US Bank v. Lietz

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

US BANK NATIONAL ASSOCIATION, Plaintiff/Appellee,

v.

BRANDON C. LIETZ, Defendant/Appellant.

No. 1 CA-CV 19-0220
FILED 4-28-2020

Appeal from the Superior Court in Maricopa County
No. CV2019-000042
The Honorable David W. Garbarino, Judge Pro Tempore

AFFIRMED

COUNSEL

ZBS Law LLP, Phoenix
By Joseph J. Tirello, Kim R. Lepore
Counsel for Plaintiff/Appellee

Brandon C. Lietz, New River
Defendant/Appellant

MEMORANDUM DECISION

Chief Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.
 U.S. BANK v. LIETZ
Decision of the Court

S W A N N, Chief Judge:

¶1 This is a forcible entry and detainer (“FED”) action initiated
by U.S. Bank National Association against Brandon C. Lietz for possession
of real property (“the Property”) located in Maricopa County. The superior
court denied Lietz’s motion to dismiss, granted U.S. Bank judgment on the
pleadings, and denied Lietz’s motion to vacate the judgment. Lietz appeals.

¶2 A plaintiff is entitled to judgment on the pleadings under
Arizona Rule of Civil Procedure 12(c) only when, taking the defendant’s
well-pleaded factual allegations as true and all denied allegations of the
complaint as false, the plaintiff clearly is entitled to judgment. Food for
Health Co., v. 3839 Joint Venture, 129 Ariz. 103, 106 (App. 1981). We review
the superior court’s legal conclusions de novo. Shaw v. CTVT Motors, Inc.,
232 Ariz. 30, 31, ¶ 8 (App. 2013).

¶3 FED is a statutory proceeding designed to provide a summary
remedy to one entitled to actual possession of property. Colonial Tri-City
Ltd. P’ship v. Ben Franklin Stores, Inc., 179 Ariz. 428, 433 (App. 1993). In such
a proceeding, the only issue before the court is the right of actual
possession—the court may not inquire into the merits of title. A.R.S. § 12-
1177(A); Curtis v. Morris, 186 Ariz. 534, 534 (1996).

¶4 U.S. Bank provided with its complaint a copy of a trustee’s
deed memorializing its purchase of the Property at a trustee’s sale, along
with a copy of a post-sale notice to vacate with which it alleged Lietz did
not comply. A trustee’s deed raises the presumption of compliance with
the deed of trust’s requirements “relating to the exercise of the power of
sale and the sale of the trust property.” A.R.S. § 33-811(B).

¶5 Lietz contends that the sale violated an automatic stay
imposed by his bankruptcy case, did not comport with the homestead
exemption set forth in A.R.S. § 33-1101, and was in truth a “reversion”
because U.S. Bank was the seller as well as the purchaser. Because those
arguments relate to the merits of title and challenge the sale itself, the
superior court properly declined to consider them. (We note, however,
that the record demonstrates the sale took place during a period of
dismissal in the bankruptcy case, that under § 33-1103(A)(1) the homestead
exemption does not apply to deeds of trust, and that under § 33-810 any
person—including the trustee or beneficiary—may bid at a trustee’s sale.)

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 U.S. BANK v. LIETZ
Decision of the Court

CONCLUSION

¶6 In view of the foregoing, U.S. Bank was entitled to judgment
on the FED complaint. We therefore affirm.

ATTORNEY’S FEES AND COSTS

¶7 U.S. Bank requests an award of costs and attorney’s fees on
appeal under §§ 12-341 and -341.01. As the prevailing party, U.S. Bank is
entitled to costs under § 12-341 upon compliance with ARCAP 21. But U.S.
Bank is not entitled to attorney’s fees under § 12-341.01. That statute
authorizes an award of fees to the prevailing party in a contested action
arising out of contract. A.R.S. § 12-341.01(A). An FED action following a
trustee’s sale arises from the defendant’s post-sale status as a tenant at
sufferance, not from any contractual relationship the defendant may have
had with the plaintiff before the sale. Bank of New York Mellon v. Dodev, 246
Ariz. 1, 11–12, ¶ 38 (App. 2018).

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

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