                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


 FIRST FINANCIAL BANK, N.A., as Successor in Interest to the Federal
 Deposit Insurance Corporation, as Receiver of Irwin Union Bank F.S.B.,
                          Plaintiff/Appellee,

                                   v.

  THEODORE F. CLAASSEN, an unmarried man, Defendant/Appellant.

                         No. 1 CA-CV 14-0123
                          FILED 8-13-2015


          Appeal from the Superior Court in Maricopa County
                         No. CV2010-032991
                    The Honorable John Rea, Judge

      REVERSED IN PART; AFFIRMED IN PART; REMANDED


                              COUNSEL

Minkin & Harnisch, PLLC, Phoenix
By Ethan B. Minkin, Sara V. Ransom, Andrew A. Harnisch
Counsel for Plaintiff/Appellee

Brooks & Affiliates, PLC, Mesa
By David P. Brooks, Spenser W. Call
Counsel for Defendant/Appellant



                              OPINION

Judge Jon W. Thompson delivered the Opinion of the Court, in which
Presiding Judge Andrew W. Gould and Judge Maurice Portley joined.
                    FIRST FINANCIAL v. CLAASSEN
                          Opinion of the Court

T H O M P S O N, Judge:

¶1            This appeal follows a bench trial on a deficiency action
following a judicial foreclosure. Appellant Theodore F. Claassen (Claassen)
asserts that the trial court erred in determining that there was a non-
purchase, non-construction, money deficiency of $1,119,676.67 under
Arizona Revised Statutes (A.R.S.) § 33-729(A) (2014) which successor-
lender First Financial Bank, N.A. (Bank) was entitled to pursue.1 We agree
as to $914,403.33 of the damages and, therefore, reverse in part and remand.

              FACTUAL AND PROCEDURAL HISTORY

¶2            The real property at issue is in a planned community in
Paradise Valley. In April 2008, Claassen was extended credit in an original
principal amount not to exceed $5,500,000 (loan) for the construction of a
single family dwelling. Of that $5,500,000 approximately $1.7 million was
used to satisfy the original purchase money loan and the balance was
placed into a construction loan account from which draws were to be made.
The total amount Bank loaned Claassen was over $3,000,000. A promissory
note was executed and the loan was secured by a deed of trust. In October
2008, the loan was modified to change the payment terms and completion
date. Construction on the property was never completed. After October
2009, Claassen failed to make any payments and the Bank notified Claassen
of the default in April 2010. Bank filed a complaint for breach and judicial
foreclosure in December 20102; the debt at that time was at least
$3,056,144.59 plus accruing interest, costs, fees, and attorneys’ fees. Bank
further alleged other material actions, or inactions, by Claassen that
likewise put him in default including his failure to provide current
financials as requested by the FDIC. Claassen in his answer asserted
counterclaims against Bank for breach of contract, breach of covenant of
good faith and fair dealing, and fraud.




1 The original lender was Irwin Union Bank, F.S.B., however, herein we will
refer to the successor-lender First Financial.

2 Other junior lienholders, including the homeowner’s association,
contractors, and the Arizona Department of Revenue, were also named in
the complaint.




                                     2
                     FIRST FINANCIAL v. CLAASSEN
                           Opinion of the Court

¶3            A trial date was set for July 2013. Claassen did not participate
in the preparation of the joint pretrial statement.3 In the pretrial statement,
Bank asserted that if the property were allowed to be sold at a trustee’s sale,
based on the appraisal of the fair market value of $750,000, there would be
a remaining deficiency in excess of $3,000,000. The Bank sought a
deficiency judgment in the amount of $1,119,676.67. Specifically:

          a. $205,273.43 in interest-only payments paid out of a reserve
             account during the construction period;

          b. $50,000 mandatory construction deposit paid to the
             homeowner’s association before building commenced;

          c. $706,270.78 of accrued interest; and

          d. $158,132.46 in late fees on the loan.

¶4            A bench trial proceeded without Claassen or his counsel. The
court found that Claassen had had appropriate notice of the proceedings
“and has chosen not to participate.” After receiving evidence, the trial court
dismissed Claassen’s counterclaims for lack of proof and entered a
judgment of judicial foreclosure. The court additionally stated “The Court
finds that based on the total amount owed, there is a non-purchase, non-
construction money deficiency in the amount of $1,119,676.67. Upon
conclusion of the foreclosure sale, any amount in excess of $710,000 [the fair
market value] shall be credited to Defendant against the deficiency
judgment.“ The trial court awarded Bank attorneys’ fees and costs in the
amount of $255,753.72.

