NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
VIVIAN HICKS, Plaintiff/Appellant,
v.
HSBC BANK USA NA, et al., Defendants/Appellees.
No. 1 CA-CV 25-1027
FILED 09-11-2026
Appeal from the Superior Court in Maricopa County No. CV2025-003254
The Honorable Scott A. Blaney, Judge
AFFIRMED
COUNSEL
Vivian Hicks, Phoenix Plaintiff/Appellant
Burch & Cracchiolo, P.A., Phoenix By Andrew Abraham, Jackson Hendrix Counsel for Defendant/Appellee PAJ Enterprises
Decision of the Court
ZBS Law, LLP, Phoenix By Erin K. Sweeney Counsel for Defendant/Appellee Thompson Jones
Klinedinst PC, Phoenix By C. Nicole Price, Grace L. Sluga Counsel for HSBC Bank USA
Evans, Dove, Nelson, Fish & Grier, P.L.C., Mesa By Douglas N. Nelson, Trevor J. Fish Counsel for Defendant/Appellee Carranza Services, LLC
MEMORANDUM DECISION
Presiding Judge Andrew J. Becke delivered the decision of the Court, in which Judge James B. Morse Jr. and Judge Samuel A. Thumma1 joined.
B E C K E, Judge:
¶1 Plaintiff Vivian Hicks (“Hicks”) appeals the dismissal of her complaint claiming mortgage fraud resulting in the foreclosure of her home and that she did not receive notice of a trustee’s sale. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 In 2003, Hicks purchased a home (the “Property”) and obtained a loan of $126,179 from Allied Home Mortgage Capital Corporation (“Allied”). The deed of trust named Mortgage Electronic Registration Systems, Inc. (“MERS”) as the beneficiary, solely as Allied’s nominee. MERS later assigned all beneficial interest to HSBC Bank USA, National Trust Company, as Trustee for the holders of MASTR
1 Judge Samuel A. Thumma was on the panel assigned to this case until retiring effective August 28, 2026. Arizona Supreme Court Chief Justice Ann A. Scott Timmer appointed Judge Thumma to continue to serve on the Court through December 31, 2026, to resolve those cases in which he previously participated like this case. See Arizona Supreme Court Administrative Order 2026-124.
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Reperforming Loan Trust 2005-2 (“HSBC”). In July 2024, Newrez LLC d/b/a Shellpoint Mortgage Servicing (“Shellpoint”) became the servicer of the loan. Carrie Thompson Jones (“Thompson Jones”) then became trustee.
¶3 The record indicates that, beginning in 2007, Hicks failed to make timely payments, resulting in the lender issuing trustee’s sale notices on four separate occasions. The first three sales were cancelled when Hicks entered into loan modification agreements. The fourth sale, noticed on October 18, 2024, resulted in a January 23, 2025, trustee’s sale of the Property.
¶4 Carranza Services LLC (“Carranza”) purchased the Property at the trustee’s sale. Thompson Jones then conveyed title to the Property to Carranza through a trustee’s deed, recorded on January 31, 2025.
¶5 On January 27, 2025, after the trustee’s sale but before the recording of the trustee’s deed, Hicks filed this lawsuit alleging that she did not have notice of the trustee’s sale and that the defendants committed various fraudulent acts. Hicks named HSBC, Shellpoint, MERS, and Thompson Jones as defendants. Hicks later added Carranza as a defendant. Hicks’s operative complaint alleged that she did not have notice of the trustee’s sale until after it had already occurred. She also alleged that the defendants drained her escrow account without her knowledge, caused her insurance to be cancelled and then purchased new insurance on the Property at a higher premium, and made changes to her loan without her knowledge.
¶6 Hicks also moved for an emergency hearing and a temporary restraining order, alleging elder abuse, wrongful foreclosure and sale of the Property, mortgage fraud, and insurance fraud.
¶7 Hicks then moved to amend her complaint again. She requested that Carranza’s owners, as well as a subsequent purchaser of the Property and the subsequent purchaser’s lender, Paj Fund I, LLC, d/b/a Paj Fund II, LLC, d/b/a Paj Enterprises (“Paj”) be added as defendants. Hicks alleged that the subsequent purchaser lied about being married and that Paj did not possess a lender’s license. Hicks did not attach a proposed amended complaint to her motion. The court denied her motion for failing to comply with Arizona Rule of Civil Procedure 15(a)(4), which requires a proposed amended complaint be attached to a motion to amend a complaint.
