Toliver v. US Bank National

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SAMUEL TOLIVER, Plaintiff/Appellant,

v.

US BANK NATIONAL ASSOCIATION, Defendant/Appellee.

No. 1 CA-CV 25-0573
FILED 01-06-2026

Appeal from the Superior Court in Maricopa County
CV2024-037820
The Honorable Christopher A. Coury, Judge

AFFIRMED

COUNSEL

Samuel Toliver, Phoenix
Plaintiff/Appellant

The Mortgage Law Firm, PC, Phoenix
By Christina Harper
Counsel for Defendant/Appellee

MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Angela K. Paton and Judge Brian Y. Furuya joined.
 TOLIVER v. US BANK NATIONAL
Decision of the Court

K I L E Y, Judge:

¶1 Samuel Toliver appeals from the dismissal of his complaint
for failure to state a claim. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In November 2016, Toliver and Robyn Craig purchased real
property (the “Property”) with a loan from Academy Mortgage
Corporation (“Academy”) secured by a deed of trust. In 2019, Academy
assigned its rights to US Bank National Association (“US Bank”).

¶3 In December 2024, Prime Recon LLC (“Prime”) was
substituted as trustee under the deed of trust and initiated foreclosure
proceedings because Toliver and Craig “stopped paying their home loan[.]”
That same month, Toliver and Craig filed a complaint against Prime. In
January 2025, they filed an amended complaint substituting US Bank as
defendant in place of Prime. The amended complaint, under “Statement of
Facts and Breach” read, in its entirety:

12 U.S. Code 83. No national bank shall make any loan or
discount on the security of the shares of its own capital stock.

The fiduciary/lender did not give a loan, they drafted a note
and exchanged it with the United States for lawful money to
pay for the Property Warranty Deed on our behalf, they then
made us sign an agreement/promissory note which became
the security interest not the Property to pay a mortgage and
to give them consent to control the property and full access to
all the assets and proceeds. All [a]ccounts are prepaid.

¶4 Under “Applicable Law Supporting Claims” the amended
complaint read, in its entirety:

U.S. Code 83. No national bank shall make any loan or
discount on the security of the shares of its own capital stock.

Senate Document No. 43, 73rd Congress “The ownership of
all property is in the state. Individual [sic]

Title 18.8 – Obligation or other security of the United States

FRN’s are obligations of the United States HJR 192 Title
31.3123

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16 CFR 444.3 unfair or deceptive cosigner practices Truth in
Lending Act, Right of Rescission

Caselaw Arizona Wells Fargo Bank v. Dreyer (2014)

¶5 The amended complaint asserts a claim for “financial
hardship” and “mental distress and [a]nguish,” seeking “rescission” and
“full reimbursement of all federal reserve notes paid.” Toliver and Craig
also moved for a temporary restraining order (“TRO”), asserting that
“banks/Defendant cannot loan securities of its own shares or stocks” and
“the note that was drafted on the Plaintiff’s behalf by the bank belonged to
the Plaintiff’s.” They did not explain this argument any further. They also
claimed, again without elaboration, that “Defendant never offered any
consideration thus making the Loan null and void[.]”

¶6 The superior court held an order to show cause hearing in
early February 2025 at which Toliver, Craig, and counsel for US Bank
appeared. The court denied the TRO and directed US Bank to respond to
the amended complaint by February 26, 2025.

¶7 On February 27, 2025, US Bank filed a motion to dismiss,
arguing that the amended complaint consisted of “conclusory allegations”
of purported violations of “various United States Code sections” and
baseless objections to the “securitization” of “Plaintiffs’ loan obligations.”
These claims entitled Plaintiffs to no relief, US Bank argued, because
“[n]othing [in] any agreement . . . among secondary-market participants
relieved Plaintiffs of their obligations” under the Loan Agreement. The next
day, Toliver and Craig filed an “Application and Affidavit for Default”
because US Bank had missed, by one day, the deadline set by the court to
respond to the amended complaint.

¶8 Toliver and Craig never responded to US Bank’s motion to
dismiss, and US Bank never responded to their application for entry of
default. In March 2025, Toliver and Craig filed a “Motion for Entry of
Default Judgment” arguing that US Bank’s motion to dismiss should be
rejected as untimely and that US Bank had not contested their application
for default.

¶9 US Bank then filed a response to the application for default,
asserting that it was ineffective because it was not filed until after US Bank
had moved to dismiss. In the alternative, US Bank moved to set aside the
default for good cause because US Bank had a meritorious defense, i.e., that
the amended complaint failed to state a claim for relief.

