                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


         GORDON K. COOPER, an individual, Plaintiff/Appellee,

                                        v.

            JOHN MOTTA, an individual, Defendant/Appellant.

                             No. 1 CA-CV 13-0392
                              FILED 06-05-2014


           Appeal from the Superior Court in Maricopa County
                          No. CV2012-011660
                The Honorable Lisa Daniel Flores, Judge

                                  AFFIRMED


                                   COUNSEL

John Motta, Glendale
Defendant/Appellant in Propria Persona

Gust Rosenfeld, P.L.C., Phoenix
By Scott A. Malm, Calvin J. Platten
Counsel for Plaintiff/Appellee
                            COOPER v. MOTTA
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Andrew W. Gould
joined.


P O R T L E Y, Judge:

¶1          John Motta challenges the summary judgment in favor of
Gordon K. Cooper, which quieted title and released two lis pendens on
property now owned by Cooper. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY 1

¶2            Motta purchased real property in Glendale (the "Property")
with a loan from Flagstar Bank in June 2008. The loan was secured by a
deed of trust. Motta failed to make mortgage payments, and a trustee’s
sale was held on April 1, 2011. Following the sale, Federal Home Loan
Mortgage received a Trustee’s Deed Upon Sale on April 15, 2011. A
special warranty deed was subsequently issued to Cooper and recorded
on December 7, 2011.

¶3             Motta filed a lawsuit in April 2012 against Flagstar Bank in
Maricopa County Superior Court Cause No. CV2012-052407 to set aside
the trustee’s sale and to invalidate the resulting “fraudulent title transfer.”
He filed his first lis pendens against the Property on May 9, 2012. He filed
a second lis pendens on June 14, 2012, purportedly to waive his claim
against the Property to the extent of permitting Cooper to refinance his
loan on the Property.

¶4            Cooper asked Motta to remove the lis pendens and execute a
quit claim deed for the Property on July 12, 2012. Motta refused two days
later, and Cooper filed this quiet title action on August 14, 2012.


1 The facts are taken from Plaintiff’s Statement of Facts in Support of His
Motion for Summary Judgment. In responding to Cooper’s statement of
facts, Motta asserted that Cooper omitted important information, but did
not dispute the factual statements made by Cooper.




                                      2
                           COOPER v. MOTTA
                           Decision of the Court

¶5            Cooper filed a motion for summary judgment, arguing that
Motta had waived any pre-sale objections because Motta failed to
challenge the trustee’s sale prior to the sale. Cooper also asserted that he
acquired title to the Property free and clear of any interest Motta may
have had in the Property. And, to support his motion, Cooper attached
the affidavit of Matthew H. Mason, the Trustee, who avowed that Motta
was provided notice of the sale pursuant to statute.

¶6           Motta opposed the motion. He, however, did not challenge
Cooper’s legal argument, but instead claimed that Cooper was defending
Flagstar Bank, that Cooper had no authority to defend the bank, and that
Cooper’s remedy was against the Federal Home Loan Mortgage
Corporation. After oral argument, the court granted Cooper’s motion for
summary judgment and stated:

                    Based on the undisputed facts, the
             Court finds that Cooper is a bona fide
             purchaser for value without notice. Cooper
             bought the property almost six months before
             the lawsuit against the lender and the first lis
             pendens were filed. Motta did not allege that
             Cooper had any knowledge of Motta’s dispute
             with his lender when Cooper bought the
             house. Cooper was an innocent buyer of the
             home, and his interest in retaining title cannot
             be undermined by Motta’s dispute with the
             lender.    Whether the lender is liable for
             damages is an issue for decision in CV2012-
             052407, but there is no avenue for Motta to
             obtain title from Cooper. For that reason,
             Motta’s two lis pendens are improper and
             must be removed.

The court denied Motta’s request for relief from judgment and entered
judgment quieting title to the Property in Cooper. The court also awarded
Cooper $13,170.40 in attorneys’ fees pursuant to Arizona Revised Statutes
(“A.R.S.”) section 12-1103(B). 2 This appeal followed.



2We cite the current version of the applicable statutes where no revisions
material to this decision have since occurred.




                                     3
                             COOPER v. MOTTA
                             Decision of the Court

                                DISCUSSION

¶7            Summary judgment may be granted when “there is no
genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law.” Ariz. R. Civ. P. 56(a). In reviewing a
motion for summary judgment, we determine de novo whether any
genuine issues of material fact exist and whether the trial court properly
applied the law. Eller Media Co. v. City of Tucson, 198 Ariz. 127, 130, ¶ 4,
7 P.3d 136, 139 (App. 2000).