¶8 Carranza moved to dismiss the claims against it under Rule 12(b)(6). The court granted Carranza’s motion, concluding the
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complaint failed to state a claim against Carranza upon which relief could be granted.
¶9 Thompson Jones and HSBC separately moved to dismiss under Rule 12(b)(6). Thompson Jones attached various documents showing that: Hicks had been mailed notice of the trustee’s sale on November 14, 2024; notice was posted on the Property on November 25, 2024; and notice was published in a newspaper on November 20, November 27, December 4, and December 11, 2024—all in compliance with A.R.S. § 33-808(A). The court denied both motions, concluding Hicks’s operative complaint alleged sufficient facts to potentially establish a right to relief.
¶10 Hicks then moved for summary judgment, arguing that she was a victim of a “multi-million-dollar mortgage scheme to defraud homeowners out of their homes.”
¶11 Meanwhile, HSBC opposed Hicks’s motion for emergency hearing and temporary restraining order. HSBC’s filing attached documents relating to the loan and trustee’s sale and a declaration of the senior litigation case manager for Shellpoint detailing the history of the loan. HSBC argued that Hicks had waived her arguments because she had not obtained an injunction before the trustee’s sale. A.R.S. § 33-811(C) (the trustor waives “all defenses and objections to the sale” that were not raised in an action that results in an injunction prior to the sale). The declaration stated that Shellpoint mailed Hicks information regarding her eligibility for loss mitigation in August 2024. It also sent an agent to the Property in September 2024 to attempt to speak with Hicks, but when Hicks did not answer, the agent left a sealed letter on the front door of the Property, which also went unanswered.
¶12 The court determined that because Hicks moved for a temporary restraining order, it could consider matters outside the pleadings, including the documents and declaration HSBC attached to its opposition. The court determined that Hicks had waived all of her defenses and objections to the sale of the Property by not obtaining an injunction before the trustee’s sale, citing A.R.S. § 33-811(C).
¶13 The court, on its own motion, then dismissed the complaint with prejudice as to all defendants. In doing so, the court noted that motions to dismiss under Rule 12(b)(6) must be decided only on the facts in the complaint, and that here it was considering matters outside the complaint. This necessarily changed the standard to that of summary judgment. See Ariz. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or (c), matters
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outside the pleadings are presented to, and not excluded by, the court, the motion must be treated as one for summary judgment under Rule 56.”).
¶14 Hicks then filed an objection to the summary judgment ruling, which the court treated as a motion for reconsideration. The court denied the motion because Hicks “merely advance[d] the same arguments that the Court previously found unpersuasive.”
¶15 Hicks timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21 and -2101(A)(1).
DISCUSSION
¶16 We review the grant of a motion for summary judgment de novo and view the facts in the light most favorable to Hicks. Perez v. Circle K Convenience Stores, Inc., 259 Ariz. 221, 224, ¶ 6 (2025). “The [superior] court shall grant summary judgment if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a). “[O]ur task is to determine . . . whether any genuine issues of material fact exist and whether the [superior] court incorrectly applied the law.” Parkway Bank & Tr. Co. v. Zivkovic, 232 Ariz. 286, 289, ¶ 10 (App. 2013). We will affirm if the court was correct for any reason. City of Tempe v. Outdoor Sys., Inc., 201 Ariz. 106, 111, ¶ 14 (App. 2001).
I. Hicks’s Briefs Contain False Quotations.
¶17 As an initial matter, Hicks’s opening and reply briefs on appeal contain numerous citation errors. Of the more than 90 instances of quoted caselaw in her opening brief, only 16 of those quotes actually appear in the cases cited. The reply briefs are worse: Hicks quoted caselaw 71 times in her reply briefs; only six of those quotes are legitimate. These errors violate ARCAP 13(a)(7)(A), which requires that each argument include “supporting reasons for each contention, and with citations of legal authorities and appropriate references to the portions of the record on which the appellant relies.” Hicks’s briefs also fail to reference where she raised each of her arguments in superior court, in violation of ARCAP 13(a)(7)(B).
