Eardley v. Greenberg

792 P.2d 724, 164 Ariz. 261, 60 Ariz. Adv. Rep. 3, 1990 Ariz. LEXIS 83
CourtArizona Supreme Court
DecidedMay 1, 1990
DocketNo. CV-89-0145-PR
StatusPublished
Cited by5 cases

This text of 792 P.2d 724 (Eardley v. Greenberg) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eardley v. Greenberg, 792 P.2d 724, 164 Ariz. 261, 60 Ariz. Adv. Rep. 3, 1990 Ariz. LEXIS 83 (Ark. 1990).

Opinion

FERNANDEZ, Chief Judge,

Court of Appeals.

Plaintiff Dennis Eardley filed suit to set aside a trustee’s sale. The trial court upheld the sale, and the Court of Appeals reversed and remanded. 160 Ariz. 518, 774 P.2d 822. We granted review to consider two issues: (1) whether a notice of substitution of trustee must be personally signed by all beneficiaries or whether a duly authorized agent of the beneficiary may sign, and (2) whether the notice of substitution in this case was otherwise defective and resulted in prejudice to Eardley. We have jurisdiction pursuant to Ariz.Const. art. 6, § 5(3) and A.R.S. § 12-120.24.

FACTS

In August 1984, Eardley’s predecessor in interest executed a deed of trust naming Action Home Loans, Inc. as beneficiary and Security Title Agency as trustee. Shortly afterward, Action Home Loans assigned its beneficial interest in the deed of trust to the following parties:

Seymour and Sarah Greenberg 10/40ths
Albert L. and Barbara A. Flaig 19/40ths
Michael H. and Claudia H. Goodman 6/40ths
Robert S. Leiserowitz 5/40ths.

Eardley purchased the property in March 1985.

In early June 1986, Seymour Greenberg received three special powers of attorney from the Greenbergs, the Goodmans, and Leiserowitz authorizing him to collect money, sign documents and foreclose on the property. In the power of attorney executed by Seymour and Sarah Greenberg on June 9, 1986, Seymour was appointed attorney in fact for “Sarah and Seymour Green-berg Husband & Wife, JTROS as to their 10/40ths undivided interest.” None of the powers of attorney was recorded.

On June 14, 1986, Albert and Barbara Flaig assigned their beneficial interest to the Greenbergs as joint tenants. Seymour was never given a power of attorney from Sarah with respect to that 19/40ths interest.

After Eardley defaulted on the note, Seymour executed a Notice of Substitution of Trustee on October 9, 1986, replacing Security Title Agency with Investors Security Management, Inc. This document is the focus of our attention. Seymour Green-berg signed the notice four times, once as beneficiary and three times as attorney in fact for the Greenbergs, the Goodmans, and Leiserowitz. The new trustee prepared a Notice of Trustee’s Sale the same day.

Six days earlier, Eardley’s application for a loan to refinance the debt secured by the deed of trust had been approved by First Interstate Bank. However, the title company balked at issuing title insurance. An October 23, 1986 memorandum from the legal department of Security Title Agency outlined the perceived problems as to the notice of substitution of trustee as follows:

1. The form does not satisfy the sta-tu[t]es.
2. All beneficiaries have not joined in the substitution.
[263]*2633. The statutes do not provide for an agent to sign such substitution for the beneficiaries who have joined.

These concerns were conveyed to the beneficiaries’ attorney who responded that the form complied with the governing statute, all beneficiaries had signed the notice of substitution through their attorney in fact, and the execution of the notice of substitution by an authorized agent was proper under the Arizona law of agency. Security Title still declined to issue title insurance, and Eardley’s loan never closed. The trustee’s sale was held on January 9, 1987, and Seymour and Sarah Greenberg purchased the property.

PROCEDURAL HISTORY

Three months after the trustee’s sale, Eardley filed suit against the Greenbergs and Investors Security Management, alleging that the sale was void because of defects in the notice of substitution of trustee. The parties filed cross-motions for summary judgment, and the trial court entered judgment in favor of the defendants, ruling that the trustee’s deed created a presumption of compliance with statutory requirements and that any technical violations were harmless and non-prejudicial and did not contravene the legislative intent of the deed of trust statutes. The court also stated that Eardley’s inability to obtain refinancing, “while perhaps furnishing the reason for his failure to obtain the property is not a sufficient legal reason for voiding the Trustee’s Sale.” (Emphasis in original.)

The Court of Appeals reversed, holding that A.R.S. § 33-804(C) requires the personal signature of every beneficiary on the notice of substitution of trustee. The court also ruled that even if the notice could be executed by an agent, Greenberg had failed to establish that he possessed authority from all beneficiaries when he signed the notice of substitution. We disagree with that portion of the opinion construing A.R.S. § 33-804(C) but agree that the Greenbergs failed to present evidence entitling them to summary judgment.

A.R.S. § 33-804(C)

The statute governing the substitution of trustees in deeds of trust provides in part as follows:

Substitutions shall be made by recording notice of the substitution in the office of the county recorder of each county in which the trust property or some part of the trust property is situated at the time of the substitution. The beneficiary shall give written notice through registered or certified mail, postage prepaid, to the trustor, the trustee and the successor trustee. A notice of substitution of trustee shall be sufficient if acknowledged by all beneficiaries under the trust deed and prepared in substantially the following form: ____

A.R.S. § 33-804(C). (Emphasis added.) The remaining portion sets out the form for the notice of substitution. The Court of Appeals read the underscored sentence as “clearly and unambiguously” requiring the personal signature of each beneficiary, in part because of the language of two other sections in Title 33 that expressly allow certain acts to be performed by an attorney in fact.

The principles of statutory interpretation are well known and oft repeated. The goal is to discern the legislative intent behind the statute by considering “the context of the statute, the language used, the subject matter, the historical background, the effects and consequences, and the spirit and purpose of the law.” Martin v. Martin, 156 Ariz. 452, 457, 752 P.2d 1038, 1043 (1988). The provisions of a statute should be read in the light of related sections and its “place in the statutory scheme.” Grant v. Board of Regents, 133 Ariz. 527, 529, 652 P.2d 1374, 1376 (1982).

Following these guidelines, we hold that a notice of substitution of trustee may be executed by a duly authorized agent of a beneficiary. We reach this conclusion for several reasons.

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Cite This Page — Counsel Stack

Bluebook (online)
792 P.2d 724, 164 Ariz. 261, 60 Ariz. Adv. Rep. 3, 1990 Ariz. LEXIS 83, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eardley-v-greenberg-ariz-1990.