Mall v. McDonald

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARK A. MALL, Plaintiff/Appellant,

v.

LEONARD J. MCDONALD, et al., Defendant/Appellees.

No. 1 CA-CV 23-0193
FILED 01-18-2024

Appeal from the Superior Court in Maricopa County
No. CV2022-014883
The Honorable Katherine Cooper, Judge

AFFIRMED

COUNSEL

Mark Anthony Mall, Phoenix
Plaintiff/Appellant

Tiffany & Bosco, P.A., Phoenix
By Leonard J. McDonald, Michael F. Bosco
Counsel for Appellees
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MEMORANDUM DECISION

Judge Anni Hill Foster delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.

F O S T E R, Judge:

¶1 Plaintiff Mark Mall appeals the superior court’s denial of his
motion for injunctive relief seeking to stop a trustee’s sale of his
encumbered real property. For the following reasons, this Court affirms.

FACTS AND PROCEDURAL HISTORY

¶2 In 2007, Mall obtained a loan from Wells Fargo Bank, N.A.,
secured by a Deed of Trust on real property he owned. It listed Wells Fargo
Bank as the trustee. A month later, Mall transferred the property via a
Warranty Deed into the Mall Living Trust with himself as trustee. Wells
Fargo consented to this transaction. Beginning in January 2021, Mall failed
to make monthly payments on the loan. In October of the following year,
Mark Bosco, who held a limited power of attorney for Wells Fargo,
substituted Leonard McDonald as trustee under the Deed of Trust.
McDonald then recorded a Notice of Trustee’s Sale to take place in January
2022.

¶3 In response, Mall sought an injunction to prevent the trustee’s
sale. As legal proceedings continued and the date of the sale approached,
Mall moved for an Emergency Temporary Restraining Order (“TRO”). The
court granted the order, cancelled the sale, and ordered a hearing on the
matter the following week. Following the hearing, the court vacated its
order, finding that Mall had not established the elements for a TRO. About
two weeks later, the court held an evidentiary hearing on Mall’s initial
motion. Following Mall’s presentation of evidence and argument, the court
denied injunctive relief and dismissed the case, finding that Mall “fail[ed]
to show any unlawful conduct to support his claim.” Mall filed a motion
for reconsideration, which the court denied.

¶4 This Court has jurisdiction under A.R.S. § 12-2101(A)(1).

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DISCUSSION

¶5 Denial of a preliminary injunction is reviewed for an abuse of
discretion. Fann v. State, 251 Ariz. 425, 432, ¶ 15 (2021). Relevant facts are
viewed “in the light most favorable to upholding the trial court’s ruling.”
Mahar v. Acuna, 230 Ariz. 530, 532, ¶ 2 (App. 2012). “Unless the trial judge
either made a mistake of law…or clearly erred in finding the facts or
applying them to the legal criteria…we must affirm.” Shoen v. Shoen, 167
Ariz. 58, 62 (App. 1990).

¶6 A party requesting an injunction must demonstrate four
criteria: (1) “a strong likelihood of success on the merits,” (2) “irreparable
harm if the stay is not granted,” (3) “the harm to the requesting party
outweighs the harm to the [opposing party],” and (4) “public policy favors
[] granting the stay.” Smith v. Ariz. Citizens Clean Elections Comm’n, 212 Ariz.
407, 410, ¶ 10 (2006).

I. This Court takes judicial notice of documents as requested by
Mall.

¶7 As a preliminary matter, Mall requested this Court take
judicial notice of four documents: (1) Affidavit and Assertory Oath of
Acceptance of Trusteeship of the Mall Familia GodTrust; (2) Deed of Full
Reconveyance; (3) Affidavit of Truth, Repudiation and Revocation of
Citizenship; and (4) Master Form Deed of Trust. A Court may take judicial
notice of a fact if “the court is supplied with the necessary information” and
the fact “can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Ariz. R. Evid. 201(a), (b)(2),
(c)(2). The documents in question bear the stamp of the Maricopa County
Recorder identifying them as official public documents for which this Court
may take judicial notice. See Ariz. Pub. Integrity Alliance v. Fontes, 250 Ariz.
58, 65, ¶ 28 n.2 (2020); Wang Elec., Inc. v. Smoke Tree Resort, LLC, 230 Ariz.
314, 325, ¶ 33 (App. 2012). Mall’s request for judicial notice of the existence
and recording of these documents is granted.

II. Mall has not shown a likelihood of success on the merits.

¶8 To show a likelihood of success on the merits, Mall needed to
show that McDonald, as trustee, did not hold an interest in the property.
Mall has not done so.