¶18 Because of Hicks’s failure to comply with our rules, we may treat her arguments as waived. In re Estate of Acciavatti, 1 CA-CV 25-0606 PB, 2026 WL 2041963, at *1, ¶ 7 (Ariz. App. July 15, 2026) (holding that failure to comply with ARCAP 13 due to false citations caused by the use of artificial intelligence waived all issues on appeal). But even if Hicks had
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not waived her arguments by failing to provide compliant briefs, she has failed to show error in the dismissal of her complaint.
II. Hicks Waived the Arguments She Raises on Appeal for Additional Reasons.
¶19 By statute, “[t]he trustor . . . shall waive all defenses and objections to the sale not raised in an action that results in the issuance of a court order granting [injunctive] relief . . . entered before . . . the scheduled date of the sale.” A.R.S. § 33-811(C). This provision prohibits “not only actions to void the sale . . . but also those dependent upon the sale.” Zubia v. Shapiro, 243 Ariz. 412, 415, ¶ 17 (2018). A claim is “dependent on the sale” if it “cannot succeed unless the sale was defective . . . [and] necessarily call[s] into question the validity of the sale.” Id. ¶ 18. Claims that are not dependent on the sale include defenses to post-sale deficiency claims by the lender and claims for monetary damages under A.R.S. § 33-420 (recording false documents). Id. at 416, ¶¶ 22–23.
¶20 Hicks presses 162 arguments on appeal, nine of which are waived under § 33-811(C) because Hicks did not obtain injunctive relief before the trustee’s sale or for failure to raise them before the superior court. These waived arguments are: (1) the defendants engaged in fraud and mortgage misconduct by concealing facts related to depletion of escrow, causing her insurance to be cancelled, purchasing insurance without notice, withholding foreclosure proceedings, and initiating foreclosure while accepting payments; (2) the Consumer Fraud Act supports reversal due to the defendant’s acts regarding escrow, insurance, and lack of notice; (3) the foreclosure should be rescinded under A.R.S. § 37-249; (4) the acceptance of payments while Hicks was in default prohibits foreclosure; (5) injunctive and monetary relief due to the wrongful loss of her home are appropriate; (6) equity bars enforcement of the foreclosure; (7) public policy favors reversal because statutory requirements were not followed; (8) the trustee did not establish its authority to conduct the sale; and (9) failure to comply with notice requirements voided the sale.
¶21 Hicks’s other arguments are: (10) the superior court erred in denying her motion for summary judgment; (11) we should recognize a new cause of action for wrongful foreclosure; (12) an award of punitive damages is supported by fraudulent acts committed by the defendants;
2 Hicks articulated 23 arguments, but many of her arguments were substantively similar. We combined the similar arguments and analyze herein 16 distinct arguments.
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(13) the subsequent purchasers were not bona fide purchasers; (14) § 33-811(C) violates her rights to due process; (15) the defendants violated her rights to due process by denying her full account information; and (16) the superior court abused its discretion in denying her second motion to amend her complaint.
¶22 Arguments (1), (2), and (3), regarding fraud, are waived because questioning whether the wrongful actions of the defendants before the sale caused the wrongful foreclosure of the Property would question the validity of the sale. Madison v. Groseth, 230 Ariz. 8, 12–13, ¶¶ 10–13 (App. 2012) (finding that claims for conversion, fraud/deceit, and trespass were waived under § 33-811(C)), cited with approval in Zubia, 243 Ariz. at 416, ¶ 21.
¶23 Arguments (4) and (5)—that acceptance of payments while in default prohibited the foreclosure and that injunctive or monetary relief is required—each would require consideration of the validity of the sale, and therefore are waived under § 33-811(C). Zubia, 243 Ariz. at 415, ¶ 18.
¶24 Whether public policy and equitable principles require the foreclosure to be undone, arguments (6) and (7), were not brought before superior court until the motion for reconsideration, so Hicks has waived them independent of A.R.S. § 33-811(C). Evans Withycombe, Inc. v. W. Innovations, Inc., 215 Ariz. 237, 240, ¶ 15 (App. 2006).
