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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


        NORTHERN TRUST, NA, a national banking association,
                      Plaintiff/Appellee,

                                        v.

  JEFFREY D. WAREING and JULIE A. WAREING, husband and wife,
                    Defendants/Appellants.

                             No. 1 CA-CV 15-0379
                               FILED 12-8-2016


           Appeal from the Superior Court in Maricopa County
                          No. CV 2011-011851
                The Honorable Douglas Gerlach, Judge

                      REVERSED AND REMANDED


                                   COUNSEL

Berens, Kozub, Kloberdanz & Blonstein, PLC, Scottsdale
By Daniel L. Kloberdanz
Counsel for Defendants/Appellants

Gallagher & Kennedy PA, Phoenix
By Todd A. Burgess, Hannah H. Porter
Counsel for Plaintiff/Appellee
                     NORTHERN TRUST v. WAREING
                         Decision of the Court



                       MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.


O R O Z C O, Judge:

¶1            Jeffrey and Julia Wareing (the Wareings) appeal the superior
court’s grant of summary judgment in favor of Northern Trust, N.A. (NT).
For the following reasons, we reverse and remand to the superior court to
enter judgment in favor of the Wareings.

                 FACTS AND PROCEDURAL HISTORY

¶2            In May 2005, the Wareings purchased a vacant lot that was
less than two and one-half acres in Scottsdale, Arizona, to build a residence
(the Property). They borrowed approximately $1.2 million from NT in
December 2006, for the construction of the home and granted NT a first
position deed of trust to secure the loan (the Senior Deed). After
construction was completed in 2008, the Wareings used the Property as
their primary residence.

¶3            In April 2008, the Wareings borrowed an additional $400,000
from NT as an equity line of credit (the ELOC Loan). The terms of the ELOC
Loan were memorialized in the Northern Equity Credit Line Agreement
and Disclosure (the Agreement or Promissory Note). NT secured the ELOC
Loan by a deed of trust against the Property, which was recorded in May
2008 (the Junior Deed).

¶4             The Wareings defaulted on both loans and NT foreclosed on
its Senior Deed. The Property was sold at a trustee’s sale in June 2011. At
the trustee’s sale, NT acquired a clear title to the Property for a credit bid of
the amount owed on the Senior Deed. No surplus proceeds from the sale
were left to be applied to the ELOC Loan, although NT’s own appraisal in
February 2011, stated the fair market value of the Property was $1,710,000.

¶5           NT filed lawsuit for breach of contract to recover the balance
owed on the ELOC Loan. While the case was pending, NT sold the
Property for $1.5 million - approximately $100,000 less than the total
amount owed on both loans combined. Both parties filed motions for
summary judgment. The Wareings argued NT was foreclosed from


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                    NORTHERN TRUST v. WAREING
                        Decision of the Court

collection on the ELOC Loan because the sale of their Property satisfied the
entirety of their debt to NT, and that to hold otherwise would result in a
“huge windfall” for NT. In its motion for summary judgment, NT
maintained that the ELOC Loan was a separate debt that was not satisfied
by the earlier trustee’s sale of the Property. The superior court granted
judgment in favor of NT.

¶6           The Wareings timely appealed.           We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona
Revised Statutes (A.R.S.) sections 12-120.21.A.1 and -2101.A.1 (West 2016).1

                              DISCUSSION

¶7            We review the grant of summary judgment and legal
conclusions de novo and view the evidence in the light most favorable to
the party against whom summary judgment was granted. Andrews v. Blake,
205 Ariz. 236, 240, ¶ 12 (2003). On appeal, both parties agree there are no
genuine issues of material fact.

¶8            The Wareings argue that the anti-deficiency provisions
contained in A.R.S. §§ 33-729.A and -814.G bar NT’s legal action because (1)
the Property securing both of NT’s loans was protected by the anti-
deficiency statutes; (2) the Property was sold in a non-judicial foreclosure
process, which discharged the Wareings’ personal liability even on the non-
purchase money loan secured by the Junior Deed, pursuant to section 33-
814.G; and (3) NT could have elected to treat its Senior Deed as a mortgage
by using the judicial foreclosure method, thereby triggering the purchase
money limitation of § 33-729.A, and permitting NT to treat its Junior Deed
as a mortgage and sue directly on the Junior Deed as a non-purchase money
loan.

