Matcha v. Wachs

646 P.2d 287, 132 Ariz. 402, 1981 Ariz. App. LEXIS 658
CourtCourt of Appeals of Arizona
DecidedAugust 13, 1981
DocketNo. 1 CA-CIV 4867
StatusPublished
Cited by2 cases

This text of 646 P.2d 287 (Matcha v. Wachs) 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
Matcha v. Wachs, 646 P.2d 287, 132 Ariz. 402, 1981 Ariz. App. LEXIS 658 (Ark. Ct. App. 1981).

Opinion

OPINION

OGG, Judge.

This action arose when certain lienholders and the assignees of a judgment creditor both sought to redeem residential property in Buckeye, Arizona. The appellees, hereinafter referred to as Matcha, initiated the complaint against the appellants, hereinafter referred to as Wachs, and the Maricopa County Sheriff’s Department to challenge the entitlement of Wachs to retain a Sheriff’s Deed after Wachs had redeemed the property. The Maricopa County Superi- or Court determined that Wachs had not fully complied with the applicable provisions of the redemption statute, and granted a motion for summary judgment in favor of Matcha. We reverse.

The facts are as follows: a mortgage foreclosure action was initiated by Federal National Mortgage Association (FNMA) to foreclose certain real property owned by Bradford Schulz and his wife. On Febru[403]*403ary 9,1978, the real property was sold pursuant to a sheriff’s sale in satisfaction of the judgment foreclosing the mortgage held by FNMA.

Immediately junior to the FNMA mortgage was a Deed of Trust and Assignment of Rents held by Wachs to secure an indebtedness of $628,648.00. Junior to both the FNMA mortgage and the Wachs’ deed of trust was a recorded judgment lien held by the law firm of Beer, Kalyna & Simon for a judgment recorded in the amount of $2,581.35.

Pursuant to the judgment and A.R.S. § 12-1282, Schulz had a six month redemption period following the sheriff’s sale. Schulz, however, failed to redeem during this period.

Prior to the expiration of the six-months’ redemption period, on July 11, 1978, Wachs recorded and filed with the county recorder a Notice of Intent to Redeem pursuant to A.R.S. § 12-1284. In addition, a copy of the Notice of Intent to Redeem was delivered to the Maricopa County Sheriff’s office. At this time, Wachs did not submit to the sheriff a certified copy of the deed of trust or an affidavit of the amount of the lien.

Beer, Kalyna & Simon, P. C., also recorded and filed a Notice of Intent to Redeem with the county recorder and the sheriff’s office prior to the expiration of the six months redemption period. This notice recited that Wachs had the first right to redeem, with the amount of Wachs’ lien believed to be in excess of $628,000.00. The law firm attached an original affidavit of the amount of its lien to its Notice of Intent to Redeem and served them together upon the sheriff’s office on the same day. No other notices of intent to redeem were recorded.

On August 9, 1978, the initial six months period lapsed. Two days later, Wachs filed with the sheriff’s office a document entitled “A Notice Pursuant to A.R.S. § 12-1287 for Redeeming Creditor.” Attached to that notice was a copy of a certified copy of Wachs’ deed of trust and a copy of an affidavit of the amount of their lien. On Monday, August 14, 1978, the sheriff’s department received and accepted a check on behalf of Wachs in the sum of $19,513.98 for redemption of the property.

On August 16, 1978, on behalf of the law firm of Beer, Kalyna & Simón, Matcha tendered the sum of $19,508.97 to the Maricopa County sheriff’s department in an effort to redeem the property. On August 24, 1978, Beer, Kalyna & Simon executed a written Assignment of Interest in a Judgment to Matcha, and Matcha once again on that date tendered the sum of $19,508.97 to the sheriff. The Maricopa County sheriff’s department, however, refused to accept Matcha’s tenders and required from Matcha the sum of $19,508.97 together with an amount necessary to satisfy the Wachs’ lien.

Matcha initiated his complaint against Wachs, seeking a declaratory judgment and injunctive relief. The parties filed Cross-Motions for Summary Judgment and the court determined that although Wachs had fully complied with A.R.S. § 12-1284, Wachs had not complied with A.R.S. § 12-1287. Therefore, Beer, Kalyna and Simon had first priority after the foreclosing creditor. The court concluded that a deed should be issued to Matcha and that Wachs’ deed was void.

Although several issues are raised on appeal, the resolution of the following issue is determinative: did the full compliance by Wachs of the notice requirements of A.R.S. § 12-1284 within six months, together with the delivery to the sheriff of A.R.S. § 12-1287 papers within six months and five days from the date of the sheriff’s sale, serve to perfect Wachs’ redemptive rights as a senior lienholder as against the claim of Matcha, a junior lienholder?

The applicable sections of Arizona’s redemption statute provide:

§ 12-1282. Time for redemption
A. The judgment debtor or his successors in interest may redeem at any time within thirty days after the date of the sale if the court determined as part of the judgment under which the sale was made that the property was both abandoned [404]*404and not used primarily for agricultural or grazing purposes.
B. The judgment debtor or his successor in interest may redeem at any time within six months after the date of the sale except when the court has made the determinations as provided in subsection A. (Footnote 1)1
C. If the redemption ... is not made, the senior creditor having a lien, legal or equitable, upon the premises sold, or any part thereof, subsequent to the judgment under which the sale was made, may redeem within five days after expiration of the applicable period ... and each subsequent creditor having a lien in succession, according to priority of liens, within five days after the time allowed the prior lienholder, respectively, may redeem by paying the amount for which the property was sold and all liens prior to his own held by the person from whom redemption is made, ...
§ 12-1284. Notice of redemption by subsequent lienholder
To entitle a subsequent lienholder to redeem he shall, within the applicable period of redemption as provided in § 12-1282, file with the county recorder of the county in which the sale is made a notice in writing stating that he intends to redeem and specifying his lien and the amount thereof and its order of priority, and shall deliver a copy thereof to the sheriff of the county.
§ 12-1287. Delivery and service of papers by redeeming creditor
A. A redeeming creditor shall deliver to the officer or person from whom he seeks to redeem and serve with his notice to the sheriff:
1.

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Related

Matcha v. Wachs
646 P.2d 263 (Arizona Supreme Court, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
646 P.2d 287, 132 Ariz. 402, 1981 Ariz. App. LEXIS 658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matcha-v-wachs-arizctapp-1981.