Laveen Meadows v. Mejia

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

LAVEEN MEADOWS HOMEOWNERS ASSOCIATION, Plaintiff/Appellee,

v.

CARLOS MEJIA, Defendant/Appellant.

No. 1 CA-CV 18-0276
FILED 5-5-2020

Appeal from the Superior Court in Maricopa County
No. CV2016-094391
The Honorable Margaret E. Benny, Judge Pro Tempore

AFFIRMED

COUNSEL

Maxwell & Morgan, P.C., Mesa
By Chad M. Gallacher
Counsel for Plaintiff/Appellee

Dessaules Law Group, Phoenix
By Jonathan A. Dessaules, Jacob A. Kubert, David E. Wood
Counsel for Defendant/Appellant
 LAVEEN MEADOWS v. MEJIA
Opinion of the Court

OPINION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Kenton D. Jones joined. Judge Kent E. Cattani dissented.

C R U Z, Judge:

¶1 Appellant Carlos Mejia challenges the superior court’s denial
of his motion to set aside a default judgment allowing Appellee Laveen
Meadows Homeowners Association (“Laveen Meadows”) to foreclose on
its lien on Mejia’s property. We affirm because Mejia’s partial payment of
the Association’s lien did not entitle him to relief under Arizona Rule of
Civil Procedure (“Rule”) 60(b).

FACTUAL AND PROCEDURAL HISTORY

¶2 Laveen Meadows sued Mejia to foreclose on its lien for
unpaid assessments and other unpaid amounts. Laveen Meadows alleged
“the principal balance due as of 2016 [was] $8,246.48,” which included
“amounts awarded in an earlier justice court judgment, as well as amounts
not previously reduced to judgment, including attorney fees and costs.”
Mejia did not timely respond to the complaint, and Laveen Meadows
moved for and obtained entry of default.

¶3 Laveen Meadows moved for a default judgment against
Mejia; eleven days later, Mejia moved to set aside the entry of default and
tendered a check for $5,000, which he asserted “cover[ed] all past due
assessments and, therefore, eliminate[d] the right to foreclose.” The
superior court declined to set aside the default and set a damages hearing.

¶4 Following the hearing, the superior court found Laveen
Meadows could recover against Mejia for unpaid assessments due over the
three years prior to the complaint and that the payment Mejia had made
after entry of default eliminated all of those unpaid assessments.
Nevertheless, the court entered a judgment of foreclosure and awarded
Laveen Meadows $11,190 in attorneys’ fees and $1,012.25 in costs, plus
interest. While the court determined Mejia’s $5,000 payment had
eliminated the “principal sum” of unpaid assessments, the court reasoned
that because Laveen Meadows “had the grounds to . . . seek foreclosure at
the time of the complaint,” it was “allow[ed] foreclosure to proceed for

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Opinion of the Court

remaining fees & costs.” Finally, the court authorized Laveen Meadows to
apply to recover future attorneys’ fees and costs it incurred in collecting its
judgment.

¶5 Mejia appealed from the default judgment. We dismissed
that appeal for lack of jurisdiction. Kline v. Kline, 221 Ariz. 564, 568, ¶ 11
(App. 2009). Mejia then moved to set aside the default judgment, largely
repeating the arguments in his motion to set aside the entry of default. The
superior court denied the motion and awarded Laveen Meadows
additional attorneys’ fees and costs. Mejia timely appealed those rulings;
we have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”)
section 12-2101(A)(2).

DISCUSSION

¶6 “The scope of an appeal from a denial of a Rule 60 motion is
restricted to the questions raised by the motion to set aside and does not
extend to a review of whether the trial court was substantively correct in
entering the judgment from which relief was sought.” Hirsch v. Nat’l Van
Lines, Inc., 136 Ariz. 304, 311 (1983). Although we generally prefer that cases
be resolved on their merits, we review the denial of a motion to set aside a
default judgment for an abuse of discretion. Id. at 308.

