Bank of Ny v. Backholm ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
THE BANK OF NEW YORK MELLON, Plaintiff/Appellee,
v.
RODNEY BACKHOLM, Defendant/Appellant.
No. 1 CA-CV 17-0715
FILED 8-14-2018
Appeal from the Superior Court in Maricopa County
No. CV2017-010742
The Honorable David W. Garbarino, Judge Pro Tempore
AFFIRMED
COUNSEL
McCarthy & Holthus, LLP, Scottsdale
By Ross Matthew Mumme, Melissa Robbins Coutts
Counsel for Plaintiff/Appellee
Rodney Backholm, Phoenix
Defendant/Appellant
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Paul J. McMurdie joined.
BANK OF NY v. BACKHOLM
Decision of the Court
W I N T H R O P, Judge:
¶1 Rodney Backholm appeals the judgment entered in favor of
The Bank of New York Mellon fka The Bank of New York, as Trustee for
the Certificateholders of the CWABS, Inc., Asset-Backed Certificates, Series
2007-8 (“New York Mellon”) in a forcible entry and detainer (“FED”) action
against him and his wife, Deborah Backholm. For the reasons set forth
below, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On July 19, 2017, New York Mellon purchased the Backholms’
property at a trustee’s sale. The Backholms were given notice to vacate, but
did not do so.
¶3 On August 22, 2017, New York Mellon filed a complaint for
FED. The Backholms answered, asserting numerous defenses, including
defenses based on title and lack of standing to foreclose. New York Mellon
moved for judgment on the pleadings, and the Backholms responded to the
motion.
¶4 At the November 2, 2017 scheduled bench trial, the superior
court found the Backholms guilty of forcible detainer, granted New York
Mellon’s motion for judgment on the pleadings, and awarded New York
Mellon possession of the property.1 We have jurisdiction over Backholm’s
timely appeal. See Ariz. Rev. Stat. (“A.R.S.”) § 12-2101(A)(1) (2016).
ANALYSIS
¶5 As a preliminary matter, we note that Backholm’s appellate
brief does not cite the record as required. See ARCAP 13(a)(5), (7); see also
Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62 (App. 2009) (noting that such
failure “can constitute abandonment and waiver of [a] claim” (citation
omitted)). Nevertheless, we address his appeal on the merits.
1 New York Mellon’s answering brief states that “Mr. Backholm
testified in his defense at the hearing.” An appellant is required to “mak[e]
certain the record on appeal contains all transcripts or other documents
necessary for us to consider the issues raised on appeal.” Baker v. Baker, 183
Ariz. 70, 73 (App. 1995); see also ARCAP 11(c). Backholm has not provided
a transcript of the November 2, 2017 hearing; accordingly, we assume the
transcript supports the judgment. Johnson v. Elson, 192 Ariz. 486, 489, ¶ 11
(App. 1998).
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BANK OF NY v. BACKHOLM
Decision of the Court
¶6 A plaintiff is entitled to judgment on the pleadings if the
complaint sets forth a claim for relief and the answer does not contain a
legally cognizable defense or effectively deny material allegations. Pac. Fire
Rating Bureau v. Ins. Co. of N. Am., 83 Ariz. 369, 376 (1958). Because a moving
party must be entitled to a judgment on the pleadings as a matter of law,
we review de novo the superior court’s judgment and the applicable statutes.
See Giles v. Hill Lewis Marce, 195 Ariz. 358, 359, ¶ 2 (App. 1999); Libra Group,
Inc. v. State, 167 Ariz. 176, 179 (App. 1991).
¶7 Backholm argues that New York Mellon lacked the capacity
to initiate the FED action, ostensibly because it is a foreign company. Under
Arizona law, “[a] foreign corporation transacting business in this state
without a grant of authority shall not be permitted to maintain a proceeding
in any court in this state until it is authorized to transact business.” A.R.S.
§ 10-1502(A) (2013). By statute, however, the following activities “do not
constitute transacting business within the meaning of” this prohibition:
“[c]reating or acquiring indebtedness, mortgages and other security
interests in real . . . property,” “[s]ecuring or collecting debts or enforcing
mortgages and security interests in property securing the same,” or
“[o]wning, without more, real or personal property.” A.R.S. § 10-
1501(B)(7)-(9) (2013). Because Backholm fails to show that New York
Mellon took any actions in Arizona that do not fall within these exceptions,
he has failed to show that New York Mellon could not file this case.
¶8 Backholm also suggests that New York Mellon lacked
standing to file this action. As applicable here, a FED complaint must “[b]e
brought in the legal name of the party claiming entitlement to possession
of the property.” Ariz. R.P. Evict. Act. 5(b)(1). The complaint named as the
sole plaintiff, The Bank of New York Mellon fka The Bank of New York, as
Trustee for the Certificateholders of the CWABS, Inc., Asset-Backed
Certificates, Series 2007-8, and a trustee’s deed upon sale attached to the
complaint stated the same entity had purchased the property for valuable
consideration at a trustee’s sale in July 2017. The trustee’s deed provides
presumptive, prima facie proof of ownership by New York Mellon. See
Merrifield v. Merrifield, 95 Ariz. 152, 154 (1963). Moreover, even assuming
arguendo he could have properly done so, Backholm points to nothing in the
record on appeal to rebut this presumption. Accordingly, Backholm has
not shown that New York Mellon lacked standing to file this case.
¶9 Backholm also argues there are defects in the trustee’s deed
such that the sale of the property should be set aside and this court should
conclude that New York Mellon lacked the authority to conduct a non-
judicial foreclosure sale of the property. “On the trial of an action of forcible
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BANK OF NY v. BACKHOLM
Decision of the Court
entry or forcible detainer, the only issue shall be the right of actual
possession and the merits of title shall not be inquired into.” A.R.S. § 12-
1177(A) (2016). Backholm’s argument goes to “the merits of title” and is
therefore not properly at issue in this case. See Mason v. Cansino, 195 Ariz.
465, 468, ¶ 8 (App. 1999) (“Clearly, one cannot try title in a forcible detainer
action.” (citing Curtis v. Morris, 186 Ariz. 534 (1996))); United Effort Plan
Trust v. Holm, 209 Ariz. 347, 351, ¶ 21 (App. 2004) (“The only issue to be
decided in [a forcible detainer] action is the right of actual possession.
Thus[,] the only appropriate judgment is the dismissal of the complaint or
the grant of possession to the plaintiff.” (citing Olds Bros. Lumber Co. v.
Rushing, 64 Ariz. 199, 205 (1946))). Because merits of title are not to be
inquired into in FED actions, Backholm’s argument fails.
¶10 New York Mellon requests costs and attorneys’ fees on
appeal. Pursuant to A.R.S. § 12-1178(A) (2016), we award New York Mellon
an amount of reasonable attorneys’ fees and taxable costs on appeal, to be
determined upon compliance with ARCAP 21.
CONCLUSION
¶11 The superior court’s judgment finding the Backholms guilty
of forcible detainer is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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