Spyropoulos v. Sherman

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHRYSOULA SPYROPOULOS, Plaintiff/Appellant,

v.

JASON P. SHERMAN, et al., Defendants/Appellees.

No. 1 CA-CV 17-0516
FILED 7-17-2018

Appeal from the Superior Court in Maricopa County
No. CV2016-094879
The Honorable David King Udall, Judge

AFFIRMED

APPEARANCES

Chrysoula Spyropoulos, Mesa
Plaintiff/Appellant

Shapiro, Van Ess & Sherman, LLP, Phoenix
By Jason P. Sherman, Lydia R. Tulin
Co-Counsel for Defendant/Appellee Jason P. Sherman

Zieve, Brodnax & Steele, LLP, Phoenix
By Eric L. Cook
Counsel for Defendants/Appellees Bayview, et al.
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Decision of the Court

MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Jennifer B. Campbell joined.

B E E N E, Judge:

¶1 Chrysoula Spyropoulos (“Spyropoulos”) appeals the superior
court’s dismissal of her claims against the beneficiaries of a trust and the
trustee who oversaw the sale of property after she defaulted on the
underlying loan. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On January 27, 2005, Spyropoulos entered into a deed of trust
with First Magnus Financial Corp. (“First Magnus”) for a loan against her
property. The deed was recorded in the Maricopa County Recorder’s
Office. In 2012, First Magnus assigned the deed to the Bank of New York
Mellon FKA The Bank of New York (“BONY”). On May 27, 2016, Jason
Sherman (“Sherman”) was appointed trustee.

¶3 After Spyropoulos defaulted on the loan, Sherman recorded a
Notice of Trustee’s Sale against her property. Spyropoulos filed suit against
Sherman, BONY, First Magnus, several loan servicing companies including
Bayview, and Bank of America (collectively “Defendants”) alleging (1) to
set aside trustee’s sale; (2) wrongful foreclosure; (3) breach of contract; (4)
breach of implied covenant of good faith and fair dealing; (5) negligence;
(6) unjust enrichment; (7) to void or cancel assignment of deed of trust; (8)
to void or cancel trustee’s deed upon sale; (9) fraud; (10) quiet title; and (11)
slander of title. Concurrently, Spyropoulos applied for a temporary
restraining order (“TRO”) to enjoin the trustee’s sale from occurring.

¶4 On August 25, 2016, the superior court denied Spyropoulos’
application for a TRO. The property was sold at a trustee’s sale, and a
trustee’s deed was recorded with the Maricopa County Recorder’s Office
on February 14, 2017.

¶5 In December 2016, Defendants Bank of America, Sherman,
and Bayview filed separate motions to dismiss. The superior court granted
Bank of America’s motion to dismiss on January 13, 2017 after Spyropoulos
failed to file a response. Subsequently, the court denied Sherman’s motion

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Decision of the Court

to dismiss as moot pursuant to its January 13 ruling. Sherman filed a
motion for clarification which was denied by the court without further
explanation.

¶6 In April 2017, Sherman filed a second motion to dismiss, and
the remaining Defendants filed an Answer to Spyropoulos’ initial
complaint. The superior court ruled that Spyropoulos’ complaint failed
under Arizona Rule of Civil Procedure (“Rule”) 12(b)(6) because it failed to
state a claim upon which relief can be granted. The court dismissed the
entire case with prejudice and entered final judgment.

¶7 We have jurisdiction over Spyropoulos’ timely appeal
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).

DISCUSSION

¶8 We review de novo the dismissal of a complaint under Rule
12(b)(6). Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). “Dismissal
is appropriate under Rule 12(b)(6) only if, as a matter of law . . . plaintiffs
would not be entitled to relief under any interpretation of the facts
susceptible of proof.” Id. at 356, ¶ 8 (internal quotations and citation
omitted). We will affirm the superior court’s dismissal if it is correct for any
reason. Sw. Non-Profit Hous. Corp. v. Nowak, 234 Ariz. 387, 391, ¶ 10 (App.
2014).

¶9 “The deed of trust scheme is a creature of statutes.” BT
Capital, LLC v. TD Serv. Co. of Ariz., 229 Ariz. 299, 300, ¶ 9 (2012) (quotations
omitted). Claims raising objections or defenses to a trustee’s sale are
governed by A.R.S. § 33-811(C), which provides:

The trustor, its successors or assigns, and all persons to whom
the trustee mails a notice of sale under a trust deed pursuant
to section 33-809 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 pursuant to rule 65, Arizona rules
of civil procedure, entered before 5:00 p.m. mountain
standard time on the last business day before the scheduled
date of sale.

Moreover, A.R.S. § 33-811(B) states:

The trustee’s deed shall raise the presumption of compliance
with the requirements of the deed of trust and this chapter

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Decision of the Court

relating to the exercise of power of sale and the sale of the
trust property, including recording, mailing, publishing and
posting of notice of sale and the conduct of the sale. A
trustee’s deed shall constitute conclusive evidence of the
meeting of those requirements in favor of purchasers or
encumbrancers for value and without actual notice.

¶10 Here, Spyropoulos does not argue that she lacked notice of
the trustee’s sale. Under A.R.S. § 38-811(C), she waived her objections and
defenses to the sale when she failed to obtain a TRO prior to the sale of the
property. See BT Capital, 229 Ariz. 300-01, ¶ 9 (finding a cause of action
objecting to a trustee’s sale became moot after the sale was completed).
Further, the Trustee’s Deed provides conclusive evidence that the statutory
requirements of the trustee sale were met. See Main I Ltd. P’ship v. Venture
Capital Constr. & Dev. Corp., 154 Ariz. 256, 260 (App. 1987) (“where the
statute states that the trustee’s deed constitutes conclusive evidence of
compliance with the requirements of the deed of trust statutes, this
evidence cannot be rebutted.”) (internal quotations omitted).

¶11 Given that Spyropoulos waived all objections and defenses to
the trustee’s sale when the court declined to order a TRO, and the tort
allegations in her complaint relied solely on the invalidity of the sale, we
find that the superior court did not err by granting the Defendants’ motion
to dismiss. See Madison v. Groseth, 230 Ariz. 8, 10, ¶ 1 (App. 2012)
(upholding dismissal of tort claims waived under A.R.S. § 33-811(C)).

CONCLUSION

¶12 For the foregoing reasons, we affirm the superior court’s
judgment. Appellees Bank of New York, Bayview, and Mortgage Electronic
Registration Systems request their attorneys’ fees and costs pursuant to the
Note, Deed of Trust, A.R.S. § 12-341.01, and -349. We grant Appellees’
requests for attorneys’ fees and costs upon compliance with ARCAP 21.

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

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