I. Mejia Was Not Entitled to Relief Under Rule 60(b)(1).

¶7 To set aside a default judgment under Rule 60(b)(1), the
defendant must show (1) excusable neglect that explains the failure to
timely defend, (2) a prompt and diligent request for relief from the
judgment, and (3) a meritorious defense to the underlying complaint. See
id. at 309. Neglect is excusable if a reasonably prudent person might have
acted in the same manner under the circumstances. City of Phoenix v. Geyler, 144 Ariz. 323, 331-32 (1985).

¶8 Mejia argues his failure to timely answer was excusable
because he did not understand the court process “due to his limited
English-language skills.” But Laveen Meadows presented evidence
showing that Mejia came to its counsel’s office the day after he was served
to discuss the lawsuit, communicated extensively with Spanish-speaking
attorneys in Laveen Meadows’ counsel’s office, and made two proposals to
resolve the matter before Laveen Meadows moved for entry of default. In
fact, Mejia had retained counsel immediately after he received a copy of the
motion for default judgment. Given this evidence, we cannot say the court
abused its discretion in denying relief under Subsection (1). See, e.g., Daou
v. Harris, 139 Ariz. 353, 360 (1984) (finding relief not warranted where

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Opinion of the Court

defendant “personally knew of the suit, and apparently merely neglected
to act accordingly”).

II. Mejia Was Not Entitled to Relief Under Rule 60(b)(2).

¶9 Mejia next contends his $5,000 payment constituted “newly
discovered evidence” under Rule 60(b)(2). He did not raise this argument
with the superior court; it therefore is waived. Airfreight Express Ltd. v.
Evergreen Air Ctr., Inc., 215 Ariz. 103, 109-10, ¶ 17 (App. 2007). Moreover,
his decision to make a partial payment does not constitute newly
discovered evidence for purposes of Subsection (2). See Ashton v. Sierrita
Mining & Ranching, 21 Ariz. App. 303, 305 (1974) (stating evidence that “was
in possession of the party before the judgment was rendered . . . is not newly
discovered and does not entitle him to relief” (quoting 11 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2859 (1973)).

III. Mejia Was Not Entitled to Relief Under Rule 60(b)(4) or (6).

¶10 Only errors that undermine jurisdiction render a judgment
void for purposes of Subsection (4) of Rule 60(b). Ezell v. Quon, 224 Ariz.
532, 537, ¶ 19 (App. 2010) (citing Cockerham v. Zikratch, 127 Ariz. 230, 235
(1980)); see also Master Fin., Inc. v. Woodburn, 208 Ariz. 70, 74, ¶ 19 (App.
2004) (“A judgment or order is void if the court lacked jurisdiction over the
subject matter, over the person, or over the particular judgment or order
entered.”). We review the denial of a Rule 60(b)(4) motion de novo. Ezell,
224 Ariz. at 536, ¶ 15.

¶11 Mejia contends the judgment is void because the court lacked
jurisdiction to order foreclosure under A.R.S. § 33-1807(A) (2018). That
lengthy subsection provides:

The association has a lien on a unit for any assessment levied
against that unit from the time the assessment becomes due.
The association’s lien for assessments, for charges for late
payment of those assessments, for reasonable collection fees
and for reasonable attorney fees and costs incurred with
respect to those assessments may be foreclosed in the same
manner as a mortgage on real estate but may be foreclosed
only if the owner has been delinquent in the payment of
monies secured by the lien, excluding reasonable collection
fees, reasonable attorney fees and charges for late payment of
and costs incurred with respect to those assessments, for a
period of one year or in the amount of one thousand two
hundred dollars or more, whichever occurs first. Fees,

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Opinion of the Court

charges, late charges, monetary penalties and interest charged
pursuant to § 33-1803, other than charges for late payment of
assessments are not enforceable as assessments under this
section. If an assessment is payable in installments, the full
amount of the assessment is a lien from the time the first
installment of the assessment becomes due. The association
has a lien for fees, charges, late charges, other than charges for
late payment of assessments, monetary penalties or interest
charged pursuant to § 33-1803 after the entry of a judgment in
a civil suit for those fees, charges, late charges, monetary
penalties or interest from a court of competent jurisdiction
and the recording of that judgment in the office of the county
recorder as otherwise provided by law. The association’s lien
for monies other than for assessments, for charges for late
payment of those assessments, for reasonable collection fees
and for reasonable attorney fees and costs incurred with
respect to those assessments may not be foreclosed and is
effective only on conveyance of any interest in the real
property.