¶25 Argument (8), that the trustee did not have authority to foreclose on her home, was not raised in the superior court at all, meaning it is also waived independent of A.R.S. § 33-811(C). State ex rel. Brnovich v. Miller, 245 Ariz. 323, 324, ¶ 5 (App. 2018) (arguments brought for the first time on appeal are waived). In arguing that the trustee did not have the authority to foreclose on her home, Hicks contends that this leads to liability under § 33-420. Although claims for monetary damages are not waived under § 33-811(C), Zubia, 243 Ariz. at 416, ¶ 23, Hicks argues that the trustee was not proven to be duly appointed. Therefore, notwithstanding waiver for failing to timely raise this issue with the superior court, it is also waived under § 33-811(C) because it is dependent on the sale. Zubia, 243 Ariz. at 415, ¶ 18.
¶26 Argument (9) contends that statutory notice requirements were not complied with and that this should require the sale to be voided. However, § 33-811(C) waives arguments by the trustor to void the sale. Zubia, 243 Ariz. at 415, ¶ 17. And, although Hicks claims she did not receive notice, this does not mean that § 33-811(C) cannot serve to waive her claims. Madison, 230 Ariz. at 12, ¶ 11 (“The plain language of § 33-811(C) does not
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require the trustee to comply with the mailing requirements of § 33-809 for the waiver provision to apply later to the trustor.”). Hicks therefore waived this claim.
¶27 Because each of the above arguments were waived under A.R.S. § 33-811(C), the court did not err in granting summary judgment in favor of the defendants. The remainder of Hicks’s arguments were not brought in superior court or were brought in a motion for reconsideration, so we do not consider them when analyzing the grant of summary judgment. Cf. Tilley v. Delci, 220 Ariz. 233, 238, ¶ 17 (App. 2009) (“The superior court was not required to accept and examine evidence presented to it for the first time in connection with [a] motion for reconsideration” after a decision on summary judgment when it could have been presented earlier).
¶28 Hicks’s argument (10) is that the superior court erred in denying her motion for summary judgment. However, because the superior court properly concluded that her claims were waived and granted summary judgment in favor of the defendants, this argument fails. See Ariz. R. Civ. P. 56.
¶29 Hicks requests that we recognize a new cause of action for wrongful foreclosure in argument (11). Arizona courts have not recognized a cause of action for wrongful foreclosure, Zubia, 243 Ariz. at 417, ¶ 29, and we decline to do so here. Even if we were to recognize a cause of action for wrongful foreclosure, it would fail because Hicks argues that fraudulent practices caused a wrongful foreclosure. This, again, is an objection to the validity of the sale, which is precluded under § 33-811(C) because Hicks did not obtain injunctive relief prior to the sale. See id. at 417–18, ¶ 30.
¶30 Because her argument that the defendants engaged in fraudulent insurance practices is waived, her argument (12) that an award of punitive damages is supported by the defendants’ fraudulent insurance practices must also fail. See Madison, 230 Ariz. at 11–12, ¶¶ 7–11 (finding waiver under § 33-811(C) when the appellant requested punitive damages related to, among other claims, fraud).
¶31 Hicks also argues (13) that purchasers of the Property were not bona fide purchasers because the sale was not “valid.” However, whether or not the subsequent purchaser was a bona fide purchaser does not affect the application of waiver to her claims because § 33-811(C) is not conditioned “on the existence of a bona fide purchaser.” Madison, 230 Ariz. at 13, ¶ 14.
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III. Hicks’s Constitutional Arguments Fail.
¶32 In arguments (14) and (15), Hicks challenges the constitutionality of § 33-811(C), but she did not bring constitutional arguments until her motion for reconsideration in superior court. We nevertheless address her constitutional arguments in our discretion. City of Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, 552, ¶ 33 n.9 (2005).
¶33 Hicks argues that § 33-811(C) cannot apply absent proper notice as required by due process, citing Article 2, Sections 4 and 8 of the Arizona Constitution. Due process requires “the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Samiuddin v. Nothwehr, 243 Ariz. 204, 211, ¶ 20 (2017) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
¶34 Here, the record shows that the notice of sale was recorded, mailed to Hicks, posted on the Property, and published in a newspaper, in compliance with statutory requirements. A.R.S. § 33-808(A) (describing how the trustee must notice a trustee’s sale). Hicks did not oppose the evidence that she was given notice with any competent evidence of her own to show there was a disputed issue of material fact. See GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 5 (App. 1990) (“If the opposing party fails to present, either by affidavit or other competent evidence, facts which controvert the moving party’s affidavits, the facts alleged by the moving party may be considered as true.”). Simply alleging that she was not given notice in her pleadings was not enough to survive summary judgment. Id. (“As a general rule, an unsworn and unproven assertion [made by the parties in their pleadings] is not a fact that a [superior] court can consider in ruling on a motion for summary judgment.”). Therefore, applying § 33-811(C) did not deprive Hicks of due process. See Madison, 230 Ariz. at 12–13, ¶ 12 (finding no violation of due process when trustor received sufficient notice of trustee’s sale).
