HICKS v. HSBC

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

VIVIAN HICKS, Plaintiff/Appellant,

v.

HSBC BANK USA NA, et al., Defendants/Appellees.

No. 1 CA-CV 25-1027
FILED 09-11-2026

Appeal from the Superior Court in Maricopa County
No. CV2025-003254
The Honorable Scott A. Blaney, Judge

AFFIRMED

COUNSEL

Vivian Hicks, Phoenix
Plaintiff/Appellant

Burch & Cracchiolo, P.A., Phoenix
By Andrew Abraham, Jackson Hendrix
Counsel for Defendant/Appellee PAJ Enterprises

HICKS v. HSBC, et al.
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ZBS Law, LLP, Phoenix
By Erin K. Sweeney
Counsel for Defendant/Appellee Thompson Jones

Klinedinst PC, Phoenix
By C. Nicole Price, Grace L. Sluga
Counsel for HSBC Bank USA

Evans, Dove, Nelson, Fish & Grier, P.L.C., Mesa
By Douglas N. Nelson, Trevor J. Fish
Counsel for Defendant/Appellee Carranza Services, LLC

MEMORANDUM DECISION

Presiding Judge Andrew J. Becke delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Samuel A. Thumma1 joined.

B E C K E, Judge:

¶1 Plaintiff Vivian Hicks (“Hicks”) appeals the dismissal of her
complaint claiming mortgage fraud resulting in the foreclosure of her home
and that she did not receive notice of a trustee’s sale. For the following
reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In 2003, Hicks purchased a home (the “Property”) and
obtained a loan of $126,179 from Allied Home Mortgage Capital
Corporation (“Allied”). The deed of trust named Mortgage Electronic
Registration Systems, Inc. (“MERS”) as the beneficiary, solely as Allied’s
nominee. MERS later assigned all beneficial interest to HSBC Bank USA,
National Trust Company, as Trustee for the holders of MASTR

1
Judge Samuel A. Thumma was on the panel assigned to this case until retiring
effective August 28, 2026. Arizona Supreme Court Chief Justice Ann A. Scott Timmer
appointed Judge Thumma to continue to serve on the Court through December 31,
2026, to resolve those cases in which he previously participated like this case. See
Arizona Supreme Court Administrative Order 2026-124.

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Reperforming Loan Trust 2005-2 (“HSBC”). In July 2024, Newrez LLC
d/b/a Shellpoint Mortgage Servicing (“Shellpoint”) became the servicer of
the loan. Carrie Thompson Jones (“Thompson Jones”) then became trustee.

¶3 The record indicates that, beginning in 2007, Hicks failed to
make timely payments, resulting in the lender issuing trustee’s sale notices
on four separate occasions. The first three sales were cancelled when Hicks
entered into loan modification agreements. The fourth sale, noticed on
October 18, 2024, resulted in a January 23, 2025, trustee’s sale of the
Property.

¶4 Carranza Services LLC (“Carranza”) purchased the Property
at the trustee’s sale. Thompson Jones then conveyed title to the Property to
Carranza through a trustee’s deed, recorded on January 31, 2025.

¶5 On January 27, 2025, after the trustee’s sale but before the
recording of the trustee’s deed, Hicks filed this lawsuit alleging that she did
not have notice of the trustee’s sale and that the defendants committed
various fraudulent acts. Hicks named HSBC, Shellpoint, MERS, and
Thompson Jones as defendants. Hicks later added Carranza as a defendant.
Hicks’s operative complaint alleged that she did not have notice of the
trustee’s sale until after it had already occurred. She also alleged that the
defendants drained her escrow account without her knowledge, caused her
insurance to be cancelled and then purchased new insurance on the
Property at a higher premium, and made changes to her loan without her
knowledge.

¶6 Hicks also moved for an emergency hearing and a temporary
restraining order, alleging elder abuse, wrongful foreclosure and sale of the
Property, mortgage fraud, and insurance fraud.

¶7 Hicks then moved to amend her complaint again. She
requested that Carranza’s owners, as well as a subsequent purchaser of the
Property and the subsequent purchaser’s lender, Paj Fund I, LLC, d/b/a
Paj Fund II, LLC, d/b/a Paj Enterprises (“Paj”) be added as defendants.
Hicks alleged that the subsequent purchaser lied about being married and
that Paj did not possess a lender’s license. Hicks did not attach a proposed
amended complaint to her motion. The court denied her motion for failing
to comply with Arizona Rule of Civil Procedure 15(a)(4), which requires a
proposed amended complaint be attached to a motion to amend a
complaint.

