                                 IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
 MARIA CARMEN ZUBIA, INDIVIDUALLY, AND IN HER CAPACITY AS TRUSTEE
     ON BEHALF OF THE MARIA C. PENA REVOCABLE LIVING TRUST,
                        Plaintiff/Appellant,

                                    v.

  DAVID SHAPIRO, INDIVIDUALLY, AND AS THE TRUSTEE OF THE SHAPIRO
 TRUST DATED FEBRUARY 14, 2006; ILANA SHAPIRO a/k/a ILLANA SHAPIRO,
     INDIVIDUALLY, AND AS TRUSTEE OF THE SHAPIRO TRUST DATED
                        FEBRUARY 14, 2006,
                        Defendants/Appellees.

                           No. CV-16-0255-PR
                          Filed January 12, 2018

          Appeal from the Superior Court in Maricopa County
             The Honorable Robert H. Oberbillig, Judge
                         No. CV2015-002563
                            AFFIRMED

             Memorandum Decision of the Court of Appeals
                          Division One
                        1 CA-CV 15-0404
                       Filed Sept. 29, 2016
                           AFFIRMED

COUNSEL:

Kyle A. Kinney (argued), Law Offices of Kyle A. Kinney, PLLC, Scottsdale,
Attorney for Maria Carmen Zubia

Patrick J. Davis, Nathaniel B. Rose (argued), Fidelity National Law Group,
Phoenix, Attorneys for David and Ilana a/k/a Illana Shapiro

JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
TIMMER, BOLICK, GOULD, and LOPEZ joined.

JUSTICE BRUTINEL, opinion of the Court:
                         ZUBIA v. SHAPIRO, et al.
                           Opinion of the Court

¶1             The issue in this case is whether a homeowner’s failure to
obtain injunctive relief under A.R.S. § 33-811(C) results in the waiver of her
damages claim arising from a trustee’s sale, where the homeowner alleges
that her name was forged on the promissory note and deed of trust. We
hold that failing to obtain an injunction before the trustee’s sale results in
the waiver of damage claims dependent on the validity of the sale.

                          I.     BACKGROUND

¶2             Maria Zubia and her husband, Jose Pena, acquired title to a
single-family residence (the “Property”) as joint tenants in 1995. Zubia and
Pena separated in 2006. In 2008, Pena executed a $150,000 Promissory Note
(the “Note”) in favor of David Shapiro, Ilana Shapiro, and the Shapiro Trust
(collectively “Shapiro”) and Advanced Capital Group, LLC (“Advanced”).
To secure the loan, Pena simultaneously executed a Deed of Trust (“DOT”)
on the Property. The Note and DOT list Shapiro and Advanced as the
Lender and Land America Lawyers Title as the Trustee.

¶3            Both the Note and DOT purport to be signed by Pena and
Zubia. The DOT was recorded on January 13, 2009. Zubia contends that
her signatures on the Note and DOT were forged and that she first learned
of the loan and DOT in December 2013, when she tried to borrow against
the Property.

¶4            The loan went into default in 2013. In August 2013, Advanced
assigned its interest in the Property to Shapiro. Subsequently, Shapiro
substituted Empire West Title Agency, LLC (“Empire”), as the trustee of the
DOT. Empire then recorded a notice of trustee’s sale stating that the
Property was to be sold at public auction in February 2014.

¶5           In January 2014, Pena quitclaimed his joint tenancy interest in
the Property to Zubia, who recorded the quitclaim deed on February 10.
Shortly thereafter, Zubia filed a separate action against Pena, Shapiro,
Advanced, Empire, and others, asserting that her signatures on the Note
and DOT were forged. Representing herself, Zubia sought to quiet title to
the Property but did not seek to enjoin the trustee’s sale. Her complaint
was dismissed without prejudice for lack of prosecution.




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                         ZUBIA v. SHAPIRO, et al.
                           Opinion of the Court

¶6           In January 2015, after Zubia’s action was dismissed, Empire
conducted a trustee’s sale and Shapiro purchased the Property on a credit
bid and recorded a trustee’s deed.

