Marceaux v. Baker ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
CAMMIE L. MARCEAUX,
Plaintiff/Appellant,
v.
STEVEN BAKER, et al.,
Defendants/Appellees.
No. 1 CA-CV 18-0542
FILED 11-5-2019
Appeal from the Superior Court in Maricopa County
No. CV2017-053676
The Honorable John R. Hannah, Jr., Judge
The Honorable Theodore Campagnolo, Judge
AFFIRMED
COUNSEL
Cammie L. Marceaux, Fred, TX
Plaintiff/Appellant
Steven Baker, Phoenix
Defendant/Appellee
Kenneth R. Short, Sun City
Defendant/Appellee
Snell & Wilmer, LLP, Phoenix
By Gregory J. Marshall, Joshua Zimmerman, W. Danny Green,
Daniel J. Inglese
Counsel for Defendants/Appellees Wells Fargo/ US Bank
Fidelity National Law Group, Phoenix
By Patrick J. Davis, Jamey A. Thompson
Counsel for Defendants/Appellees Fidelity/ Silver
Warner, Angle, Hallam, Jackson & Formanek, PLC, Phoenix
By John A. Buric, Andrea M. Simbro
Counsel for Defendant/Appellee Suburban
Daniel R. Sanders, Sun City
Defendant/Appellee
Robert Stewart & Associates, PC, Phoenix
By Robert L. Stewart, Jr., Sid A. Horwitz
Counsel for Defendant/Appellee Century 21
MEMORANDUM DECISION
Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge James B. Morse Jr. joined.
J O H N S E N, Judge:
¶1 Cammie L. Marceaux sued several entities and individuals,
alleging they committed a fraud that prevented her from selling her home.
The superior court eventually granted a series of motions to dismiss and
entered judgment in favor of the defendants. For the reasons that follow,
we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 According to Marceaux's amended complaint ("complaint"),
Steven Baker conveyed the home to her by warranty deed on March 9,
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2006.1 Marceaux borrowed $182,800 from Suburban Mortgage, Inc. to pay
for the home and secured the debt by giving a deed of trust on the home.
The beneficiary of the deed of trust was Mortgage Electronic Registration
Systems, Inc. ("MERS"). Wells Fargo Home Mortgage later succeeded
MERS as beneficiary and servicing agent for the loan.
¶3 The complaint alleged Marceaux contracted to sell her home
in 2017, but the sale did not go through because "the Owner . . . remained
on title in hopes I would fall like all the property investors predicted
everyone to do when they found out they bought a home that had an
inflated mortgage." Her complaint attached a contract executed in April
2017 by which she was to sell the home for $205,000. Other documents
attached to her complaint showed that the prospective buyer of the home
had identified several items that needed to be repaired before the sale could
go forward, along with an unspecified "inability to release the previous
lien."
¶4 Shortly after the sale fell through, Marceaux filed a claim with
her title insurer, Fidelity National Title Insurance Company, alleging the
title to her home was marred by a defect arising out of purported sales of
the property in 2000, six years before she acquired the home. Fidelity
accepted her claim and explained:
On or about January 20, 1999, Shea Homes conveyed the
[home] to Daniel Sanders via Special Warranty Deed. On
February 15 2000, Daniel Sanders entered into an agreement
for sale of the Property with Forrest Phillips and J.N. Phillips
and on May 16, 2000, Forrest Phillips and J.N. Phillips entered
into an agreement for sale of the Property to Eric Craig and
Shannon Craig ("Craigs"). Although both of these purchase
1 On review of the grant of a motion to dismiss pursuant to Arizona
Rule of Civil Procedure 12(b), we consider de novo whether, as a matter of
law, the plaintiff would be "entitled to relief under any interpretation of the
facts susceptible of proof." Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 8
(2012) (citation omitted). We look only to the complaint and documents
attached to it, "assume the truth of all well-pleaded factual allegations and
indulge all reasonable inferences from those facts." Id. at ¶ 9; see Strategic
Dev. & Constr., Inc. v. 7th & Roosevelt Partners, LLC, 224 Ariz. 60, 64, ¶ 11
(App. 2010). Finally, we review only the allegations in Marceaux's
amended complaint because that pleading superseded the original
complaint. Mohave Concrete & Materials, Inc. v. Scaramuzzo, 154 Ariz. 28, 30
(App. 1987).
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contracts were recorded, actual deeds conveying the Property
were not recorded and title therefore remained in Daniel
Sanders' name in the land records. However, on June 27,
2001, the Craigs nonetheless purported to convey the
Property to Steve Baker via Quit Claim Deed. Steve Baker
later purported to convey the Property to you on March 30,
2006 via Warranty Deed.
