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        UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
           PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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


   NATIONAL BANK OF ARIZONA, a national banking association,
                     Plaintiff/Appellee,

                                        v.

    HUMBERTO RICO and IRENE PEREZ RICO, husband and wife,
                   Defendants/Appellants.

                             No. 1 CA-CV 14-0853
                               FILED 4-14-2016


          Appeal from the Superior Court in Maricopa County
                         No. CV 2010-022422
        The Honorable Benjamin E. Vatz, Commissioner (Retired)

                                  AFFIRMED


                                   COUNSEL

Gammage & Burnham, PLC, Phoenix
By Kevin J. Blakley, Christopher L. Hering
Counsel for Plaintiff/Appellee

Davis McKee, PLLC, Phoenix
By Jeffrey A. McKee
Counsel for Defendants/Appellants
                           NATIONAL v. RICO
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kenton D. Jones joined.


O R O Z C O, Judge:

¶1            Appellants Humberto and Irene Perez Rico (collectively, the
Ricos) challenge the trial court’s ruling denying them relief from a default
judgment entered in favor of Appellee National Bank of Arizona (NBA).
For the reasons set forth below, we affirm the trial court’s ruling.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2            Appellant Humberto Rico obtained a loan from NBA in 2006.
Mr. Rico pledged a parcel of real property he owned as sole and separate
property as collateral. Mr. Rico signed the Promissory Note and Deed of
Trust; his wife did not.

¶3            NBA filed suit against the Ricos in 2010 alleging they had
failed to make payments on the loan when due. NBA also alleged that “[a]ll
acts of the Ricos relevant to this matter”—including entry into the loan—
“were performed on behalf of the marital community.” The Ricos were
served with the complaint on July 29, 2010, but did not respond.

¶4          NBA obtained default judgment against the Ricos and their
marital community in December 2010. NBA then obtained writs of
garnishment against Mr. Rico’s employer and two banks with which the
Ricos conducted business. NBA began garnishing Mr. Rico’s wages in
March 2011.

¶5           The Ricos did not appear in the case until August 2014, when
they moved for relief from the default judgment. At that time, they argued
they should be relieved because Mrs. Rico “was not a party to and did not
sign the Promissory Note and Deed of Trust,” and Mrs. Rico and the marital
community were not liable under Arizona Revised Statutes (A.R.S.) section
25-214.C.1 (West 2016).1


1     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.


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                            NATIONAL v. RICO
                            Decision of the Court

¶6            The trial court denied the Ricos’ motion, finding A.R.S.
§ 25-214.C.1 did not apply. It also declined to set aside the default judgment
because the Ricos:

       (1) were duly served, (2) failed to investigate the claim against
       them, (3) chose not to seek counsel, (4) were aware of and, by
       their silence, acknowledged as true the allegations in the
       complaint that all relevant actions “were on behalf of the
       marital community,” and (5) waited nearly four years to raise
       a purported defense.

The Ricos timely appealed. We have jurisdiction under Article 6, Section 9,
of the Arizona Constitution, and A.R.S. § 12-2101.A.2. See M & M Auto
Storage Pool, Inc. v. Chem. Waste Mgmt., Inc., 164 Ariz. 139, 141 (App. 1990)
(“An order denying . . . a motion to set aside a judgment under Rule 60(c) .
. . is appealable as a ‘special order made after final judgment.’”).

                               DISCUSSION

¶7            A court may set aside a default judgment in accordance with
Rule 60(c). Ariz. R. Civ. P. 55(c). The trial court may grant Rule 60(c) relief
from a default judgment if the moving party shows that (1) it acted
promptly in seeking relief from the default judgment, (2) its failure to file a
timely answer was excusable under one of the six subdivisions of Rule 60(c),
and (3) it had a meritorious defense. Beal v. State Farm Mut. Auto. Ins. Co.,
151 Ariz. 514, 517 (App. 1986) (citation omitted). We review the denial of a
Rule 60(c) motion for abuse of discretion, Ezell v. Quon, 224 Ariz. 532, 536,
¶ 15 (App. 2010), and will affirm the trial court’s ruling unless “undisputed
facts and circumstances require a contrary ruling.” City of Phoenix v. Geyler,
144 Ariz. 323, 330 (1985).

I.     The Ricos Did Not Act Promptly In Seeking Relief

¶8             The Ricos did not move to set aside the default judgment until
August 2014, more than three years after judgment was entered. They
contend they did not understand “their rights under community property
law” until a week before they appeared in the case, but do not explain why
they could not have investigated their rights before August 2014. The Ricos
did not act promptly in seeking relief. See, e.g., United Imps. & Exps., Inc. v.
Superior Court, 134 Ariz. 43, 46 (1982) (“We cannot presume, nor should the
trial court, that an unexplained delay of approximately thirteen weeks in
seeking relief is ‘prompt action.’”).




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                           NATIONAL v. RICO
                           Decision of the Court

II.    The Ricos Were Not Entitled to Relief Under Rule 60(c)(6)

¶9             Had the Ricos acted promptly, they still would not have been
entitled to Rule 60(c)(6) relief because they did not demonstrate (1)
extraordinary circumstances of hardship or injustice justifying relief, or (2)
a reason for setting aside the judgment other than one set forth in Rule
60(c)(1)-(5). See Rogone v. Correia, 236 Ariz. 43, 48, ¶ 12 (App. 2014).

