                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


              WELLS FARGO BANK, N.A., Plaintiff/Appellee,

                                        v.

          WILLIAM A. HOSKYNS, et al., Defendants/Appellants.

                             No. 1 CA-CV 17-0409
                               FILED 6-7-2018


           Appeal from the Superior Court in Maricopa County
                          No. CV2016-013555
              The Honorable Lori Horn Bustamante, Judge

                                  AFFIRMED


                                   COUNSEL

Ball Santin & McLeran, P.L.C., Phoenix
By James B. Ball
Counsel for Plaintiff/Appellee

William A. Hoskyns, Phoenix
Defendant/Appellant

Susan P. Hoskyns, Phoenix
Defendant/Appellant
                    WELLS FARGO v. HOSKYNS, et al.
                         Decision of the Court



                     MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jon W. Thompson joined.


J O N E S, Judge:

¶1            William and Susan Hoskyns appeal the trial court’s order
granting summary judgment in favor of Wells Fargo Bank, N.A. (the Bank).
For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            In September 2016, the Bank filed a complaint against the
Hoskyns for breach of contract, alleging they had personally guaranteed a
business line of credit on which the borrower, Darwin House, Inc. (Darwin),
had defaulted. Service was completed via alternative means in December
2017. After the Hoskyns answered and denied liability, Wells Fargo moved
for summary judgment.

¶3            In support of its motion, the Bank attached an affidavit from
a loan adjuster, the signed Loan Application, a Customer Agreement, and
a current account statement. Together, these documents show that both
William and Susan Hoskyns executed a personal guaranty on a business
line of credit issued to Darwin in February 1997 and, through their
signatures, agreed to the terms and conditions of the Customer Agreement.
According to the Customer Agreement, Darwin agreed to pay, “when due,
the total of all purchases and advances made on [the] account.”
Additionally, the Hoskyns agreed within the Loan Application that they
would be “personally liable for the entire debt incurred on the Account.”
Indeed, the section immediately above the Hoskyns’ signatures, titled
“AGREEMENT AND PERSONAL GUARANTY” stated:

      The signer(s) further unconditionally guarantees and
      promises to pay any and all Applicant’s obligations to Bank
      arising under or relating to this application and agreement
      and the Customer Agreement, as well as any extensions,
      increases, modifications, or renewals thereof. Signer(s)
      waives (i) presentment, demand, protest, notice of protest and
      notice of nonpayment, (ii) the right to require Bank to proceed



                                    2
                   WELLS FARGO v. HOSKYNS, et al.
                        Decision of the Court

      against Applicant or any other guarantor, and (iii) the right to
      require Bank to pursue any remedy in connection with the
      guaranteed indebtedness, or to notify guarantors of any
      additional indebtedness incurred by the Applicant or any
      changes in the Applicant’s financial condition, and (iv) any
      defense arising by reason of any defenses of the Applicant or
      other guarantor. Signer(s) authorizes Bank, without prior
      notice or consent, to (a) extend, modify, compromise,
      accelerate, renew, increase or otherwise change the terms of
      indebtedness guaranteed hereunder, (b) proceed against one
      or more signer without proceeding against the Applicant or
      another guarantor, and (c) release or substitute any party to
      the indebtedness of this guaranty. Signer(s) agrees to pay
      Bank’s costs and attorney’s fees in enforcing this guaranty.
      This guaranty shall benefit the Bank and its successors and
      assigns.

Darwin eventually incurred charges of $100,863.68 but failed to make
payments as required, and the Hoskyns thereafter failed to cure the default.

¶4            In response, the Hoskyns admitted signing the Loan
Application in a section titled “Agreement and Personal Guaranty” but
claimed to have signed only as agents of Darwin and denied any personal
responsibility for the debt. They also challenged the loan officer’s
knowledge of the transaction and alleged the Bank was withholding
documents necessary to their defense — specifically, a promissory note
they believed was necessary to prove liability. The Hoskyns did not dispute
the amount of the charges reflected upon the account statement or the
contents of the documents the Bank produced in support of its motion.1
Nor did the Hoskyns ask for additional time to complete discovery,
asserting only that the Bank “failed to prove the case.”