In settlement of Marceaux's claim, on July 31, 2017, Fidelity procured and
recorded a quitclaim to her from the 1999 buyer of her home, Sanders,
disposing of all of Sanders's interest in the home.
¶5 In the meantime, Marceaux had filed a complaint in superior
court against Baker, who sold her the home, and other defendants, alleging
fraud, quiet title and other claims. Two months later, she filed an amended
complaint, alleging that after the sale of her home fell through, she stopped
paying on her purchase money loan. At the time, she owed approximately
$153,000 on the loan. As motion practice in the litigation ensued, a trustee's
sale was noticed for her home. In March 2018, Marceaux sold the home
herself before the trustee's sale took place.
¶6 By the time she sold the home, the superior court had entered
an order dismissing several of the defendants. Marceaux thereafter moved
the court to reconsider the dismissals, arguing she was pushed into selling
her home when Wells Fargo threatened to foreclose on her loan. In
connection with that motion, she filed a copy of a document dated April 30,
2018, titled "Property Securitization Analysis Report," by Certified Forensic
Loan Auditors, LLC. The report traced Marceaux's original purchase
money loan, identified the various mortgage servicing companies involved
and the eventual assignment of the note and security, and concluded that
the assignments of the note and the security were "invalid" and "suspect."
¶7 The superior court thereafter granted the remaining
defendants' motions to dismiss. The court entered final judgment pursuant
to Arizona Rule of Civil Procedure 54(c), and Marceaux timely appealed.2
We have jurisdiction of the appeal pursuant to Article 6, Section 9, of the
2 Although the court did not rule on Marceaux's motion for
reconsideration, we deem the motion denied. See State v. Mendoza-Tapia,
229 Ariz. 224, 231, ¶ 22 (App. 2012).
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Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-
120.21(A)(1) (2019) and -2101(A)(1) (2019).3
DISCUSSION
¶8 In violation of Arizona Rule of Civil Appellate Procedure
13(a), Marceaux's briefs do not include appropriate references to the record
and instead contain facts unsupported by the record in the superior court.
Nor, in violation of Rule 13(a)(7)(A) and (B), does Marceaux present legal
citations in support of her arguments on appeal or citations to the record to
show she raised specific issues in the superior court. Although appellees
urge us to affirm the judgment for that reason alone, we exercise our
discretion to consider the merits of the appeal. See Cal X-Tra v. W.V.S.V.
Holdings, L.L.C., 229 Ariz. 377, 408, ¶ 103 & n.49 (App. 2012).4
¶9 Marceaux's complaint alleged she tried to sell her home in
2017 but was unable to do so because a title issue arose. She alleged the
various defendants failed to tell her about the title defect. On appeal,
Marceaux suggests her tenants moved out after she contracted with the
prospective buyer in 2017. Thus, when the sale fell through, she lost rental
income, was unable to make her monthly loan payments, and defaulted on
the loan. She also asserts there are "eight unpaid securities owed on the
property," but she does not identify those "securities"; nor does she allege
she has made a title-insurance claim due to those "securities."
¶10 We will separately address her claims against the several
defendants.5
3 Absent material revision after the relevant date, we cite the current
version of a statute or rule.
4 For the same reason, we deny Century 21's motion to dismiss the
appeal.
5 Marceaux's briefs contain many references and assertions about acts
by various individuals and entities relating to the scheduled trustee's sale,
which she argues forced her to sell the home, all of which occurred in 2018,
after she filed her amended complaint. We will not address any of those
references and assertions because her complaint and amended complaint
alleged no claims relating to the noticed trustee's sale or to any purported
lender-liability claim.
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A. Steven Baker.
¶11 Marceaux argues that Baker, from whom she bought the
home in 2006, actually "had no Valid Interest" in the home when he sold it
to her. But, as the superior court ruled in dismissing her claims against
Baker, "[t]he break in the title chain" that caused her to sue arose out of
transactions that occurred years before Baker acquired the property. And
Marceaux's complaint alleged no facts to support the bare conclusion that
he knew about the title defect when he sold her the house. A plaintiff who
alleges fraud must plead facts constituting the nine elements of fraud with
particularity. Ariz. R. Civ. P. 9(b); Steinberger v. Maricopa County, 234 Ariz.
125, 141, ¶ 73 (App. 2014); see Nielson v. Flashberg, 101 Ariz. 335, 338-39
(1966) (stating elements). The complaint failed to adequately allege such
facts against Baker.