¶9            NT counters that NT’s lawsuit is not a deficiency action, but a
simple action for breach of contract, because (1) the trustee’s sale
extinguished NT’s Junior Deed by operation of law and turned its
Agreement with the Wareings into an unsecured obligation; and (2) NT’s
foreclosure of its Senior Deed is not, in any way, related to its enforcement
of the Agreement, rendering the anti-deficiency statutes and A.R.S. § 12-
1566 inapplicable.



1     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.



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                     NORTHERN TRUST v. WAREING
                         Decision of the Court

I.     Applicability of Anti-Deficiency Statutes

¶10            The anti-deficiency statutory scheme enacted in A.R.S. §§ 33-
814.G (deeds of trust) and -729.A (purchase money mortgages), “prohibit[s]
a deficiency judgment after sale of a parcel of ‘property of two and one-half
acres or less which is . . . utilized for either a single one-family or single two-
family dwelling.’” Mid Kan. Fed. Sav. & Loan Ass’n of Wichita v. Dynamic
Dev. Corp., 167 Ariz. 122, 126 (1991) (quoting A.R.S. §§ 33-729.A, -814.G).

¶11            Neither party disputes the Property is located on two and
one-half acres or less and was utilized as a single one-family dwelling.
Therefore, if the Property was sold pursuant to a trustee’s power of sale, it
is protected by the anti-deficiency statute, and “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.” A.R.S.
§ 33-814.G (emphasis added). Additionally, the anti-deficiency protections
contained in section 33–814.G apply to “deeds of trust that are foreclosed by
trustee’s sale, regardless of whether they represent purchase money
obligations.” Id. (emphasis added).

¶12            Here, because NT foreclosed on its Senior Deed utilizing a
trustee’s sale, section 33–814.G governs, and it cannot bring a deficiency
action regarding the outstanding balance on its Junior Deed. See Baker v.
Gardner, 160 Ariz. 98, 107 (1988) (“Where the creditor chooses non-judicial
foreclosure, he cannot obtain a deficiency judgment if the collateral is within
the class protected by the deed of trust anti-deficiency statute.”) (emphasis
added).

¶13             Additionally, pursuant to our supreme court’s decision in
Baker, NT cannot waive the security on the Junior Deed and sue on the
ELOC Loan. Id. at 104. In Baker, two creditors held a deed of trust to the
same property, and neither had control over the other’s decisions. Baker,
160 Ariz. at 99. The borrower defaulted on both loans and the first creditor
foreclosed on its senior deed of trust. In foreclosing on the senior deed of
trust, it extinguished the second creditor’s junior deed of trust, converting
the second creditor’s debt from a secured to an unsecured obligation. Prior
to the trustee’s sale, the second creditor, Baker, elected to forgo his right to
foreclose on his junior deed and filed a lawsuit to collect on the promissory
note. The supreme court, however, precluded the collection action, finding
that Baker’s loan was governed by the anti-deficiency protections contained
in sections 33-814.G and 33-729.A. Id. at 104.




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                     NORTHERN TRUST v. WAREING
                         Decision of the Court

¶14            The facts in Baker are almost identical to the facts in this case,
except that NT is the sole creditor and held both the Senior and Junior
Deeds. However, NT argues that Baker does not apply to this case because
Baker filed a lawsuit on the promissory note while he still had a choice to
foreclose on the junior deed of trust; in contrast, NT did not seek to enforce
its rights under the ELOC Loan until after those rights were extinguished
in the trustee’s sale. We disagree.

¶15            In Baker, the supreme court stressed that it was the nature of
the property, not Baker’s timing of his collection action, that triggered the
anti-deficiency protections. The court reasoned that “the legislature would
not have protected homeowners from deficiency judgments but still
permitted the holder of a mortgage or deed of trust to obtain essentially the
same result by waiving the security and bringing action on the note. This
statutory construction seems inconsistent with the patent legislative
objective.” Id. at 101–02; see Mid Kan., 167 Ariz. at 126 (“[T]he lender should
not be allowed to circumvent the anti-deficiency statute by electing to sue
the debtor on the note, thereby realizing any difference between the value
of the real property and the amount owed on the debt.”). Here, allowing
NT to take advantage of its position of control over both deeds and argue it
had no choice but to collect on the Promissory Note, because its Junior Deed
was extinguished in a Trustee’s sale initiated by NT, would run afoul of the
legislative intent in enacting the anti-deficiency statutes.