¶5            In April 2017, while the motion for summary judgment was
pending, the Hoskyns requested the case be referred for arbitration. The
trial court denied the motion as untimely.




1      Although the Hoskyns did assert the paperwork had been “written
on by Wells Fargo employees after signing,” they did not elaborate on how
the purported alterations were relevant to the Bank’s claim. Moreover, the
operative portions of the documents are typewritten.



                                     3
                     WELLS FARGO v. HOSKYNS, et al.
                          Decision of the Court

¶6             After reviewing the record, the trial court determined the
Bank had provided evidence to support its claim, which the Hoskyns had
failed to refute, and entered judgment in the Bank’s favor in the amount of
$100,863.68. The Hoskyns timely appealed, and we have jurisdiction
pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1)2
and -2101(A)(1).

                                DISCUSSION

I.     Service of Process

¶7             The Hoskyns first suggest the trial court erred in permitting
the Bank to effectuate service of process through alternative means. To the
extent the Hoskyns believed service of process was insufficient, they were
required to assert the defense in their first responsive pleading. Ariz. R.
Civ. P. 12(b)(5). Having failed to do so, the argument is waived. See Ariz.
R. Civ. P. 12(h)(1).

II.    Arbitration

¶8             The Hoskyns also argue the trial court erred in failing to refer
the matter to arbitration. “We review the denial of a motion to compel
arbitration de novo.” Sun Valley Ranch 308 Ltd. P’ship v. Englewood Props.,
Inc. v. Robson, 231 Ariz. 287, 291, ¶ 9 (App. 2012) (citing Nat’l Bank of Ariz. v.
Schwartz, 230 Ariz. 310, 311, ¶ 4 (App. 2012)).

¶9             The Bank sought damages in excess of $100,000, and the claim
was therefore not subject to compulsory arbitration. See A.R.S. § 12-
133(A)(1) (permitting counties to set jurisdictional limits for compulsory
arbitration not to exceed $65,000). Moreover, according to the specific
language of the Customer Agreement, any party may demand a dispute be
resolved by binding arbitration if made “not more than 60 days after service
of a complaint.” The record reflects the Hoskyns were served with the
complaint in December 2016 and answered in January 2017. Their request
for arbitration was not made until April 2017, after the sixty-day deadline
had expired. We find no abuse of discretion.

III.   Summary Judgment

¶10         The Hoskyns argue the trial court erred in granting summary
judgment because they were unable to properly oppose the motion after the

2      Absent material changes from the relevant date, we cite the current
version of rules and statutes.


                                        4
                     WELLS FARGO v. HOSKYNS, et al.
                          Decision of the Court

Bank withheld information crucial to their defense. But “[i]f an opposing
party cannot present evidence essential to justify its opposition,” it must file
a request for relief pursuant to Arizona Rule of Civil Procedure 56(d). The
request must be supported by an affidavit specifying the grounds for the
request and detailing what the party believes the evidence will reveal. Ariz.
R. Civ. P. 56(d)(1). A party who, instead, moves forward with a response
may not later argue that judgment was granted prematurely. Best v.
Edwards, 217 Ariz. 497, 504, ¶ 30 (App. 2008) (citing Wells Fargo Credit Corp.
v. Smith, 166 Ariz. 489, 493 (App. 1990), and Heuisler v. Phx. Newspapers, Inc.,
168 Ariz. 278, 282 (App. 1991)).

¶11            Here, the Hoskyns neither requested a continuance, nor filed
an affidavit identifying the discovery they needed or explaining why they
could not present facts necessary to oppose summary judgment.
Accordingly, the trial court did not err in considering the merits of the
motion.