B. Suburban Mortgage.
¶12 The complaint contained no specific allegations of
wrongdoing against Suburban Mortgage; it alleged only that the Suburban
Mortgage home loan was "serviced" by MERS, which Marceaux alleged was
involved in a fraud by lenders, brokers and title agents. In granting
Suburban Mortgage's motion to dismiss the complaint, the superior court
ruled that Marceaux failed to allege any "facts that make out a cause of
action."
¶13 We agree. Although the complaint alleged that Suburban
Mortgage arranged for MERS to service its loan, it alleged no facts to
support any resulting claim.
¶14 Marceaux argues there is a limited exception to the rule that
fraud must be pled with particularity when the acts at issue are peculiarly
within the knowledge of a corporate party. But the exception she cites does
not apply when the complaint does not allege "why such information is
peculiarly within a defendant's knowledge." Steinberger, 234 Ariz. at 142,
¶ 77. The complaint did not allege why the defect that developed in the
title before Marceaux acquired the home was peculiarly within the
knowledge of Suburban (or any other individual or entity she sued).
¶15 Marceaux seems to contend that Suburban breached its
contract with her by failing to convey title to her prospective buyer in 2017.
As her lender, however, Suburban did not take title to her home and so
could not have conveyed it to her buyer.
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¶16 Finally, Marceaux argues that her claim is supported by
allegations stated in her "Expert Witness Report." As we have stated,
however, the issue on a motion to dismiss is whether the facts alleged in a
complaint may state a claim. Marceaux did not file her "Expert Witness
Report" with her complaint, so it is not relevant to the appeal.6
C. Century 21 Northwest Realty and Kenneth R. Short.
¶17 Marceaux's complaint alleged Century 21 and its agent,
Kenneth Short, showed Marceaux the home in 2006. According to the
complaint, Century 21 and Short fraudulently failed "to disclose specific
[k]nowledge of [k]nown material facts" such as "the amount of sales and
quit claim deeds." It alleged that if Marceaux had known of these "material
facts," she would not have bought the home.
¶18 In response to the Century 21 motion to dismiss, Marceaux
asserted that Short should have realized when he was "handed the file" that
her mortgage was "inflated" and that "Steven Baker the Seller was not the
rightful title owner." In granting the motion to dismiss, the superior court
concluded the complaint failed to allege specific facts to support
Marceaux's claim that Century 21 and Short fraudulently failed to disclose
material facts.
¶19 On appeal, Marceaux raises the same arguments she did in
the superior court, and adds that Short and Century 21 "had access to the
'DATA BASE'" but failed to tell her that Baker did not really own the home.
¶20 We agree with the superior court that Marceaux's complaint
failed to allege facts sufficient to state a claim for fraud against Century 21
or Short. The complaint alleged no facts to explain why the amount of
Marceaux's purchase money loan would put the real estate agents on notice
of a prior defect in title. The "database" she mentions on appeal is not
referenced in her complaint, and in any event, she does not explain the
nature of that database or how it should have informed the real estate
agents of the title defect.
6 That being said, we have independently reviewed Marceaux's
"Expert Witness Report" and conclude it lacks specific facts sufficient to
support a fraud claim against Suburban Mortgage or any of the other
appellees.
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D. Wells Fargo Home Mortgage and U.S. Bank.
¶21 Marceaux's complaint alleged an entity called Wells Fargo
Home Mortgage, which was the servicer of her home loan, failed to tell her
the "rightful title owner" by denying her access to "tax information"
concerning the home. The complaint also made similar claims against U.S.
Bank National Association. According to the complaint, Wells Fargo
received a 2010 "Tax Information Statement" reflecting that Sanders owned
the home, not Marceaux. The complaint alleged Wells Fargo therefore
committed fraud by concealing from her that Sanders "was the title owner
on Tax records." It also alleged Wells Fargo delayed responding to her
request for information about the "investors" on her loan.
¶22 In granting Wells Fargo's motion to dismiss, the superior
court ruled that the complaint failed to allege "'with particularity' what
Wells Fargo did that constitutes fraud, as required by Civil Rule 9(b)." We
agree. Marceaux did not allege she bought the home in reliance on any
fraudulent misrepresentation by Wells Fargo, and any delay in responding
to her request to know who had purchased her loan was likewise irrelevant
to her decision to buy the home in the first place. Moreover, Marceaux's
arguments on appeal about a purported illegal assignment of the deed of
trust in 2017 and 2018 do not support any allegation in the complaint.
