Wilmington Trust v. Stoller

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
WILMINGTON TRUST NATIONAL ASSOCIATION, Plaintiff/Appellee,
v.
CHRISTOPHER STOLLER, et al., Defendants/Appellants.
No. 1 CA-CV 19-0717
FILED 4-8-2021
Appeal from the Superior Court in Maricopa County
No. CV2018-013457
The Honorable David W. Garbarino, Judge Pro Tempore
AFFIRMED
COUNSEL
ZBS Law, LLP, Phoenix
By Kim R. Quam
Counsel for Plaintiff/Appellee
Christopher Stoller, Michael Stoller, Chicago, Illinois
Defendants/Appellants
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Cynthia J. Bailey joined.
WILMINGTON TRUST v. STOLLER, et al.
Decision of the Court
W I N T H R O P, Judge:
¶1 Christopher Stoller (“Christopher”) and Michael Stoller
(“Michael”) (collectively, “the Stollers”) appeal the judgment and orders
entered in favor of Wilmington Trust National Association (“Wilmington
Trust”), as trustee of ARLP Securitization Trust, Series 2014-2, in a forcible
entry and detainer (“FED”) action against Phillip B. Stone and occupants
and parties-in-possession the Stollers. For the reasons set forth below, we
affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Wilmington Trust was the holder of a promissory note
executed by Stone in the original amount of $600,000. The promissory note
was secured by a deed of trust dated May 2, 2006, and recorded as a lien
against the subject residential real property located in Scottsdale.
¶3 After the promissory note fell into default, Wilmington Trust
appointed Western Progressive-Arizona, Inc. (“Western”) as successor
trustee of the deed of trust and instructed Western to initiate a trustee’s sale
of the property. Western recorded a notice of trustee’s sale, and in
December 2015, Wilmington Trust purchased the property for $432,000 at
the trustee’s sale and obtained title to the property by a recorded Trustee’s
Deed Upon Sale. In October 2018, Wilmington Trust gave Stone and any
other occupants of the property notice to vacate and surrender possession,
but they did not do so.
¶4 In October 2018, Wilmington Trust filed an FED action in the
superior court. The summons and complaint were personally served upon
a resident of the property, who refused to provide his name.
¶5 The initial FED hearing was set for November 15, 2018. Before
that hearing, the Stollers, asserting Christopher was the assignee of Stone’s
rights and a party in possession of the property, filed a notice of removal to
the federal district court in Illinois. Christopher then appeared at the
November 15 hearing, which was stayed, and the matter was continued on
the inactive calendar pending the proceedings in the district court.
¶6 In August 2019, the district court remanded the FED action to
the superior court after concluding it did “not have jurisdiction over this
state court eviction action from Arizona.” Upon motion by Wilmington
Trust, the superior court set the FED hearing for August 29, 2019.
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Decision of the Court
¶7 The same day the district court remanded the Arizona FED
action, the Stollers filed a notice of appeal in the district court, and
Christopher filed a motion for reconsideration, temporary restraining
order, preliminary injunction, and stay pending appeal. The district court
denied Christopher’s motion, including his request for a stay.
¶8 On August 22, 2019, the Stollers filed in the superior court a
“Motion to Stay Pending Appeal” based on their appeal to the Seventh
Circuit Court of Appeals of the district court’s order of remand.
Wilmington Trust filed a response arguing for denial of the stay request and
noting that on August 27, 2019, the Seventh Circuit Court of Appeals had
issued an order advising the Stollers “that an order remanding a case to
state court based on a lack of subject matter jurisdiction or a defect in the
removal procedure is not reviewable on appeal,” but allowing them until
September 27, 2019, to file a brief stating why the appeal should not be
dismissed for lack of jurisdiction.1
¶9 Despite receiving notice, the Stollers failed to appear at the
scheduled August 29 FED hearing, and they again failed to appear at a
continued September 5, 2019 hearing. At the September 5 hearing, the
superior court denied the Stollers’ stay request and entered a judgment
finding Stone and the Stollers guilty of forcible detainer and awarding
Wilmington Trust possession of the property.