¶7            After the sale, Zubia filed this action against Pena, Shapiro,
Advanced, and others, reasserting her forgery allegations. She sought
damages under A.R.S. § 33-420(A) and to quiet title to the Property in her
name. As relevant here, Zubia alleged that because the Note and DOT were
forged, “Shapiro[] never obtained a security interest in the property as the
basis for a non-judicial foreclosure sale,” and thus the trustee’s deed
resulting from the sale was invalidly recorded. Zubia also added a
“wrongful foreclosure” claim, asked the trial court to declare the January
2015 sale invalid, and sought to enjoin any future trustee’s sales. Shapiro
moved to dismiss, arguing Zubia had waived any claim to title of the
Property and all defenses and objections to the sale pursuant to A.R.S. § 33-
811(C).

¶8           The trial court dismissed Zubia’s complaint under Arizona
Rule of Civil Procedure 12(b)(6), ruling that under § 33-811(C), she had
waived her claims by not obtaining injunctive relief before the January 2015
sale. The court entered final judgment pursuant to Arizona Rule of Civil
Procedure 54(b).

¶9            The court of appeals affirmed, concluding that § 33-811(C)
bars all claims that are dependent on the trustee’s sale unless an injunction
is obtained before the sale. Zubia v. Shapiro, 1 CA-CV 15-0404, 2016 WL
5462039, at *2, ¶ 7 (Ariz. App. Sept. 29, 2016) (mem. decision). Zubia
argued that A.R.S. § 33-811(B), rather than subsection (C), should apply
because Shapiro had notice of the forgery before the sale. Id. ¶ 9. The court
of appeals disagreed, explaining that “[s]ubsection (B) does not apply
because Zubia did not allege that Shapiro failed to comply with the deed of
trust requirements or the non-judicial foreclosure statutes.” Id. ¶ 10.

¶10           The court of appeals also found no error in the trial court’s
dismissal of Zubia’s wrongful foreclosure claim. Id. at *3 ¶¶ 13–14.
Although the court noted that “Arizona has not recognized a cause of action
for wrongful foreclosure,” it declined to “address whether the cause of
action exists because Zubia’s specific ‘wrongful foreclosure’ allegations
would remain subject to the statutory requisites of A.R.S. § 33-811(C) and
[are] thus barred for failing to seek the required injunctive relief.” Id. ¶ 13.


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                           ZUBIA v. SHAPIRO, et al.
                             Opinion of the Court

Even assuming Arizona recognizes a cause of action for wrongful
foreclosure, the court found that Zubia failed to show her claim was not
precluded by § 33-811(C). Id.

¶11           The court of appeals further found that, to the extent Zubia
claimed damages under A.R.S. § 33-420(A), her claim was based on the
allegation that Shapiro improperly recorded the trustee’s deed, “a claim
that cannot succeed without first determining whether the trustee’s sale
was improper.” Id. at *4 ¶ 17. Therefore, the § 33-420(A) claim was
dependent on the sale and was precluded by § 33-811(C) once the sale
occurred. Id.

¶12           We granted review to determine whether the failure to seek
injunctive relief under § 33-811(C) results in a waiver of damages claims
against the trustee resulting from an allegedly fraudulent trustee’s sale, an
issue of statewide importance that is likely to recur. We have jurisdiction
pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S.
§ 12-120.24.

                             II.     DISCUSSION

           A. Standard of Review

¶13           We review the dismissal of a complaint under Rule 12(b)(6)
de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355 ¶ 7 (2012). We assume
the well-pleaded facts alleged in the complaint are true and 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 (1998).

           B. Post-Sale Damages Claims

¶14           In its motion to dismiss, Shapiro argued that Zubia waived
any objections or defenses to the trustee’s sale by failing to seek an
injunction pursuant to § 33-811(C) before the sale. We agree. In her petition
in this Court, Zubia acknowledges that § 33-811(C) bars title claims
following a trustee’s sale; but, because claims both to quiet title and for post-
sale damages depend on the sale’s validity, we address them together
below.




                                         4
                          ZUBIA v. SHAPIRO, et al.
                            Opinion of the Court

¶15           The “deed of trust scheme is a creature of statutes.” BT
Capital, LLC v. TD Serv. Co. of Ariz., 229 Ariz. 299, 300 ¶ 9 (2012) (quoting In
re Vasquez, 228 Ariz. 357, 359 ¶ 4 (2011)). Claims raising objections or
defenses to a trustee’s sale are governed by § 33-811(C), which provides:

       The trustor, its successors or assigns, and all persons to whom
       the trustee mails a notice of a sale under a trust deed pursuant
       to § 33-809 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.

