanation.
When the Glavas inquired as to the reason, the Bank again indicated it had
incorrectly calculated the payment amount. The Bank did not, however,
provide a corrected payment amount, indicate any problem existed with
the HAMP agreement, or notify the Glavas of any alleged breach.

¶5             The following month, in July 2013, the Bank proceeded with
the trustee’s sale noticed in February 2010, and recorded a trustee’s deed
upon completion of the sale. The Glavas thereafter filed this action, alleging
breach of contract, fraud, recording of false documents, consumer fraud,
breach of the covenant of good faith and fair dealing, breach of a fiduciary
relationship, wrongful forfeiture, and intentional infliction of mental
distress. These claims arose, in large part, from the allegedly false
representations by the Bank that approval of the HAMP agreement would
result in the cancellation of the previously noticed sale, which had been
premised upon an alleged breach of the original loan agreement.

¶6            The Bank filed a motion to dismiss, arguing the Glavas’ claims
were barred under A.R.S. § 33-811(C), which provides that “all defenses and
objections” to a trustee’s sale are deemed waived if not raised in an action
resulting in an injunction prior to the sale. The Bank contended that the
basis of each claim was that the trustee’s sale was wrongful because either
the power to sell had been revoked, or because the Glavas believed the loan
modification precluded the sale. The Bank further asserted the Glavas
failed to make required payments under the modification agreement,
noting payments were to start on September 1, 2012, and the Glavas
admitted they did not proffer payments until January 2013.




                                      3
                           GLAVA v. JPMORGAN
                            Decision of the Court

¶7             The trial court granted the Bank’s motion, finding that,
pursuant to A.R.S. § 33-811(C), the Glavas’ claims did not survive the
trustee’s sale. The Glavas timely appealed. We have jurisdiction pursuant
to A.R.S. § 12-2101(A)(1).

                               DISCUSSION

¶8              We review a decision granting a motion to dismiss de novo.3
Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7, 284 P.3d 863, 866 (2012). We
will affirm the dismissal only if the plaintiff “would not be entitled to relief
under any interpretation of the facts susceptible of proof.” Fid. Sec. Life Ins.
Co. v. State, 191 Ariz. 222, 224, ¶ 4, 954 P.2d 580, 582 (1998). In our review,
we consider the pleading, documents attached to and referenced within the
pleading, as well as public records. Strategic Dev., 224 Ariz. at 63-64, ¶¶ 10,
13, 226 P.3d at 1049-50.

I.     The Glavas’ Claims for False Recording and Wrongful Forfeiture
       Were Waived Pursuant to A.R.S. § 33-811(C).

¶9            The Bank argues,4 and the trial court concluded, A.R.S. § 33-
811(C) barred all of the Glavas’ claims. As previously noted, that section
provides that a trustor waives “all defenses and objections to the [trustee’s]
sale” not raised in an action resulting in the entry of an injunction by the


3      Citing Strategic Development & Construction, Inc. v. 7th & Roosevelt
Partners, L.L.C., 224 Ariz. 60, 64, ¶ 16, 226 P.3d 1046, 1050 (App. 2010), the
Bank asserts we review the trial court’s dismissal for an abuse of discretion.
But our supreme court in Coleman clarified that “[b]ecause questions of law
are reviewed de novo, the grant of a dismissal under Rule 12(b)(6) is
reviewed de novo.” 230 Ariz. at 356, ¶¶ 7-8, 284 P.3d at 867 (internal
citation omitted).

4      Throughout its answering brief, the Bank consistently cites to
unreported memorandum decisions from federal district courts and
unpublished memorandum decisions from other jurisdictions in support of
its arguments. We have not considered and do not address these cases. See
ARCAP 28(c) (2014); Kriz v. Buckeye Petroleum Co., 145 Ariz. 374, 377 n.3, 701
P.2d 1182, 1185 n.3 (1985) (determining ARCAP 28(c) prohibits citation to
unpublished federal court decisions); Walden Books Co. v. Dep’t of Revenue,
198 Ariz. 584, 589, ¶ 23, 12 P.3d 809, 814 (App. 2000) (holding ARCAP 28(c)
prohibits citation to out-of-state memorandum decisions); see also Ariz. R.
Sup. Ct. 111(c)(1) (setting forth limited circumstances for citation to
memorandum decisions, which are not present here).


