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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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



   ATLANTIC CREDIT & FINANCE SPECIAL FINANCE UNIT, LLC,
              a Virginia limited liability company,
                        Plaintiff/Appellee,

                                        v.

          KIMBERLY D. LOPEZ and RICHARD DEAN LOPEZ,
                wife and husband and each of them,
                       Defendants/Appellants.


                                 No. 1 CA-CV 15-0515
                                   FILED 3-29-2016



           Appeal from the Superior Court in Yavapai County
                       No. P1300CV201400940
          The Honorable Jeffrey G. Paupore, Judge Pro Tempore

                      REVERSED AND REMANDED


                                   COUNSEL

Hammerman & Hultgren, PC, Phoenix
By Jon R. Hultgren, Stephanie A. Webb
Counsel for Plaintiff/Appellee

Kimberly D. Lopez, Richard Dean Lopez, Prescott Valley
Defendants/Appellants
                          ATLANTIC v. LOPEZ
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kenton D. Jones joined.


O R O Z C O, Judge:

¶1           Appellants Kimberly and Richard Lopez (collectively the
Lopez’) appeal the trial court’s entry of summary judgment against them.
For the following reasons, we reverse and remand to the trial court for
further proceedings consistent with this decision.

                      FACTS AND BACKGROUND

¶2             On September 4, 2014, Atlantic Credit & Finance Special
Finance Unit, LLC (Appellee) filed a complaint alleging that in June 2006,
Kimberly took out a personal line of credit on behalf of her marital
community in the amount of $15,000 from HSBC Consumer Lending Inc.
According to the complaint, the loan was later assigned to Appellee, and
subsequently the Lopez’ defaulted. Kimberly was served in September
2014 and filed a timely verified response, claiming she had no knowledge
of the debt and “if this loan was in 2006 it has been 8 (eight) years and I
believe that the statute of limitations in Arizona has been met.”

¶3             In November 2014, Appellee filed an application for default
judgment as to Richard. In December 2014, Richard filed a verified
response. On February 13, 2015, Appellee filed a Motion and Sum Certain
Affidavit for Entry of Judgment by Default without Hearing as to Richard.
The Lopez’ responded, claiming that Richard had answered the complaint
via the filing of his response.

¶4           Appellee then filed a Motion for Summary Judgment as to
Kimberly, alleging there were no issues of material fact. For the first time,
Appellee attached a copy of the contract in dispute, dated June 2006, which
purportedly contained Kimberly’s signature and the words “loan made by
mail” on the witness line of the loan document. The loan amount did not
appear on this document. Appellee also attached another undated
document reflecting a “total advance” of $15,000, also purportedly signed
by Kimberly. Appellee later amended this motion to include Richard.




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                           ATLANTIC v. LOPEZ
                           Decision of the Court

¶5            The Lopez’ filed a response to the motion for default
judgment, again denying knowledge of the loan and requesting the court
to order arbitration to determine whether they had entered into the
contract. Before ruling on the Motion for Summary Judgment, the trial
court denied Appellee’s request for default judgment against Richard,
finding that he had answered before entry of default.

¶6            Thereafter, the court entered an order granting Appellee’s
Motion for Summary Judgment. The Lopez’ then filed a late response to
the motion, again denying any knowledge of the loan. The court entered
its final judgment, finding the Lopez’ had not timely responded to
Appellee’s Motion for Summary Judgment and there was no genuine issue
of material fact in dispute. The Lopez’ 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.A.1 and -2101.A.1
(West 2016).1

                               DISCUSSION

¶7            On appeal, the Lopez’ argue Kimberly did not enter into the
contract in question, attaching supportive evidence not timely presented to
the trial court. Appellee contends that because this is an appeal from a
“summary adjudication[] after a nonmoving party fail[ed] to respond,” our
review on appeal is limited to a determination of whether the trial court
abused its discretion. We disagree.

¶8             A court may not grant a motion for summary judgment solely
because the opposing party has not responded to it; it must consider the
entire available record. See Schwab v. Ames Constr., 207 Ariz. 56, 59-60, ¶ 15
(App. 2004). After reviewing the record, the court may grant summary
judgment only if the moving party has “demonstrate[d] both the absence of
any factual conflict and his or her right to judgment.” United Bank of Ariz.
v. Allyn, 167 Ariz. 191, 195 (App. 1990). Summary judgment is proper only
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).

¶9            On appeal, this court reviews a grant of summary judgment
de novo. Schwab, 207 Ariz. at 60, ¶ 17. We view the facts in the light most
favorable to the nonmoving party, Hourani v. Benson Hosp., 211 Ariz. 427,


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



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                            ATLANTIC v. LOPEZ
                            Decision of the Court

432, ¶ 13 (App. 2005), considering the “evidence that was in the record
before the trial court during its summary judgment deliberations.”
Menendez v. Paddock Pool Constr. Co., 172 Ariz. 258, 261 (App. 1991). In
granting Appellee’s Motion for Summary Judgment, the trial court stated
that after its review of “the contents of the Motion, documentary evidence,
affidavits and argument presented . . . there are no genuine issues of
material fact in dispute.”

¶10             We note that in the trial court, the Lopez’ asserted that the
statute of limitations had passed and they had “never received a loan from
[Appellee] other than for my [vehicle] which is paid for free and clear and
I have a clear title and a paid if [sic] full payment notice.” In the Motion for
Summary Judgment, Appellee alleged the contract was entered into in June
2006 and last payment received from the Lopez’ was in January 2010.
Pursuant to A.R.S. § 12-548.A, the statute of limitations for a claim for
breach of a written contract is six years. Id. (“An action for debt shall be
commenced and prosecuted within six years after the cause of action
accrues . . . .”). In our review of the record, we find no genuine issues of
material fact as to whether the statute of limitations barred Appellee’s claim
because the alleged breach of the contract occurred four years and nine
months before the complaint was filed.

¶11            However, the Lopez’ denied having entered into the contract
in their verified answers to the complaint. In support of this defense, the
Lopez’ claimed the only loan they may have had with Appellee was for a
vehicle that had been repaid in full. The verified answer by the Lopez’
denying having entered into the loan contract was sufficient evidence to
create a disputed issue of material fact, preventing entry of summary
judgment in Appellee’s favor.




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                          ATLANTIC v. LOPEZ
                          Decision of the Court


                             CONCLUSION

¶12            For the foregoing reasons, we reverse the trial court’s order
granting summary judgment and remand for proceedings consistent with
this decision.




                                :ama




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