                          NOTICE: NOT FOR PUBLICATION.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


           DONALD W. KAMELA and SIERRA W. KAMELA,
                      Plaintiffs/Appellants,

                                        v.

                ONE WEST BANK, FSB; IMB HOLD CO.,
            LLC; MORTGAGE ELECTRONIC REGISTRATION
                      SYSTEMS, INC. (MERS),
                        Defendants/Appellees.

                             No. 1 CA-CV 13-0361
                              FILED 12-30-2014


           Appeal from the Superior Court in Maricopa County
                          No. CV2011-053584
                The Honorable Alfred M. Fenzel, Judge

                                  AFFIRMED


                                   COUNSEL

Donald W. Kamela and Sierra W. Kamela, Scottsdale
Plaintiffs/Appellants

Quarles & Brady LLP, Phoenix
By John M. O’Neal and Ryan S. Patterson
Counsel for Defendants/Appellees
                        KAMELA v. ONE WEST BANK
                           Decision of the Court



                         MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge John C. Gemmill joined.


N O R R I S, Judge:

¶1            Plaintiffs/appellants Donald and Sierra Kamela appeal from
the superior court’s judgment dismissing their claims for unlawful
foreclosure, wrongful foreclosure, fraud, to set aside the trustee’s sale, to
void/cancel the trustee’s deed, to void/cancel notice of the trustee’s sale,
false advertising, widespread consumer fraud, to void/cancel assignment
of the deed of trust, gross negligence, and quiet title against
defendants/appellees One West Bank FSB, IMB Hold Co., LLC, and
Mortgage Electronic Registration Systems, Inc. (collectively, “One West”).
All of the Kamelas’ claims arise from a trustee’s sale of their home pursuant
to a deed of trust they executed to secure their obligations under a
promissory note.

¶2             On appeal, the Kamelas first argue the superior court should
not have dismissed their claims because the trustee’s sale was invalid.
According to the factual allegations in their complaint, which we must
accept as true, see Fidelity Sec. Life Ins. Co. v. State, Dep’t of Ins., 191 Ariz. 222,
224, ¶ 4, 954 P.2d 580, 582 (1998), the successor trustee, MTC Financial, Inc.
DBA Trustee Corps (“MTC”), did not become an Arizona-licensed insurer
until February 5, 2010 and was not, therefore, qualified to act as trustee
when it recorded the notice of trustee’s sale on April 30, 2009.1 See Ariz.
Rev. Stat. (“A.R.S.”) § 33-803(A) (2014) (“licensed insurance producer under
the laws of this state” may serve as a trustee under a deed of trust). Thus,
they argue the trustee’s sale was unlawful and invalid, and they were
entitled have it set aside. Reviewing the dismissal of the Kamelas’ claims
de novo, see Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶ 7, 284 P.3d 863,
866-67 (2012), we hold the superior court properly dismissed their claims
under A.R.S. § 33-811(C) (2014) because they failed to obtain a court order
enjoining the sale.


               1Thenotice of substitution of trustee identified MTC as an
“Insurance Agent.” MTC received its license on February 5, 2010, and, thus,
was a qualified trustee at the time of the trustee’s sale.


                                          2
                      KAMELA v. ONE WEST BANK
                         Decision of the Court

¶3           Under A.R.S. § 33-811(C), a trustor waives all defenses and
objections to a trustee’s sale unless the trustor obtains a court order
enjoining the sale before the sale date. As relevant, the statute reads as
follows:
             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 [an injunction] entered before 5:00
             p.m. . . . on the last business day before the
             scheduled date of the sale.

A.R.S. § 33-811(C). The statute by its plain terms applies to all defenses and
objections. See, e.g., Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz.
526, 529, 869 P.2d 500, 503 (1994). Consequently, under the statute, after a
trustee’s sale is completed, a trustor cannot “challenge the sale based on
pre-sale defenses or objections.” BT Capital, LLC v. TD Serv. Co. of Ariz., 229
Ariz. 299, 301, ¶ 11, 275 P.3d 598, 600 (2012). The only objection a trustor
may raise to challenge a completed sale is lack of notice, a challenge the
Kamelas did not raise in the superior court. Steinberger v. McVey ex rel.
Maricopa Cnty., 234 Ariz. 125, 136, ¶ 42, 318 P.3d 419, 430.