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¶10 At around the same time, Toliver and Craig sold the Property
to a third party.

¶11 In April 2025, the superior court granted US Bank’s motion to
dismiss, finding that the amended complaint failed to state a claim for relief.
In May 2025, Toliver and Craig filed a “Motion to Reinstate Case,” which
the superior court treated as a motion to reconsider the dismissal of the
amended complaint. The court refused to reconsider the dismissal and, on
June 11, 2025, entered final judgment under Arizona Rule of Civil
Procedure 54(c).

¶12 Toliver then filed another motion for reconsideration and,
about two weeks later, filed a timely notice of appeal. The superior court
denied the second motion for reconsideration. We have jurisdiction under
A.R.S. § 12-2101(A)(1).

DISCUSSION

¶13 Toliver challenges the dismissal of the amended complaint,
arguing that ”recent audits reveal Fannie Mae profited $294,000,000” from
selling their mortgage “on the secondary stock market” and that
“[s]ystemic bank violations must be exposed.”1 Toliver also argues that the
dismissal was a result of “Judicial Bias,” alleging that the superior court
“ignored fraud evidence” and improperly permitted “late filings[.]”

¶14 We review the dismissal of a complaint for failure to state a
claim under Arizona Rule of Civil Procedure 12(b)(6) de novo. Lane v. City of
Scottsdale, 258 Ariz. 460, 465, ¶ 10 (App. 2024). “In determining if a
complaint states a claim on which relief can be granted . . . courts look only

1 The notice of appeal that Toliver filed bears only his signature. Because

Toliver does not contend, nor does the record indicate, that he is licensed to
practice law in this state, he cannot represent another person in proceedings
before this Court. See Haberkorn v. Sears, Roebuck & Co., 5 Ariz. App. 397, 399
(1967). The notice of appeal was effective, therefore, only as to Toliver. On
June 18, 2025, Toliver and Craig filed a document entitled an “amended
notice of appeal” that they each signed. Because this document was filed
more than thirty days after the entry of final judgment, this Court lacks
jurisdiction to consider Craig’s appeal. See ARCAP 9(a); see also In re Real
Property Known as 3567 E. Alvord Road, 249 Ariz. 568, 571, ¶ 6 (App. 2020)
(holding that court lacked jurisdiction to consider order forfeiting co-
owner’s interest in property because co-owner failed to file timely notice of
appeal). Craig is not, therefore, a party to this appeal.

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to the pleading itself.” Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 9 (2012)
(citation modified).

¶15 In dismissing the amended complaint, the superior court
concluded that it failed to state a claim for relief. Acknowledging that “the
Plaintiffs are representing themselves and are not trained in the law,” the
court held that “even with the most charitable reading, the Court cannot
conclude that a claim has been properly pled.”

¶16 The record supports the court’s determination. The amended
complaint alleges nothing about the parties’ relationship, nor does it allege
that US Bank engaged in any action that would entitle Toliver to any kind
of relief. Although the amended complaint appears to challenge US Bank’s
financial arrangements with third parties, it pleads no facts that would
suggest that Toliver has been harmed by these arrangements, or that he
otherwise has standing to challenge them. See Monroe v. Arizona Acreage
LLC, 246 Ariz. 557, 565, ¶ 31 (App. 2019) (“To initiate a claim in Arizona, a
party must have standing — that is, a plaintiff must allege a distinct and
palpable injury.” (citation modified)). And the amended complaint makes
no attempt to explain the significance of the legal authorities cited therein.
The amended complaint, for example, cites “U.S. Code 83” in an apparent
reference to 12 U.S.C. § 83, which prohibits a national bank from accepting
as collateral the borrower’s stock in the bank itself. See Trazell v. Wilmers,
975 F.Supp.2d 133, 143 (D.D.C. 2013) (noting that 12 U.S.C. § 83 “prohibits
a bank from using the bank’s capital stock as security for loans or
discounts.”). Nothing in the amended complaint suggests that those
circumstances are present here. Likewise, the amended complaint’s citation
to “Title 18.8” appears to refer to 18 U.S.C. § 8, which defines the term
“obligation or other security of the United States[.]” The amended
complaint makes no attempt to explain how this definition has any bearing
on this case.