¶8 Carranza moved to dismiss the claims against it under
Rule 12(b)(6). The court granted Carranza’s motion, concluding the

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complaint failed to state a claim against Carranza upon which relief could
be granted.

¶9 Thompson Jones and HSBC separately moved to dismiss
under Rule 12(b)(6). Thompson Jones attached various documents showing
that: Hicks had been mailed notice of the trustee’s sale on November 14,
2024; notice was posted on the Property on November 25, 2024; and notice
was published in a newspaper on November 20, November 27,
December 4, and December 11, 2024—all in compliance with A.R.S.
§ 33-808(A). The court denied both motions, concluding Hicks’s operative
complaint alleged sufficient facts to potentially establish a right to relief.

¶10 Hicks then moved for summary judgment, arguing that she
was a victim of a “multi-million-dollar mortgage scheme to defraud
homeowners out of their homes.”

¶11 Meanwhile, HSBC opposed Hicks’s motion for emergency
hearing and temporary restraining order. HSBC’s filing attached
documents relating to the loan and trustee’s sale and a declaration of the
senior litigation case manager for Shellpoint detailing the history of the
loan. HSBC argued that Hicks had waived her arguments because she had
not obtained an injunction before the trustee’s sale. A.R.S. § 33-811(C) (the
trustor waives “all defenses and objections to the sale” that were not raised
in an action that results in an injunction prior to the sale). The declaration
stated that Shellpoint mailed Hicks information regarding her eligibility for
loss mitigation in August 2024. It also sent an agent to the Property in
September 2024 to attempt to speak with Hicks, but when Hicks did not
answer, the agent left a sealed letter on the front door of the Property, which
also went unanswered.

¶12 The court determined that because Hicks moved for a
temporary restraining order, it could consider matters outside the
pleadings, including the documents and declaration HSBC attached to its
opposition. The court determined that Hicks had waived all of her defenses
and objections to the sale of the Property by not obtaining an injunction
before the trustee’s sale, citing A.R.S. § 33-811(C).

¶13 The court, on its own motion, then dismissed the complaint
with prejudice as to all defendants. In doing so, the court noted that motions
to dismiss under Rule 12(b)(6) must be decided only on the facts in the
complaint, and that here it was considering matters outside the complaint.
This necessarily changed the standard to that of summary judgment. See
Ariz. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or (c), matters

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outside the pleadings are presented to, and not excluded by, the court, the
motion must be treated as one for summary judgment under Rule 56.”).

¶14 Hicks then filed an objection to the summary judgment
ruling, which the court treated as a motion for reconsideration. The court
denied the motion because Hicks “merely advance[d] the same arguments
that the Court previously found unpersuasive.”

¶15 Hicks timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 12-120.21 and -2101(A)(1).

DISCUSSION

¶16 We review the grant of a motion for summary judgment de
novo and view the facts in the light most favorable to Hicks. Perez v. Circle
K Convenience Stores, Inc., 259 Ariz. 221, 224, ¶ 6 (2025). “The [superior] court
shall grant summary judgment if the moving party shows that there is no
genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law.” Ariz. R. Civ. P. 56(a). “[O]ur task is to
determine . . . whether any genuine issues of material fact exist and
whether the [superior] court incorrectly applied the law.” Parkway Bank &
Tr. Co. v. Zivkovic, 232 Ariz. 286, 289, ¶ 10 (App. 2013). We will affirm if the
court was correct for any reason. City of Tempe v. Outdoor Sys., Inc., 201 Ariz.
106, 111, ¶ 14 (App. 2001).

I. Hicks’s Briefs Contain False Quotations.

¶17 As an initial matter, Hicks’s opening and reply briefs on
appeal contain numerous citation errors. Of the more than 90 instances of
quoted caselaw in her opening brief, only 16 of those quotes actually appear
in the cases cited. The reply briefs are worse: Hicks quoted caselaw 71 times
in her reply briefs; only six of those quotes are legitimate. These errors
violate ARCAP 13(a)(7)(A), which requires that each argument include
“supporting reasons for each contention, and with citations of legal
authorities and appropriate references to the portions of the record on
which the appellant relies.” Hicks’s briefs also fail to reference where she
raised each of her arguments in superior court, in violation of
ARCAP 13(a)(7)(B).