A.R.S. § 33-1807(A) (2018).

¶12 We review the superior court’s interpretation of the statute de
novo. Normandin v. Encanto Adventures, LLC, 246 Ariz. 458, 460, ¶ 9 (2019).
“Our primary goal is to give effect to the [L]egislature’s intent.” Wilks v.
Manobianco, 237 Ariz. 443, 446, ¶ 8 (2015) (quoting J.D. v. Hegyi, 236 Ariz.
39, 40, ¶ 6 (2014)). “A statute’s plain language best indicates legislative
intent, and when the language is clear, we apply it unless an absurd or
unconstitutional result would follow.” Premier Physicians Grp., PLLC v.
Navarro, 240 Ariz. 193, 195, ¶ 9 (2016). If a statute is ambiguous on its face,
this court must seek to ascertain the meaning intended by the Legislature
“from the language used in the statute, aided by the canons and rules of
statutory construction.” Greyhound Parks of Ariz., Inc. v. Waitman, 105 Ariz.
374, 375 (1970).

¶13 We focus on the second sentence of the provision quoted
above. Mejia frames the issue as follows:

The availability of the remedy of foreclosure turns on what
the Legislature meant by “may be foreclosed only if the owner
has been delinquent.” Specifically, whether it refers to the
commencement of a civil action seeking judicial foreclosure
or issuance of a judgment of foreclosure.

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Opinion of the Court

(quoting A.R.S. § 33-1807(A)). He argues for the latter, contending the court
should not have determined whether the statutory prerequisites were met
until it was ready to enter judgment, by which time his $5,000 payment had
“eliminated any conceivable amount that might remain owing for
assessments.” Laveen Meadows, on the other hand, contends “the two
triggering events (i.e., $1,200.00 in unpaid assessments or one year
delinquent) are threshold events that remove the bars to foreclosure of the
Association’s lien as soon as either is once satisfied.”

¶14 The plain language of the statute supports Laveen Meadows’
interpretation, as it states that a lien “may be foreclosed” once an owner is
either delinquent for one year or for $1,200 in unpaid assessments,
“whichever occurs first.” A.R.S. § 33-1807(A). It would not matter which
of these events occurred first if the court could not consider either until it is
ready to enter judgment. That is so because prior to entering judgment, the
court would need to determine that the owner still owed at least $1,200 in
unpaid assessments. Additionally, under Mejia’s interpretation,
associations could sue to foreclose against homeowners who owe less than
$1,200 in unpaid assessments or are delinquent for less than a year on the
assumption that one or both will occur before judgment is entered. His
interpretation thus would not further the legislative purpose he argues,
namely, “to restrict the ability to foreclose.” In addition, while A.R.S. § 33-
1807(F)1 makes it clear that the passage of time extinguishes an unpaid lien,
the statute does not similarly provide that payment of a portion of the
association’s lien extinguishes the entire lien. If the Legislature intended
for a partial payment to extinguish the association’s entire lien, as the
dissent suggests we should read the statute, infra ¶ 30, it would have
explicitly said so.