¶17 The amended complaint’s reference to “Senate Document No.
43, 73rd Congress” is equally puzzling. The citation appears to refer to a
resolution of the United States Senate, passed in 1933, authorizing the
printing of a monograph by George Cyrus Thorpe as a Senate document.
See S. Res. 62, Doc. 43, 73rd Cong. (1933). The monograph, entitled
“Contracts Payable in Gold,” addresses whether loan agreements whose
terms require payment in gold can be satisfied by payment in dollars
instead. See id. As other courts have recognized, this document “is not legal
authority” because it “is not a law,” a “statute,” a “regulation,” or a “rule.”
In re Rodgers, No. 22-54229-PWB, 2022 WL 3363895 at *3 (N.D. Ga. Bkrcty.
Aug. 12, 2022). In any event, Toliver has not alleged that any party to this

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case agreed to make or accept payments in gold, and so this document has
no possible relevance here.

¶18 The amended complaint’s citation to “H.J.R. 192” appears to
refer to House Joint Resolution 192 of 1933, the resolution that “suspended
the gold standard in the United States.” Broughton v. Truist Bank, 23-CV-
6042, 2024 WL 3227948 at *3 (S.D.N.Y. June 27, 2024). Toliver has utterly
failed, however, to offer any explanation for his position that the
abandonment of the gold standard almost a century ago somehow entitles
him to relief in this case. Because Toliver has not presented a coherent
argument on this point, we decline to consider it further. See Schabel v. Deer
Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 167 (App. 1996) (“Issues not
clearly raised and argued in a party’s appellate brief are waived.”).

¶19 The amended complaint includes a cursory reference to
“unfair or deceptive cosignor [sic] practices,” without articulating any
supporting facts or identifying the specific “practices” to which Toliver
objected. In his briefing on appeal, Toliver asserts that “US Bank failed to
comply with disclosure requirements, issued fraudulent 1099s.” We cannot
determine if this assertion is offered in support of the amended complaint’s
claim for “unfair or deceptive cosignor [sic] practices,” or if the assertion
raises a new argument for the first time on appeal. In either case, the
argument is unintelligible, and we do not consider it further. Schabel, 186
Ariz. at 167.

¶20 In his reply brief, Toliver states that “US Bank failed to
disclose TILA (15 U.S.C. § 1638) and RESPA (12 CFR 1024.36) protections[.]”
Because Toliver asserted no such claim in the amended complaint or in his
opening brief, he waived it, and we do not consider it. Westin Tucson Hotel
Co. v. State Dep’t of Revenue, 188 Ariz. 360, 364 (App. 1997) (“[A] claim raised
for the first time in a reply is waived.”).

¶21 Toliver’s claim of alleged judicial bias is equally unavailing.
“A party who challenges a judge’s impartiality must overcome the
presumption that superior court judges are free of bias and prejudice.”
Contreras v. Bourke, __ Ariz. __, __, ¶ 25, 574 P.3d 224, 229 (2025) (citation
modified). “Judicial rulings alone do not support a finding of bias or
partiality without a showing of an extrajudicial source of bias or deep-
seated favoritism.” State v. Macias, 249 Ariz. 335, 342, ¶ 22 (App. 2020).

¶22 In support of his claim of bias, Toliver asserts that the superior
court allegedly “[c]onfused late filings and defaults[.]” Evidently, Toliver
objects to the court’s decision to address US Bank’s motion to dismiss on

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the merits even though it was filed a day after the deadline set by the court.
But even if US Bank could be said to have been in default by failing to timely
respond to the amended complaint, Arizona Rule of Civil Procedure
(“Rule”) 55(a)(5) afforded US Bank an opportunity to cure. See Ariz. R. Civ.
P. 55(a)(5) (“A default will not become effective if the party claimed to be in
default pleads or otherwise defends . . . within 10 days after the application
for entry of default is filed.”). Because US Bank filed its motion to dismiss
before the expiration of Rule 55(a)(5)’s cure period, the superior court
properly declined to enter a default judgment against US Bank.

¶23 Toliver offers no other basis for his claim of judicial bias other
than his disagreement with the court’s rulings, which, as a matter of law, is
insufficient to overcome the presumption that the judge was impartial.
Macias, 249 Ariz. at 342, ¶ 22. Moreover, a review of the record reveals that
the superior court treated Toliver respectfully and fairly. Toliver’s
allegation to the contrary has no basis in the record.

¶24 The amended complaint fails to set forth a coherent,
cognizable claim for relief, and the superior court did not err in granting US
Bank’s motion to dismiss.2

CONCLUSION

¶25 For the foregoing reasons, we affirm. As the prevailing party
on appeal, US Bank is entitled to recover its costs upon compliance with
ARCAP 21(b).

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

2 During the pendency of this appeal, Toliver filed a motion entitled
“Motion for Expedited Ruling on Appeal Pursuant to ARCAP 27 and ARCP
60(b)” in which he asked this Court to issue its decision “no later than
January 15, 2026.” We deny Toliver’s motion as moot.

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