Independent Mortgage Co. v. Alaburda

281 P.3d 1049, 230 Ariz. 181, 2012 WL 2912131, 2012 Ariz. App. LEXIS 114
CourtCourt of Appeals of Arizona
DecidedJuly 17, 2012
DocketNo. 1 CA-CV 11-0301
StatusPublished
Cited by2 cases

This text of 281 P.3d 1049 (Independent Mortgage Co. v. Alaburda) 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
Independent Mortgage Co. v. Alaburda, 281 P.3d 1049, 230 Ariz. 181, 2012 WL 2912131, 2012 Ariz. App. LEXIS 114 (Ark. Ct. App. 2012).

Opinion

OPINION

THOMPSON, Judge.

¶ 1 Appellant Independent Mortgage Company appeals the trial court’s order entering summary judgment in favor of Dennis Ala-burda and Amy Warner (collectively the Ala-burdas). The sole issue on appeal is whether the trial court properly construed Arizona Revised Statutes (A.R.S.) section 33-814(G) (Supp. 2011)1 as precluding a deficiency judgment on a fractional interest in a vacation accommodation. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 In 2006, the Alaburdas purchased a 1/10th fractional interest in a single-family residential condominium in the Villas at Seven Canyons, located in Sedona, Arizona. Independent Mortgage financed the purchase and accepted the Alaburdas’ promissory note in the amount of $321,750, which was secured by a deed of trust on the l/10th interest in the villa.2 The Alaburdas could vacation at the property for up to twenty-eight days each year. The fractional ownership of the Alaburdas was subject to a “Declaration of Condominium and Fractional Ownership Plan of The Villas at Seven Canyons.” The Declaration limited use of the villa to a “vacation accommodation[ ].” The Alaburdas were not permitted to change the appearance of the villa in any manner, and they could not alter any of the furnishings, appliances, or decor.

¶ 3 In December 2008, the Alaburdas defaulted on the promissory note. Independent Mortgage held a trustee’s sale and purchased the property for $285,000, which was less than the amount owed on the promissory note. Independent Mortgage filed this action against the Alaburdas for breach of contract, alleging a deficiency balance of $57,884. The Alaburdas moved for summary judgment, arguing that Independent Mortgage was precluded from recovering any difference between the amount obtained from the trustee’s sale and the amount of indebtedness pursuant to the anti-deficiency protection of A.R.S. § 33-814(G). Independent Mortgage filed a cross motion for summary judgment on the basis that partial ownership in a vacation accommodation cannot be characterized as a single family dwelling and was therefore not protected by § 33-814(G). The trial court ruled in favor of the Alaburdas, finding that they were not liable for any deficiency.

¶ 4 Independent Mortgage timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. § 12 — 2101(A)(1) (Supp.2011).

STANDARD OF REVIEW

¶ 5 We review the tidal court’s entry of summary judgment de novo, viewing all evidence and reasonable inferences in the light most favorable to Independent Mortgage as the party opposing summary judgment. Hourani v. Benson Hosp., 211 Ariz. 427, 432, ¶ 13, 122 P.3d 6, 11 (App.2005). “A motion for summary judgment should only be granted if ‘there is no genuine issue as to any [183]*183material fact and ... the moving party is entitled to judgment as a matter of law.’ ” Id. (quoting Ariz. R. Civ. P. 56(c)(1)).

DISCUSSION

¶ 6 Independent Mortgage contends that a l/10th interest in a vacation accommodation is not a “dwelling” entitled to the anti-deficiency protection of A.R.S. § 33-814(G). When interpreting a statute, we give effect to the plain and ordinary language “unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.” Ariz. Dep’t of Revenue v. Salt River Project Agric. Improvement and Power Dist., 212 Ariz. 35, 39, ¶ 15, 126 P.3d 1063, 1067 (App.2006) (citations omitted).

¶ 7 The statutory exemption provides:

If trust property of two and one-half acres or less which is limited to and utilized for either a single one-family or a single two-family dwelling is sold pursuant to the trustee’s power of sale, no action may be maintained to recover any difference between the amount obtained by sale and the amount of the indebtedness and any interest, costs and expenses.

A.R.S. § 33-814(G). The purpose of the statute is to protect consumers from financial ruin and place the risk of inadequate security on lenders rather than borrowers. Helvetica Servicing, Inc. v. Pasquan, 229 Ariz. 493, 496, ¶ 9, 277 P.3d 198 (App.2012). “It is intended to discourage purchase money lenders from over-valuing real property by requiring them to look solely to the collateral for recovery in the event of foreclosure.” Id. To qualify for protection under the statute, a property must be (1) trust property of two and one-half acres or less, (2) limited to and utilized for a dwelling, and (3) single one-family or single two-family in nature. A.R.S. § 33-814(G). Independent Mortgage takes issue only with whether the villa is limited to and utilized for a dwelling. Independent Mortgage cites several definitions of “dwelling” to assert there are five attributes necessary for a building to be considered a dwelling, including “(1) the intent and the ability to use the property on a continuous and permanent basis; (2) the right to move furniture and put personal belongings in the premises; (3) receive mail at the premises; (4) pay utilities on the premises; and (5) no restriction on use of the premises.”

¶ 8 Both Independent Mortgage and the Alaburdas rely on Northern Arizona Properties v. Pinetop Properties Group, 151 Ariz. 9, 725 P.2d 501 (App.1986), and Mid Kansas Federal Savings and Loan Association v. Dynamic Development Corporation, 167 Ariz. 122, 804 P.2d 1310 (1991), to support their arguments.3 In Pinetop, we held that an investment condominium, which was only occasionally occupied by the owners as a vacation property, fell within the statutory definition of trust property utilized as a single one-family dwelling. 151 Ariz. at 12, 725 P.2d at 504 (construing A.R.S. § 33-729(A)). In construing a statute with language identical to the relevant language here, we defined “dwelling” broadly as “a shelter (as a house or a building) in which people live.” Id. The property in Pinetop was held as an investment and did not constitute someone’s permanent residence or normal place of abode, but was used for very short term transient occupancy. Id. at 10, 725 P.2d at 502. We noted that only the legislature could correct the statutory language to except these types of homeowners from the protection of the statute. Id.

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Bluebook (online)
281 P.3d 1049, 230 Ariz. 181, 2012 WL 2912131, 2012 Ariz. App. LEXIS 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/independent-mortgage-co-v-alaburda-arizctapp-2012.