¶15 We find Huntington Continental Townhouse Ass’n v. Miner, 179
Cal. Rptr. 3d 47 (Ct. App. 2014), upon which Mejia and the dissent rely, infra
¶ 32, unpersuasive. There, the court held under California law that an
association could not refuse a partial payment and proceed with foreclosure
when the payment would have reduced the amount of unpaid assessments
below the statutory threshold for foreclosure. Id. at 57-58. The court’s
ruling was consistent with the plain language of California Civil Code
§ 5720, which provides that an association “may not collect . . . through
judicial or nonjudicial foreclosure” debts that are either less than $1,800 or

1 “A lien for an unpaid assessment is extinguished unless proceedings
to enforce the lien are instituted within six years after the full amount of the
assessment becomes due.” (Emphasis added.)

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Opinion of the Court

fewer than twelve months delinquent. Cal. Civ. Code § 5720(b), (c)(1). In
contrast, Arizona’s statute, A.R.S. § 33-1807(A), allows an association to sue
to foreclose once the lien either exceeds $1,200 in unpaid assessments or is
delinquent for one year; it does not expressly eliminate the foreclosure remedy if
an owner makes a payment to reduce or eliminate the unpaid assessment
balance. A.R.S. § 33-1807(A). Indeed, the lien created by the statute
expressly includes not only assessments but “charges for late payment of
those assessments,” “reasonable collection fees,” and “reasonable attorney
fees and costs incurred with respect to those assessments.” Id.

¶16 For these reasons, we affirm the court’s ruling declining to set
aside the default judgment as void pursuant to Rule 60(b)(4). We also
conclude the court did not err in denying Rule 60(b)(6) relief on these same
grounds.2 See Hilgeman v. Am. Mortg. Sec., Inc., 196 Ariz. 215, 220, ¶ 15 (App.
2000) (noting party seeking relief under Subsection (6) must show “a reason
for setting aside the judgment other than one of the reasons set forth in the
preceding five clauses” (quoting Davis v. Davis, 143 Ariz. 54, 57 (1984)).

2 The Legislature amended A.R.S. § 33-1807(A) after the events of this
case to add the following language to the end of its second sentence:

The association’s lien . . . may be foreclosed only if the owner
has been delinquent in the payment of monies secured by the
lien, excluding reasonable collection fees, reasonable attorney
fees and charges for late payment of and costs incurred with
respect to those assessments, for a period of one year or in the
amount of $1,200 or more, whichever occurs first, as
determined on the date the action is filed.

2019 Ariz. Sess. Laws Ch. 200, § 2 (1st Reg. Sess.) (S.B. 1531) (emphasis
added). While this amendment does not apply to this case, it further
confirms the Legislature’s intent that courts may grant foreclosure under
§ 33-1807(A) upon proof that the requisite delinquency existed when the
action was filed, even if the owner reduces the amount of the delinquency
while the case is pending. See City of Mesa v. Killingsworth, 96 Ariz. 290, 297
(1964) (“An amendment which, in effect, construes and clarifies a prior
statute will be accepted as the legislative declaration of the original act.”).

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Opinion of the Court

IV. Mejia’s Challenges to Specific Terms of the Default Judgment Fail.

¶17 Mejia also contends the default judgment improperly (1)
awarded future unaccrued attorneys’ fees and costs, (2) authorized the sale
of his personal property, and (3) violated his redemption rights.

A. Paragraphs 1(c) and 1(d)—Accruing Attorneys’ Fees and
Costs

¶18 Mejia contends paragraphs 1(c) and 1(d) of the judgment,
which allow Laveen Meadows to move for “accruing costs” and “accruing
fees” “not otherwise addressed herein,” constitute improper fee-shifting.
Although Mejia argues that any right to post-judgment fees “must be
spelled out in a contract,” the Laveen Meadows Homeowners Association’s
Declaration of Covenants, Conditions and Restrictions (the “Declaration”)
grants such a right:

Each Owner . . . is deemed to covenant and agree to pay the
Assessments levied pursuant to this Declaration with respect
to such Owner’s Lot, together with: . . . such costs and
reasonable attorneys’ fees, costs and other litigation fees and
costs as may be incurred by the Association in seeking to
collect such Assessments.