¶16            “Under this statute, a person who has defenses or objections
to a properly noticed trustee’s sale has one avenue for challenging the sale:
filing for injunctive relief.” BT Capital, LLC, 229 Ariz. at 301 ¶ 10. Although
this Court has long recognized that statutes pertaining to deeds of trust
“must be strictly construed in favor of the borrower,” Patton v. First Fed.
Sav. & Loan Ass’n of Phx., 118 Ariz. 473, 477 (1978), we must give effect to
§ 33-811(C)’s express language, which requires enjoining the sale as a
prerequisite to any claim arising out of the sale, see BT Capital, LLC, 229 Ariz.
at 301 ¶ 14 (rejecting interpretation that would render statute ineffective).

¶17            Zubia argues that a claim for money damages arising out of a
sale does not seek to undo the sale and is therefore not a defense or objection
to the sale. But § 33-811(C) prohibits not only actions to void the sale, as
with her initial quiet title claim, but also those dependent upon the sale.

¶18            In relevant part, § 33-811(C) provides that a trustor waives
“all defenses and objections to the sale not raised in an action that results in
the issuance of [an injunction].” (emphasis added). In the express language
of the statute, the legislature employed the phrase “all . . . objections to the
sale,” which does not cabin the statute’s operation to a particular claim or
type of relief sought and therefore does not apply only to those claims
directly seeking to void a sale. This language in § 33-811(C) thus
encompasses claims for damages which are based on a defective sale under
A.R.S. title 33, chapter 6.1. See Morgan AZ Fin., L.L.C. v. Gotses, 235 Ariz. 21,
23–24 ¶ 7 (App. 2014) (“Under A.R.S. § 33-811(C), 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


                                       5
                          ZUBIA v. SHAPIRO, et al.
                            Opinion of the Court

sale.” (citations omitted) (citing BT Capital, LLC, 229 Ariz. at 301 ¶ 10, and
Madison v. Groseth, 230 Ariz. 8, 13 ¶ 15 (App. 2012))). Zubia’s claims are
objections to the sale, because they cannot succeed unless the sale was
defective. That is, if a trustor could proceed with an action for damages
based on a defective trustee’s sale, her claim would necessarily call into
question the validity of the sale. Succeeding on the claim would effectively
result in a legal determination that the sale was defective, which is
inconsistent with the legislature’s intent that A.R.S. § 33-811(E) guarantee
the legal status of the trustee’s deed following the sale as an “absolute”
conveyance. See § 33-811(E) (stating that the “conveyance shall be absolute
without right of redemption”). Allowing a legal challenge based on the
invalidity of the trustee’s deed permits an end-run around the § 33-811(C)
waiver provision, resulting in legal expense and potential liability arising
out of a statutorily valid trustee’s sale, undercutting the finality the
legislature intended for trustee sales. See, e.g., A.R.S. § 33-808(C)(8)
(requiring language in the notice of sale to include: “Unless you obtain an
order, the sale will be final.” (emphasis added)); § 33-811(E) (extinguishing
the trustor’s interest post-sale, resulting in a trustor losing any interest in
the property in which to quiet title).

¶19            In addition, our reading is consistent with the further purpose
of § 33-811(C) and related statutes regulating trustee’s sales — namely, to
provide for expeditious foreclosures. Gotses, 235 Ariz. at 23 ¶ 7 (noting that
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 (2012))). A reading of § 33-811(C) that allows for personal liability
arising out of the sale undercuts the purpose of the statute.

¶20            A trustor who fails to enjoin a sale, however, does not waive
claims that are independent of the sale. Id. at 24 ¶ 8 (“A completed trustee’s
sale does not operate to deprive the trustor of the ability to pursue claims
or defenses that are independent of the sale.”); see also Sitton v. Deutsche Bank
Nat’l Tr. Co., 233 Ariz. 215, 217–18 ¶¶ 12–13 (App. 2013) (recognizing that
§ 33-811(C) does not bar claims or defenses that are independent of the
trustee’s sale). Madison, Gotses, and Sitton recognize the difference between
claims that are dependent on the trustee’s sale and those that are
independent.

¶21            In Madison, a trustor sued the purchasers of property sold at
a trustee’s sale, asserting claims for conversion, fraud/deceit, and trespass


                                       6
                         ZUBIA v. SHAPIRO, et al.
                           Opinion of the Court

based upon an allegation that the property was wrongly sold. 230 Ariz.
at 12 ¶ 10. The trustor sought the “return of the [p]roperty and an award
of compensatory and punitive damages.” Id. at 11 ¶ 7. The court of appeals
found the tort claims waived under § 33-811(C) because they depended on
the validity of the trustee’s sale. Id. at 13 ¶ 15. In other words, because the
trustor could not prevail on claims against the purchaser unless the sale
itself was invalid, the damage claims were waived. Id.

