US Bank v. Kurtz ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
U.S. BANK NATIONAL ASSOCIATION, Plaintiff/Appellee,
v.
EVAN A. KURTZ, Defendant/Appellant.
No. 1 CA-CV 18-0440
FILED 6-13-2019
Appeal from the Superior Court in Maricopa County
No. CV2018-004772
The Honorable Lindsay P. Abramson, Judge Pro Tempore
AFFIRMED
COUNSEL
McCarthy & Holthus, L.L.P., San Diego, CA
By Melissa Robbins Coutts
Counsel for Plaintiff/Appellee
Evan A. Kurtz, Phoenix
Defendant/Appellant
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Jon W. Thompson joined.
US BANK v. KURTZ
Decision of the Court
J O N E S, Judge:
¶1 Evan Kurtz appeals the trial court’s judgment in favor of U.S.
Bank National Association (the Bank) on its complaint for forcible entry and
detainer (FED). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In May 2018, the Bank filed a complaint for FED. The Bank
attached a copy of the trustee’s deed of sale showing it had purchased
certain real property in Phoenix (the Property) at a trustee’s sale and alleged
evidence Kurtz refused to vacate the Property after being given notice to do
so. After hearing evidence and testimony at the July 2018 trial, the trial
court entered judgment in the Bank’s favor. Kurtz timely appealed, and we
have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-
120.21(A)(1)1 and -2101(A)(1).
DISCUSSION
¶3 Kurtz argues the trial court erred in entering judgment
against him because the Bank was not the original beneficiary of the deed
of trust and the subsequent assignment to the Bank is invalid. Thus, Kurtz
contends: (1) the Bank was not the proper plaintiff in the judicial
foreclosure; and (2) the Bank did not have valid title to the Property when
it filed its FED complaint.
¶4 We will affirm the trial court’s factual findings unless clearly
erroneous. Bank of New York Mellon v. Dodev, 246 Ariz. 1, 6, ¶ 15 (App. 2018)
(citing Ruffino v. Lokosky, 245 Ariz. 165, 168, ¶ 9 (App. 2018), and Duckstein
v. Wolf, 230 Ariz. 227, 233, ¶ 19 (App. 2012)). Because Kurtz did not provide
a transcript of the proceedings, we “presume the record supports the trial
court’s rulings.” Kohler v. Kohler, 211 Ariz. 106, 108, ¶ 8 n.1 (App. 2005)
(citing Baker v. Baker, 183 Ariz. 70, 73 (App. 1995)); see also ARCAP 11(b)-(c)
(stating the appellant is responsible for ensuring “the record on appeal
contains all transcripts or other documents necessary for us to consider the
issues raised on appeal”). The interpretation and application of statute
present questions of law reviewed de novo. Bank of New York Mellon v. De
Meo, 227 Ariz. 192, 194, ¶ 11 (App. 2011) (citing Kromko v. City of Tucson, 202
Ariz. 499, 501, ¶ 4 (App. 2002)).
1 Absent material changes from the relevant date, we cite the current
version of rules and statutes.
2
US BANK v. KURTZ
Decision of the Court
¶5 Even were Kurtz able to prove the circumstances alleged, he
fails to establish a basis for relief. First, an FED complaint must be “brought
in the legal name of the party claiming entitlement to possession of the
property.” Ariz. R.P. Eviction Act. 5(b)(1).2 The certified copy of the
trustee’s deed of sale evidences the Bank’s ownership interest and right to
maintain suit for FED. See A.R.S. § 33-811(E) (“The trustee’s deed shall
operate to convey to the purchaser the title, interest and claim of the trustee,
the trustor, the beneficiary, their respective successors in interest and all
persons claiming the trust property . . . . That conveyance shall be
absolute.”); see also Carrington Mortg. Servs., L.L.C. v. Woods, 242 Ariz. 455,
457, ¶ 12 (App. 2017) (finding a certified copy of a trustee’s deed and
subsequent grant deed to the plaintiff proved the plaintiff’s right to
possession of the property). The trial court’s determination that the Bank
had the right to maintain the FED action is therefore not clearly erroneous.
¶6 Second, Kurtz is precluded by statute from litigating the
validity of title in an action for FED. See A.R.S. § 12-1177(A) (“On trial of an
action of [FED], the only issue shall be the right of actual possession and the
merits of title shall not be inquired into.”); see also Curtis v. Morris, 186 Ariz.
534, 535 (1996) (holding that allowing a person to challenge title in an FED
action “would convert a forcible detainer action into a quiet title action and
defeat its purpose as a summary remedy”). Kurtz’s challenge to the
assignment is therefore outside the scope of an FED action, and we find no
error.
CONCLUSION
¶7 The trial court’s judgment is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
2 The statute Kurtz relies on, A.R.S. § 33-807(A), describes the proper
plaintiff to a judicial foreclosure action, and is not applicable here.
3