“Generally, we enforce a contractual attorneys’ fees and costs provision
according to its terms.” Harle v. Williams, 246 Ariz. 330, 333, ¶ 10 (App.
2019). The court lacks discretion to refuse to award fees under a contractual
provision. Bennett Blum, M.D., Inc. v. Cowan, 235 Ariz. 204, 206, ¶ 8 (App.
2014).

¶19 Mejia appears to contend the Declaration term quoted above
was merged into the default judgment. But the merger doctrine’s primary
function is “to bar subsequent actions on the original cause of action.” C &
J Travel, Inc. v. Shumway, 161 Ariz. 33, 36-37 (App. 1989). Laveen Meadows
did not incur the post-judgment fees at issue in bringing a second action; it
instead incurred those fees opposing Mejia’s motions to set aside the entry
of default and the default judgment. Both of these motions clearly relate to
Laveen Meadows’ original foreclosure claim under the Declaration. See
Bennett Blum, 235 Ariz. at 207, ¶ 10 (concluding that a party could recover
fees for opposing a Rule 60(c) motion and a motion to stay because the
motions “necessarily were related to the underlying action on the
contract”). The court thus did not err in awarding those fees, nor did it err
in authorizing Laveen Meadows to apply to recover additional fees and
costs it incurred “to resolve the dispute.”

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¶20 Mejia also cites Bocchino v. Fountain Shadows Homeowners
Ass’n, 244 Ariz. 323, 326, ¶ 14 (App. 2018), for the proposition that “an
association generally may not ‘assess . . . directly against a homeowner,
attorney fees incurred in a judicial proceeding that have not been awarded
by a qualified tribunal.’” (quoting id.). There, we held that an association
could not unilaterally assess attorneys’ fees incurred in obtaining an
injunction against harassment because the court that granted the injunction
did not award them under A.R.S. § 12-1810(O). Id. at 324-26, ¶¶ 1, 13. The
judgment in this case does not permit Laveen Meadows to assess
unawarded fees or costs; it only allows Laveen Meadows to apply to the
court to recover additional fees or costs.

B. Paragraph 6—Foreclosure of Personal Property

¶21 Mejia contends paragraph 6 of the judgment improperly
authorizes the foreclosure against personal property contrary to the
personal property exemption set forth in A.R.S. §§ 33-1121 to -1133. That
exemption, however, does not apply to liens established under § 33-1807.
A.R.S. § 33-1807(C). In any event, the judgment only states that any
personal property “present at or in the Property at the time of the
[foreclosure] sale . . . will be deemed abandoned and sold as part of the
Property if not removed prior to the time the purchaser . . . elects to take
possession.” No foreclosure sale has yet taken place. And this provision
does not prohibit Mejia from removing his personal property from the
residence. It only provides that, if he fails to do so and such personal
property remains at the time of the foreclosure sale, it will be deemed
abandoned and sold as part of the foreclosure sale. Paragraph 6 is not
improper.

C. Paragraph 9—Redemption

¶22 Mejia contends paragraph 9 of the judgment violates his right
of redemption:

Possession of the Property shall be vested in the purchaser
immediately following the Sheriff’s Sale as the holder of
equitable title and thus entitling the purchaser to pursue
occupancy by all legal means, subject only to Defendants’
right of redemption pursuant to Arizona law.

But paragraph 7 of the judgment grants Mejia a redemption period of “six
. . . months, unless the property has been abandoned, in which event the
redemption period shall be 30 days,” consistent with A.R.S. § 12-1282(A)
and (B). The judgment thus preserves his redemption rights.

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V. Laveen Meadows May Recover Attorneys’ Fees and Costs on
Appeal.

¶23 Both parties request their attorneys’ fees and taxable costs
incurred in this appeal. Pursuant to A.R.S. § 33-1807(H), a judgment “in
any action brought under this section shall include costs and reasonable
attorney fees for the prevailing party.” Laveen Meadows is the successful
party on appeal and may recover its reasonable attorneys’ fees and taxable
costs upon compliance with ARCAP 21.

