                                 IN THE
            ARIZONA COURT OF APPEALS
                              DIVISION ONE


                       BANK OF AMERICA, N.A.,
            a national banking association, Plaintiff/Appellant,

                                     v.

  FELCO BUSINESS SERVICES, INC. 401(K) PROFIT SHARING PLAN,
          Ira S. Feldman, Trustee; and FBS SEDONA, LLC,
      an Arizona limited liability company, Defendants/Appellees.

                          No. 1 CA-CV 16-0099
                            FILED 8-29-2017


           Appeal from the Superior Court in Yavapai County
                       No. V1300CV201180303
          The Honorable Jeffrey G. Paupore, Judge Pro Tempore

                    REVERSED AND REMANDED


                                COUNSEL

Renaud Cook Drury Mesaros, PA, Phoenix
By Denise J. Wachholz, Richard H. Goldberg
Counsel for Plaintiff/Appellant

Favor & Wilhelmsen PLLC, Prescott
By David K. Wilhelmsen, Lance B. Payette
Counsel for Defendants/Appellees
                   BANK OF AMERICA v. FELCO et al.
                         Opinion of the Court



                                 OPINION

Presiding Judge Randall M. Howe delivered the opinion of the Court, in
which Judge Lawrence F. Winthrop and Judge Jon W. Thompson joined.


H O W E, Judge:

¶1             This appeal is from a declaratory action by lienholder Bank of
America, N.A. (“BofA”) against intervening lienholder Felco Business
Services, Inc. 401(K) Profit Sharing Plan and FBS Sedona, LLC (collectively,
“Felco”). After Felco foreclosed on its deed of trust and sold the subject
property at a trustee’s sale, BofA sued for a declaration that its deed,
recorded after Felco’s, was equitably subrogated to a position superior to
Felco’s. Felco moved for partial summary judgment, arguing that BofA
waived its equitable subrogation claim by not raising it as an objection to
the trustee’s sale pursuant to A.R.S. § 33–811(C). Without addressing
whether equitable subrogation applied, the trial court agreed with Felco,
holding that BofA’s equitable subrogation claim was a pre-trustee’s sale
defense or objection that it waived by not asserting it before the sale.

¶2            On review, we hold that an equitable subrogation claim is not
a defense or objection to a trustee’s sale and is therefore not waivable under
A.R.S. § 33–811(C). Accordingly, we reverse the trial court’s granting of
partial summary judgment in Felco’s favor and remand to the trial court to
determine whether equitable subrogation is appropriate in this case.

                 FACTS AND PROCEDURAL HISTORY

¶3            In 2007, two property owners borrowed $200,000 from
Countrywide Home Loans, Inc. secured by a deed of trust (“DOT 1”) to
property in Sedona. This deed was recorded in February 2007. A few
months later, the borrowers borrowed $1.5 million from Felco to improve
their Sedona property. The borrowers secured $600,000 of this loan with a
deed of trust (“DOT 2”) and assignment of rents to the Sedona property.
DOT 2 was recorded in June 2007.

¶4           The following year, Countrywide Home Loans’ sister
corporation, Countrywide Bank, offered to refinance the borrowers’
$200,000 loan at a lower interest rate. The borrowers accepted the offer and
borrowed $204,000 from Countrywide Bank secured by a deed of trust



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                   BANK OF AMERICA v. FELCO et al.
                         Opinion of the Court

(“DOT 3”) to the same Sedona property, which was recorded in June 2008.
Although the borrowers failed to tell Countrywide Bank about DOT 2 when
they refinanced their loan, DOT 3 specifically stated that it must be in the
first lien position, superior to any other loans. The borrowers used $200,000
of the refinancing loan to pay off and release the original loan. The deed of
release and conveyance for DOT 1 was recorded in July 2008.