¶10 The Stollers then filed a “Motion to Vacate Ex Parte Orders,”
which the superior court denied. The court noted the Stollers failed to
appear for the initial FED hearing and “[o]ut of an abundance of caution,”
the court continued the hearing to September 5 and ordered the August 29
minute entry sent to the address identified on the Stollers’ “last court-
1 In December 2019, the Seventh Circuit Court of Appeals issued an
order that directed “the clerks of all federal courts in this circuit . . . to return
unfiled any papers submitted either directly or indirectly” by Christopher
Stoller or on his behalf until he paid in full an outstanding sanction for the
filing of numerous frivolous appeals. See Stoller v. Walworth Cnty., No. 17-
CV-1349-JPS, 2020 WL 3618453, slip order at *1 n.1 (E.D. Wis. July 2, 2020)
(citing multiple cases); Stoller v. Costco Wholesale Corp., No. 19-cv-140, 2020
WL 247459, slip mem. op. & order at *1 & n.1 (N.D. Ill. Jan. 16, 2020) (noting
also that a district court judge had recently entered a memorandum opinion
and order recommending the Executive Committee for the Northern
District of Illinois consider adding Christopher Stoller to its list of restricted
filers (citing Stoller v. Wilmington Trust, Nat’l Ass’n, No. 18-cv-7169, 2019 WL
6117583, slip mem. op. & order, at *4 (N.D. Ill. Nov. 18, 2019))).
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Decision of the Court
filing.” The court further noted that although the Stollers claimed they did
not timely receive the court’s August 29 minute entry, they “cited no other
facts or legal authority that would permit the Court to set aside the
Judgment entered on September 5th.”
¶11 The Stollers subsequently filed a motion for relief from the
judgment pursuant to Arizona Rule of Civil Procedure 60(b) and requested
a stay of execution pending appeal. The superior court denied the motion
after concluding the Stollers “failed to demonstrate that they are entitled to
relief from the Judgment pursuant to Rule 15(a) of the Arizona Rules of
Procedure for Eviction Actions.” The court also set a hearing to determine
the fair market rental value of the property to be paid monthly as a bond
pending appeal and stayed the execution of the judgment pending that
determination.
¶12 On October 2, 2019, the Stollers filed two notices of appeal.
The first notice appealed the September 5 judgment, and the second notice
appealed the court’s September 27 order denying the Stollers’ motion for
relief from the judgment.
¶13 Throughout October and November 2019, the Stollers filed
numerous motions and other pleadings in the superior court, including but
not limited to motions to set aside the judgment, for reconsideration and
clarification, and a request that the court make a criminal referral of
opposing counsel to the FBI and Justice Department.2
¶14 In late October 2019, the superior court held a hearing on the
monthly fair market rental value to be paid as a bond pending the appeal,
and after taking the matter under advisement, granted a stay, conditioned
upon the Stollers paying $8500 as prorated rent for September through
November 2019 and thereafter paying $3000 per month, commencing on
December 1, 2019. The Stollers failed to make the required bond payments,
however, and Wilmington Trust moved to vacate the stay due to non-
payment of the bond and applied for a writ of restitution pursuant to Rule
14(b)(2) of the Arizona Rules of Procedure for Eviction Actions. The
superior court continued the stay to allow the Stollers additional time to
post a bond but also warned that if they failed to timely post the bond, the
stay would be automatically vacated, and a writ of restitution “may issue”
2 Some of the motions and other pleadings were signed only by
Christopher, some were signed by Christopher and Michael, and some
were signed by Christopher and Leo Stoller, as Michael’s putative
“guardian.”
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WILMINGTON TRUST v. STOLLER, et al.
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without any further hearings. The Stollers again failed to pay the bond, and
the superior court granted a renewed application for a writ of restitution in
December 2019.
¶15 After obtaining possession of the property, Wilmington Trust
attempted to list it for sale, but the Stollers had already listed it for sale and
Leo Stoller—purportedly on behalf of Christopher and Michael—recorded
a lis pendens against the property, ostensibly to thwart Wilmington Trust’s
sale of the property. Wilmington Trust moved to expunge the lis pendens
and an additional lis pendens recorded by the Stollers in 2017. This court
revested the superior court with authority to rule on the motion to expunge,
and the Stollers moved to disqualify Wilmington Trust’s counsel, to vacate
the eviction judgment, and for a temporary restraining order and/or a
preliminary injunction. In May 2020, the superior court granted
Wilmington Trust’s motion to expunge the two lis pendens but declined to
act on the Stollers’ motions based on a lack of jurisdiction.
¶16 In June 2020, this court revested the superior court with
jurisdiction to rule on the Stollers’ various motions. The Stollers then filed
a motion for judgment nunc pro tunc and “re-noticed” the prior Rule 60
motion to set aside the judgment.
