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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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
C. HENRY EKWEANI and IJEAMAKA EKWEANI, husband and wife,
Plaintiffs/Appellants,
v.
CITIMORTGAGE, INC.; CR TITLE SERVICES, INC., Defendants/Appellees.
No. 1 CA-CV 15-0695
FILED 12-20-2016
Appeal from the Superior Court in Maricopa County
No. CV2013-054340
The Honorable John R. Hannah, Jr., Judge
AFFIRMED
COUNSEL
C. Henry Ekweani and Ijeamaka Ekweani, Columbia, MD
Plaintiffs/Appellants
Aldrige/Pite, LLP, Phoenix
By Laurel I. Handley
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Kenton D. Jones and Judge Randall M. Howe joined.
EKWEANI v. CITIMORTGAGE et al.
Decision of the Court
K E S S L E R, Judge:
¶1 C. Henry Ekweani and Ijeamaka Ekweani (collectively
“Ekweanis”) appeal the superior court’s grant of summary judgment in
favor of CitiMortgage, Inc. (“CitiMortgage”) and CR Title Services, Inc.
(“CR Title”) (collectively, “Appellees”), and the award of Appellees’
attorneys’ fees. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY1
¶2 Mr. Ekweani obtained a loan from Equity Services Inc.,
(“ESI”); the loan was reflected in a promissory note secured by a deed of
trust, executed by the Ekweanis, encumbering real property in Phoenix,
Arizona (the “Property”). The loan went into default in January 2009.
¶3 In June 2009, the deed of trust was assigned to Appellee
CitiMortgage, and Appellee CR Title was appointed as successor trustee.
CR Title issued a Notice of Trustee’s Sale to foreclose the deed of trust,
scheduling the sale for October 5, 2009. On September 29, however, Mr.
Ekweani filed a chapter 7 petition for bankruptcy. That proceeding
effectively ended September 26, 2012, when the bankruptcy court granted
summary judgment in favor of Appellees on the Ekweanis’ amended
adversary complaint. On October 5, 2012, Appellees cancelled the
previously-recorded Notice of Trustee’s Sale. Also on October 5, Mrs.
Ekweani filed a chapter 13 petition for bankruptcy. That proceeding was
dismissed on November 15, 2012.
¶4 In February 2013, Quality Loan Service Corporation (“QLS”)
was substituted as trustee under the deed of trust. On February 8, 2013, QLS
recorded a Notice of Trustee’s Sale, scheduling the sale for May 14, 2013;
subsequently, the sale was postponed to August 30, 2013. In the meantime,
on May 8, 2013, Mrs. Ekweani filed a new chapter 13 petition for
bankruptcy. Appellees moved for relief from the automatic stay; the motion
was granted, and the stay was lifted on August 13, 2013.
1 The Ekweanis’ statement of facts does not comply with Arizona Rule
of Civil Appellate Procedure 13(a)(5). Although we decline to strike the
statement of facts on that basis, see Ashton-Blair v. Merrill, 187 Ariz. 315, 316
(App. 1996), we rely on the answering brief and our review of the record
for our recitation of the facts and procedural background. See State Farm
Mut. Auto. Ins. Co. v. Arrington, 192 Ariz. 255, 257 n.1 (App. 1998).
2
EKWEANI v. CITIMORTGAGE et al.
Decision of the Court
¶5 On August 29, 2013, the Ekweanis filed this action and
requested an injunction to stay the August 30 sale. The superior court
denied the request, and the Property was sold to Ruff Diamond Properties,
LLC (“Ruff Diamond”) on August 30, 2013.