¶5            In the meantime, the borrowers defaulted on their payments
on the Felco loan. In February 2009, Felco issued a statement of breach and
notice of trustee’s sale pursuant to DOT 2 to occur in May. In connection
with that notice, Felco obtained a trustee’s sale guarantee that revealed
DOT 3, but showed that the deed was subordinate to DOT 2. Accordingly,
Felco sent two notices of the trustee’s sale to Countrywide Bank, which
failed to respond to the notice and did not seek to enjoin the sale.

¶6            At the May 2009 sale, FBS Sedona successfully entered a credit
bid of $974,657.07—the exact amount it calculated was owed to it under the
promissory note and DOT 2. FBS Sedona promptly recorded the resulting
deed later in May 2009. Thereafter, FBS Sedona leased out the property, but
paid all applicable property taxes, maintenance expenses, and insurance.

¶7             At some point after the trustee’s sale, BofA acquired all
Countrywide entities, including Countrywide Home Loans and
Countrywide Bank. In August 2009, DOT 3 was assigned to BofA as the
successor in interest to Countrywide. Four months later, FBS Sedona
received a letter sent on BofA’s behalf inquiring about the status of its
“junior Deed of Trust” after the foreclosure sale and notifying FBS Sedona
that BofA was investigating the notice of foreclosure sale. After completing
that investigation, BofA informed Felco that DOT 3 had seniority over DOT
2 before the trustee’s sale and that the sale consequently did not extinguish
the senior lien.

¶8            In May 2011, BofA sued the borrowers and Felco, seeking a
declaratory judgment that DOT 3 was the senior lien and a valid and
enforceable encumbrance on the Sedona property through either the
doctrine of equitable subrogation or replacement mortgage. BofA also sued
for any excess proceeds from the trustee’s sale and asked that the trial court
determine the amount of those proceeds and order that Felco distribute
them to BofA.

¶9           Felco moved for partial summary judgment, arguing that the
doctrine of equitable subrogation should not be applied, and therefore
DOT 3, as a matter of law, was not an encumbrance on the Sedona property.



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                   BANK OF AMERICA v. FELCO et al.
                         Opinion of the Court

Specifically, Felco argued that the court should not apply equitable
subrogation because that would prejudice it as the intervening lienholder.
Felco further alleged that applying the doctrine would be inequitable
because BofA failed to review the chain of title and therefore did not
expressly assert that it intended DOT 3 to be subrogated to DOT 1. Finally,
Felco alleged that BofA failed to notify Felco of its reliance on equitable
subrogation when it recorded DOT 3 or upon receiving notice of the
trustee’s sale pursuant to A.R.S. § 33–811(C). According to Felco, this failure
showed that BofA had never intended DOT 3 to substitute DOT 1, and that
instead, BofA’s reliance on the doctrine was a post-sale attempt to remedy
its own negligent inaction before the trustee’s sale.

¶10            The trial court granted Felco’s motion for partial summary
judgment. In so ordering, the trial court held that it did not need to reach
whether the doctrine of equitable subrogation applied because BofA
waived its right to assert it. Specifically, the trial court held that A.R.S.
§ 33–811(C) required BofA to assert its lien priority as a “defense or
objection to the [trustee’s] sale,” and that its failure to enjoin the sale and
assert its priority constituted waiver. Thus, the court concluded that “Felco
and BofA’s rights in the collateral were determined at the trustee’s sale”
and Felco was entitled to summary judgment as a matter of law. BofA
timely appealed.

                               DISCUSSION

              1. Equitable Subrogation Is Not Waived Under A.R.S.
                 § 33–811(C)

¶11        BofA argues that the trial court erred by granting Felco partial
summary judgment because the doctrine of equitable subrogation1 is not a


1       The parties focused generally on the doctrine of equitable
subrogation below. On appeal, Felco questions whether Countrywide
Home Loans and Countrywide Bank should be considered the same entity,
therefore requiring analysis under the doctrine of replacement mortgage
instead of equitable subrogation. See Restatement (Third) of Property:
Mortgages § 7.6 cmt. e (stating that because a lender cannot be subrogated
to its own previous deed of trust, an original lender’s refinancing loan is
treated as a “replacement loan” instead of a subrogated one). On appeal,
BofA treats the doctrines almost interchangeably and urges reversal on
“replacement mortgage and/or equitable subrogation.” Because the two
doctrines have identical rationales and analyses, using one rubric over the