A. Trustee’s Sales are Governed by Statute.

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¶9 Mall argues there is no proof of an underlying debt secured
by the Deed of Trust, implying that the Deed of Trust and other documents
are “flawed,” “defective,” or “fraudulent.” He argues that, because the
“promissory note, revolving line of credit agreement, contract, guaranty or
other evidence of debt” referenced in the Deed of Trust was not offered into
evidence, there is no proof that he owes the debt. Such a showing is not
required. See Hogan v. Wash. Mut. Bank, N.A., 230 Ariz. 584, 585, ¶¶ 1, 8
(2012) (holding “Arizona’s non-judicial foreclosure statutes do not require
the beneficiary to prove its authority or ‘show the note’ before the trustee
may commence a non-judicial foreclosure”). “[T]rustees’ sales[] are
governed by statute” and no statute mandates showing the underlying debt
before holding a trustee’s sale. Id. at 585-86, ¶ 5. A.R.S. § 33-808(C)(4), which
directs the information required in a notice of a trustee’s sale, does require
that the original amount owed under the Deed of Trust, be included in the
notice. McDonald’s notice complied with the statute.

B. The Deed of Trust Remained Effective After Mall
Executed the Warranty Deed.

¶10 Mall claims that the Warranty Deed superseded and revoked
the Deed of Trust. A Deed of Trust “convey[s] trust property to a trustee. . .
to secure the performance of a contract.” A.R.S. § 33-801(8). The statute
specifically contemplates a subsequent transfer of the secured property.
A.R.S. § 33-801(11) (defining the “trustor” as “the person conveying trust
property . . . or the successor in interest of such person”); see also Successor
in Interest, BLACK’S LAW DICTIONARY (11th ed. 2019) (“Someone who follows
another in ownership or control of property.”). The Warranty Deed
expressly stated that Mall, as grantor, “warrants the title against all persons
whomsoever.” Mall’s transfer of the property into his living trust did not
revoke the Deed of Trust; the deed remained effective and still encumbered
the property. This remains true even with an additional reconveyance from
the Mall Living Trust back to Mall.

C. The Interest in the Land Conveyed by the Deed of Trust
Remains Valid.

¶11 Mall argues the trustee’s sale is improper because he has
superior allodial title to the property based on his chain of title going back
to a federal land patent. A land patent is “[a]n instrument by which the
government conveys a grant of public land to a private person.” Land
Patent, BLACK’S LAW DICTIONARY (11th ed. 2019). It “is the highest evidence
of title” and “conclusive as against the Government, and all claiming under
junior patents or title.” U.S. v. Stone, 69 U.S. 525, 535 (1864); Raestle v.

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Whitson, 119 Ariz. 524, 526 (1978). Once “issued, full legal title passe[s] to
the patentee” who “[can] do with the land that which he [sees] fit,—sell or
give it away.” Hartman v. Butterfield Lumber Co., 199 U.S. 335, 337 (1905). But
“if [the patentee] voluntarily conveyed [the land], he could not thereafter
repudiate the conveyance.” Id. Just as all the previous owners of the land
were free to convey title to the land or encumber it, so too was Mall. Though
the land was initially conveyed by a land patent, that is irrelevant to this
case. When Mall signed the Deed of Trust, he conveyed an interest in the
property, and he cannot now annul that transfer.

¶12 Mall’s claim to allodial title of the land is similarly unavailing.
Allodial title is “ownership without a duty of service to, control by, or
acknowledgment of any superior landlord.” Allodial Title, BLACK’S LAW
DICTIONARY (11th ed. 2019). The term merely signifies a break from the
“loyalty, obligation, and service” a vassal owed his lord under feudal land
ownership. Nadav Shaked, The Duty to Maintain, 64 DUKE L.J. 437, 456-57
(2014). Allodial title grants Mall the same freedom to convey an interest in
his property as the land patent does, and it offers no protection to avoid the
consequences of such a conveyance.

¶13 Because the Deed of Trust was a valid transfer of interest in
the property, McDonald, as trustee under the Deed of Trust, had authority
to sell the property when Mall defaulted on the underlying debt contract.
A.R.S. § 33-807(A)(conferring the power to sell property after a breach or
default on the trustee of a deed of trust).

III. Mall has not established that there are serious questions regarding
the merits.

¶14 When reviewing for the presence of serious questions the
inquiry is “whether there are serious questions going to the merits” and
“depends more on the strength of the legal claim than on the gravity of the
issue.” Ariz. Assoc. of Providers for Persons with Disabilities v. State, 223 Ariz.
6, 12, ¶ 13 (App. 2009) (quoting Luckette v. Lewis, 883 F.Supp. 471, 474 (D.
Ariz. 1995)).

¶15 As discussed above, the legal claims Mall raises concerning
title and McDonald’s authority to execute the trustee’s sale do not support
his arguments. Arizona’s statutory scheme grants a trustee under a Deed of
Trust the authority to sell conveyed property upon default of the
underlying debt. A.R.S. § 33-807(A). Mall raises no serious question going
to the merits of his case.

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CONCLUSION

¶16 Because Mall did not make the required showings for
injunctive relief, the superior court did not abuse its discretion by denying
Mall’s motion. The superior court’s order is affirmed.

¶17 Appellees seek attorneys’ fees and costs under A.R.S. § 33-
807(E). This Court awards reasonable attorneys’ fees and costs to the trustee
upon compliance with Arizona Rule of Civil Procedure 21.

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

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