Spector v. Wells Fargo

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MARC SPECTOR and SYRI K. HALL,
Plaintiffs/Appellants,
v.
WELLS FARGO BANK NA,
Defendant/Appellee.
No. 1 CA-CV 20-0350
FILED 2-25-2021
Appeal from the Superior Court in Yavapai County
No. V1300CV201780148
The Honorable Debra R. Phelan, Judge
AFFIRMED
COUNSEL
Marc Spector and Syri K. Hall, Sedona
Plaintiffs/Appellants
Wright Finlay & Zak, LLP, Phoenix, AZ and Las Vegas, NV
By Kimberly S. Earp, Robert Riether
Counsel for Defendant/Appellee
SPECTOR, et al. v. WELLS FARGO
Decision of the Court
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge Michael J. Brown joined.
W E I N Z W E I G, Judge:
¶1 Marc Spector and Syri K. Hall appeal the superior court’s
entry of summary judgment for Wells Fargo Bank and Ocwen Loan
Servicing. We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In 2007, Spector purchased a home in Sedona, which he
financed with a loan from Option One secured by a deed of trust on the
property.1 Option One assigned the deed of trust to Wells Fargo in 2013.
Spector defaulted on the loan. Wells Fargo foreclosed and sold the home at
a 2017 trustee’s sale. A month later, Spector and Hall sued Wells Fargo and
other defendants to set aside the trustee’s sale. The superior court granted
summary judgment to Wells Fargo. Spector and Hall appeal. Although
their appeal was premature, we have jurisdiction. See A.R.S. § 12-
2101(A)(1), (5)(b); Barassi v. Matison, 130 Ariz. 418, 421-22 (1981) (permitting
jurisdiction over “premature appeal from a minute entry order in which no
appellee was prejudiced and in which a subsequent final judgment was
entered”).
DISCUSSION
¶3 Spector and Hall raise four arguments on appeal, two of
which are waived.
I. Authority to Foreclose
¶4 Spector and Hall first argue the trustee’s sale conducted by
Wells Fargo was invalid because Option One was out of business when it
assigned the deed of trust to Wells Fargo in 2013. We disagree.
1 Spector and Hall have been married since 1976, but Hall has never
assumed the loan.
2
SPECTOR, et al. v. WELLS FARGO
Decision of the Court
¶5 Arizona law empowers the “trustee of a trust deed” to sell the
real property securing an underlying note through a nonjudicial sale.
A.R.S. § 33-807(A). A “trustee” is defined as “an individual, association or
corporation . . . or the successor in interest thereto, to whom trust property
is conveyed by trust deed.” A.R.S. § 33-801(10). Our supreme court has
explained that “[t]he only proof of authority” a trustee needs is a “statement
indicating the basis for the trustee’s authority.” Hogan v. Wash. Mut. Bank,
N.A., 230 Ariz. 584, 586, ¶ 8 (2012) (citing A.R.S. § 33-808(C)(5)). With its
notice of sale, Wells Fargo satisfied this requirement.2 The superior court
correctly found no genuine issue of material fact on whether Wells Fargo
was authorized to enforce the promissory note and conduct a trustee’s sale.
Ariz. R. Civ. P. 56(a).
II. Notice of the Trustee Sale
¶6 Spector and Hall also argue they “never received actual
notice” of the original trustee’s sale scheduled for February 2015. The
uncontested record, however, indicates a Notice of Trustee’s Sale for the
original date was executed, recorded and sent to Spector’s address in
October 2014. See A.R.S. §§ 33-808, -809. Spector had identified his mailing
address several months earlier on a loan modification agreement and never
advised that his address had changed. See Transamerica Fin. Servs., Inc. v.
Lafferty, 175 Ariz. 310, 313-14 (App. 1993) (“Clearly, the legislature put the
burden on persons having an interest in the property to properly advise
those parties required to give notice of their current address.” (internal
quotation marks omitted)).
¶7 Spector and Hall likewise contend that Wells Fargo provided
inadequate notice of the 2017 trustee’s sale. Spector and Hall declared
bankruptcy only weeks before the 2015 trustee’s sale, which continued the
trustee’s sale until 2017. But Arizona law only requires a trustee to provide
“notice of the new date, time and place by public declaration at the time
and place last appointed for the sale.” A.R.S. § 33-810(B). “No other notice
of the postponed, continued or relocated sale is required.” Id.; see also Kelly
v. NationsBanc Mortg. Corp., 199 Ariz. 284, 289 (App. 2000) (“[I]t became the
Kellys’ burden to stay apprised of the new sale dates. Neither our statutes
nor the Bankruptcy Code require any further notice when a bankruptcy
2 Moreover, Spector signed the promissory note, which
acknowledged that “Lender may transfer this [N]ote” and the note holder
is “anyone who takes this Note by transfer and who is entitled to receive
payments under this Note.”
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SPECTOR, et al. v. WELLS FARGO
Decision of the Court
filing, with its automatic stay, is the reason a trustee’s sale is postponed.”).
Wells Fargo presented uncontroverted evidence that it complied with this
requirement.3
III. Waived Issues
¶8 Spector and Hall raise two arguments on appeal for the first
time, but the arguments were not developed before the superior court and
are thus waived. Phelps Dodge Corp. v. Ariz. Elec. Power Coop., Inc., 207 Ariz.
95, 122, ¶ 117 (App. 2004). Even if preserved, however, the arguments fail
under A.R.S. § 33-811(C), which prohibits a reopening of the trustee’s sale,
and because Spector and Hall never filed an affidavit under Ariz. R. Civ. P.
56(d) (formerly Rule 56(f)), which describes how parties may seek other
evidence before a motion for summary judgment is decided.
CONCLUSION
¶9 We affirm the superior court’s entry of summary judgment
for Wells Fargo.
AMY M. WOOD • Clerk of the Court
FILED: AA
3 The cases cited by Spector and Hall are inapposite or unhelpful to
their position. See BT Capital, LLC v. TD Serv. Co., 229 Ariz. 299, 301 ¶¶ 10-
11 (2012) (a proper notice of sale requires only a mailing of the notice to
interested parties); Zubia v. Shapiro, 243 Ariz. 412, 415-16, ¶ 23 (2018)
(exception to A.R.S. § 33-811(C) exists for monetary claims); Steinberger v.
McVey, 234 Ariz. 125, 136, ¶ 42 (App. 2014) (any challenge to the chain of
authority must come before the sale).
4