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                    BANK OF AMERICA v. FELCO et al.
                          Opinion of the Court

waivable defense under A.R.S. § 33–811(C). We review the trial court’s
ruling on a motion for summary judgment de novo. MidFirst Bank v. Chase,
230 Ariz. 366, 368 ¶ 6, 284 P.3d 877, 879 (App. 2012). Summary judgment
should be granted only if no genuine issue as to any material fact exists and
the moving party is entitled to summary judgment as a matter of law. Ariz.
R. Civ. P. 56(a). We also review issues of statutory interpretation de novo.
Maycock v. Asilomar Dev., Inc., 207 Ariz. 495, 500 ¶ 24, 88 P.3d 565, 570 (App.
2004). The primary goal in interpreting a statute is to find and give effect to
the legislative intent. Id. In doing so, we look to the statute’s plain language
as the best indicator of that intent. Azore, LLC v. Bassett, 236 Ariz. 424, 427
¶ 9, 341 P.3d 466, 469 (App. 2014). If the language is subject to only one
reasonable interpretation, we apply that interpretation. J.D. v. Hegyi, 236
Ariz. 39, 40–41 ¶ 6, 335 P.3d 1118, 1119–20 (2014). Because the doctrine of
equitable subrogation is not a defense or objection to a trustee’s sale that is
waivable under A.R.S. § 33–811(C), the trial court erred by granting partial
summary judgment in Felco’s favor.

¶12            Equitable subrogation is “the substitution of another person
in the place of a creditor, so that the person in whose favor it is exercised
succeeds to the rights of the creditor in relation to the debt.” Sourcecorp, Inc.
v. Norcutt, 229 Ariz. 270, 272 ¶ 5, 274 P.3d 1204, 1206 (2012) (adopting the
approach of Restatement (Third) of Property: Mortgages § 7.6(a)). Thus,
applying this doctrine allows a deed of trust to assume the same priority
position of an earlier deed of trust despite intervening liens that otherwise
would be senior to the later deed. Markham, 240 Ariz. at 364 ¶ 19, 379 P.3d
at 261. As its name suggests, this is an equitable remedy and is designed to
avoid the injustice of a person’s receiving an unearned windfall at another’s
expense. Id. Generally, the person with an interest in property who pays off
an encumbrance to protect a property interest is subrogated to the rights
and limitations of the person paid. Id.; see also Restatement § 7.6 cmt. a; Weitz
Co. L.L.C. v. Heth, 235 Ariz. 405, 410 ¶ 15, 333 P.3d 23, 28 (2014) (“When
equitable subrogation occurs, the superior lien and attendant obligation are
not discharged but are instead assigned by operation of law to the one who
paid the obligation.”).

¶13           Equitable subrogation and disputes of lien priority do not fall
within A.R.S. § 33–811(C)’s ambit. See Morgan AZ Fin., L.L.C. v. Gotses, 235
Ariz. 21, 24 ¶ 8, 326 P.3d 288, 291 (App. 2014) (stating that A.R.S.
§ 33–811(C)’s language “to the sale” must be strictly construed). As relevant

other does not matter; for convenience, we refer to equitable subrogation.
See Markham Contracting Co., Inc. v. Fed. Deposit Ins. Co., 240 Ariz. 360, 364
¶ 18, 379 P.3d 257, 261 (App. 2016).


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                    BANK OF AMERICA v. FELCO et al.
                          Opinion of the Court

here, A.R.S. § 33–811(C) states that all trustors or other persons to whom a
trustee mails a notice of trustee’s sale “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” entered before close of business on the day
before the scheduled sale date. The statute’s plain language prescribes
waiver only of defenses and objections to the sale itself, so a trustor who
fails to enjoin a trustee’s sale does not waive claims that are independent of
the sale. See id. at ¶¶ 8–10. In other words, “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.” Id. at ¶ 8.