                                       4
                           GLAVA v. JPMORGAN
                            Decision of the Court

last business day before the sale. A.R.S. § 33-811(C). By its plain language,
A.R.S. § 33-811(C) “prescribes waiver only to objections and defenses to the
sale.” Morgan AZ Fin., L.L.C. v. Gotses, 235 Ariz. 21, 24, ¶ 8, 326 P.3d 288,
291 (App. 2014) (internal quotations omitted). “[A] trustor who fails to
enjoin a trustee’s sale waives his claims to title of the property upon the
sale’s completion, and also waives any claims that are dependent on the
sale.” Id. at 23-24, ¶ 7, 326 P.3d at 290-91 (citing BT Capital, L.L.C. v. TD
Serv. Co. of Ariz., 229 Ariz. 299, 301, ¶ 10, 275 P.3d 598, 600 (2012) (waiver of
claims to title), and Madison v. Groseth, 230 Ariz. 8, 13, ¶ 15, 279 P.3d 633,
638 (App. 2012) (waiver of claims dependent upon the sale)). A trustor who
fails to enjoin a sale does not, however, waive claims that are independent
of the sale. Id. at 23, ¶¶ 8-10, 326 P.3d at 291.

¶10             In Madison, a trustor sued the purchasers of property at a
trustee’s sale, asserting claims for conversion, fraud/deceit, and trespass
based upon an allegation that the property was wrongly sold. 230 Ariz. at
12, ¶ 10, 279 P.3d at 637. The trustor sought the return of the property, as
well as compensatory and punitive damages. Id. at 11, ¶ 7, 279 P.3d at 636.
We held the tort claims waived as a matter of law under A.R.S. § 33-811(C)
because they were dependent upon objections to the validity of the trustee’s
sale. Id. at 13, ¶ 15, 279 P.3d at 638. As the trustor in Madison could not
prevail on claims against the purchasers absent a determination that the
sale itself was unlawful, the trustor had waived her right to assert those
claims post-sale.

¶11            In contrast, we held in Sitton v. Deutsche Bank National Trust
Co. that a trustor who unsuccessfully enjoined a trustee’s sale had not
waived claims for monetary damages under A.R.S. § 33-420(A) for the pre-
sale recording of false documents related to the property. 233 Ariz. 215,
218, ¶¶ 13-14, 311 P.3d 237, 240 (App. 2013). Sitton had alleged material
misstatements and other defects in assignments, notices of substitution, and
the notice of trustee’s sale. Id. at 217, ¶ 8, 311 P.3d at 239. While concluding
that Sitton’s unsuccessful attempt to enjoin the trustee’s sale waived her
claim to quiet title, we nevertheless found that her claim under A.R.S. § 33-
420(A) was not a defense to the sale and recovery was not contingent upon
the invalidity of the sale, and therefore A.R.S. § 33-811(C) did not preclude
her claims for monetary damages based upon the pre-sale recording of
allegedly false documents. Id. at 218-19, ¶¶ 13-14, 16, 311 P.3d at 240.

¶12            We recently reached a similar conclusion in Morgan AZ
Financial. In that case, the trustors failed to obtain an injunction of a
trustee’s sale of their property. 235 Ariz. at 22-23, ¶ 2, 326 P.3d at 289-90.
When the lender’s successor-in-interest subsequently filed an action


                                       5
                           GLAVA v. JPMORGAN
                            Decision of the Court

seeking a deficiency judgment under A.R.S. § 33-814(A), the trustors
asserted the creditor had obtained the loan documents from the original
lender subject to fraud-based defenses that made the loan documents void
and unenforceable. Id. at 23, ¶ 3, 326 P.3d at 290. The trial court found the
trustors had waived their defenses under A.R.S. § 33-811(C). Id. at ¶ 4. On
appeal, we reversed, reasoning the language of A.R.S. § 33-811(C) applied
strictly to defenses and objections to the sale, and “does not operate to
deprive the trustor of the ability to pursue claims or defenses that are
independent of the sale.” Id. at 24, ¶ 8, 326 P.3d at 291. As no prior
judgment precluded the defenses asserted, we concluded the defenses were
available to the trustors in a separate deficiency action. Id. at ¶¶ 9-10.