¶18 Because of Hicks’s failure to comply with our rules, we may
treat her arguments as waived. In re Estate of Acciavatti, 1 CA-CV 25-0606
PB, 2026 WL 2041963, at *1, ¶ 7 (Ariz. App. July 15, 2026) (holding that
failure to comply with ARCAP 13 due to false citations caused by the use
of artificial intelligence waived all issues on appeal). But even if Hicks had

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not waived her arguments by failing to provide compliant briefs, she has
failed to show error in the dismissal of her complaint.

II. Hicks Waived the Arguments She Raises on Appeal for Additional
Reasons.

¶19 By statute, “[t]he trustor . . . shall waive all defenses and
objections to the sale not raised in an action that results in the issuance of a
court order granting [injunctive] relief . . . entered before . . . the scheduled
date of the sale.” A.R.S. § 33-811(C). This provision prohibits “not only
actions to void the sale . . . but also those dependent upon the sale.” Zubia
v. Shapiro, 243 Ariz. 412, 415, ¶ 17 (2018). A claim is “dependent on the sale”
if it “cannot succeed unless the sale was defective . . . [and] necessarily
call[s] into question the validity of the sale.” Id. ¶ 18. Claims that are not
dependent on the sale include defenses to post-sale deficiency claims by the
lender and claims for monetary damages under A.R.S. § 33-420 (recording
false documents). Id. at 416, ¶¶ 22–23.

¶20 Hicks presses 162 arguments on appeal, nine of which are
waived under § 33-811(C) because Hicks did not obtain injunctive relief
before the trustee’s sale or for failure to raise them before the superior court.
These waived arguments are: (1) the defendants engaged in fraud and
mortgage misconduct by concealing facts related to depletion of escrow,
causing her insurance to be cancelled, purchasing insurance without notice,
withholding foreclosure proceedings, and initiating foreclosure while
accepting payments; (2) the Consumer Fraud Act supports reversal due to
the defendant’s acts regarding escrow, insurance, and lack of notice; (3) the
foreclosure should be rescinded under A.R.S. § 37-249; (4) the acceptance of
payments while Hicks was in default prohibits foreclosure; (5) injunctive
and monetary relief due to the wrongful loss of her home are appropriate;
(6) equity bars enforcement of the foreclosure; (7) public policy favors
reversal because statutory requirements were not followed; (8) the trustee
did not establish its authority to conduct the sale; and (9) failure to comply
with notice requirements voided the sale.

¶21 Hicks’s other arguments are: (10) the superior court erred in
denying her motion for summary judgment; (11) we should recognize a
new cause of action for wrongful foreclosure; (12) an award of punitive
damages is supported by fraudulent acts committed by the defendants;

2 Hicks articulated 23 arguments, but many of her arguments were
substantively similar. We combined the similar arguments and analyze
herein 16 distinct arguments.

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(13) the subsequent purchasers were not bona fide purchasers;
(14) § 33-811(C) violates her rights to due process; (15) the defendants
violated her rights to due process by denying her full account information;
and (16) the superior court abused its discretion in denying her second
motion to amend her complaint.

¶22 Arguments (1), (2), and (3), regarding fraud, are waived
because questioning whether the wrongful actions of the defendants before
the sale caused the wrongful foreclosure of the Property would question
the validity of the sale. Madison v. Groseth, 230 Ariz. 8, 12–13, ¶¶ 10–13 (App.
2012) (finding that claims for conversion, fraud/deceit, and trespass were
waived under § 33-811(C)), cited with approval in Zubia, 243 Ariz. at 416, ¶ 21.

¶23 Arguments (4) and (5)—that acceptance of payments while in
default prohibited the foreclosure and that injunctive or monetary relief is
required—each would require consideration of the validity of the sale, and
therefore are waived under § 33-811(C). Zubia, 243 Ariz. at 415, ¶ 18.

¶24 Whether public policy and equitable principles require the
foreclosure to be undone, arguments (6) and (7), were not brought before
superior court until the motion for reconsideration, so Hicks has waived
them independent of A.R.S. § 33-811(C). Evans Withycombe, Inc. v. W.
Innovations, Inc., 215 Ariz. 237, 240, ¶ 15 (App. 2006).