¶5            Claassen filed a Motion for New Trial or to Alter or Amend
the Judgment. The basis for the motion was that the damages were not
recoverable under the anti-deficiency statute and/or that the trial court
erred in concluding that the majority of the damages were not purchase
money sums. Claassen did not claim in that motion that the $205,273.43 in
reserve interest payments was awarded in error.4



3The joint pretrial statement was submitted by Bank and the homeowner’s
association. The two parties settled prior to trial.

4 Claassen does not challenge the interest reserve amount on appeal,
therefore we need not decide it.



                                      3
                     FIRST FINANCIAL v. CLAASSEN
                           Opinion of the Court

¶6              The trial court denied Claassen’s Motion for New Trial. In its
minute entry, the trial court mentioned Claassen’s appearances at early
court proceedings, and that Claassen’s counsel withdrew in August 2012.
After that point Claassen did not appear or participate in litigation, he did
not participate in the hearing setting the trial date, in the trial management
conference or in the preparation of the pretrial statement.5 On the legal
question, the court stated it was aware of the “factual and legal issues
concerning what amount of the deficiency was and what amount of the
deficiency was within the scope of the anti-deficiency statute and what
amount was not.” The court went on to say: “Mr. Claassen’s motion argues
that amounts included in the judgment were for purchase money or
construction. These arguments raise evidentiary and legal issues that Mr.
Claassen did not present at trial.” The court found his arguments waived
for failure to raise them previously. Claassen filed a timely notice of appeal
and we have jurisdiction.

                               DISCUSSION

¶7            Claassen raises two issues on appeal from the denial of his
motion for a new trial:

          a. Whether the trial court erred in ruling that accrued interest,
             late fees, and the construction deposit paid to the
             homeowner’s association were non-purchase money sums as
             a matter of law; and

          b. Whether the trial court erred in finding Claassen waived any
             argument regarding the deficiency because he did not raise it
             prior to the motion for new trial.

¶8            Our standard of review for denial of a motion for new trial is
abuse of discretion. Suciu v. Amfac Distributing Corp., 138 Ariz. 514, 520, 675
P.2d 1333, 1339 (App. 1983). We defer to the trial court's factual findings
unless clearly erroneous. See Ahwatukee Custom Estates Mgmt. Ass'n v.
Turner, 196 Ariz. 631, 634, ¶ 5, 2 P.3d 1276, 1279 (App. 2000). We review the
interpretation and application of statutes de novo. Schwarz v. City of
Glendale, 190 Ariz. 508, 510, 950 P.2d 167, 169 (App. 1997) (citation omitted).
A trial court abuses its discretion if it commits an error of law. Flying



5The court noted three minute entries from November 2012 to late January
2013 were mailed to Claassen at the address on file and had not been
returned.


                                      4
                     FIRST FINANCIAL v. CLAASSEN
                           Opinion of the Court

Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, 50, ¶ 27, 156 P.3d 1149, 1155
(App. 2007).

¶9             The anti-deficiency statute, A.R.S. § 33-729, reads in relevant
part:

        A. Except as provided in subsections B and C of this section,
        if a mortgage is given to secure the payment of the balance of
        the purchase price, or to secure a loan to pay all or part of the
        purchase price, of a parcel of real property of two and one-
        half acres or less which is limited to and utilized for either a
        single one-family or single two-family dwelling, the lien of
        judgment in an action to foreclose such mortgage shall not
        extend to any other property of the judgment debtor, nor may
        general execution be issued against the judgment debtor to
        enforce such judgment, and if the proceeds of the mortgaged
        real property sold under special execution are insufficient to
        satisfy the judgment, the judgment may not otherwise be
        satisfied out of other property of the judgment debtor,
        notwithstanding any agreement to the contrary.