¶6 Thereafter, the Ekweanis filed a second amended complaint
(the “Complaint”) against QLS, Ruff Diamond, and Appellees alleging
claims for (1) declaratory relief to set aside the sale based on rescission, (2)
wrongful foreclosure, (3) negligence, (4) quiet title, (5) invasion of
privacy/intrusion upon seclusion, (6) declaratory relief to set aside the sale
based on lack of notice, and (7) declaratory relief under Arizona Revised
Statutes (“A.R.S.”) section 33-420 (Supp. 2015).2 The claims against QLS and
Ruff Diamond were dismissed, and Appellees moved for summary
judgment on all claims. After briefing and oral argument, the superior court
granted the motion, entered a final judgment, and awarded Appellees
$20,000 in attorneys’ fees. See Ariz. R. Civ. P. 54(c). The Ekweanis timely
appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1) (2016).
DISCUSSION3
¶7 A motion for summary judgment should be granted “if the
facts produced in support of the claim or defense have so little probative
value, given the quantum of evidence required, that reasonable people
could not agree with the conclusion advanced by the proponent of the claim
or defense.” Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990). The moving party
must produce evidence demonstrating the absence of a genuine issue of
material fact and explain why summary judgment is warranted. Nat’l Bank
of Ariz. v. Thruston, 218 Ariz. 112, 115, ¶ 14 (App. 2008). If the moving party
2 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.
3 The “argument” section of the opening brief does not contain
“appropriate references to the portions of the record” on which the
Ekweanis rely. ARCAP 13(a)(7)(A). We address the Ekweanis’ arguments
as best we can discern them, but we consider waived both arguments not
supported by adequate explanation, citations to the record, or authority, see
In re Aubuchon, 233 Ariz. 62, 64–65, ¶ 6 (2013), and those raised for the first
time on appeal, see Amparano v. ASARCO, Inc., 208 Ariz. 370, 374, ¶ 13 (App.
2004); Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994). Specifically, on these
bases, we consider waived the Ekweanis’ argument that CitiMortgage
violated A.R.S. § 33-420.
3
EKWEANI v. CITIMORTGAGE et al.
Decision of the Court
meets its burden, the burden shifts to the nonmoving party to present
sufficient evidence demonstrating the existence of a disputed fact. Id. at 119,
¶ 26. The nonmoving party cannot rest on its pleadings, but must call to the
court’s attention evidence to explain why the motion should be denied. Id.
¶8 On appeal, we review de novo whether there are any genuine
issues of material fact and whether the superior court properly applied the
law. See Parkway Bank & Trust Co. v. Zivkovic, 232 Ariz. 286, 289, ¶ 10 (App.
2013). We will affirm summary judgment if it is correct on any basis
supported by the record. Mutschler v. City of Phoenix., 212 Ariz. 160, 162, ¶ 8
(App. 2006) (citing Glaze v. Marcus, 151 Ariz. 538, 540 (App. 1986)).
I. Rescission of the Loan
¶9 The Ekweanis argue that the loan had been rescinded
pursuant to a March 2011 default judgment entered against ESI by the
bankruptcy court (“default judgment”). The interpretation of a judgment is
a question of law that we review de novo. Cohen v. Frey, 215 Ariz. 62, 66, ¶
10 (App. 2007). We disagree with the Ekweanis.
¶10 First, the default judgment awarded the Ekweanis damages
against ESI pursuant to the Truth in Lending Act, 15 USC § 1601 et seq.
(“TILA”); it did not provide for rescission of the loan. Indeed, in May 2011,
the bankruptcy court dismissed the Ekweanis’ TILA claims against
Appellees based on failure to plead an ability or intention to tender
payment, and violation of the applicable statute of limitations. Second, even
if the default judgment required ESI to rescind the loan, at that time ESI did
not have an interest in the note; the default judgment did not require
CitiMortgage, as assignee of the note and deed of trust, to automatically
rescind the loan or terminate its security interest. See Garcia v. Fannie Mae,
794 F. Supp. 2d 1155, 1171-72 (D. Ore. 2011) (“The statutory scheme makes
it clear that a consumer may sue an assignee to enforce the right of
rescission.”).
¶11 Accordingly, summary judgment was properly granted on
the Ekweanis’ claim that the loan was rescinded.
