Zinni et al v. Jackson White PC et al

Filing 27

ORDER denying 24 Plaintiffs' Motion to Set Aside/Cancel Trustee's Sale. Signed by Judge Frederick J Martone on 1/4/2012.(KAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Renee M. Zinni and Marco S. D'Alonzo, )
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Plaintiffs,
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vs.
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Jackson White PC et al.,
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Defendants.
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No. CV 11-02143-PHX-FJM
ORDER

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We have before us plaintiffs' motion to set aside/cancel trustee's sale (doc. 24) and

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defendants' response (doc. 26). Plaintiffs allege that defendants were not properly appointed

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as trustees and therefore have no authority to conduct a trustee's sale. They also allege that

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the opening bid is a grossly inadequate price. We previously denied plaintiffs' motion for

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preliminary injunction (doc. 22).

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reconsideration, it falls short of the standards of Rule 60(b), Fed. R. Civ. P. and LRCiv

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7.2(g). If viewed only as a motion to set aside the sale based on price, it is premature.

If plaintiffs' motion is construed as a motion for

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Plaintiffs contend that defendants had not been assigned power of attorney on the

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plaintiffs' property, but the record discloses that defendant Scott L. Potter possesses a special

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power of attorney from M&I Marshall & Ilsley Bank to conduct non-judicial trustee's

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foreclosure sales on the bank's behalf. (Doc. 26, ex. A). This document also grants him the

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right to execute a notice of substitution of trustee. His appointment as successor trustee was

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therefore not fraudulent.

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"[A] sale of real property under power of sale in a deed of trust may be set aside solely

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on the basis that the bid price was grossly inadequate." In re Krohn, 203 Ariz. 205, 214, 52

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P.3d 774, 783 (2002). "[T]he debtor will have the burden of showing gross inadequacy as

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compared to fair market value . . . ." Id. at 211, 52 P.3d at 780. Plaintiffs allege that they

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have invested approximately $356,000 in construction costs and mortgage payments (doc.

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24 at 6). They purchased their house on April 22, 2005 for $350,000 (doc. 1 ¶ 7). They

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contend their house is now worth "at least $650,000.00."

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Plaintiffs ignore the fact that $94,740.00 is the opening bid. The house may sell for

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well over this amount. In addition, Krohn dealt with setting aside a trustee's sale after it

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occurred, not precluding one based on a potentially low price, and does not provide authority

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for us to cancel the sale.

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IT IS HEREBY ORDERED DENYING plaintiffs' motion to set aside or cancel the
trustee's sale (doc. 24).
DATED this 4th day of January, 2012.

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