¶16            Moreover, the Arizona legislature “designed [the anti-
deficiency statutes] to temper the effects of economic recession on
mortgagors by precluding artificial deficiencies resulting from forced
sales,” and intended to “put the burden on the lender or seller to fairly value
the property when extending the loan, recognizing that consumers often
are not equipped to make such estimations.” Mid Kansas, 167 Ariz. at
127-28 (internal quotations and citations omitted). NT is in the business of
calculating risks of loans; indeed, prior to making the ELOC Loan in 2008,
NT hired an appraiser who appraised the Property at $3.2 million.

¶17           The Arizona legislature envisioned this and similar scenarios
and designed the anti-deficiency statutes as a balance between lender’s and
debtor’s rights. See id., §§ 33-814.G, -729.A. For example, the anti-deficiency
statutory scheme affords the lender protections and choices to recover a
deficiency judgment where the lender secured its loan by a non-purchase
money deed of trust described in § 33-814.G, as NT did in this case. A
lender has an option to either foreclose on its deed of trust in a non-judicial
sale, or avail itself of a judicial sale, which also protects the debtor by



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                     NORTHERN TRUST v. WAREING
                         Decision of the Court

allowing him to exercise his statutory redemption rights. Id. at 126-27;
Baker, 160 Ariz. at 107.

¶18           However, NT chose not to avail itself of these statutory
protections, even though NT’s own appraiser valued the Property higher
than both loans combined, just months before the trustee’s sale. NT could
have judicially foreclosed on the Senior Deed which would have allowed it
to recover a deficiency on both the Deeds. However, it did not do so.

¶19            NT also argues that Baker and § 33-814.G do not apply because
NT’s Junior Deed was not a purchase money deed of trust, but merely a line
of credit extended after the home was already purchased. In contrast to
NT’s position, the supreme court explained in Baker and Mid Kansas that
§ 33–814.G “applies to deeds of trust that are foreclosed by trustee’s sale,
regardless of whether they represent purchase money obligations.” Mid
Kan., 167 Ariz. at 126 (emphasis added); Baker, 160 Ariz. at 106 (“[T]he deed
of trust anti-deficiency statute is not limited to purchase money
collateral.”). Therefore, NT is barred by § 33-814.G from recovering any
unpaid balance on its Promissory Note.

¶20            NT further contends that a junior lien holder whose security
interest is extinguished in a non-judicial sale can bring an independent
action for breach of a non-purchase money promissory note pursuant to
Southwest Savings & Loan Association v. Ludi, 122 Ariz. 226 (1979). However,
Ludi is distinguishable from Baker in two important aspects: (1) “the lender
in Ludi had used a judicial proceeding to foreclose its first [purchase money
mortgage] before bringing an action on the second, non-purchase money
obligation,” Resolution Tr. Corp. v. Segel, 173 Ariz. 42, 46 (App. 1992), and (2)
section 33-729.A, which applied in Ludi, expressly refers only to purchase
money mortgages, while section 33-814.G, applied in Baker, extends to both
purchase as well as non-purchase money deeds of trust. (First emphasis in
original). See Ludi, 122 Ariz. at 228. After Baker, Ludi applies to deeds of
trust and mortgages on properties not protected by the anti-deficiency
statutes. Baker, 160 Ariz. at 104.

¶21           As a result, we reverse the superior court’s grant of summary
judgment to NT and remand for the superior court to enter judgment in
favor of the Wareings. Because we are remanding based on the anti-
deficiency statute, we need not address the Wareings defenses of merger,
unjust enrichment, equity and mitigation of damages or whether the trial
court erred in not considering the documents in the Reply to the motion for
summary judgment.




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                   NORTHERN TRUST v. WAREING
                       Decision of the Court

II.   Attorney Fees and Costs Incurred on Appeal

¶22           Both parties requested an award of attorney fees and costs on
appeal pursuant to Arizona Rule of Civil Appellate Procedure 21 and A.R.S.
§ 12-341.01. Section 12-341.01.A provides a court with discretion to award
reasonable attorney fees to a prevailing party “[i]n any contested action
arising out of a contract.” Id. As the Wareings are the prevailing party on
appeal, we award them a reasonable amount of attorney fees and costs
incurred on appeal upon compliance with ARCAP 21.

                              CONCLUSION

¶23         For the foregoing reasons, we reverse the superior court’s
grant of summary judgment to NT, and remand to the superior court to
enter judgment in favor of the Wareings.




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




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