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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 Renee M. Zinni and Marco S. D'Alonzo, ) ) ) Plaintiffs, ) ) vs. ) ) ) Jackson White PC et al., ) ) Defendants. ) ) No. CV 11-02143-PHX-FJM ORDER 15 16 We have before us plaintiffs' motion to set aside/cancel trustee's sale (doc. 24) and 17 defendants' response (doc. 26). Plaintiffs allege that defendants were not properly appointed 18 as trustees and therefore have no authority to conduct a trustee's sale. They also allege that 19 the opening bid is a grossly inadequate price. We previously denied plaintiffs' motion for 20 preliminary injunction (doc. 22). 21 reconsideration, it falls short of the standards of Rule 60(b), Fed. R. Civ. P. and LRCiv 22 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 23 Plaintiffs contend that defendants had not been assigned power of attorney on the 24 plaintiffs' property, but the record discloses that defendant Scott L. Potter possesses a special 25 power of attorney from M&I Marshall & Ilsley Bank to conduct non-judicial trustee's 26 foreclosure sales on the bank's behalf. (Doc. 26, ex. A). This document also grants him the 27 right to execute a notice of substitution of trustee. His appointment as successor trustee was 28 therefore not fraudulent. 1 "[A] sale of real property under power of sale in a deed of trust may be set aside solely 2 on the basis that the bid price was grossly inadequate." In re Krohn, 203 Ariz. 205, 214, 52 3 P.3d 774, 783 (2002). "[T]he debtor will have the burden of showing gross inadequacy as 4 compared to fair market value . . . ." Id. at 211, 52 P.3d at 780. Plaintiffs allege that they 5 have invested approximately $356,000 in construction costs and mortgage payments (doc. 6 24 at 6). They purchased their house on April 22, 2005 for $350,000 (doc. 1 ΒΆ 7). They 7 contend their house is now worth "at least $650,000.00." 8 Plaintiffs ignore the fact that $94,740.00 is the opening bid. The house may sell for 9 well over this amount. In addition, Krohn dealt with setting aside a trustee's sale after it 10 occurred, not precluding one based on a potentially low price, and does not provide authority 11 for us to cancel the sale. 12 13 14 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. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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