CONCLUSION

¶24 We affirm the denial of the motion to set aside the default
judgment.

C A T T A N I, J., dissenting:

¶25 I respectfully dissent. In my view, under the express
language of A.R.S. § 33-1807(A), a homeowners’ association lien against a
homeowner’s residence for unpaid assessments may not be foreclosed
unless the homeowner owes—as of the date of the foreclosure order—at
least $1,200 (excluding related collection fees, attorney’s fees, and charges
for late payments) or the assessments (in any amount) are delinquent for a
period of one year as of the date of the order. Accordingly, because Mejia
had fully paid the previously unpaid assessments (and owed only
excludable fees and penalties) as of the date the lien on his property was
foreclosed, I would hold that he was entitled to relief under Arizona Rule
of Civil Procedure 60(b)(6) based on “extraordinary circumstances of
hardship or injustice justifying relief.” See Webb v. Erickson, 134 Ariz. 182,
187 (1982).

¶26 Section 33-1807(A) authorizes homeowners’ associations to
foreclose on a residential lien to collect delinquent assessments, but only if
the unpaid assessments, excluding penalties and fees incurred to collect
those assessments, are delinquent for more than one year or total at least
$1,200:

The association has a lien on a unit for any assessment levied
against that unit from the time the assessment becomes due.
The association’s lien for assessments, for charges for late

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Cattani, J., dissenting

payment of those assessments, for reasonable collection fees
and for reasonable attorney fees and costs incurred with
respect to those assessments may be foreclosed in the same
manner as a mortgage on real estate but may be foreclosed
only if the owner has been delinquent in the payment of
monies secured by the lien, excluding reasonable collection
fees, reasonable attorney fees and charges for late payment
of and costs incurred with respect to those assessments, for
a period of one year or in the amount of $1,200 or more,
whichever occurs first.

(Emphases added.)

¶27 As the majority agrees, the issue before us is whether the
phrase “may be foreclosed” in this subsection refers to the commencement
of a civil action seeking judicial foreclosure or the issuance of a judgment of
foreclosure. See supra ¶ 13. In my view, a lien is not “foreclosed” until a
court issues an order to that effect. Accordingly, I disagree with the
majority’s conclusion that “may be foreclosed” means the commencement
of foreclosure proceedings, and I would hold that the delinquency at issue
must be determined as of the date of the foreclosure order.

¶28 From my perspective, under the express language of the
statute, there are different components of a homeowners’ association lien
that are treated differently—the unpaid assessments are one component,
while associated penalties, fees, and costs constitute a separate component.
The statute only authorizes a foreclosure order if (1) the unpaid assessment
component (in any amount) is delinquent for more than one year or (2) the
unpaid assessment component is for $1,200 or more. A.R.S. § 33-1807(A).
Once Mejia paid the full amount of the past-due assessments, there was
neither an amount that was delinquent for more than one year nor $1,200
or more owing. Accordingly, there was no basis for ordering that the lien
against Mejia’s property be foreclosed.

¶29 The majority suggests that this interpretation is illogical given
the statutory language stating that the lien “‘may be foreclosed’ once an
owner is either delinquent for one year or for $1,200 in unpaid assessments,
‘whichever occurs first.’” Supra ¶ 14 (quoting A.R.S. § 33-1807(A)). The
majority asserts that the time element is rendered superfluous because
“prior to entering judgment, the court would need to determine that the
owner still owed at least $1,200 in unpaid assessments.” Id. But the time
element is not superfluous if an amount less than $1,200 remains delinquent
for more than one year. If, for example, a homeowner owed $600 in unpaid

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Cattani, J., dissenting

assessments and $2,000 in penalties, the homeowners’ association could
foreclose on its lien notwithstanding the $1,200 threshold amount so long
as the $600 remained delinquent for more than one year. Accordingly, the
one-year provision is still relevant if a homeowner owes some amount in
assessments that remain delinquent for more than a year, even if that
amount is less than $1,200.