¶10            At issue is what constitutes purchase money subject to
protection under the statute. We considered what is purchase money and
non-purchase money under the statute for purposes of a deficiency
judgment in Helvetica Servicing, Inc. v. Pasquan, 229 Ariz. 493, 277 P.3d 198
(App. 2012). Helvetica was a judicial foreclosure involving the refinancing
of a loan for the tear-down and construction of a new luxury residence. Id.
at 495, ¶¶ 3-5, 277 P.3d at 200. Following the new construction, some loan
proceeds remained which the homeowners used to pay interest on the loan
as well as “landscaping, maintenance, taxes, utilities and marketing fees.”
Id. This court held that refinancing a purchase money loan did not change
its character and the anti-deficiency protections still applied. Id. at 499, ¶
23, 277 P.3d at 204 (citing Bank One, Arizona v. Beauvais, 188 Ariz. 245, 250,
934 P.2d 809, 814 (App. 1997)). We further found that construction loans
for construction of a qualifying residence merited anti-deficiency
protection. Id. at 501, ¶ 32, 277 P.3d at 206. Most pertinent to this matter,
however, we also found “to the extent a judicially foreclosed mortgage
includes both purchase money and non-purchase money sums, a lender
may pursue a deficiency judgment for the latter amounts” where the non-
purchase money sums could be traced and segregated. Id. at 501-02, ¶¶ 34,
37, 277 P.3d at 206-07. Bank asserts, and the trial court agreed, that this is
such a case. We disagree.



                                       5
                     FIRST FINANCIAL v. CLAASSEN
                           Opinion of the Court

¶11          In Helvetica, we outlined the policy arguments and the three
possible outcomes when a mortgage secures both purchase money and
non-purchase money sums and we need not repeat them here. In Helvetica,
however, we noted there were “payments that clearly [were] not purchase
money in nature, including sums for maintenance, utilities, marketing fees,
and penalties.” 229 Ariz. at 501, ¶ 34, 277 P.3d at 206. This case does not
involve items that are “clearly not” purchase money items.

¶12           Here, Bank asserts that costs typically associated with a loan,
such as interest and late fees, constitute non-purchase money. Two of the
line items are for costs accrued once the loan was funded (interest and late
fees) and one is for the $50,000 spent to fund the deposit the homeowner’s
association required prior to any construction being undertaken on the
property.

¶13            In Helvetica, we consulted the commentary of Charles
Sheppard in concluding that a refinanced purchase money obligation
should be a protected purchase money obligation. Charles B. Sheppard,
California Code of Civil Procedure Section 580B, Anti–Deficiency Protection
Regarding Purchase Money Debts: Arguments for the Inclusion of Refinanced
Purchase Money Obligations Within the Anti–Deficiency Protection of Section
580B, 6 S. Cal. Interdisc. L.J. 245, 269 (1997) (examining California’s
statutory anti-deficiency scheme). That same commentator included
interest on a refinanced loan as part of the purchase money obligation.
Sheppard, 6 S. Cal. Interdisc. L.J. at 271 “Hence, to the extent of the principal
amount [] and any interest which may have accrued thereon, it should have
been concluded by the court that the [] loan was a purchase money
obligation.”).

¶14           We find the reasoning that allows a refinancing to be deemed
a purchase money obligation allows the costs commonly associated with a
loan to likewise be considered purchase money sums. When a home loan
is being refinanced those types of charges are routinely rolled into the new
loan.

¶15         In Helvetica, we did not reach the question whether interest
payments on a refinanced loan would be a purchase money item.6 We do


6 “The Helvetica Loan likely includes additional non-purchase money
sums, including interest payments to Helvetica of $32,555 per month.
However, the record on appeal is not sufficiently developed for us to opine
further regarding this issue.” 229 Ariz. at 501, ¶ 34, fn7, 277 P.3d at 206.



                                       6
                     FIRST FINANCIAL v. CLAASSEN
                           Opinion of the Court

reach that question now and conclude that interest, late fees, and the
mandatory construction deposit are properly considered purchase money
obligations.

¶16            Next, we must determine whether Claassen waived his
arguments by first raising them in his post-trial motion. In ruling on the
motion for a new trial the trial court specifically found Claassen had waived
any claim that any of the charges should have been found to be non-
purchase money sums. The minute entry stated the court was aware of the
“factual and legal issues concerning what amount of the deficiency was and
what amount of the deficiency was within the scope of the anti-deficiency
statute and what amount was not.” The court went on to say “Mr.
Claassen’s motion argues that amounts included in the judgment were for
purchase money or construction. These arguments raise evidentiary and
legal issues that Mr. Claassen did not present at trial.”

¶17            The record on appeal does not include transcripts of either the
bench trial or the oral argument, a situation which commonly results in our
assumption that the trial court’s factual determinations would have been
supported. See Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995).
Below, however, the facts as to the type of charges and the amounts sought
by Bank were undisputed. The amounts found by the trial court are exactly
as enumerated in the Bank’s Joint Pretrial Statement and are not challenged
on appeal. The factual issues not being in dispute, we proceed to the legal
issue.