II. Validity of the Trustee’s Sale
A. Notice of the Sale
¶12 The Ekweanis argue that Appellees did not prove they
provided notice of the sale. The superior court did not err in granting
summary judgment on this issue.
4
EKWEANI v. CITIMORTGAGE et al.
Decision of the Court
¶13 When ownership of property is acquired through a deed of
trust sale, the trustee’s deed raises a presumption of compliance with both
the requirements of the deed of trust and the statutes related to the exercise
of the power of sale and the conduct of the sale. A.R.S. § 33-811(B).4 It was
the Ekweanis’ burden to respond to the motion for summary judgment with
evidence to rebut this presumption. See Thruston, 218 Ariz. at 119, ¶ 26 (“The
non-moving party may not rest on its pleadings; it must go beyond simply
cataloging its defenses.”). The Ekweanis did not respond with evidence to
rebut the presumption under § 33-811(B), and on this basis the motion was
properly granted, see Bank of Yuma v. Arrow Constr. Co., 106 Ariz. 582, 585
(1971) (“Allegations in pleadings are not evidence”); State v. Grounds, 128
Ariz. 14, 15 (1981) (stating that evidence consists of “sworn affidavits,
stipulated facts, depositions, and oral testimony”).
¶14 Moreover, a trustor who does not obtain injunctive relief
before a trustee’s sale waives all pre-sale defenses and objections except
lack of notice of the sale.5 A.R.S. § 33-811(C) (2014); see BT Capital, LLC v. TD
Serv. Co. of Ariz., 229 Ariz. 299, 301, ¶¶ 9-11 (2012); Madison v. Groseth, 230
Ariz. 8, 13, ¶ 15 (App. 2012). The Ekweanis do not dispute a notice of
trustee’s sale was recorded in February 2013; they argue, however, that
Appellees failed to prove QLS mailed them notice of the trustee’s sale. See
A.R.S. § 33-808(A)(2) (2015). But even if the trustee does not comply with
the mailing requirements of § 33-809, the waiver provision of § 33-811(C)
applies to a trustor who receives sufficient notice of the sale to allow
adequate time to seek an injunction. Madison, 230 Ariz. at 12-13, ¶12. The
Ekweanis had actual notice of the trustee’s sale, and sought an injunction.6
4 A.R.S. § 33-811(B) provides, in relevant part:
The trustee's deed shall raise the presumption of compliance
with the requirements of the deed of trust and this chapter
relating to the exercise of the power of sale and the sale of the
trust property, including recording, mailing, publishing and
posting of notice of sale and the conduct of the sale.
5 A trustee is required to give written notice of the time and place of
sale including: recording notice, giving notice as provided in § 33-809,
posting a copy of notice, and publication. A.R.S. § 33-808(A)(l)–(4).
6 The superior court denied the request for injunctive relief in part
because the Ekweanis “did not persuasively, or even coherently, explain
why they . . . did not seek this remedy in this particular court until now.”
5
EKWEANI v. CITIMORTGAGE et al.
Decision of the Court
However, because the Ekweanis were unsuccessful in their efforts to enjoin
the trustee’s sale, they waived “any claims that are dependent on the sale.”7
Morgan AZ Fin., L.L.C. v. Gotses, 235 Ariz. 21, 23-24, ¶ 7 (App. 2014); see
Madison, 230 Ariz. at 13, ¶ 15.
B. Bankruptcy Stay
¶15 The Ekweanis argue that the trustee’s sale violated the
bankruptcy stay because postponement of the sale during the pendency of
Mrs. Ekweani’s bankruptcy was unlawful. See A.R.S. § 33-810(B) (2014).8
The superior court did not err in rejecting this argument.
¶16 The Ekweanis do not dispute “a creditor may continue a
trustee’s sale post-petition where all preliminary steps, other than the sale
itself, have taken place.” In re Willman, 192 B.R. 207, 209 (Bankr. D. Ariz.