¶14            As an equitable remedy independent of a trustee’s sale,
equitable subrogation is neither a defense nor objection to the sale. Whether
equitable subrogation applies is independent of the trustee’s sale because
whether BofA holds a senior or junior lien is not determined by or
contingent upon the occurrence of a trustee’s sale. Although lien priority
claims relate to the underlying security property sold, asserting equitable
subrogation does not challenge any claims for title to the property nor the
validity of the trustee’s sale. Felco had the ability to proceed with the sale
and ultimately conduct it even if BofA had asserted the doctrine before the
trustee’s sale. This is true regardless whether BofA’s lien was senior or
junior to Felco’s. Because A.R.S. § 33–811(C)’s express language does not
preclude assertions of equitable subrogation, the doctrine remained
available to BofA even after the trustee’s sale on Felco’s DOT 2.

¶15             Felco counters that an equitable subrogation claim is
dependent on a trustee’s sale because “if the entitlement of [DOT 3] to the
priority of [DOT 1] were not asserted before the foreclosure of [DOT 2],”
the trustee’s sale would extinguish DOT 3. But this misconstrues the
purpose of a trustee’s sale. A trustee’s sale merely sells the property to
satisfy a lien; it does not itself determine whether a lien is in a junior or
senior position. A lien’s priority is determined by factors independent of
the sale, including the order in which the deeds were recorded or the
application of legal doctrines such as equitable subrogation or mortgage
replacement. A lienholder can foreclose on the security property and
conduct a trustee’s sale pursuant to the deed of trust regardless whether the
lien is in a junior or senior position. A lien’s priority dictates whether the
lien is extinguished or remains an encumbrance on the property after the
sale occurs. See A.R.S. § 33–811(E) (providing that any property conveyed
pursuant to a trustee’s sale “shall be . . . clear of all liens, claims or interests
that have a priority subordinate to the deed of trust and shall be subject to
all liens, claims or interests that have a priority senior to the deed of trust”).
Thus, the trial court erred by concluding that BofA waived its ability to


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                   BANK OF AMERICA v. FELCO et al.
                         Opinion of the Court

claim its lien priority by not enjoining the trustee’s sale under A.R.S.
§ 33–811(C).

¶16           Because subrogation is an equitable remedy, its application
“depends upon the particular facts and circumstances of each case as it
arises.” Markham, 240 Ariz. at 364 ¶ 20, 379 P.3d at 261. Therefore, we
remand to the trial court to determine whether equitable subrogation is
appropriate in this case. 2 See Weitz, 235 Ariz. at 412 ¶ 27, 333 P.3d at 30.
Among the factors that the trial court must consider are whether the loan
secured by DOT 3 fully performed the obligation related to DOT 1 and
whether equitable subrogation is needed to prevent Felco from becoming
unjustly enriched by a promotion in lien priority. See Restatement § 7.6(a);
see also US Bank, N.A. v. JPMorgan Chase Bank, N.A., 242 Ariz. 502, 507 ¶ 16,
398 P.3d 118, 123 (App. 2017) (“Arizona has adopted the definition of
subrogation set forth in Restatement § 7.6.”).

             2. Attorneys’ Fees

¶17           BofA and Felco each request their reasonable attorneys’ fees
on appeal pursuant to A.R.S. § 12–341.01. We deny the requests because
neither party is successful yet.

                               CONCLUSION

¶18            For the foregoing reasons, we reverse the trial court’s
awarding partial summary judgment in Felco’s favor and remand for the
trial court to decide whether equitable subrogation is appropriate in this
case.




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



2      We note that if the trial court determines equitable subrogation is
appropriate, any amount of DOT 3 in excess of DOT 1 would not be
equitably subrogated. See Restatement § 7.6 cmt. e (“The payor is
subrogated only to the extent that the funds disbursed are actually applied
toward payment of the prior lien. There is no right of subrogation with
respect to any excess funds.”).


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