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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                  KEVIN LOVETT, et al., Plaintiffs/Appellees,

                                         v.

              PAWAN K. SINGH, et al., Defendants/Appellants.

                              No. 1 CA-CV 18-0680
                                FILED 10-15-2019


           Appeal from the Superior Court in Maricopa County
                          No. CV 2017-003284
          The Honorable Lindsay P. Abramson, Judge Pro Tempore

                                   AFFIRMED


                                    COUNSEL

Ivan & Associates, Glendale
By Florin V. Ivan, Donald T. Scher
Counsel for Defendants/Appellants

Williams Zinman & Parham PC, Phoenix
By Scott E. Williams, Mark B. Zinman, Melissa Parham, Scott A. Baluha
Counsel for Plaintiffs/Appellees
                      LOVETT, et al. v. SINGH, et al.
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Lawrence F. Winthrop
joined.


B R O W N, Judge:

¶1            Pawan Singh appeals the superior court’s order granting
summary judgment in favor of Kevin Lovett and Danella Lovett finding
Singh guilty of forcible detainer.1 For the following reasons, we affirm.

                             BACKGROUND

¶2            In May 2017, the Lovetts filed a forcible entry and detainer
(“FED”) complaint in the superior court pursuant to A.R.S. §§ 12-1173 and
12-1173.01. The Lovetts alleged they purchased Singh’s home in Phoenix at
a trustee’s sale and received title to the property under a trustee’s deed,
recorded on April 25, 2017. They also alleged that Singh was served with a
demand of surrender and possession, but he failed to vacate the property.

¶3            At the forcible detainer hearing, Singh pled not guilty and
demanded a jury trial to resolve an alleged factual dispute of whether the
Lovetts could establish good title. But Singh also stated he would stipulate
to a bench trial if he was able to review a certified copy of the deed. The
Lovetts provided the document to Singh.

¶4             At the trial and motions hearing two weeks later, Singh
asserted he was entitled to discovery; specifically, he subpoenaed
Carrington Foreclosure Services, LLC, a substitute trustee under the deed
of trust, to determine if the trustee’s deed was fraudulent. In response to
the subpoena, Carrington filed a motion to quash because the documents
requested were not relevant to the FED action and traveling to Arizona
would be burdensome. Rejecting Singh’s argument that he was entitled to


1      Pawan Singh is married to Amit Jyoti. Although she did not join in
the answer or file her own, she was present at the forcible detainer hearing
and she joined in the notice of appeal. For ease of reference, and because
Pawan and Amit do not assert separate arguments, we refer only to Singh
throughout the decision.


                                     2
                       LOVETT, et al. v. SINGH, et al.
                          Decision of the Court

discovery, the superior court explained that if he wanted to argue the title
was defective, he would have to make that challenge in a quiet title action.
The court quashed the Carrington subpoena and denied Singh’s request for
a jury trial because there was no genuine dispute of fact as to whether the
trustee’s deed was fraudulent. See A.R.S. § 33-811(B).

¶5            After finding that the certified copy of the trustee’s deed was
self-authenticating, the superior court admitted the deed into evidence.
The Lovetts then made an oral motion for judgment on the pleadings,
asserting the deed was conclusive evidence of their right to possession. The
court treated the motion as a motion for summary judgment and granted it,
finding there were no issues of law or fact. The court found Singh guilty of
forcible detainer, and he timely appealed.

                               DISCUSSION

¶6             Summary judgment is appropriate 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). As pertinent here, a person who
“retains possession of any land . . . after [receiving] written demand of
possession may be removed through an action for forcible detainer . . . if the
property has been sold through a trustee’s sale under a deed of trust.”
A.R.S. § 12–1173.01(A)(2). An FED action provides “a summary, speedy
and adequate remedy for obtaining possession of the premises.” United
Effort Plan Tr. v. Holm, 209 Ariz. 347, 351, ¶ 21 (App. 2004). Thus, the only
issue in an FED action is the right to possession; a court may not inquire
into the merits of title. A.R.S. § 12-1177(A); Curtis v. Morris, 186 Ariz. 534,
534 (1996). We review de novo whether the court properly granted
summary judgment. Miller v. Hehlen, 209 Ariz. 462, 465, ¶ 5 (App. 2005).

¶7              Singh first argues the superior court erred in denying him a
jury trial because there is a factual dispute as to whether the Lovetts have
good title. As our supreme court has made clear, Arizona statutes do not
allow conversion of an FED action into one for quiet title. See Curtis, 186
Ariz. at 535. Moreover, a defendant may not simply deny that a plaintiff
has valid title to avoid an FED judgment. See RREEF Mgmt. Co. v. Camex
Prods., Inc., 190 Ariz. 75, 79 (App. 1997), superseded on other grounds by Bank
of New York Mellon v. Dodev, 246 Ariz. 1 (App. 2018). Instead, a defendant
must demonstrate the existence of a genuine factual dispute regarding the
right to possession. RREEF Management Co., 190 Ariz. at 79.

