Federal Home Loan Mortgage Corporation v. Madison

Filing 58

ORDER denying 52 Motion for Judgment without prejudice. Signed by Judge G Murray Snow on 10/5/10.(LSP)

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Federal Home Loan Mortgage Corporation v. Madison Doc. 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Federal Home Loan Mortgage Corporation, Plaintiff, vs. Sherryl L. Madison, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-09-01508-PHX-GMS ORDER Pending before the Court is Plaintiff Federal Home Loan Mortgage Corporation's Motion For: Statutory Penalties and Fees and Costs And Notice of Lodging Proposed Form of Judgment (Doc. 52). For the reasons set forth below that motion is denied without prejudice. Arizona Revised Statutes ("A.R.S.") 33-420(A) specifies that: A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting such claim to be recorded in the office of the country recorder, knowing or having reason to know that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid is liable to the owner or beneficial title holder of the real property for the sum of not less than five thousand dollars, or for treble the actual damages caused by the recording, whichever is greater, and reasonable attorney fees and costs of the action. This Court has already determined that Defendant has filed at least two documents, Dockets.Justia.com 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 her notice of lis pendens, and the Deed of Release and Reconveyance that were, at the least, groundless (Doc. 40). Although Defendant has filed several motions for reconsideration of this determination, all such motions have been denied. See, e.g., Docs. 51, 56. What the Court has not yet determined, however, is whether the Federal Home Loan Mortgage Corporation is the owner of the property or beneficial title holder thereto. According to the statute, only the owner or the beneficial title holder is entitled to the award of statutory damages. The Federal Home Loan Mortgage Corporation, has yet to establish that it is in such a position, and Defendant clearly contests it. Therefore, Plaintiff's motion for the award of statutory penalties and fees and costs is denied without prejudice until such time as the Plaintiff establishes that it was/is entitled to enforce the Note and Deed of Trust in this case pursuant to A.R.S. 47-3309 and other possibly applicable Arizona law. IT IS THEREFORE ORDERED denying the Motion for Judgment without prejudice (Doc. 52). DATED this 5th day of October, 2010. -2-

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