¶22            Conversely, in Gotses, the court of appeals held that under
§ 33-811(C), the trustor does not waive defenses to a post-sale deficiency
claim by the lender. 235 Ariz. at 23–24 ¶¶ 7–10. In that case, the trustors
did not obtain an injunction before the trustee’s sale of the property. Id.
at 22–23 ¶ 2. After the lender’s successor-in-interest filed an action seeking
a deficiency judgment, the trustors asserted that the successor-in-interest
“had taken the loan documents from the original lender subject to
fraud-based defenses that rendered them void and unenforceable.” Id. at 23
¶ 3. The trial court granted summary judgment in favor of the successor-
in-interest, finding that the trustors had waived all defenses to the sale
under § 33-811(C). Id. ¶ 4. The court of appeals reversed, reasoning that
§ 33-811(C) by its terms applied to defenses and objections to the sale, and
did “not operate to deprive the trustor of the ability to pursue claims or
defenses that are independent of the sale.” Id. at 24 ¶ 8. Because the court
found that § 33-811(C) did not “abrogate defenses to deficiency liability by
its express terms, and no prior judgment precludes such defenses,” it held
that the trustor’s “defenses under the note remained available in the
deficiency action.” Id. ¶ 10.

¶23            Likewise, in Sitton, the court of appeals held that a trustor
who unsuccessfully sought to enjoin a trustee’s sale had not waived claims
for monetary damages under § 33-420(A). 233 Ariz. at 218 ¶ 14. Before the
trustee’s sale, Sitton filed a complaint “[a]lleging material misstatements
and other defects in the assignments and notices of substitution recorded in
August 2010 and May 2011, as well as in the notice of trustee’s sale recorded
in May 2011.” Id. at 217 ¶ 8. In addition to monetary damages, Sitton also
sought an order quieting her title to the property. Id. The trustees then
moved to dismiss Sitton’s complaint. Id. ¶ 9. Treating the trustees’ motion
to dismiss as one for summary judgment, the trial court granted the motion,
dismissed Sitton’s claim, and the property was later sold. Id. at 217 ¶¶ 10–
11, 218 ¶ 14. Although the court of appeals found that Sitton’s unsuccessful
attempt to enjoin the trustee’s sale waived her claim to quiet title, it also


                                      7
                         ZUBIA v. SHAPIRO, et al.
                           Opinion of the Court

held that § 33-811(C) did not preclude her claims for monetary damages.
Id. at 218 ¶ 14; but see also id. at 220 ¶ 21 (affirming summary judgment in
favor of the defendants for failure to prove an essential element of her
claim).

¶24          Sitton correctly recognized that although the quiet title claim
would have required invalidation of the trustee’s sale, the false recording
claim under § 33-420(A) was based upon alleged misstatements and other
defects in documents that existed irrespective of the trustee’s sale (i.e.,
assignments and notices of substitution). Unlike Sitton’s false-recording
claim, Zubia’s trial court claims to quiet title and for post-sale damages
depend on the sale’s invalidity and are therefore precluded under § 33-
811(C).

          a. The A.R.S. § 33-420(A) Claim

¶25           Zubia asserted two interrelated claims for relief: (1) Pena
“forged her signatures on both [the DOT and the Note]”; (2) because of the
forgery, the trustee’s deed was fraudulently recorded and sale of Zubia’s
home is “invalid and voidable and title should be restored to her.” 1

¶26            Zubia’s forgery claim was limited to Pena. In her complaint,
Zubia alleged that only “Pena forged her signatures on both [the DOT and
the Note].” Zubia did not allege and does not argue that Shapiro knew of
or was complicit in forging her signature on either the DOT or the Note.
Rather, Zubia claims that because the Note and DOT were forged,
“Shapiro[] never obtained a security interest in the property as the basis for
a non-judicial foreclosure sale” and thus, the trustee’s deed resulting from
the sale is invalid. As a result, Zubia claims Shapiro’s recording of the post-
sale trustee’s deed constituted the recording of a false document in
violation of § 33-420(A), which states:

1  Zubia also argues that preventing her from bringing her § 33-420(A)
damage claim violates the anti-abrogation clause of article 18, section 6, of
the Arizona Constitution. Because Zubia did not fully develop that
argument, the claim is waived. State v. Dann, 205 Ariz. 557, 570 ¶ 46 n.8
(2003) (failure to develop a legal argument constitutes waiver of that
argument on appeal), opinion supplemented by 206 Ariz. 371 (2003); State v.
Bolton, 182 Ariz. 290, 298 (1995) (“Failure to [sufficiently] argue a claim on
appeal constitutes waiver of that claim.”).


