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Federal National Mortgage Association v. Salcido

Court of Appeals of Arizona, First Division, Department B

October 8, 2013

FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff/Appellee,
v.
GABRIEL SALCIDO, Defendant/Appellant.

Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure

Appeal from the Superior Court in Maricopa County Cause No. CV2011-008007 The Honorable Benjamin E. Vatz, Judge Pro Tempore

Tiffany and Bosco By Leonard J. McDonald, Jr. and David Cowles Phoenix Attorneys for Plaintiff/Appellee

Rhoads & Associates By Douglas C. Rhoads Phoenix Attorneys for Defendant/Appellant

MEMORANDUM DECISION

DIANE M. JOHNSEN, Chief Judge

¶1 Gabriel Salcido appeals from the superior court's denial of his motion to set aside a judgment in favor of Federal National Mortgage Association ("FNMA") on its forcible detainer claim. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 FNMA filed a forcible detainer complaint alleging Salcido was occupying and refusing to surrender real property that FNMA had purchased at a trustee's sale.[1] Attached to the verified complaint was a copy of a trustee's deed issued to FNMA. FNMA attempted to personally serve Salcido on three occasions. After those attempts were unsuccessful, the superior court authorized FNMA to serve Salcido by mail and by posting the summons and complaint on the premises. See Arizona Rules of Procedure for Eviction Actions ("RPEA") 5(f); Ariz. R. Civ. P. 4.1(m). FNMA did so on May 3, 2011.

¶3 Salcido failed to respond to the complaint, and, after a proceeding on May 25, 2011, at which Salcido did not appear, the court entered judgment in favor of FNMA. According to the judgment, the court ruled after receiving unspecified evidence. The court subsequently issued a writ of restitution. Nearly 11 months later, Salcido filed an "Emergency Motion to Quash the Writ of Restitution, " which effectively asked the court to set aside the judgment. The superior court denied the motion.

¶4 Salcido timely appealed the order denying his motion to set aside the judgment. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(2) (2013).[2], [3]

DISCUSSION

¶5 Pursuant to RPEA 15, a party may move to set aside a forcible detainer judgment on grounds that include lack of jurisdiction, improper notice or service, and fraud. See RPEA 15(a)(1), (3), (10). We review the superior court's denial of a motion to set aside a judgment for an abuse of discretion. Blair v. Burgener, 226 Ariz. 213, 216, ¶ 7, 245 P.3d 898, 901 (App. 2010).

¶6 Salcido first argues the superior court erred in denying his motion to set aside the judgment because the court lacked jurisdiction to enter the judgment. As best as we can understand his argument, he contends he was not properly served with the complaint and that that failure of service deprived the court of personal and/or subject matter jurisdiction. Salcido, however, offers no facts or substantive argument to support his contention that he was not properly served, and in any event, insufficient service of process does not deprive a court of subject matter jurisdiction. See Snow v. Steele, 121 Ariz. 82, 83-85, 588 P.2d 824, 825-26 (1978) (party may waive argument that it was improperly served).

¶7 Salcido also contends the superior court erred in denying his motion because FNMA fraudulently misrepresented itself as the real party with standing to bring an action for possession. See RPEA 15(a)(10). A complaint in a forcible detainer action must "[b]e brought in the legal name of the party claiming entitlement to possession of the property." RPEA 5(b)(1). The complaint in this case attached a copy of a trustee's deed issued to FNMA, but Salcido argues the deed is invalid, purportedly because of some ...


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