¶35 Hicks also argues that the defendants deprived her of due process by not providing her full account information before the trustee’s sale. However, due process requirements do not apply to private deed of trust sales because they do not constitute state action. Kelly v. NationsBanc Mortg. Corp., 199 Ariz. 284, 289, ¶¶ 24–25 (App. 2000). Therefore, this argument fails.
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IV. The Superior Court Did Not Abuse Its Discretion in Denying Hicks’s Motion to Amend Her Complaint.
¶36 Hicks’s final argument, (16), is that the superior court abused its discretion in denying her motion to amend her complaint under Arizona Rule of Civil Procedure 15. The court denied her motion because Hicks failed to attach a proposed amended complaint, as required by Rule 15(a)(4). It also stated that “[Hicks’s] Motion simply makes additional allegations and legal argument about the merits of the case. Defendants cannot be expected to meaningfully respond regarding a proposed amendment without first reviewing the proposed amendment pleading.”
¶37 Hicks amended her complaint once. For subsequent amendments, “the court has discretion whether to grant leave to amend, but will allow amendments liberally.” Tumacacori Mission Land Dev., Ltd. v. Union Pac. R.R. Co., 231 Ariz. 517, 519, ¶ 4 (App. 2013). The court may deny leave to amend if it finds “undue delay in the request, bad faith, undue prejudice, or futility in the amendment.” Id. (quoting MacCollum v. Perkinson, 185 Ariz. 179, 185 (App. 1996)). We will affirm the denial if the result was correct for any reason. Id.
¶38 Failure to attach a proposed amended complaint is sufficient to deny a motion to amend a complaint. See Carranza v. Madrigal, 237 Ariz. 512, 515, ¶ 12 (2015) (finding that a failure to move under Rule 15(a) was a sufficient basis for the court to deny leave to amend because the motion did not include a proposed pleading or notify the court or counsel of their requested amendment). Therefore, the court did not abuse its discretion in denying Hicks’s motion to amend on this basis.
¶39 Further, on the record presented, Hicks’s amendment was futile. Hicks noted in her motion that she requested the addition of the owners of Carranza, a subsequent purchaser, and the subsequent purchaser’s lender. However, because she waived all of her arguments about the sale under § 33-811(C), the addition of these parties would have been futile. See Ute Mountain Ute Tribe v. Ariz. Dep’t of Rev., 254 Ariz. 410, 417, ¶ 28 (App. 2023) (finding futility when a proposed amended complaint’s additional claim would have faced dismissal under Ariz. R. Civ. P. 12(b)(6)). The court therefore could have denied her motion to amend the complaint on this basis as well, and we will affirm if the result was correct for any reason. Union Pac. R.R. Co., 231 Ariz. at 519, ¶ 4. Hicks has therefore failed to show how the court abused its discretion in denying her motion to amend the complaint.
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FEES AND COSTS
¶40 Hicks requests that we award her damages under A.R.S. § 33-420, actual damages resulting from wrongful foreclosure, restitution and disgorgement of all improperly collected sums, punitive damages for disregarding homeowners’ rights, and a full accounting of the loan, escrow insurance charges, and foreclosure fees. Because all of the underlying claims for these requests were waived, we deny her requests.
¶41 Carranza requests attorneys’ fees and costs pursuant to A.R.S. §§ 12-341 and -341.01. In our discretion, we grant Carranza’s request for attorneys’ fees, subject to compliance with ARCAP 21. Appellees are awarded their taxable costs upon compliance with ARCAP 21.
CONCLUSION
¶42 For the foregoing reasons, we affirm.
MATTHEW J. MARTIN • Clerk of the Court FILED: JR