¶8              Motta argues that he properly filed the lis pendens to give
notice that he was pursuing an action that affected title to the Property in
Cause No. CV2012-052407. See A.R.S. § 12-1191. 3 Contending that one of
his claims against Flagstar Bank is a violation of the Uniform Fraudulent
Transfer Act, A.R.S. §§ 44-1001 to -1010, Motta argues that the court in that
action can rescind the transfer of the Property to Cooper, which supports
his filing of the lis pendens. The Property, however, was transferred away
from Motta pursuant to a deed of trust and trustee’s sale. Consequently,
we only look to the statutes governing trust deeds and sales to resolve the
validity of the lis pendens filings. 4

¶9           A trustee’s deed conveys to the purchaser all interest in the
subject property. Section 33-811(E) states:

              The trustee’s deed shall operate to convey to
              the purchaser the title, interest and claim of the
              trustee, the trustor, the beneficiary, their
              respective successors in interest and all persons
              claiming the trust property sold by or through
              them, including all interest or claim in the trust
              property acquired subsequent to the recording
              of the deed of trust and prior to delivery of the
              trustee’s deed.     That conveyance shall be
              absolute without right of redemption and clear
              of all liens, claims or interests that have a
              priority subordinate to the deed of trust and


3 Section 12-1191(A) provides: “In an action affecting title to real property,
the plaintiff at the time of filing the complaint, or thereafter . . . may file in
the office of the recorder of the county in which the property is situated a
notice of the pendency of the action.”
4 We express no opinion about Motta’s claim against the bank.




                                        4
                           COOPER v. MOTTA
                           Decision of the Court

              shall be subject to all liens, claims or interests
              that have a priority senior to the deed of trust.

The deed, as a result, raises a presumption that all statutory requirements
have been met to exercise the power of sale and conduct the sale. Id. § 33-
811(B). Moreover, the deed constitutes conclusive evidence of compliance
with those requirements with respect to purchasers for value without
actual notice. Id. Generally, anyone having an objection or a defense to
the trustee’s sale must seek and obtain injunctive relief prior to the sale.
Id. § 33-811(C); BT Capital, LLC v. TD Serv. Co. of Ariz., 229 Ariz. 299, 301,
¶¶ 10-11, 275 P.3d 598, 600 (2012). The trustor and all to whom a notice of
sale has been sent pursuant to § 33-809 waives any objections and
defenses not raised in an action resulting in a pre-sale injunction. A.R.S. §
33-811(C).

¶10           In his response to the summary judgment motion, Motta did
not dispute the avowal by the trustee Mason that Motta was given notice
of the trustee’s sale pursuant to § 33-809(B) and (C). 5 Motta did not seek
or obtain an injunction prior to the sale and, as a result, has waived any
pre-sale objection. Id. § 33-811(C). The Property was sold at a trustee’s
sale, and a trustee’s deed was issued to the Federal Home Loan Mortgage
Corporation; thus transferring all of Motta’s interest in the Property to the
purchaser.

¶11          Cooper acquired the Property from the Federal Home Loan
Mortgage Corporation several months before Motta filed his lawsuit
against Flagstar Bank objecting to the trustee’s sale. Motta did not
produce any evidence that Cooper had any notice of any impropriety in

5 In his Second Amended Motion for Relief from Judgment—Rule 60,
Motta disputed that he was given notice and other facts asserted by
Cooper. He did not however submit an affidavit refuting the facts
asserted in Mason’s affidavit. “In the absence of controverting affidavits,
facts alleged by affidavits attached to a motion for summary judgment
may be considered true.” Portonova v. Wilkinson, 128 Ariz. 501, 502, 627
P.2d 232, 233 (1981). Further, in reviewing a decision on a motion for
summary judgment, we consider only that evidence before the trial court
when it addressed the motion. Cella Barr Assocs., Inc. v. Cohen, 177 Ariz.
480, 487 n.1, 868 P.2d 1063, 1070 n.1 (App. 1994); GM Dev. Corp. v. Cmty.
Am. Mortg. Corp., 165 Ariz. 1, 4, 795 P.2d 827, 830 (App. 1990). Motta’s
denial that he received statutory notice was not before the court when
ruling on the summary judgment motion.