¶13           As recognized in these cases, A.R.S. § 33-811(C) prescribes
waiver only to defenses and objections “to the sale.” Sitton, 233 Ariz. at 218,
¶ 13, 311 P.3d at 240; Morgan AZ Fin., 235 Ariz. at 42, ¶ 8, 326 P.3d at 291.
The same arguments that could have been made in an unsuccessful attempt
to enjoin a sale, and which would therefore be waived under A.R.S. § 33-
811(C) with respect to claims for title to the property or claims depending
on the invalidity of the sale, are not barred from being pursued in actions
that do not challenge title or the sale. With this in mind, we turn to the
claims raised in the Glavas’ amended complaint.

¶14             Of the eight claims, only two were based and dependent upon
the alleged invalidity of the trustee’s sale — false recording of a document
and wrongful forfeiture. As to the former, the Glavas claimed the recording
of the post-sale trustee’s deed constituted the recording of a false document
in violation of A.R.S. § 33-420(A). That statute allows the owner of real
property to collect damages from a person who causes a document to be
recorded against real property knowing or having reason to know that the
document is forged, groundless, contains a material misstatement, or is
otherwise invalid. A.R.S. § 33-420(A). The Glavas’ false recording claim
necessarily depends upon a determination that the sale was improper. If
the sale was not improper, the trustee’s deed could not be a false document.
Unlike Sitton, where the false recording claims were based upon alleged
misstatements and other defects in documents that existed irrespective of
the subsequent trustee’s sale, 233 Ariz. at 217, 219, ¶¶ 8, 17, 311 P.3d at 239,
241, the complained of document in this case only becomes false if the
trustee’s sale was improper. Therefore, the trial court properly found that
claim had been waived. In addition, the Glavas’ claim for wrongful
forfeiture is, by its very nature, also based upon their assertion that the sale




                                       6
                          GLAVA v. JPMORGAN
                           Decision of the Court

was invalid.     As in Madison, these claims were waived through the
application of A.R.S. § 33-811(C).5

¶15             The Glavas’ remaining six claims are breach of contract,
breach of the duty of good faith and fair dealing, fraud, consumer fraud,
breach of a fiduciary relationship, and intentional infliction of mental
distress. These claims are more akin to those in Sitton and Morgan AZ
Financial. Although they are related to the sale, and the legal theories might
have been articulated in seeking an injunction of the sale, these claims as
they are articulated do not challenge the sale and are not founded upon the
sale’s invalidity. Instead, they arise from allegations that the Bank
represented the trustee’s sale would be canceled upon execution of the
HAMP agreement, the agreement was indeed executed, the Bank led the
Glavas to believe the sale had been cancelled, and acted as if the agreement
were in force and effective by calculating and recalculating new payment
amounts under the modified agreement, and yet the Bank nevertheless
maintained its ability to proceed with the sale and ultimately conducted the
trustee’s sale without further notice, thereby denying the Glavas the
opportunity to attempt to enjoin the sale. The Glavas contend the Bank’s
representations and conduct engendered various torts, a statutory
violation, and a breach of the HAMP agreement, independent of whether
the sale was valid, and they do not challenge title to the real property.

¶16          A major purpose of the statutes governing deeds of trust is to
provide for expeditious and inexpensive foreclosures. Andreola v. Ariz.

5      Even had these claims not been waived, they were properly
dismissed on other grounds as well. Under A.R.S. § 33-420(A), an owner of
real property may collect damages for the recording of a false document
purporting to claim an interest in that real property, but only based upon
documents recorded when that person owned the property — i.e., before a
sale. Sitton, 233 Ariz. at 219, ¶¶ 16-17, 311 P.3d at 241. The Glavas’ § 33-
420(A) claim, however, is based upon the recording of the post-sale
trustee’s deed. Of necessity, by the time the trustee’s deed was recorded,
the property had already been sold. See A.R.S. § 33-810(A) (stating the sale
is complete upon payment, and that the execution, delivery and recording
of the deed are ministerial). Because the Glavas were no longer the owners
of the property when the deed was recorded, they could not maintain this
claim as a matter of law.
       Additionally, the wrongful foreclosure claim was properly
dismissed, as no such cause of action has been recognized in Arizona. See
In re Mortg. Elec. Registration Sys., Inc., 754 F.3d 772, 784 (9th Cir. 2014).



