Court of Appeals of Arizona, First Division, Department A
U.S. BANK NATIONAL ASSOCIATION, as Trustee for CSMC Mortgage-Backed Pass-Through Certificates Series 2006-2, Plaintiff/Appellee,
DEB BADER and MARCUS SILVING, Defendants/Appellants.
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court of Maricopa County Cause No. CV2011-003777 The Honorable Michael L. Barth, Commissioner
Henman Law Firm, P.C. Phoenix By G. Lee Henman, Jr. Attorneys for Defendants/Appellants.
Tiffany & Bosco, P.A. Phoenix By Leonard J. McDonald, Jr. And David W. Cowles Attorneys for Plaintiff/Appellee
JON W. THOMPSON, Presiding Judge.
¶1 Deb Bader and Marcus Silving (defendants) appeal the trial court's denial of their motion for relief from judgment pursuant to Arizona Rule of Civil Procedure 60(c). For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 The appellee, U.S. Bank National Association (U.S. Bank), purchased defendants' house in a trustee's sale. In February 2011, U.S. Bank gave defendants written notice demanding possession of the property. Defendants refused to vacate the property, and U.S. Bank filed a complaint in superior court against defendants for forcible detainer. The court set a forcible detainer hearing in March 2011, but the hearing was continued because U.S. Bank had been unable to serve defendants. After attempting to personally serve defendants three times in February 2011 at the property, which appeared to be occupied with persons present inside, U.S. Bank filed a motion for approval of alternative service pursuant to Arizona Rule of Civil Procedure 4.1(m). The trial court granted the motion. U.S. Bank made one more attempt at personal service and then used the alternative "nail and mail" method of service at the property on May 10, 2011.
¶3 Meanwhile, in March 2011, defendants filed a complaint against U.S. Bank and others (federal court defendants) in a separate case in superior court alleging that their home was subject to wrongful foreclosure. That case was removed to federal court. The federal district court issued a temporary restraining order enjoining the eviction proceeding on May 17, 2011. The temporary restraining order remained in effect until the district court granted the federal court defendants' motion to dismiss on January 18, 2012. Defendants Silving and Bader appealed to the Ninth Circuit Court of Appeals and filed an application to stay the eviction proceedings; the district court denied the application for stay.
¶4 In this matter, hearings scheduled in March, April, and May 2011 were continued at U.S. Bank's request. Hearings scheduled in July, August, September, and November 2011 were also continued at U.S. Bank's request. Neither defendants nor any attorney for defendants appeared at any of the scheduled hearings. Defendants failed to appear for forcible detainer hearings on January 11, 2012 and February 8, 2012, and the court again issued continuances. The court finally held a forcible detainer hearing on February 23, 2012. Defendants again did not appear, and the trial court entered a forcible detainer judgment against defendants in February 2012.
¶5 In April 2012, defendants filed a motion to set aside the judgment pursuant to Rule 60(c) on the basis of excusable neglect. They argued that they did not know that U.S. Bank was moving forward with the eviction, and that they had never received notice of the continued hearing dates. The trial court denied the motion to set aside the judgment, finding that defendants "failed to present sufficient legal and factual basis for the relief requested." Defendants timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) § 12-2101(A)(2) (Supp. 2012) .
¶6 Defendants argue that the trial court abused its discretion in denying their Rule 60(c) motion for relief from judgment. Rule 60(c) provides, in relevant part:
On motion and upon such terms as are just the court may relieve a party or a party's legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, ...