                                      8
                          ZUBIA v. SHAPIRO, et al.
                            Opinion of the Court


       A person purporting to claim an interest in, or a lien or
       encumbrance against, real property, who causes a document
       asserting such claim to be recorded in the office of the county
       recorder, knowing or having reason to know that the
       document is forged, groundless, contains a material
       misstatement or false claim or is otherwise invalid is liable to
       the owner or beneficial title holder of the real property for the
       sum of not less than five thousand dollars, or for treble the
       actual damages caused by the recording, whichever is greater,
       and reasonable attorney fees and costs of the action.

¶27           Zubia’s claim that the trustee’s deed was falsely recorded
necessarily requires a determination that the sale was invalid, and is
therefore waived by operation of § 33-811(C). See supra ¶ 18. As any defects
in the trustee’s sale were waived under the statute, the sale was not
improper, and the trustee’s deed is therefore valid. Because Zubia’s § 33-
420(A) claim against Shapiro is based upon the invalidity of the trustee’s
deed, and because Zubia did not obtain an injunction before the trustee’s
sale of the Property, her damage claim for the wrongful recording of the
trustee’s deed under § 33-420(A) is waived by operation of § 33-811(C).

¶28           This result is consistent with the purpose of § 33-811(C) and
other statutes governing trustee’s sales — namely, to provide for
expeditious foreclosures. See supra ¶ 19. Consistent with that policy, our
interpretation of § 33-811(C) ensures the finality of the sale, while
preserving claims that are independent of the sale.

           C. The Wrongful Foreclosure Claim

¶29           Finally, Zubia asks this Court to recognize a new tort for
wrongful foreclosure, something our courts have not yet done. See In re
Mortg. Elec. Registration Sys., Inc., 754 F.3d 772, 784 (9th Cir. 2014) (“Arizona,
though a nonjudicial foreclosure state, has not expressly recognized the tort
of wrongful foreclosure.”). Citing California law, the Ninth Circuit Court
of Appeals listed the following elements to assert a wrongful foreclosure
claim:

       (1) [T]he trustee or mortgagee caused an illegal, fraudulent,
       or willfully oppressive sale of real property pursuant to a


                                        9
                         ZUBIA v. SHAPIRO, et al.
                           Opinion of the Court

       power of sale in a mortgage or deed of trust; (2) the party
       attacking the sale (usually but not always the trustor or
       mortgagor) was prejudiced or harmed; and (3) in cases where
       the trustor or mortgagor challenges the sale, the trustor or
       mortgagor tendered the amount of the secured indebtedness
       or was excused from tendering.

Id. (emphasis omitted) (quoting Lona v. Citibank, N.A., 134 Cal. Rptr. 3d 622,
633 (Ct. App. 2011)). Although we do not preclude the possibility that
Arizona may recognize a cause of action for wrongful foreclosure in the
future, we do not do so here.

¶30           As the court of appeals correctly recognized, “Zubia’s specific
‘wrongful foreclosure’ allegations would remain subject to the statutory
requisites of A.R.S. § 33-811(C),” and are waived by her failure to seek and
obtain the required injunctive relief. Shapiro, 2016 WL 5462039, at *3 ¶ 13.
Even if we chose to recognize a cause of action for wrongful foreclosure like
that in California, it would not apply here, because Shapiro is neither the
trustee nor the mortgagee of the property. Moreover, as set forth above,
Zubia’s claim against Shapiro arises out of the execution and recording of
the trustee’s deed. As such, her claim is an objection to the validity of the
sale and would, therefore, be precluded by § 33-811(C).

¶31           To be clear, our holding in this case does not preclude Zubia
from pursuing an action against Pena or others for claims independent of
the sale. Zubia may still have a claim for damages arising from the
recording of the deed of trust considering the alleged forgeries. So long as
such a claim does not depend on whether a trustee’s sale occurred, it would
not be barred by § 33-811(C).

                          III.    CONCLUSION

¶32          We affirm the decision of the court of appeals and the
judgment of the trial court. We deny Zubia’s request for attorney fees.




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