                                      7
                           GLAVA v. JPMORGAN
                            Decision of the Court

Bank, 26 Ariz. App. 556, 559, 550 P.2d 110, 113 (App. 1976); see Morgan AZ
Fin., 235 Ariz. at 23, ¶ 7, 326 P.3d at 290 (noting trustee’s sales “are meant
to operate quickly and efficiently, ‘outside of the judicial process.’”)
(quoting Hogan v. Wash. Mut. Bank, N.A., 230 Ariz. 584, 587, ¶ 12, 277 P.3d
781, 784 (2012)). Consistent with that policy, A.R.S. § 33-811(C) ensures
finality of the sale upon completion. Nothing in the statutes or their
apparent purpose, however, supports construing A.R.S. § 33-811(C) in a
manner that would immunize a lender from liability for conduct
constituting a separate tort or contractual breach merely because a trustee’s
sale occurred. Therefore, the Glavas did not waive their remaining claims
under A.R.S. § 33-811(C).

II.    Dismissal of the Glavas’ Claims for Breach of a Fiduciary
       Relationship and Intentional Infliction of Mental Distress was
       Proper on Other Grounds.

¶17            Although not every claim was waived under A.R.S. § 33-
811(C), we may affirm the dismissal of a complaint for reasons other than
those specifically relied upon by the trial court. See Linder v. Brown &
Herrick, 189 Ariz. 398, 402, 943 P.2d 758, 762 (App. 1997) (citing Earthworks
Contracting Ltd. v. Mendel-Allison Constr. of Cal., Inc., 167 Ariz. 102, 109, 804
P.2d 831, 838 (App. 1990)). With this principle in mind, we conclude the
Glavas’ claims for breach of a fiduciary relationship and intentional
infliction of mental distress were also properly dismissed.

       A.     Breach of a Fiduciary Relationship Claim

¶18           The Glavas’ claim for breach of fiduciary relationship against
the Bank was properly dismissed because the claim is based upon an
erroneous legal premise. In Arizona, absent a special agreement, a
debtor/creditor relationship does not create a fiduciary relationship. See
McAlister v. Citibank (Ariz.), 171 Ariz. 207, 212, 829 P.2d 1253, 1258 (App.
1992) (determining bank owed no fiduciary duty to customer); cf. Stewart v.
Phx. Nat’l Bank, 49 Ariz. 34, 44, 64 P.2d 101, 106 (1937) (concluding a special
relationship existed between debtor and creditor only because the bank’s
officers and directors acted as the debtor’s financial advisors for twenty-
three years). There is no evidence indicating a special relationship existed
here and, therefore, this claim, based upon such a relationship, necessarily
fails, and was properly dismissed.

       B.     Intentional Infliction of Mental Distress Claim

¶19          The Glavas’ claim for intentional infliction of mental distress
was also properly dismissed. To maintain this claim, a plaintiff must allege


                                       8
                          GLAVA v. JPMORGAN
                           Decision of the Court

(1) the defendant committed extreme and outrageous conduct, (2) the
defendant intended to cause emotional distress or recklessly disregarded
the near certainty that his conduct would cause distress, and (3) the plaintiff
in fact suffered severe emotional distress as a result of the defendant’s
conduct. Ford v. Revlon, Inc., 153 Ariz. 38, 43, 734 P.2d 580, 585 (1987).
Because the complaint failed to allege the Glavas suffered actual severe
mental or emotional distress or any facts from which we could infer such
distress occurred, this claim was properly dismissed.

III.   The Fraud and Consumer Fraud Claims were Pleaded with
       Particularity.

¶20           The elements of fraud must be pleaded with particularity.
Spudnuts, Inc. v. Lane, 131 Ariz. 424, 425, 641 P.2d 912, 913 (App. 1982). No
particular language is required so long as the elements are included in the
pleading when considered as a whole. Id. at 426, 641 P.2d at 914.

¶21           The Bank argues the Glavas failed to state with particularity
the time, place, and specific content of the misrepresentation, as well as by
whom the misrepresentations were made. We disagree. In addition to
alleging the Bank had represented the trustee’s sale would be cancelled if
the HAMP agreement was approved, the Glavas attached a copy of that
agreement to their complaint. The HAMP agreement provided: “The
modified principal balance of my Note will include all amounts and
arrearages that will be past due as of the Modification Effective Date . . . .”
This provision indicates any past due amounts would be rolled into a new
principal balance. Had the original default been forgiven as anticipated,
there remained no basis for a trustee’s sale, and the existing notice of sale
should have been cancelled, as the Glavas’ complaint asserts they were
promised. These allegations, then, supply the who, what, when, and
content elements the Bank asserts were absent from the pleading. Thus, the
Glavas’ fraud claims were pleaded with sufficient particularity to defeat the
motion to dismiss.

