Matcha v. Wachs

646 P.2d 263, 132 Ariz. 378, 1982 Ariz. LEXIS 204
CourtArizona Supreme Court
DecidedMay 3, 1982
Docket15732-PR
StatusPublished
Cited by9 cases

This text of 646 P.2d 263 (Matcha v. Wachs) 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
Matcha v. Wachs, 646 P.2d 263, 132 Ariz. 378, 1982 Ariz. LEXIS 204 (Ark. 1982).

Opinions

FELDMAN, Justice.

This declaratory action arose out of a dispute regarding priority between two sets of would-be redemptioners from a mortgage foreclosure sale. The appellees, Michael and Janet Matcha, brought suit against the Maricopa County Sheriff and Wachs and the other appellants (hereinafter referred to as Wachs) seeking a declaratory judgment that they and not Wachs were entitled to redeem the property sold at the foreclosure sale. The trial court found that Wachs had not perfected his right to re[379]*379deem and entered summary judgment in favor of Matcha. Wachs appealed. On appeal, the court of appeals reversed the judgment of the trial court, finding that Wachs had substantially complied with the requirements of the applicable statutes and therefore was entitled to redeem the property. See Matcha v. Wachs, 132 Ariz. 402, 646 P.2d 287 (1981). We granted review in order to decide the issue of whether substantial compliance with the requirements of the redemption statutes (A.R.S. §§ 12-1282—12-1289) is sufficient to perfect a lien creditor’s right to redeem. Having concluded that such compliance is sufficient, we approve and modify the decision of the court of appeals, and reverse the judgment of the superior court.

FACTS

Title to the real property which is the subject of this action was originally held by Schulz subject to the following encumbrances, listed in their order of priority:

1. A mortgage to First National Mortgage Association (FNMA);
2. A deed of trust to Wachs in the amount of $628,648.00;
3. A deed of trust in favor of Jerry Lanyon dba Lanyon’s Lawn Service;
4. A judgment in favor of the law firm of Beer, Kalyna & Simon, P.C. (the law firm) in the amount of $2,581.35. This judgment was eventually assigned to Matcha.

When Schulz defaulted on his mortgage payments, FNMA foreclosed naming Schulz, Wachs, Lanyon and the law firm as defendants. The sheriff’s sale on foreclosure was held on February 9, 1978, and the property was sold to FNMA. Following the foreclosure sale, Schulz as owner/mortgagor had six months within which to redeem the property. See A.R.S. § 12-1282(B). If he failed to do so, the junior lienholders, in order of seniority, each had five days to exercise their right to redeem by paying the amount due to the purchaser at the foreclosure sale, plus the amount due to those senior lienholders who had previously redeemed the property. See A.R.S. § 12-1282(C). The last lienholder to redeem is entitled to the sheriff’s deed and thereafter holds title free and clear from the claims of all whose interests have been foreclosed. See A.R.S. § 12-1286.

Within the six-month period following the foreclosure sale, Schulz took no steps toward redeeming the property. Wachs, the senior lienholder, filed a timely notice of intent to redeem, specifying the amount of the lien and the order of its priority. He served a copy of the notice of intent to redeem on the sheriff as required by A.R.S. § 12-1284,1 but failed to serve with it the documents required by A.R.S. § 12-1287,2 i.e., a certified copy of the record of his lien and an affidavit showing the amount actually due on the lien. The law firm also filed a notice of intent to redeem. It served a copy on the sheriff and also served the sheriff with the documents required by § 12-1287. Thus, within the. six-month period, Wachs complied with A.R.S. § 12-1284, but not § 12-1287; the law firm complied with both statutes.

On August 9, 1978, the six months within which the mortgagor/owner could redeem expired. Two days later, Wachs served the sheriff with copies of the documents re[380]*380quired by § 12-1287 and tendered a check in the amount of $19,518, which was the amount due the purchaser at the foreclosure sale. Thereafter, Matcha, initially on the law firm’s “behalf” and then as its assignee, also made a timely tender of the sum due. He did not, however, tender the additional $628,648 which constituted the amount of the lien held by Wachs. He claimed, rather, that Wachs had failed to comply with A.R.S. § 12-1287 and was not entitled to redeem. After the sheriff’s office rejected his tenders, Matcha brought this suit, claiming that by non-compliance with A.R.S. § 12-1287, Wachs had forfeited his right to redeem, thus permitting a junior lienholder to redeem and acquire title without discharging the senior lien.

The question before us, then, is whether Wachs lost his right to redeem because he failed to serve the sheriff with the documents required by A.R.S. § 12-1287 within six months after the foreclosure sale or because, when he finally did serve the necessary documents, he served copies rather than the originals. We answer both questions in the negative.

At the outset, we agree with the trial court’s determination that Wachs did not make a timely tender of the documents required by A.R.S. § 12-1287. While that section does not specifically state the time within which the documents must be filed, it does require that they be served “with [the] notice to the sheriff.” The word “notice” is used only twice in the redemption statutes; therefore, we conclude that the word “notice” referred to in § 12-1287 can only mean the “notice” specified in § 12-1284. Since under the circumstances of this case the notice required by § 12-1284 must be filed within six months after the foreclosure sale, Wachs’ service of the § 12-1287 documents six months and two days after the sale was not timely.

We disagree, however, with the trial court’s conclusion that Wachs lost his right to redeem either by failing to file the § 12-1287 documents within six months after the foreclosure sale or by serving the sheriff with copies rather than originals.

In Western Land & Cattle Co. v. National Bank of Arizona, 29 Ariz. 51, 58-59, 239 P. 299, 301-02 (1925), this court acknowledged that the statutory right of redemption is a legal right which must be exercised in the manner required by statute, but upheld the right of the creditor to redeem the property despite the fact that in perfecting its right to redeem it had deviated slightly from the statutory requirements. In so holding, the court stated:

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Bluebook (online)
646 P.2d 263, 132 Ariz. 378, 1982 Ariz. LEXIS 204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matcha-v-wachs-ariz-1982.