¶17 In July 2020, the superior court issued a seven-page minute
entry that gave a detailed history of the eviction action and denied all
pending motions filed by the Stollers, providing in part as follows:
The Stollers had notice of the litigation, appeared in the
litigation, followed the litigation, participated in the
litigation, but failed to update their address with the Clerk of
the Court without any explanation, and failed to state any
coherent argument as to why they were entitled to possession
of the subject property under Arizona law, or even that they
were in possession of the subject property. At best, the
argument presented was a dispute as to title[,] which is not
the appropriate subject of an eviction action, Curtis v.
Morris,186 Ariz. 534, 535 . . . (1996) (holding that “the merits
of title may not be litigated in a forcible detainer action”), and
did not overcome the presumption that a trustee’s deed is
valid, A.R.S. § 33-811(B) (“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
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conduct of the sale.”). Further, the record reflected the
Stollers’ efforts to needlessly delay and expand these
proceedings well beyond the bounds of an eviction
matter. . . .
. . . Despite having requested the stay, and the Court’s
determination of the fair market rental value, the Stollers did
not deposit the bond with, or pay the monthly fair market
rental value to, the Clerk of the Court. Instead, the Stollers
improperly caused a Lis Pendens to be filed with the
Maricopa County Recorder’s Office.
Over the course of this litigation, the Stollers have filed
hundreds of pages of documents that have no bearing
whatsoever on whether [Wilmington Trust] is entitled to
possession of the subject property. Despite all of their filings,
the Stollers have not recognized that this matter is governed
by A.R.S. §§ 12-1171 to 12-1183, the Arizona Rules of
Procedure for Eviction Actions, that the only issue to be
resolved is the right of possession, that title is not at issue, or
that the Trustee’s Deed carries a presumption of validity in
Arizona. Nor have the Stollers presented the Court with any
legal argument or evidence that overcomes the presumption
of validity of the Trustee’s Deed giving rise to [Wilmington
Trust’s] right of possession. The Stollers failed to take
advantage of this Court’s stay order by paying the required
bond and monthly fair market rental value, and instead
improperly filed a Lis Pendens to impair the marketability of
the subject property. Court filings further suggest the Stollers
may have even attempted to market and sell the property
themselves despite the trustee’s sale and this litigation.
....
The Stollers have not presented evidence that any of
the allegations contained in the Complaint were untrue. To
the contrary, review of the documents filed by the Stollers[]
reveal[s] their arguments lack merit and evidentiary support.
The Court views the Stollers’ disqualification argument as an
attempt to needlessly expand and/or delay this litigation. . . .
. . . [The Stollers] failed to state any coherent argument
as to why they are entitled to possession of the subject
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WILMINGTON TRUST v. STOLLER, et al.
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property under Arizona law, or even that they were in
possession of the subject property.[3]
¶18 The Stollers then filed a “Motion to Vacate All Orders Issued
by the Court and Motion for Judgment Nunc Pro Tunc.” The superior court
denied the motion, noting “the Stollers are attempting to raise the issue of
title in this eviction matter. As explained in the Court’s July 10, 2020 minute
entry, title is not an appropriate issue to be litigated and decided in an
eviction case.”
¶19 The Stollers filed a series of notices of appeal and amended
notices of appeal, which this court either consolidated into the current
appeal or otherwise addressed. We have jurisdiction over the Stollers’
appeal pursuant to Rule 17 of the Arizona Rules of Procedure for Eviction
Actions and Arizona Revised Statutes (“A.R.S.”) sections 12-1182(A) and
12-2101(A)(1).
ANALYSIS
¶20 The Stollers raise a plethora of issues in their opening brief
generally challenging the superior court’s judgment and orders.4 The
3 The court also noted in a footnote that the Stollers had previously
filed as an exhibit
a Warranty Deed dated September 9, 2017 (almost 2 years
after the Trustee’s Deed) purporting to convey the subject
property from “Night Milk Company, P.O. Box 4195, Oak
Park Illinois” to “Michael Stoller, P.O. Box 6-645, Chicago,
Illinois.” Further, [another exhibit filed by the Stollers]
includes a Quit Claim Deed from Phillip B. Stone to
“Christopher Stoller Pension and Profit Sharing Plan Ltd., a
Bahamas Corporation” dated September 19, 2008. There are
no other documents in the record that would complete the
chain of title between Mr. Stone and Mr. Stoller even if title
were material to the Court’s decision regarding the right of
possession.
4 Wilmington Trust argues that because the Stollers concede
Wilmington Trust sold the property to a third party in June 2020, we should
exercise our discretion and dismiss the Stollers’ appeal as moot. Although
certain issues may be rendered moot by the sale of the property, other issues
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WILMINGTON TRUST v. STOLLER, et al.