IV.    The Glavas’ Remaining Claims are Viable.

¶22           Lastly, the Bank argues all the claims were properly
dismissed because they failed to state a claim upon which relief could be
granted. Specifically, the Bank asserts the Glavas failed to comply with the
HAMP agreement by failing to make the scheduled September 1 payment
and that the agreement therefore never became effective. And, as each
claim is contingent upon a validly executed agreement, the Glavas failed to
state a claim upon which relief could be granted. We disagree.



                                      9
                           GLAVA v. JPMORGAN
                            Decision of the Court

¶23            “[T]he interpretation of a contract is a question of law, which
this court reviews de novo.” Grosvenor Holdings, [L.]L.C. v. Figueroa, 222
Ariz. 588, 593, ¶ 9, 218 P.3d 1045, 1050 (App. 2009) (citing Rand v. Porsche
Fin. Servs., 216 Ariz. 424, 434, ¶ 37, 167 P.3d 111, 121 (App. 2007)). The
Glavas allege within their complaint that the HAMP agreement was
executed, which we accept as true. See Fid. Sec. Life, 191 Ariz. at 224, ¶ 4,
954 P.2d at 582. This allegation is also supported by the terms of the HAMP
agreement itself, which was submitted with the Glavas’ amended
complaint. Section 1 of the HAMP agreement required the Glavas to make
several representations and covenants regarding their financial health, the
correctness of the documents provided in support of the modification, and
their continuing ownership of the property at issue. Section 2 set forth the
following acknowledgments and preconditions to modification:

       A. If prior to [September 1, 2012] the Lender determines that
       any of my representations in Section 1 are no longer true and
       correct or any covenant in Section 1 has not been performed,
       the Loan Documents will not be modified and this Agreement
       will terminate. In that event, the Lender will have all of the
       rights and remedies provided by the Loan Documents; and

       B. I understand that the Loan Documents will not be
       modified unless and until (i) the Lender accepts this Agreement
       by signing and returning a copy of it to me, and (ii) [September 1,
       2012] has occurred. I further understand and agree that the
       Lender will not be obligated or bound to make any
       modification of the Loan Documents if I fail to meet any one
       of the requirements under this Agreement.

(Emphasis added). Section 3 of the agreement specified the effect of the
modification:

       The Modification. If my representations and covenants in
       Section 1 continue to be true in all material respects and all
       preconditions to the modification set forth in Section 2 have
       been met, the Loan Documents will automatically become
       modified on SEPTEMBER 01, 2012 . . . and all unpaid late
       charges that remain unpaid will be waived. I understand that
       if I have failed to make any payments as a precondition to this
       modification under a trial period plan, this modification will
       not take effect. The first modified payment will be due on
       SEPTEMBER 01, 2012.




                                       10
                          GLAVA v. JPMORGAN
                           Decision of the Court

¶24            The Glavas signed the document on August 25, 2012, the
September 1, 2012 passed, and the Bank’s representative signed and
returned the agreement on September 7, 2012. The Bank does not claim the
covenants and representations from Section 1 were untrue or that the
acknowledgements and preconditions from Section 2 were violated.
Rather, the Bank, seizing upon the last sentence of Section 2(B), argues the
HAMP agreement became a nullity once the Glavas failed to make the first
modified payment on September 1, 2012, as scheduled. And that as a result,
it was free to proceed with the previously noticed trustee’s sale premised
upon the Glavas’ breach of the original agreement. But the Bank’s
argument conflicts with the plain language of the agreement, which simply
states when the first modified payment would be due; the agreement does
not make the effectiveness of the HAMP agreement contingent upon actual
payment.6 Grosvenor Holdings, 222 Ariz. at 593, ¶ 9, 218 P.3d at 1050 (noting
the purpose of contract interpretation is to determine and enforce the
parties’ intent, and the first step in achieving that goal is considering “the
plain meaning of the words in the context of the contract as a whole”).
Instead, the agreement, by its plain terms, became effective automatically
when it was signed by both parties, the effective date occurred, and the
preconditions and representations were satisfied and remained true as of
that effective date. To construe the last sentence in Section 2(B) as the Bank
wishes would essentially create a nudum pactum,7 whereby any missed