¶12           The Hoskyns argue the trial court erred in relying upon the
loan officer’s affidavit, asserting the officer was not competent to testify
because she did not have personal knowledge regarding the loan at issue.
An affidavit in support of summary judgment may be considered if it is
“made on personal knowledge, set[s] out facts that would be admissible in
evidence, and show[s] that the affiant is competent to testify on the matters
stated.” Ariz. R. Civ. P. 56(c)(5); see also Villas at Hidden Lakes Condos. Ass’n
v. Geupel Constr. Co., 174 Ariz. 72, 81 (App. 1992) (citing Portonova v.
Wilkinson, 128 Ariz. 501, 502 (1981)). Personal knowledge and competency
may be inferred from the affidavit itself. See, e.g., In re Kaypro, 218 F.3d 1070,
1075 (9th Cir. 2000) (inferring a company’s credit manager had personal
knowledge regarding the industry’s ordinary credit practices).

¶13             Within her affidavit, the loan officer avowed that, by virtue of
her position within the Bank, she had personal knowledge regarding the
manner in which the Bank collects and keeps its business records. She
noted that the records generated by the Bank are made “at or near the time
of the record by someone with knowledge of the transaction” and are then
maintained by the Bank “in the course of its regularly conducted business
activities.” She then discussed her conclusions, based upon her review of
the Bank’s records, which are attached to, and referenced within, the
affidavit. By these avowals, the loan officer proved she was competent to
testify as to the authenticity and contents of the Bank records. Contra Wells
Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 214, ¶¶ 18-20 (App. 2012) (finding
an affidavit lacking where it did not describe or attach the referenced
documents, did not establish the admissibility of the documents through an


                                        5
                     WELLS FARGO v. HOSKYNS, et al.
                          Decision of the Court

exception to the rule against hearsay, and did not say the affiant reviewed
the documents or was familiar with the manner of their preparation);
Hidden Lakes, 174 Ariz. at 82 (finding an affidavit lacking where it did not
say the affiant reviewed the exhibits or was familiar with the manner of
their preparation) (citing Chess v. Pima Cty., 126 Ariz. 233, 235 (App. 1980),
and Heiner v. City of Mesa, 21 Ariz. App. 58, 62-63 (1973)).

¶14             The Hoskyns also renew their argument that the loan officer
is not a fair witness because “her salary is based on her ability to collect
money” for the Bank. The trial court implicitly rejected this argument, and
we review its evidentiary rulings for an abuse of discretion. See Mohave
Elec. Co-op., Inc. v. Byers, 189 Ariz. 292, 301 (App. 1997) (citing Gasiorowski v.
Hose, 182 Ariz. 376, 382 (App. 1994)). We find no error here. Although the
loan officer was an employee working for the benefit of the Bank, the
Hoskyns presented no specific evidence suggesting she testified
untruthfully in her affidavit, and furthermore, largely failed to refute the
facts set forth therein. See infra ¶¶ 17-19.

¶15            Finally, the Hoskyns argue the trial court erred in finding
them liable for the debt to the Bank and granting summary judgment in its
favor.3 We review an order granting summary judgment de novo. St. George
v. Plimpton, 241 Ariz. 163, 165, ¶ 11 (App. 2016) (citing Wells Fargo Bank v.
Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Tr. Fund, 201
Ariz. 474, 482, ¶ 13 (2002)). Summary judgment is proper when, viewing
the evidence and all reasonable inferences drawn therefrom in the light
most favorable to the non-moving party, “there is no genuine dispute as to
any material fact and the moving party is entitled to judgment as a matter
of law.” Id. (quoting Ariz. R. Civ. P. 56(a), and citing Ariz. Laborers, 201 Ariz.
at 482, ¶ 13).

¶16           To carry its burden of persuasion, the moving party must
submit “undisputed admissible evidence that would compel any
reasonable juror to find in its favor on every element of its claim.” Comerica
Bank v. Mahmoodi, 224 Ariz. 289, 293, ¶ 20 (App. 2010). “When a summary
judgment motion is made and supported as provided in [Rule 56], an
opposing party may not rely merely on allegations or denials of its own
pleading.” Ariz. R. Civ. P. 56(e). Rather, he must, “by affidavits or as


3      The Hoskyns make several other arguments on appeal that were not
raised with the trial court. These arguments have been waived, and we do
not consider them. See Orfaly v. Tucson Symphony Soc’y, 209 Ariz. 260, 265,
¶ 15 (App. 2004) (citing Van Loan v. Van Loan, 116 Ariz. 272, 274 (1977)).