¶25 Argument (8), that the trustee did not have authority to
foreclose on her home, was not raised in the superior court at all, meaning
it is also waived independent of A.R.S. § 33-811(C). State ex rel. Brnovich v.
Miller, 245 Ariz. 323, 324, ¶ 5 (App. 2018) (arguments brought for the first
time on appeal are waived). In arguing that the trustee did not have the
authority to foreclose on her home, Hicks contends that this leads to liability
under § 33-420. Although claims for monetary damages are not waived
under § 33-811(C), Zubia, 243 Ariz. at 416, ¶ 23, Hicks argues that the trustee
was not proven to be duly appointed. Therefore, notwithstanding waiver
for failing to timely raise this issue with the superior court, it is also waived
under § 33-811(C) because it is dependent on the sale. Zubia, 243 Ariz. at
415, ¶ 18.

¶26 Argument (9) contends that statutory notice requirements
were not complied with and that this should require the sale to be voided.
However, § 33-811(C) waives arguments by the trustor to void the sale.
Zubia, 243 Ariz. at 415, ¶ 17. And, although Hicks claims she did not receive
notice, this does not mean that § 33-811(C) cannot serve to waive her claims.
Madison, 230 Ariz. at 12, ¶ 11 (“The plain language of § 33-811(C) does not

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require the trustee to comply with the mailing requirements of § 33-809 for
the waiver provision to apply later to the trustor.”). Hicks therefore waived
this claim.

¶27 Because each of the above arguments were waived under
A.R.S. § 33-811(C), the court did not err in granting summary judgment in
favor of the defendants. The remainder of Hicks’s arguments were not
brought in superior court or were brought in a motion for reconsideration,
so we do not consider them when analyzing the grant of summary
judgment. Cf. Tilley v. Delci, 220 Ariz. 233, 238, ¶ 17 (App. 2009) (“The
superior court was not required to accept and examine evidence presented
to it for the first time in connection with [a] motion for reconsideration”
after a decision on summary judgment when it could have been presented
earlier).

¶28 Hicks’s argument (10) is that the superior court erred in
denying her motion for summary judgment. However, because the superior
court properly concluded that her claims were waived and granted
summary judgment in favor of the defendants, this argument fails. See Ariz.
R. Civ. P. 56.

¶29 Hicks requests that we recognize a new cause of action for
wrongful foreclosure in argument (11). Arizona courts have not recognized
a cause of action for wrongful foreclosure, Zubia, 243 Ariz. at 417, ¶ 29, and
we decline to do so here. Even if we were to recognize a cause of action for
wrongful foreclosure, it would fail because Hicks argues that fraudulent
practices caused a wrongful foreclosure. This, again, is an objection to the
validity of the sale, which is precluded under § 33-811(C) because Hicks did
not obtain injunctive relief prior to the sale. See id. at 417–18, ¶ 30.

¶30 Because her argument that the defendants engaged in
fraudulent insurance practices is waived, her argument (12) that an award
of punitive damages is supported by the defendants’ fraudulent insurance
practices must also fail. See Madison, 230 Ariz. at 11–12, ¶¶ 7–11 (finding
waiver under § 33-811(C) when the appellant requested punitive damages
related to, among other claims, fraud).

¶31 Hicks also argues (13) that purchasers of the Property were
not bona fide purchasers because the sale was not “valid.” However,
whether or not the subsequent purchaser was a bona fide purchaser does
not affect the application of waiver to her claims because § 33-811(C) is not
conditioned “on the existence of a bona fide purchaser.” Madison, 230 Ariz.
at 13, ¶ 14.

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III. Hicks’s Constitutional Arguments Fail.

¶32 In arguments (14) and (15), Hicks challenges the
constitutionality of § 33-811(C), but she did not bring constitutional
arguments until her motion for reconsideration in superior court. We
nevertheless address her constitutional arguments in our discretion. City of
Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, 552, ¶ 33 n.9 (2005).

¶33 Hicks argues that § 33-811(C) cannot apply absent proper
notice as required by due process, citing Article 2, Sections 4 and 8 of the
Arizona Constitution. Due process requires “the opportunity to be heard
‘at a meaningful time and in a meaningful manner.’” Samiuddin v. Nothwehr, 243 Ariz. 204, 211, ¶ 20 (2017) (quoting Mathews v. Eldridge, 424 U.S. 319, 333
(1976)).