E. Fidelity National Title Agency and Myriam Silver.
¶23 For Marceaux's claim against Fidelity and Silver, her
complaint alleged – without explanation – that Fidelity "issued a title policy
to Steven Baker knowing he was not on title." We understand that
allegation was premised on two deeds of trust attached to the complaint
showing that Baker offered the home as security for two loans he received
in June 2005, a year before he sold the home to Marceaux. Both deeds of
trust identified Fidelity as the trustee; neither, however, referenced Fidelity
as the title insurer. According to the complaint, it was these two loans Baker
obtained in 2005 – the complaint called the loans a "Cash back SCAM" –
"that created this mess in the first place." Without providing any specifics,
the complaint asserted that Fidelity committed fraud through its
involvement in those two loan transactions.
¶24 As for Fidelity's relationship with Marceaux, the complaint
further alleged that Fidelity closed her title-insurance claim by procuring a
quitclaim deed from Sanders, but "refuses to pay for any actual losses due
to the loss of the Sale and loss of income from Rental income." The
complaint also asserted that, despite Fidelity's assurances, the quitclaim
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deed did not provide clear title to the home because Wells Fargo wanted to
take the home from her after she defaulted on her purchase money loan.
¶25 We agree with and adopt the reasoning of the superior court
in dismissing the claim against Fidelity and Silver:
The fraud claim against Myriam Silver and Fidelity
National Title Agency, Inc. fails for the same reason as the
fraud claims against Wells Fargo and Suburban Mortgage.
The plaintiff has not alleged the elements of fraud against
Fidelity Title "with particularity," as required by Civil Rule
9(b). She has made only broad accusations, not only in the
original complaint but also in the amended complaint that
followed Fidelity Title's motion to dismiss. Broad, conclusory
allegations not reasonably supported by inferences from
specific facts are insufficient to state a cause of action. Cullen
v. Auto-Owners' Ins. Co., 218 Ariz. 417, 189 P.3d 344 (2008).
To the extent that the plaintiff claims that the title
insurer negligently failed to discover the title defect, Arizona
law does not permit the claim. In Arizona, a title insurance
policy is not a guarantee of good title. Centennial Development
Group, LLC v. Lawyer's Title Ins. Corp., 233 Ariz. 147, 310 P.3d
23 (App. 2013).
The plaintiff does not appear to allege that the manner
in which the title insurer handled her claim breached the title
insurance policy. She implies that the insurer should have
compensated the loss she suffered when the property sale fell
through, but she did not have a right to that. See Swanson v.
Safeco Title Ins. Co., 186 Ariz. 637, 641, 925 P.2d 1354, 1358
(App. 1995) (measure of insured's loss due to title
encumbrance is cost of removing encumbrance or diminished
value of property, not consequential damages such as loss of
opportunity to refinance).
¶26 On appeal, Marceaux further argues the title policy Fidelity
issued her "was fraud and failed to disclose the 8 unpaid securities owed
on the title." As the superior court ruled, however, if there were "8 unpaid
securities" that clouded the title, Marceaux's only remedy against Fidelity
was to make a claim on her title insurance policy. A title insurance policy
"pays damages, if any, caused by any defects to title that the title company
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should have discovered but did not." Swanson, 186 Ariz. at 641. It is not a
guarantee of perfect title. Centennial, 233 Ariz. at 149, ¶ 6.
F. Daniel Sanders.
¶27 As explained in the excerpt from Fidelity's letter to Marceaux
responding to her claim on the title insurance policy, supra ¶ 4, the defect at
issue resulted from the failures to record conveyance deeds in 2000 from
Sanders to the Phillipses and from the Phillipses to the Craigs. The
complaint alleged no misrepresentation by Sanders in connection with
those transactions that would support a claim of fraud. As the superior
court ruled in dismissing the complaint against Sanders, the references to
him in the complaint "are conflicting, confusing and conclusory." On
appeal, Marceaux offers no argument to the contrary.
CONCLUSION
¶28 For the reasons stated, we affirm the judgment in appellees'
favor and award them their costs on appeal, upon compliance with Arizona
Rule of Civil Appellate Procedure 21. Suburban and Wells Fargo ask for
their attorney's fees pursuant to A.R.S. §§ 12-341 (2019), -341.01 (2019) and
-349(A) (2019). Fidelity asks for fees under A.R.S. § 12-342 (2019). In our
discretion, we deny the requests for fees.
AMY M. WOOD • Clerk of the Court
FILED: AA
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