Binder v. Fruth

721 P.2d 679, 150 Ariz. 21, 1986 Ariz. App. LEXIS 481
CourtCourt of Appeals of Arizona
DecidedMay 20, 1986
DocketNo. 1 CA-CIV 8304
StatusPublished
Cited by5 cases

This text of 721 P.2d 679 (Binder v. Fruth) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Binder v. Fruth, 721 P.2d 679, 150 Ariz. 21, 1986 Ariz. App. LEXIS 481 (Ark. Ct. App. 1986).

Opinion

OPINION

MEYERSON, Judge.

I. FACTS

Appellants Dale and Marion Fruth (Fruths or creditors) appeal from a probate court order denying their creditors’ claim. The claim arose out of a $10,000 loan which they made to Jean H. Burke in 1983. The indebtedness was secured by a deed of trust on a time share condominium located in Utah.

Burke died on March 9, 1984. After Burke’s death, the Fruths filed an unsecured creditors’ claim for $9,033.01 representing the amount due on the note, plus interest. Instead of paying the claim, the personal representative, appellee Christopher Binder, conveyed to the Fruths the property securing the note. Shortly thereafter, the Fruths received notice from the personal representative that their claim had been disallowed in full. One month later, the creditors returned the deed and informed the personal representative that they were going ahead with their claim against the estate.

The creditors then filed a petition for allowance of their claim. The court denied this petition. The Fruths then appealed to this Court. The question presented in this case is whether a secured creditor of an estate must accept his security as satisfaction of a debt and then claim any deficiency, or may the creditor choose to surrender his security and submit a claim for the amount of the indebtedness.

II. LAW

Deeds of trust are creatures of statute in Arizona. A.R.S. §§ 33-801 to -821. Although “the trustee under a deed of trust may satisfy a default by trustee’s sale or foreclosure, the statutory remedy is neither mandatory or exclusive.” Universal Inv. Co. v. Sahara Motor Inn, Inc., 127 Ariz. 213, 215, 619 P.2d 485, 487 (App.1980). An alternative remedy is to bring an action on the debt. Id. Thus, a secured creditor under a deed of trust may elect between a trustee’s sale, foreclosure as a mortgage, or an action on the debt.

The note and deed of trust were in default when the monthly payment came due after Burke’s death. Had Burke been in default before her death, the creditors alone would have had the power to elect their remedy. Burke’s death, however, brings into play two additional statutes—A. R.S. § 14-3809 and A.R.S. § 14-3814. See generally R. Effland, D. O’Connell & K. Haber, Arizona Probate Code Practice Manual § 5.11-(f) (2d ed. 1980). A.R.S. § 14-3809 provides:

Payment of a secured claim is upon the basis of the amount allowed if the creditor surrenders his security, otherwise payment is upon the basis of one of the following:
1. If the creditor exhausts his security before receiving payment, unless precluded by other law, upon the amount of the claim allowed less the fair value of the security.
2. If the creditor does not have the right to exhaust his security or has not done so, upon the amount of the claim allowed less the value of the security determined by converting it into money according to the terms of the agreement pursuant to which the security was delivered to the creditor, or by the creditor and personal representative by agreement, arbitration, compromise or litigation.

(Emphasis added). A.R.S. § 14-3814 states:

If any assets of the estate are encumbered by mortgage, pledge, lien or other [23]*23security interest, the personal representative may pay the encumbrance or any part thereof, renew or extend any obligation secured by the encumbrance or convey or transfer the assets to the creditor in satisfaction of his lien, in whole or in part, whether or not the holder of the encumbrance has presented a claim, if it appears to be for the best interest of the estate. Payment of an encumbrance does not increase the share of the distributee entitled to the encumbered assets unless the distributee is entitled to exoneration.

Both of these statutes are modeled from identical provisions in the Uniform Probate Code. Unif.Probate Code §§ 3-809, -814 (1983). Similar provisions are also found in the Model Probate Code. Model Probate Code §§ 139, 149 (1946).

The personal representative contends that he has the discretion to convey the creditors’ security in satisfaction of the debt rather than pay the claim based upon the balance due on the note. The creditor could then make a second claim for any deficiency. He maintains that this power is based on the portion of A.R.S. § 14-3814 which allows the personal representative “to convey or transfer the assets to the creditor in satisfaction of his lien.” He further contends that A.R.S. § 14-3809 does not limit this power, but merely establishes procedures for determining the amount of payment. The creditors, in contrast, argue that A.R.S. § 14-3809 gives them the sole power to determine their “remedy.” They point to language in the statute providing that “[p]ayment of a secured claim is upon the basis of the amount allowed if the creditor surrenders his security (emphasis added).”

In evaluating these conflicting contentions, we begin by examining the language of both statutes. Close examination of these two statutes, particularly A.R.S. § 14-3814, leaves no doubt that the legislature has given the personal representative power to convey a security to the creditor. Further, A.R.S. § 14-3809 offers no clear language to offset this grant of power. In order to decide, however, whether the legislature intended to bestow a unilateral right on the personal representative to determine how a secured creditor’s claim is to be discharged, we must turn to principles of statutory construction. Where the language of a statute is susceptible to several interpretations, the court should adopt that interpretation which is reasonable and which avoids contradiction or absurdity. State Bd. of Dispensing Opticians v. Schwab, 93 Ariz. 328, 331, 380 P.2d 784, 786 (1963). Further, where practical, this court should construe the meaning of several statutes so as to give effect to all. Lemons v. Superior Court, 141 Ariz. 502, 505, 687 P.2d 1257, 1260 (1984).

The personal representative asserts that A.R.S. § 14-3814

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Bluebook (online)
721 P.2d 679, 150 Ariz. 21, 1986 Ariz. App. LEXIS 481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/binder-v-fruth-arizctapp-1986.