                                      5
                           COOPER v. MOTTA
                           Decision of the Court

the conduct of the trustee’s sale. Motta did not produce any evidence that
Cooper was aware of any dispute Motta had with Flagstar Bank before
Cooper purchased the Property. Because the deed is conclusive evidence
of the propriety of the sale and the deed extinguished any interest Motta
had in the Property, Cooper acquired the Property free and clear. See id. §
33-811(B).

¶12           Even if we assume that Motta might prevail in his action
against Flagstar Bank, he cannot recover the Property. The transfer of the
Property by trustee’s sale is not voidable because the Property was sold to
enforce the security interest protecting the loan. Consequently, the
Property is not “affected” by Motta’s suit against the bank, and the lis
pendens were properly ordered removed.

¶13           Motta also argues that the court erred in awarding attorneys’
fees to Cooper. The court has discretion to award attorneys’ fees to a
plaintiff in a quiet title action when the plaintiff asks the other party
twenty days before filing a lawsuit to execute a quit claim deed and
tenders five dollars for execution and delivery of the deed. Id. § 12-
1103(B); Scottsdale Mem’l Health Sys. Inc. v. Clark, 164 Ariz. 211, 215, 791
P.2d 1094, 1098 (App. 1990).

¶14            In deciding whether to award fees pursuant to § 12-341.01,
the court can consider the same factors outlined in Associated Indemnity
Corp. v. Warner, 143 Ariz. 567, 570, 694 P.2d 1181, 1184 (1985). Scottsdale
Mem’l Health Sys. Inc., 164 Ariz. at 215-16, 791 P.2d at 1098-99. The factors
include: (1) the merit of the claim or defense of the unsuccessful party; (2)
whether the litigation could have been avoided or settled; (3) whether
assessing fees against the unsuccessful party would cause extreme
hardship; (4) whether the successful party achieved all the relief sought;
(5) whether the legal question presented is novel; (6) whether the claim or
defense had been adjudicated previously; and (7) whether an award
would discourage other parties with tenable claims or defenses from
litigating legitimate issues. Warner, 143 Ariz. at 570, 694 P.2d at 1184. We
will not disturb a trial court’s discretionary award of attorneys’ fees if a
reasonable basis supports the decision. Rudinsky v. Harris, 231 Ariz. 95,
101, ¶ 27, 290 P.3d 1218, 1224 (App. 2012).

¶15           Motta does not dispute that Cooper complied with the
statutory requirement to be eligible for an award of fees under § 12-
1103(B). He argues, however, that the court abused its discretion in
awarding the fees because: (1) the litigation could have been avoided or
settled if Cooper had accepted Motta’s offer of assistance and his offer for


                                     6
                           COOPER v. MOTTA
                           Decision of the Court

Cooper to join his litigation against Flagstar Bank; (2) the fees would
“clearly” cause a hardship on him; and (3) Cooper should not have
prevailed.

¶16           Motta’s argument that the matter could have been settled if
Cooper had joined in Motta’s litigation against Flagstar Bank is
unpersuasive. There is nothing in this record to suggest that Cooper has
any relationship with Flagstar Bank. And, to suggest that Cooper should
have voluntarily joined Motta’s litigation instead of pursuing this action is
unreasonable. Cooper sought to resolve the matter without litigation by
asking Motta to release the lis pendens and to execute a quit claim deed
for the Property. Motta refused, which required Cooper to pursue this
action to obtain relief.

¶17            Although Motta claims hardship, he did not produce any
evidence of hardship to the trial court. A party claiming financial
hardship must produce prima facie evidence in support of that claim. Id.
at 102, ¶ 32, 290 P.3d at 1225. Because Motta did not first assert the issue
to the trial court, he has waived the issue on appeal. See Paloma Inv. Ltd.
P’ship v. Jenkins, 194 Ariz. 133, 137, ¶ 17, 978 P.2d 110, 114 (App. 1998)
(noting that this court does not consider arguments raised for the first
time on appeal). Consequently, the award of attorneys’ fees to Cooper
was not an abuse of discretion.

¶18           Cooper also requests an award of attorneys’ fees on appeal
pursuant to § 12-1103(B). In the exercise of our discretion, Lewis v. Pleasant
Country, Ltd., 173 Ariz. 186, 195, 840 P.2d 1051, 1060 (App. 1992), we grant
Cooper’s request for reasonable attorneys’ fees on appeal upon
compliance with ARCAP 21.

                              CONCLUSION

¶19           The superior court’s judgment is affirmed.




                                      :gsh




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