       A.     The Ricos Did Not Demonstrate                    Extraordinary
              Circumstances of Hardship or Injustice

¶10          The Ricos had ample notice of NBA’s claim via service of the
complaint and the garnishment of Mr. Rico’s wages, which began in March
2011. The Ricos did nothing to stop the ongoing garnishment for more than
three years. Inaction does not constitute extraordinary circumstances of
hardship or injustice. See Marks v. LaBerge, 146 Ariz. 12, 16 (App. 1985).

       B.     The Ricos’ Purported Reasons to Set Aside the Judgment
              Are Time-Barred

¶11            The Ricos offered two reasons to set aside the default
judgment, but neither fits within Rule 60(c)(6) and both are time-barred.
The Ricos first contend NBA’s counsel violated Rule 11, Arizona Rules of
Civil Procedure, by asserting claims against Mrs. Rico and the marital
community contrary to A.R.S. § 25-214.C.1. The Ricos thus allege “fraud,
misrepresentation, or other misconduct of an adverse party,” which is
governed by Rule 60(c)(3). This defense must be asserted within six months
of the entry of judgment, or it is waived. Ariz. R. Civ. P. 60(c). Here, the
six month period has long since expired, and the Ricos cannot extend the
limitations period by recasting their Rule 11 allegations as violations of
Rule 60(c)(6).2 See Webb v. Erickson, 134 Ariz. 182, 186 (1982).

¶12           The Ricos also contend they filed their motion to set aside the
default judgment “promptly after [they] learned of the inappropriateness
of the Default Judgment[,]” and that they “had no reason to believe that the
allegations in NBA’s complaint . . . were, in fact, untrue.” The Ricos
therefore argue “excusable neglect,” which is governed by Rule 60(c)(1) and

2    We also note the Ricos did not present clear and convincing evidence
that NBA or its counsel violated Rule 11. See Lake v. Bonham, 148 Ariz. 599,
601 (App. 1986) (stating that a party seeking relief under Rule 60(c)(3) bears
the burden of presenting clear and convincing evidence to prove the
fraudulent activity).



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                           NATIONAL v. RICO
                           Decision of the Court

is subject to the same six month limitations period. See Ariz. R. Civ. P.
60(c)(1). Again, the Ricos’ attempt to reframe these allegations under
subsection (6) does not extend the time to seek relief. See Webb, 184 Ariz. at
186.

¶13             Citing Geyler, 144 Ariz. at 331-32, the Ricos also argue that
excusable neglect can be a factor in determining whether relief is
appropriate under Rule 60(c)(6), but the Ricos have not demonstrated
excusable neglect. A party’s failure to file a timely answer is excusable only
if his or her actions were “reasonably prudent under the circumstances.”
Searchtoppers.com, LLC v. TrustCash LLC, 231 Ariz. 236, 241-42, ¶ 22 (App.
2012). The Ricos presented no evidence to show their three-year-plus delay
was reasonably prudent. Cf. Marks, 146 Ariz. at 16 (affirming denial of Rule
60(c)(6) relief where the court could reasonably infer the defendant “simply
chose not to respond to the summons and complaint”).

¶14           For these reasons, the trial court did not abuse its discretion
in concluding that the Ricos’ Rule 60(c) motion was untimely. See Ariz. R.
Civ. P. 60(c); see also Martin v. Martin, 182 Ariz. 11, 16 (App. 1994) (“A
motion for relief brought pursuant to Rule 60(c)(6) must be filed within a
reasonable time.”) (internal quotation marks omitted). We thus need not
address whether the Ricos’ proffered defense was meritorious.

III.   NBA Is Entitled to Recover Reasonable Attorney Fees and Costs
       Incurred on Appeal

¶15         NBA requests attorney fees and costs pursuant to the
Promissory Note and A.R.S. § 12-341.01.A. The Promissory Note provides
as follows:

       ATTORNEYS’ FEES; EXPENSES: Lender may hire or pay
       someone else to help collect this Note if I do not pay. I will
       pay Lender that amount. This includes, subject to any limits
       under applicable law, Lender’s attorneys’ fees and Lender’s
       legal expenses . . . including . . . appeals.

Generally, we enforce an attorney fees provision according to its terms.
Geller v. Lesk, 230 Ariz. 624, 627, ¶ 10 (App. 2012). However, we retain
discretion to limit the award to a reasonable amount. McDowell Mountain
Ranch Cmty. Ass’n v. Simons, 216 Ariz. 266, 270, ¶¶ 16-17 (App. 2007). We
award NBA a reasonable amount of attorney fees and taxable costs incurred
on appeal upon compliance with Rule 21, Arizona Rules of Civil Appellate
Procedure.



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                           NATIONAL v. RICO
                           Decision of the Court

                             CONCLUSION

¶16          We affirm the trial court’s ruling as set forth above and award
NBA its reasonable attorney fees and costs.




                                 :ama




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