¶30 The majority’s interpretation is not only inconsistent with the
express language of the statute, but its rationale arguably would permit a
foreclosure order even if the homeowner paid the entire amount owed
(assessments as well as related fees, penalties, and costs) after foreclosure
proceedings commenced. In my view, it would be nonsensical to permit a
lien to be foreclosed when the underlying debt has been completely
satisfied, and the same logic applies to foreclosure of a lien that no longer
includes any foreclosure-qualifying amount. Thus, I would hold that
foreclosure is not permitted if the qualifying component of the lien has been
satisfied before a foreclosure order issues.3

¶31 Although this is an issue of first impression in Arizona, in
Huntington Continental Townhouse Ass’n v. Miner, 179 Cal. Rptr. 3d 47, 55–56
(Ct. App. 2014), a California appellate court held that under a similar
statute, Cal. Civ. Code § 5720, a homeowners’ association could not refuse
a partial payment and proceed with foreclosure when the partial payment
would reduce the amount of unpaid assessments below a statutory
threshold. The majority here, see supra ¶ 15, attempts to distinguish
Huntington Continental based on slightly different language in the
California statute: an association “may not collect . . . through judicial or
nonjudicial foreclosure” delinquent assessments totaling less than $1,800
(although the threshold amount does not apply if the assessments are more

3 The majority correctly notes that the Legislature has added language
to the end of the second sentence of § 33-1807(A) providing that the time
period of a delinquency (one year) and the amount of delinquent
assessments is to be “determined on the date the action is filed.” See supra
¶ 16 n.2. I disagree, however, with the majority’s conclusion that the
amendment “further confirms the Legislature’s intent that courts may grant
foreclosure under § 33-1807(A) upon proof that the requisite delinquency
existed when the action was filed, even if the owner reduces the amount of
the delinquency while the case is pending.” Id. Instead, the amendment
may be viewed as further reflecting the Legislature’s interest in limiting the
circumstances under which a foreclosure action can be filed (and
addressing the hypothetical concern cited by the majority, supra ¶ 14) by
eliminating “anticipatory” foreclosure filings by homeowners’ associations.

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Cattani, J., dissenting

than 12 months delinquent). See Cal. Civ. Code § 5720(b), (c)(1). But I view
the California statute’s “may not collect . . . through judicial or nonjudicial
foreclosure” assessments totaling less than $1,800 to have essentially the
same meaning as Arizona’s provision that the lien “may be foreclosed only
if [the delinquent assessments total] $1,200 or more.” A.R.S. § 33-1807(A)
(emphasis added); Cal. Civ. Code § 5720(b) (emphasis added). And I agree
with the California court’s observation that such statutes reflect legislative
intent to limit the circumstances under which a property owner’s house
may be taken based on delinquent homeowners’ association fees to
situations where the fees owed exceed a relatively de minimis amount
(excluding penalties and interest), while still permitting homeowners’
associations to pursue other remedies against the delinquent homeowner.
Huntington Cont’l, 179 Cal. Rptr. 3d at 55–56. I also agree with the California
court’s comment that, although “[i]t is possible for a situation to arise in
which a clever and unscrupulous owner would be able to dodge
foreclosure” through partial payments, the homeowners’ association
retains access to remedies other than foreclosure, including financial
judgments against the homeowner. Id. at 56.

¶32 In sum, although Laveen Meadows’ suit to foreclose based on
the assessment lien was properly filed, once Mejia tendered the $5,000
check to pay the delinquent assessments in full (and then some), the only
monies then owed to Laveen Meadows and secured by the lien were for
associated attorney’s fees and costs. Accordingly, even though Laveen
Meadows maintained the right to collect those fees, charges, late charges,
penalties, and interest, the express provisions of A.R.S. § 33-1807(A)
prohibited doing so by foreclosure. Thus, in the interest of justice, the
superior court should have granted relief from judgment under Rule
60(b)(6).

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

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