¶4            Thus, the statute required the Kamelas to raise their objections
and obtain an injunction no later than one business day before the sale to
preserve their claims. See A.R.S. § 33-811(C). Although the Kamelas filed
an action to enjoin the sale in the superior court before the sale date, the
court denied their request and the sale went forward. Nevertheless, the
Kamelas argue A.R.S. § 33-811(C) is inapplicable to their claims because
MTC was not qualified to serve as a trustee and thus “no trustee mailed a
notice of sale pursuant to A.R.S. [§] 33-809.” We disagree with this
argument.

¶5            Section 33-811(C) applies to the trustor and to “all persons to
whom the trustee mails a notice of sale under the trust deed . . . .” As we
explained in Madison v. Groseth, 230 Ariz. 8, 12, ¶ 11, 279 P.3d 633, 637 (App.
2012), “[t]he plain language of § 33-811(C) does not require the trustee to
comply with the mailing requirements of § 33-809 for the waiver provision
to apply later to the trustor.” There, we held that service of the notice of




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                      KAMELA v. ONE WEST BANK
                         Decision of the Court

trustee’s sale required by A.R.S. § 33-809(C) (2014)2 was not a prerequisite
to the application of A.R.S. § 33-811(C) to a trustor because to interpret the
statute in that fashion would render its reference to “trustor” superfluous.
Id. We recognized the potential for due process violations when the trustor
does not receive sufficient notice of the sale to allow adequate time to seek
an injunction, but concluded the trustor in that case was not deprived of
due process because she had sufficient notice of the sale, which, is the case
here as well. Id. at 12-13, ¶ 12, 279 P.3d at 637-38.

¶6            Because A.R.S. § 33-811(C) is applicable even when the trustee
does not send a notice of trustee’s sale to the trustor, the statute is also
applicable when, as alleged by the Kamelas, an unqualified trustee sends
the notice to the trustor. MTC’s status as an unqualified trustee when it
sent the notice of trustee’s sale does not affect the applicability of A.R.S. §
33-811(C) to the Kamelas’ claims. Therefore, the superior court properly
granted One West’s motion to dismiss.

¶7             The Kamelas also argue the superior court should not have
dismissed their claims without allowing them to file an amended
complaint, arguing that “[l]eave to amend shall be freely given when justice
requires,” Ariz. R. Civ. P. 15(a)(1), and they did not receive notice that the
superior court had granted One West’s motion to dismiss on September 27,
2012 until November. Although leave to amend should be freely granted
when justice requires, it is not automatic. Id.; In re Estate of Torstenson, 125
Ariz. 373, 376, 609 P.2d 1073, 1076 (App. 1980). A court does not abuse its
discretion in denying a motion to amend when a plaintiff’s request is
unduly delayed or when the amendment would be futile. Bishop v. State
Dep’t of Corrections, 172 Ariz. 472, 474-75, 837 P.2d 1207, 1209-10 (App. 1992).
In this case the Kamelas unduly delayed in seeking to amend and then
presented an amended complaint that would have been futile. Thus, the
court did not abuse its discretion in denying the request to amend. See Hall
v. Romero, 141 Ariz. 120, 124, 685 P.2d 757, 761 (App. 1984) (appellate court
will not overturn superior court’s denial of request for leave to amend
absent abuse of discretion).

¶8            On October 3, the Kamelas requested “as much time as
possible” to prepare an amended complaint. On November 19, 2012, the
Kamelas notified the court and One West they intended to file a request for

              2The  statute provides: “The trustee, within five business days
after the recordation of a notice of sale, shall mail by certified or registered
mail, with postage prepaid, a copy of the notice of sale to each of the persons
who were parties to the trust deed except the trustee.” A.R.S. § 33-809(C).


                                       4
                      KAMELA v. ONE WEST BANK
                         Decision of the Court

leave to file an amended complaint, noting that they had just recently
received the court’s ruling granting the motion to dismiss, and asked the
court for at least 90 days to file their request for leave to amend. They did
not file their request for leave to amend until April 10, 2013. Thus, even
accepting the Kamelas’ allegation they did not receive the September 27
ruling dismissing their claims until November, they still delayed almost
five months before requesting leave to file an amended complaint.

