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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                  US BANK NATIONAL ASSOCIATION,
                           Plaintiff/Appellee,

                                        v.

                                MARK ROSE,
                              Defendant/Appellant.

                             No. 1 CA-CV 17-0739
                               FILED 8-23-2018


          Appeal from the Superior Court in Maricopa County
                         No. CV2017-011842
         The Honorable David W. Garbarino, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Mark Rose, Glendale
Defendant/Appellant

Zieve, Brodnax & Steele, LLP, Phoenix
By Eric L. Cook
Counsel for Plaintiff/Appellee
                             US BANK v. ROSE
                            Decision of the Court



                       MEMORANDUM DECISION

Chief Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Kent E. Cattani joined.


T H U M M A, Chief Judge:

¶1             Defendant Mark Rose appeals from a judgment in favor of
plaintiff U.S. Bank National Association, as trustee for Residential Asset
Mortgage Products, Inc., Mortgage Asset-Backed Pass Through
Certificates, Series 2005-EFC7 (U.S. Bank) entered after a trial in this forcible
entry and detainer (FED) action. Because Rose has shown no reversible
error, the judgment is affirmed.

                 FACTS1 AND PROCEDURAL HISTORY

¶2            U.S. Bank purchased the real property relevant here (a
residence in Glendale) at a trustee’s sale in July 2017. When Rose did not
vacate the property after being given written notice to do so, U.S. Bank filed
this FED action in September 2017. The complaint attached a copy of the
recorded trustee’s deed conveying the property to U.S. Bank. After Rose
filed an answer, including affirmative defenses, the superior court held a
bench trial where Rose testified. After considering the evidence and
argument, the court found Rose guilty of forcible detainer and entered a
final judgment in favor of U.S. Bank. See Ariz. R. Civ. P. 54(c)(2018).2 This
court has jurisdiction over Rose’s timely appeal pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.)
sections 12-120.21(A)(1) and -2101(A)(1).

                                DISCUSSION

¶3            Rose argues U.S. Bank was not the real party in interest
because it did not have “the power of sale under a deed of trust.” Because


1 This court views the facts in a light most favorable to sustaining the
judgment. See Sw. Soil Remediation v. City of Tucson, 201 Ariz. 438, 440 ¶ 2
(App. 2001).

2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


                                       2
                              US BANK v. ROSE
                             Decision of the Court

Rose did not raise this argument before the superior court, it is waived on
appeal. See Odom v. Farmers Ins. Co. of Ariz., 216 Ariz. 530, 535 ¶ 18 (App.
2007) (arguments raised for the first time on appeal are untimely and are
generally waived). Rose claims the evidence shows that “the actual
complainants posing as Plaintiffs are” a limited liability company listed as
a mailing address in the trustee’s deed and that another entity “ostensibly
manufactured the power of sale on behalf of” that limited liability
company. Rose also apparently claims that the lender did not strictly
comply with the deed of trust statutes. Rose, however, did not provide a
transcript from the trial, and this court assumes that transcript would
support the judgment. See Johnson v. Elson, 192 Ariz. 486, 489 ¶ 11 (App.
1998). Moreover, Rose’s brief on appeal does not cite record evidence
supporting his factual allegations as is required to preserve such
arguments. See Ariz. R. Civ. App. P. 13(a); see also Ritchie v. Krasner, 221 Ariz.
288, 305 ¶ 62 (App. 2009) (noting such failure “can constitute abandonment
and waiver of [a] claim”).

¶4              Even absent waiver, Rose has shown no reversible error.
Although, in substance, Rose seeks to dispute title to the real property, title
issues are not resolved in an FED action. Instead, the only issue to be
determined is the right of possession. See, e.g., A.R.S. § 12-1177(A) (“On the
trial of an action of forcible entry or forcible detainer, the only issue shall be
the right of actual possession and the merits of title shall not be inquired
into.”) (emphasis added).

¶5             The trustee’s deed lists U.S. Bank as the owner of the
property. Rose failed to provide any evidence that he lacked notice of the
trustee’s sale or that he obtained injunctive relief before the trustee’s sale.
See A.R.S. § 33-811(C) (“all persons to whom the trustee mails a notice of a
sale under a trust deed . . . 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”). Nor does the record presented on appeal provide evidence
rebutting U.S. Bank’s claim to possession. On this record, the superior court
properly could conclude that U.S. Bank has the superior right of possession
over Rose. See A.R.S. §§ 12-1173.01(A)(2), 33-811(B); see also Triano v. First
Am. Title Ins. Co. of Ariz., 131 Ariz. 581, 583 (App. 1982) (noting “issuance of
the trustee’s deed . . . is conclusive evidence that the statutory requirements
were satisfied”).




                                        3
                             US BANK v. ROSE
                            Decision of the Court

                               CONCLUSION

¶6             Because Rose has shown no reversible error, the judgment is
affirmed. U.S. Bank requests an award of attorneys’ fees and costs incurred
on appeal, citing A.R.S. §§ 12–341.01 and 12-349. See also A.R.S. § 12-1178(A).
In the exercise of the court’s discretion, U.S. Bank is awarded an amount of
reasonable attorneys’ fees and its taxable costs incurred on appeal,
contingent upon its compliance with Arizona Rule of Civil Appellate
Procedure 21.




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




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