6     Although Section 3 of the HAMP agreement states the modification
will not take effect if the Glavas “failed to make any payments as a
precondition to this modification under a trial period plan,” the Bank does
not contend, and the agreement does not state, that the September 1, 2012
payment was part of a “trial period plan” or that any such “trial period
plan” was ever in force. Moreover, the agreement itself refers to the
September 1, 2012 payment as “the first modified payment” rather than a
pre-condition to the agreement’s effectiveness. Further, the Bank does not
contend that as a result of the missed September payment it refused to
execute the HAMP agreement. In fact, the Bank proceeded with and
executed the HAMP agreement even after the September 1, 2012 payment
was not made.

7      Nudum pactum means “[a]n agreement that is unenforceable as a
contract because it is not ‘clothed’ with consideration.” Black’s Law
Dictionary (9th ed. 2009).




                                     11
                          GLAVA v. JPMORGAN
                           Decision of the Court

payment would not result in a new default of the modified agreement, but
rather would completely nullify it as if it had never existed.8

¶25           Further, Section 2(B) merely states the Bank would not be
obligated or bound to make a modification if all the requirements of the
HAMP agreement were not met. Here, the payment due on September 1,
2012, was not made, but the Bank signed and returned the document after
that date. Thus, even assuming payment was a “requirement,” in which
case the Bank would not have been bound to make the modification, it
proceeded to finalize the modification despite the non-payment. Moreover,
the Glavas also alleged, and no one denies, that after September 1, 2012,
they communicated with the Bank regarding the calculation of the modified
payment amount under the HAMP agreement, and the Bank thereafter sent
them a payment coupon-book so they might proceed under the terms of the
HAMP. These allegations support the Glavas’ contentions that the Bank
represented that the HAMP agreement was in place and did not purport
the Glavas to be in default.

V.     Attorneys’ Fees and Costs on Appeal

¶26           The Bank requests its attorneys’ fees on appeal as a sanction
pursuant to A.R.S. § 12-349. However, because we find no basis for such an
award, and the Bank has presented no argument in support of its request,
we deny its request.

¶27          The Bank also requests an award of attorneys’ fees under
A.R.S. § 12-341.01(C), which, as amended, no longer provides a basis for
such a request. Compare A.R.S. § 12-341.01(C) (2015), with A.R.S. § 12-
341.01(C) (2011). We interpret the Bank’s citation to refer to the correct
subsection of the current version, A.R.S. § 12-341.01(A), but in our
discretion deny its request.

¶28           The Glavas also request an award of attorneys’ fees on appeal
but cite no basis for the award. Arizona Rule of Civil Appellate Procedure
21(a)(2) (2014) sets forth the timing and content requirements for a notice of
a request for attorneys’ fees, and states:


8      The HAMP agreement does not contemplate this result. Section 3(D)
provides that the debtor will be in default if he does not “comply with the
terms of the Loan Documents, as modified by this Agreement.” As the
modified payment schedule, including the first modified payment, was a
term of the HAMP agreement, the failure to make the payment might result
in a breach of the agreement rather than its nullification.


                                     12
                          GLAVA v. JPMORGAN
                           Decision of the Court

       A notice under this Rule must specifically state the statute,
       rule, decisional law, contract, or other provision authorizing
       an award of attorneys’ fees. If a party fails to comply with
       this subsection, the appellate court may decline to award fees
       on that basis.

Thus, although we have the discretion to decline an award on this basis, see
Country Mut. Ins. Co. v. Fonk, 198 Ariz. 167, 172, ¶ 25, 7 P.3d 973, 978 (App.
2000), we decline to exercise that discretion here, and instead consider the
Glavas’ request to be supported by A.R.S. § 12-341.01(A). Should the
Glavas prevail on remand, the trial court is authorized to consider the fees
incurred by them during this appeal in making a fee award. Additionally,
as the successful party, we award the Glavas their costs on appeal, subject
to their compliance with ARCAP 21.

                              CONCLUSION

¶29           We affirm the trial court’s dismissal of the Glavas’ claims for
false recording, wrongful forfeiture, breach of a fiduciary relationship, and
intentional infliction of mental distress. We reverse the dismissal of their
claims for breach of contract, breach of the covenant of good faith and fair
dealing, fraud, and consumer fraud, and remand for further proceedings
consistent with this decision.




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