¶34 Here, the record shows that the notice of sale was recorded,
mailed to Hicks, posted on the Property, and published in a newspaper, in
compliance with statutory requirements. A.R.S. § 33-808(A) (describing
how the trustee must notice a trustee’s sale). Hicks did not oppose the
evidence that she was given notice with any competent evidence of her own
to show there was a disputed issue of material fact. See GM Dev. Corp. v.
Cmty. Am. Mortg. Corp., 165 Ariz. 1, 5 (App. 1990) (“If the opposing party
fails to present, either by affidavit or other competent evidence, facts which
controvert the moving party’s affidavits, the facts alleged by the moving
party may be considered as true.”). Simply alleging that she was not given
notice in her pleadings was not enough to survive summary judgment. Id.
(“As a general rule, an unsworn and unproven assertion [made by the
parties in their pleadings] is not a fact that a [superior] court can consider
in ruling on a motion for summary judgment.”). Therefore, applying
§ 33-811(C) did not deprive Hicks of due process. See Madison, 230 Ariz. at
12–13, ¶ 12 (finding no violation of due process when trustor received
sufficient notice of trustee’s sale).

¶35 Hicks also argues that the defendants deprived her of due
process by not providing her full account information before the trustee’s
sale. However, due process requirements do not apply to private deed of
trust sales because they do not constitute state action. Kelly v. NationsBanc
Mortg. Corp., 199 Ariz. 284, 289, ¶¶ 24–25 (App. 2000). Therefore, this
argument fails.

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IV. The Superior Court Did Not Abuse Its Discretion in Denying
Hicks’s Motion to Amend Her Complaint.

¶36 Hicks’s final argument, (16), is that the superior court abused
its discretion in denying her motion to amend her complaint under Arizona
Rule of Civil Procedure 15. The court denied her motion because Hicks
failed to attach a proposed amended complaint, as required by
Rule 15(a)(4). It also stated that “[Hicks’s] Motion simply makes additional
allegations and legal argument about the merits of the case. Defendants
cannot be expected to meaningfully respond regarding a proposed
amendment without first reviewing the proposed amendment pleading.”

¶37 Hicks amended her complaint once. For subsequent
amendments, “the court has discretion whether to grant leave to amend,
but will allow amendments liberally.” Tumacacori Mission Land Dev., Ltd. v.
Union Pac. R.R. Co., 231 Ariz. 517, 519, ¶ 4 (App. 2013). The court may deny
leave to amend if it finds “undue delay in the request, bad faith, undue
prejudice, or futility in the amendment.” Id. (quoting MacCollum v.
Perkinson, 185 Ariz. 179, 185 (App. 1996)). We will affirm the denial if the
result was correct for any reason. Id.

¶38 Failure to attach a proposed amended complaint is sufficient
to deny a motion to amend a complaint. See Carranza v. Madrigal, 237 Ariz.
512, 515, ¶ 12 (2015) (finding that a failure to move under Rule 15(a) was a
sufficient basis for the court to deny leave to amend because the motion did
not include a proposed pleading or notify the court or counsel of their
requested amendment). Therefore, the court did not abuse its discretion in
denying Hicks’s motion to amend on this basis.

¶39 Further, on the record presented, Hicks’s amendment was
futile. Hicks noted in her motion that she requested the addition of the
owners of Carranza, a subsequent purchaser, and the subsequent
purchaser’s lender. However, because she waived all of her arguments
about the sale under § 33-811(C), the addition of these parties would have
been futile. See Ute Mountain Ute Tribe v. Ariz. Dep’t of Rev., 254 Ariz. 410,
417, ¶ 28 (App. 2023) (finding futility when a proposed amended
complaint’s additional claim would have faced dismissal under Ariz. R.
Civ. P. 12(b)(6)). The court therefore could have denied her motion to
amend the complaint on this basis as well, and we will affirm if the result
was correct for any reason. Union Pac. R.R. Co., 231 Ariz. at 519, ¶ 4. Hicks
has therefore failed to show how the court abused its discretion in denying
her motion to amend the complaint.

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FEES AND COSTS

¶40 Hicks requests that we award her damages under A.R.S.
§ 33-420, actual damages resulting from wrongful foreclosure, restitution
and disgorgement of all improperly collected sums, punitive damages for
disregarding homeowners’ rights, and a full accounting of the loan, escrow
insurance charges, and foreclosure fees. Because all of the underlying
claims for these requests were waived, we deny her requests.

¶41 Carranza requests attorneys’ fees and costs pursuant to A.R.S.
§§ 12-341 and -341.01. In our discretion, we grant Carranza’s request for
attorneys’ fees, subject to compliance with ARCAP 21. Appellees are
awarded their taxable costs upon compliance with ARCAP 21.

CONCLUSION

¶42 For the foregoing reasons, we affirm.

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

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