1996). They contend, however, “all preliminary steps”—i.e., notice of
default and notice of sale—had not taken place before May 8, 2013, when
the automatic stay in Mrs. Ekweani’s bankruptcy went into effect. With
that, they assert that any pending pre-sale filings became a nullity with the
entry of the automatic stay, thereby requiring Appellees to begin again if
they were subsequently entitled to pursue a trustee’s sale of the property.
However, “[o]nce the bankruptcy is dismissed, bankruptcy law returns the
parties to the status quo ante, at which time Arizona deed of trust law, not
bankruptcy law, applies.” Kelly v. NationsBanc Mortg. Corp., 199 Ariz. 284,
289, ¶ 25 (App. 2000). The Ekweanis do not argue that Appellees failed to
comply with § 33-810(B) when they postponed the sale, see Id., and the
Ekweanis’ pre-sale defenses or objections to the sale were waived pursuant
to § 33-811(C), see Madison, 230 Ariz. at 13, ¶ 15.
7 The Ekweanis also argue that, pursuant to the deed of trust,
CitiMortgage was required to give notice of default and opportunity to
cure. This pre-sale defense or objection to the sale was waived pursuant to
A.R.S. § 33-811(C). See Madison, 230 Ariz. at 13, ¶ 15.
8 A.R.S. § 33-810(B) provides, in relevant part:
The person conducting the sale may postpone or continue the
sale from time to time or change the place of the sale to any
other location authorized pursuant to this chapter by giving
notice of the new date, time and place by public declaration
at the time and place last appointed for the sale.
6
EKWEANI v. CITIMORTGAGE et al.
Decision of the Court
¶17 Accordingly, summary judgment was properly granted on
the Ekweanis’ claim that the trustee’s sale was invalid.
III. Attorneys’ Fees
¶18 The superior court awarded Appellees attorneys’ fees under
A.R.S. § 12-341.01 (2016) and found $20,000 to be a reasonable amount. On
appeal, the Ekweanis argue that the record does not support the award.
¶19 We review an award of attorneys’ fees for abuse of discretion.
Geller v. Lesk, 230 Ariz. 624, 627, ¶ 8 (App. 2012). “An abuse of discretion
occurs when there is no evidence to support a holding or the court commits
an error of law when reaching a discretionary decision.” Dowling v. Stapley,
221 Ariz. 251, 266, ¶ 45 (App. 2009).
¶20 Any attorneys’ fees award must be reasonable. Schweiger v.
China Doll Rest., Inc., 138 Ariz. 183, 187 (App. 1983). When analyzing an
application for attorneys’ fees, the superior court must determine whether
the hourly billing rate and the hours expended are reasonable. Id. Once a
party establishes its entitlement to fees and meets the minimum
requirements in its application and affidavit for fees, the burden shifts to
the party opposing the fee award to demonstrate the impropriety or
unreasonableness of the requested fees. Assyia v. State Farm Mut. Auto. Ins.
Co., 229 Ariz. 216, 223, ¶ 29 (App. 2012).
¶21 Appellees’ fee application disclosed the type of legal services
provided, the dates the services were provided, the attorney providing the
service, and the time spent thereon with sufficient details so the superior
court could assess the reasonableness of the time incurred. See Schweiger,
138 Ariz. at 188. Therefore, the burden shifted to the Ekweanis to
demonstrate the impropriety or unreasonableness of the requested fees. See
Assyia, 229 Ariz. at 223, ¶ 29. They have not done so. Accordingly, the
superior court did not err in awarding Appellees attorneys’ fees.
7
EKWEANI v. CITIMORTGAGE et al.
Decision of the Court
CONCLUSION
¶22 For the foregoing reasons, we affirm the summary judgment
in favor of Appellees. Additionally, we will award Appellees reasonable
attorneys’ fees incurred on appeal and taxable costs on appeal upon timely
compliance with Ariz. Rules of Civil Appellate Procedure 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
8