Silvas v. GMAC Mortgage, LLC et al

Filing 58

ORDER denying 52 Plaintiff's Motion to Set Aside Foreclosure Proceedings; denying 52 Plaintiff's Motion to Vacate Forcible Detainer Judgment and Void any Granting and Conveyance. Signed by Judge G Murray Snow on 8/21/09.(TLJ)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) Plaintiff, ) ) vs. ) ) G M A C M O R T G A G E , L L C ;) M O R T G A G E E L E C T R O N I C) REGISTRATION SYSTEMS, INC.;) F I R S T NATIONAL BANK OF) ARIZONA; RESIDENTIAL FUNDING) C O M P A N Y , LLC; RESIDENTIAL) ACCREDIT LOANS, INC.; GMAC-RFC) SECURITIES; RALI SERIES 2007-QA3) TRUST; DEUTSCHE BANK TRUST) COMPANY AMERICAS; HSBC BANK) USA, N.A.; EXECUTIVE TRUSTEE) SERVICES, LLC; JP MORGAN CHASE) BANK, N.A.; JOHN DOES AND JANE) DOES 1-1000; ABC CORPORATIONS I-) XX; AND XYZ PARTNERSHIPS I-XX,) ) ) Defendants. ) CESAR F. SILVAS, No. CV-09-265-PHX-GMS ORDER Pending before the Court is the Motion to Set Aside Foreclosure Proceedings and Vacate Forcible Detainer Judgment and Void Any Granting and Conveyance of the Property of Plaintiff Cesar Silvas. (Dkt. # 52.) For the reasons set forth below, the Court denies the motion. In 2006, Plaintiff refinanced real property located at 1041 South Edith Court, Chandler, AZ 85286. (Dkt. # 39 16.) The financing for the property was obtained in the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 amount of $375,641.00 pursuant to a promissory note that was secured by a deed of trust. (Id. 19.) On June 29, 2009, a trustee's sale was held and the property was sold. (Dkt. # 52 at 2-3.) On July 7, 2009, a forcible detainer judgment was apparently obtained against Plaintiff and he was forced to vacate the property. On July 30, 2009, Plaintiff filed this motion, arguing that, pursuant to Federal Rule of Civil Procedure 60(b), the Court has authority to set aside the June 29 trustee's sale, vacate the forcible detainer judgment, and void any granting and conveyance of the property . (Dkt. # 52 at 5.) Defendants argue that Rule 60(b) does not permit this Court to grant the relief requested by Plaintiff. (Dkt. # 53 at 2.) Federal Rule of Civil Procedure 60(b) states that "on motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding . . . ." Fed. R. Civ. P. 60(b); see also 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure 2851 (2d ed. 1995) ("Rule 60 regulates the procedures by which a party may obtain relief from a final judgment."). Arizona law confers power of sale upon the trustee holder of a deed of trust independent of the judicial system. Ariz. Rev. Stat. 33-807; see also In re Krohn, 203 Ariz. 205, 208, 52 P.3d 774, 777 (2002) (citing Patton v. First Fed. Sav. & Loan Ass'n, 118 Ariz. 473, 477, 578 P.2d 152, 156 (1978)) ("A mortgage generally may be foreclosed only by filing a civil action while, under a Deed of Trust, the trustee holds a power of sale permitting him to sell the property out of court with no necessity of judicial action."). "[N]onjudicial foreclosure statutes . . . reflect a carefully crafted balancing of the interests of beneficiaries, trustors, and trustees. Trustees . . . need to have clearly defined responsibilities to enable them to discharge their duties efficiently and to avoid embroiling the parties in timeconsuming and costly litigation." TransAmerica Fin. Serv., Inc. v. Lafferty, 175 Ariz. 310, 314, 856 P.2d 1188, 1192 (Ct. App. 1993) (emphasis added) (citing I.E. Assoc. v. Safeco Title Ins. Co., 702 P.2d 596, 600 (Cal. 1985)). Here, Plaintiff does not seek relief from a final judgment, order, or proceeding of this Court. Rather, Plaintiff seeks relief from a nonjudicial trustee's sale that proceeded -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 independent of any Court involvement and the subsequent conveyance of title to the property. Federal Rule of Civil Procedure 60(b) is not applicable in such circumstances. To the extent Rule 60(b) may be an appropriate vehicle for obtaining relief from the forcible detainer judgment, Plaintiff should direct his motion to the court issuing that judgment. IT IS THEREFORE ORDERED that Plaintiff's Motion to Set Aside Foreclosure Proceedings and Vacate Forcible Detainer Judgment and Void Any Granting and Conveyance (Dkt. # 52) is DENIED. DATED this 21st day of August, 2009. -3-

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