¶8           Further, a trustee’s deed of sale “shall constitute conclusive
evidence of [the statutory requirements of the deed of trust] in favor of



                                      3
                       LOVETT, et al. v. SINGH, et al.
                          Decision of the Court

purchasers or encumbrancers for value and without actual notice.” A.R.S.
§ 33-811(B). The statute creates an irrebuttable presumption that “a
beneficiary of the trust deed who purchases for value and without actual
notice” of any alleged defect in the trustee’s sale holds good title. Main I
Ltd. P’ship v. Venture Capital Constr. Dev. Corp., 154 Ariz. 256, 260 (App.
1987). The superior court correctly determined that the trustee’s deed was
conclusive evidence that the statutory requirements for the non-judicial
foreclosure process were satisfied and that Singh was not entitled to a jury
trial. See Ariz. R.P. Eviction Actions 11(d) (stating that “if a jury trial has
been demanded” and “no factual issues exist for the jury to determine, the
matter shall proceed to a trial by the judge alone regarding any legal issues
or may be disposed of by motion or in accordance with these rules, as
appropriate”).

¶9            We also note that Singh stipulated to a bench trial if a certified
copy of the trustee’s deed was presented. Singh received the document,
and it was admitted into evidence at the trial and motions hearing.
Notwithstanding his stipulation and proceeding with the bench trial—
clearly constituting waiver of any issue in this regard—Singh argues that
because he was “deprived” of his right to a jury trial, he was also denied
due process under the Fourteenth Amendment. Putting aside the
conclusive effect of his waiver, Singh was only entitled to a jury trial if any
of his alleged defenses had a legal basis for contesting the FED complaint.
Moreover, due process requirements do not apply to a private deed-of-trust
sale because a deed of trust sale does not constitute state action. Kelly v.
NationsBanc Mortg. Corp., 199 Ariz. 284, 289, ¶¶ 24–25 (App. 2000), as
amended, (Mar. 1, 2001).

¶10           Relying on Steinberger v. McVey ex. Rel. County of Maricopa, 234
Ariz. 125, 136, ¶ 42 (App. 2014), Singh next contends the superior court
erred by rejecting his defense that he was not given notice of the trustee’s
sale. At the forcible detainer hearing, Singh’s counsel asserted for the first
time, with no supporting evidence, that Singh did not receive notice of the
sale until someone showed up at his door saying they had just purchased
the property, and he needed to leave. Even assuming Singh had presented
evidence in support of his newly-asserted defense, it would have no bearing
on the FED action because the trustee’s deed was conclusive on the issue of
possession. See A.R.S. § 12–1177(A). As noted, other issues simply cannot
be raised in an FED action. See Curtis, 186 Ariz. at 535 (explaining that “
§ 12–1177(A) defines the issues that can be litigated in such an action
whatever the relationship or transaction” and “[a]ny other interpretation
would convert a forcible detainer action into a quiet title action and defeat
its purpose as a summary remedy.”). Singh offered no evidence showing


                                       4
                       LOVETT, et al. v. SINGH, et al.
                          Decision of the Court

that a factual question existed regarding the Lovett’s right to possession.
See RREEF Mgmt. Co., 190 Ariz. at 79. Thus, we reject Singh’s contention
that this case is similar to the circumstances in Steinberger, which did not
involve an FED action. 234 Ariz. at 130, ¶ 13.

¶11            Finally, Singh contends the superior court erred when it
quashed the Carrington subpoena and thereby denied him the opportunity
to develop evidence that would show the signature on the trustee’s deed
was fraudulent. More specifically, Singh asserts that First American Title is
the trustee on the deed of trust, not Carrington, and that no evidence was
disclosed showing the chain of title or proper appointment of Carrington
as trustee. Consistent with our analysis outlined above as to the limited
issues allowed in an FED action, the court acted within its discretion in
finding that Singh’s requested subpoena was not reasonably likely to lead
to the discovery of admissible evidence. See Ariz. R.P.. Eviction Actions
10(d) (“The court may quash a subpoena for good cause shown.”); 11(b)
(stating that if a defendant contests the factual or legal allegations of the
complaint, “the judge should determine whether there is a basis for a legal
defense”); Schwartz v. Superior Court In & For Cty. of Maricopa, 186 Ariz. 617,
619 (App. 1996) (reviewing trial court’s ruling on a motion to quash
subpoena for abuse of discretion).

¶12           Both parties request attorneys’ fees inter alia, under A.R.S.
§ 12-1178, which permits a court to award fees to the plaintiff when a
defendant is found guilty of forcible detainer. We deny Singh’s request for
attorneys’ fees and costs because he has not prevailed on appeal. Subject to
compliance with ARCAP 21, we grant the Lovetts’ request for attorneys’
fees and taxable costs.




                                      5
                      LOVETT, et al. v. SINGH, et al.
                         Decision of the Court

                              CONCLUSION

¶13          Because the Lovetts presented uncontroverted evidence
showing they acquired title through a trustee’s deed, and the only issue that
may be addressed in a FED action is the right to possession, we affirm the
superior court’s forcible detainer judgment.




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




                                        6