¶9            Further, the claims in the Kamelas’ proposed amended
complaint still relied primarily on the allegation that MTC was not a
qualified trustee when it sent the notice of sale. Consequently, the claims
would still have been barred by A.R.S. § 33-811(C), and, thus, the proposed
amendments were futile.

¶10          One West requests an award of attorneys’ fees on appeal
pursuant to Section 22 of the deed of trust. One West is not entitled to a fee
award under the deed of trust, however.

¶11            Section 22 of the deed of trust provides, “[l]ender shall be
entitled to collect all expenses incurred in pursuing the remedies provided
in this Section 22, including, but not limited to, reasonable attorneys’ fees
and costs of title evidence.” Under this provision, One West is entitled to
an award of fees incurred in “pursuing the remedies” available for the
Kamelas’ default. In the current litigation, however, One West is not
pursuing its remedies; it is defending against an action by the Kamelas for
alleged improprieties in the trustee’s sale. Accordingly, it is not entitled to
a fee award under Section 22 of the deed of trust. Although we will enforce
a contract provision for fees according to its terms, First Fed. Sav. & Loan
Ass’n of Phoenix v. Ram, 135 Ariz. 178, 181, 659 P.2d 1323, 1326 (App. 1982),
we cannot revise or rewrite the agreement. Mining Inv. Group, LLC v.
Roberts, 217 Ariz. 635, 639, ¶ 16, 177 P.3d 1207, 1211 (App. 2008).

¶12            One West also seeks fees under A.R.S. § 12-341.01 (2013), a
statute that authorizes an award of reasonable attorneys’ fees to the
successful party “[i]n any contested action arising out of a contract.” That
statute is inapplicable here as this action did not arise out of a contract, but
instead, out of tort and statutory claims.

¶13            Under the statute, an action arises out of a contract when the
contract is “the factor” giving rise to the litigation; it does not arise out of
contract if the contract is merely peripheral to the cause of action. Lewin v.
Miller Wagner & Co., 151 Ariz. 29, 37, 725 P.2d 736, 744 (App. 1986); accord
Hanley v. Pearson, 204 Ariz. 147, 151, ¶ 17, 61 P.3d 29, 33 (App. 2003) (a



                                       5
                      KAMELA v. ONE WEST BANK
                         Decision of the Court

contract cannot merely be a factual predicate to the action, but must be the
essential basis of it). The statute does not apply to a “purely statutory”
cause of action even when a contract is peripherally involved. Id.; Kennedy
v. Linda Brock Auto. Plaza, Inc., 175 Ariz. 323, 325, 856 P.2d 1201, 1203 (App.
1993). Similarly, when the cause of action involves a tort, the statute applies
only when the tort action could not have existed but for the breach of the
contract. A.H. By and Through White v. Ariz. Prop. & Cas. Guar. Fund, 190
Ariz. 526, 529, 950 P.2d 1147, 1150 (1997); Ramsey Air Meds, L.L.C. v. Cutter
Aviation, Inc., 198 Ariz. 10, 15-16, ¶ 27, 6 P.3d 315, 320-21 (App. 2000).

¶14           The Kamelas’ claims were all based on the allegation that
MTC was not a qualified trustee under A.R.S. § 33-803(A), not on the note
or deed of trust. Based on this foundational allegation, they asserted One
West had failed to strictly comply with the statutory scheme governing
deeds of trust and had tortiously dispossessed them of their home by
selecting and using an unqualified trustee. Although the note and deed of
trust were factual predicates to the Kamelas’ claims, they were not the
essential basis for their claims against One West. And further, One West
raised a statutory, and not a contractual, defense to the Kamelas’ claims.
See A.R.S. § 33-811(C).

¶15           One West is not, therefore, entitled to fees on appeal under
either the deed of trust or A.R.S. § 12-341.01.

                               CONCLUSION

¶16           We affirm the superior court’s judgment in favor of One West
and against the Kamelas. Although, as discussed, One West is not entitled
to fees on appeal, as the prevailing party on appeal, it is entitled to an award
of costs under A.R.S. § 12-341 (2003), contingent upon its compliance with
Arizona Rule of Civil Appellate Procedure 21.




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