Decision of the Court
superior court’s well-reasoned July 2020 minute entry correctly and
thoroughly addressed many of the issues the Stollers raise on appeal,
including their challenge regarding notice of the FED hearing, their baseless
attempts to disqualify counsel for Wilmington Trust, their improper
challenges to the merits of title rather than possession, see Mason v. Cansino,
195 Ariz. 465, 468, ¶ 8 (App. 1999), their motions to set aside or vacate the
judgment and for a preliminary injunction to stay execution pending
appeal, their failure to pay the required bond and monthly fair market
rental value of the property pending appeal, and their inapt challenge to
expungement of the lis pendens, which were improperly filed to impair the
marketability of the subject property. Under these circumstances, we need
not repeat that court’s entire comprehensive analysis; instead, we adopt it.
See State v. Whipple, 177 Ariz. 272, 274 (App. 1993) (holding that, when the
superior court clearly identifies and correctly rules upon issues raised “in a
fashion that will allow any court in the future to understand the resolution[,
n]o useful purpose would be served by this court rehashing the [superior]
court’s correct ruling in [the] written decision”).
¶21 In addition to the issues addressed in the superior court’s July
2020 minute entry, the Stollers also argue that ARLP Securitization Trust,
Series 2014-2, the trust for which Wilmington Trust has acted as trustee, is
a non-jural defunct entity with no standing to maintain a civil action.
However, A.R.S. § 12-1173.01(A)(2) authorizes the purchaser of property at
a trustee’s sale under a deed of trust to bring an FED action to remove
persons who retain possession of real property after receiving “written
demand of possession.” Wilmington Trust was the purchaser of the
property, as evidenced by the Trustee’s Deed Upon Sale, and Wilmington
Trust filed the FED complaint in its name as trustee.5 Further, “a trustee of
an express trust” may sue in the trustee’s name, Ariz. R. Civ. P. 17(a)(1)(E),
may still have a practical effect on the parties. See, e.g., Bank of New York
Mellon v. De Meo, 227 Ariz. 192, 193-94, ¶ 8 (App. 2011). Accordingly, we
exercise our discretion to briefly address the Stollers’ appeal.
5 An 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, Wilmington Trust, as
Trustee of ARLP Securitization Trust, Series 2014-2, and the 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 December 2015.
The Trustee’s Deed Upon Sale provided presumptive, prima facie proof of
ownership by Wilmington Trust. See Merrifield v. Merrifield, 95 Ariz. 152,
154 (1963).
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WILMINGTON TRUST v. STOLLER, et al.
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and may be treated as the real party in interest, see, e.g., Demarest v. HSBC
Bank USA, N.A. as Tr. for registered holders of Nomura Home Equity Loan, Inc.,
Asset-Backed Certificates, Series 2006-HE2, 920 F.3d 1223, 1230-31 (9th Cir.
2019); LaSalle Bank Nat’l Ass’n v. Lehman Bros. Holdings, Inc., 237 F. Supp. 2d
618, 633 (D. Md. 2002) (recognizing “the basic premise that the trustee of an
express trust is the real party in interest when suing on behalf of the trust”).
Here, because Wilmington Trust filed the FED action as trustee of an
express trust, it was the real party in interest and had standing to file the
action.
¶22 As to the Stollers’ “Motion for Judicial Notice and Summary
Affirmance,” and other motions or issues raised by the Stollers on appeal
that we have not discerned from their voluminous briefing, we deny relief.
As the successful party on appeal, we award Wilmington Trust its taxable
costs upon compliance with Arizona Rule of Civil Appellate Procedure 21.
Additionally, after reviewing the record, including the multitude of
voluminous, frivolous motions and other pleadings filed not only in the
superior court during this years-long odyssey challenging a summary
proceeding, but also in this court in an effort to unnecessarily expand and
delay resolution of this appeal, we award attorneys’ fees to Wilmington
Trust, in an amount to be determined upon compliance with Rule 21,
ARCAP. See A.R.S. § 12-349(A)(1)-(3); ARCAP 25. Responsibility for the
award of costs and attorneys’ fees to Wilmington Trust shall be equal and
joint and several between Christopher Stoller and Michael Stoller, who
have acted in concert throughout the proceedings. See Mangan v. Mangan,
227 Ariz. 346, 354, ¶ 32 (App. 2011).
CONCLUSION
¶23 The superior court’s judgment and orders finding the Stollers
guilty of forcible detainer are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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