¶18          “Waiver is the intentional relinquishment of a known right.”
Verma v. Stuhr, 223 Ariz. 144, 157, ¶ 68, 221 P.3d 23, 36 (App. 2009) (holding
property buyers did not waive their statutory right to rescind). A statutory
right may not be waived “where waiver is expressly or impliedly
prohibited by the plain language of the statute.” Id.

¶19             Our legislature has expressly prohibited borrowers from
agreeing to waive the protections of the anti-deficiency statutes in
foreclosures on certain residential dwellings. In judicial foreclosures such
as the one here, A.R.S. § 33–729(A) expressly prohibits such waivers by
stating that if the proceeds of the execution sale “are insufficient to satisfy”
the debt, it “may not otherwise be satisfied out of other property of the
judgment debtor, notwithstanding any agreement to the contrary.” (Emphasis
added.) In foreclosures under a deed of trust, such waivers are similarly
prohibited. See A.R.S. § 33–814(G) (2014) (“no action may be maintained to
recover any difference between the amount obtained by sale and the
amount of the indebtedness and any interest, costs and expenses”).


                                       7
                     FIRST FINANCIAL v. CLAASSEN
                           Opinion of the Court

¶20           For policy reasons, our courts have been expansive as to what
other protections cannot be waived under anti-deficiency statutes. See CSA
13-101 Loop, LLC v. Loop 101, LLC, 233 Ariz. 355, 362, ¶ 24, 312 P.3d 1121,
1128 (App. 2013) (holding public policy prohibits waiver of fair market
determination under A.R.S. § 33–814(A)); Parkway Bank and Trust Co. v.
Zivkovic, 232 Ariz. 286, 290–91, ¶ 17, 304 P.3d 1109, 1113–14 (App. 2013)
(borrowers cannot waive the statutory anti-deficiency protection of A.R.S.
§ 33-814(G)).

¶21            “Parties cannot stipulate as to the law applicable to a given
state of facts and bind the court” since the court has an independent duty
to correctly apply the law. State Consol. Pub. Co. v. Hill, 39 Ariz. 163, 164, 4
P.2d 668, 669 (1931). Because a party cannot waive the correct application
of the law, the trial court should have granted Claassen’s motion.

¶22           We thus hold that the statutory scheme does not permit the
anti-deficiency protection of A.R.S. § 33–729(A) to be waived.7 The trial
court erred in finding that Claassen waived those protections, and therefore
erred in applying the law as set out above interpreting what constitutes
“purchase money” funds as a matter of law. We reverse that determination
as to accrued interest on the principal ($706,270.78), late fees ($158,132.46),

7 The Arizona Legislature has since amended A.R.S. §§ 33-729 and -814 to
prevent borrowers from claiming anti-deficiency protection in certain
situations. The new A.R.S. § 33-729 includes the following language:

       C. For mortgages that are originated after December 31, 2014,
       subsection A of this section does not apply to real property as
       follows:

       1. Real property owned by a person who is engaged in the
       business of constructing and selling dwellings that was
       acquired by the person in the course of that business and that
       is subject to a mortgage given to secure payment of a loan for
       construction of a dwelling on the property for sale to another
       person.

       2. Real property that contains a dwelling that was never
       substantially completed.

       3. Real property that contains a dwelling that is intended to
       be utilized as a dwelling but that is never actually utilized as
       a dwelling.


                                       8
                    FIRST FINANCIAL v. CLAASSEN
                          Opinion of the Court

and the $50,000 construction deposit. We, likewise, vacate the trial court’s
award of attorneys’ fees and costs in the amount of $255,753.72 for
reconsideration in light of our opinion.

                    ATTORNEYS’ FEES AND COSTS

¶23            On appeal, both parties seek attorneys’ fees and costs. Bank
seeks fees pursuant to A.R.S. §§ 12-341, -341.01 (2003) and asserts Claassen
failed to indicate the statutory basis for his fee request. We agree. Neither
party is awarded fees on appeal. As the prevailing party on appeal,
Claassen is entitled to his costs pursuant to A.R.C.A.P. 21.

                              CONCLUSION

¶24           For the proceeding reasons, we reverse the trial court’s
determination that $914,403.33 of the $1,119,676.67 is non-purchase money
obligations and remand for a judgment consistent with this determination.
We reverse the award of fees and costs below. The balance of the judgment
is affirmed.




                                  :RT




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