                                        6
                     WELLS FARGO v. HOSKYNS, et al.
                          Decision of the Court

otherwise provided in [Rule 56], set forth specific facts showing a genuine
issue for trial.” Ariz. R. Civ. P. 56(e). “An adverse party who fails to
respond [to a motion for summary judgment] does so at his peril because
uncontroverted evidence favorable to the movant, and from which only one
inference can be drawn, will be presumed to be true.” Tilley v. Delci, 220
Ariz. 233, 237, ¶ 11 (App. 2009) (quoting Choisser v. State ex rel. Herman, 12
Ariz. App. 259, 261 (1970)); see also Ariz. R. Civ. P. 56(e) (“If the opposing
party does not so respond [with specific facts supported by admissible
evidence], summary judgment, if appropriate, shall be entered against that
party.”).

¶17           In their sworn statement in opposition to the motion for
summary judgment, the Hoskyns admit applying for the line of credit but
assert “the paperwork produced . . . is only a loan application,” suggesting
the application was never consummated into an actual loan. But the
evidence does not reasonably support such an inference; the loan officer
averred that the application was approved, and the Hoskyns admit Darwin
incurred charges on the account.

¶18             The Hoskyns also assert they executed the documents only as
agents of Darwin and never intended to be personally responsible for
Darwin’s debts. The assertion fails to satisfy their burden “to come forward
with evidence establishing the existence of a genuine issue of material fact
that must be resolved at trial,” because it is not credible. Modular Mining
Sys., Inc. v. Jigsaw Techs., Inc., 221 Ariz. 515, 520, ¶ 15 (App. 2009) (noting
that, for purposes of summary judgment, a “genuine issue” is one “that a
reasonable trier of fact could decide in favor of the party adverse to
summary judgment on the available evidentiary record”) (quotations and
citation omitted). The unambiguous language of the “AGREEMENT AND
PERSONAL GUARANTY” the Hoskyns executed explicitly creates
personal responsibility for the line of credit. See supra ¶ 3. The Hoskyns
cannot avoid their obligations under the contract “on the ground that [they]
did not read it or supposed it was different in its terms from what it really
was.” Mut. Benefit Health & Accident Ass’n v. Ferrell, 42 Ariz. 477, 486 (1933),
overruled in part on other grounds as stated in Occidental Life Ins. v. Bocock, 77
Ariz. 51, 58 (1954).

¶19           The Hoskyns offered no other defense to the motion. They
nonetheless argue the Bank’s claim for breach of contract fails, as a matter
of law, because it never produced a promissory note securing payment.
Although a lender may prudently require execution of a promissory note
to secure the extension of credit, a promissory note is not necessary to the
creation of a personal guaranty, nor is a note necessary to prove breach


                                        7
                     WELLS FARGO v. HOSKYNS, et al.
                          Decision of the Court

thereof. See, e.g., Modular Sys., Inc. v. Naisbitt, 114 Ariz. 582, 583 (App. 1977)
(acknowledging the plaintiffs’ separate claims for breach of a promissory
note and breach of a guaranty agreement).

¶20            In sum, the Bank submitted admissible evidence indicating
the Hoskyns executed a credit application whereby they not only obtained
credit, but also agreed to personally guaranty a business loan issued to
Darwin, and then defaulted on the $100,863.68 obligation. The Hoskyns did
not identify, or support through specific assertions or admissible evidence,
any genuine issue of material fact that would preclude judgment in the
Bank’s favor. Accordingly, we find no error.

                                CONCLUSION

¶21          The trial court’s order entering judgment in favor of the Bank
is affirmed.

¶22           The Bank requests an award of fees pursuant to the Customer
Agreement. By signing the guaranty, the Hoskyns “agree[d] to pay [the]
Bank’s costs and attorney’s fees in enforcing th[e] guaranty.” Accordingly,
we award the Bank its attorneys’ fees and costs incurred on appeal upon
compliance with ARCAP 21(b).




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




                                          8
