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Arizona Federal Credit Union v. Coleman

Court of Appeals of Arizona, First Division

November 19, 2013

ARIZONA FEDERAL CREDIT UNION, a federally chartered credit union, Plaintiff/Appellee,
v.
LA SHAUNA COLEMAN, an individual, Defendant/Appellant.

Not for Publication See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24

Appeal from the Superior Court in Maricopa County No. CV2011-096840 The Honorable Mark F. Aceto, Judge.

Mark A. Kirkorsky, PC, Tempe By Mark A. Kirkorsky Counsel for Plaintiff/Appellee

La Shauna Coleman, Gilbert Defendant/Appellant In Propria Persona

Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Maurice Portley and Judge John C. Gemmill joined.

MEMORANDUM DECISION

CATTANI, Judge

¶1 La Shauna Coleman appeals from entry of summary judgment in favor of Arizona Federal Credit Union ("Lender"). For reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In August 2003, Coleman obtained title to real property in Phoenix by a gift quitclaim deed. In November 2005, she used the property as collateral for a loan, and in May 2006, she again used the property as collateral, this time for a home equity line of credit from Lender. Coleman executed deeds of trust in favor of both creditors, with the 2005 loan holding senior position. Over the next several years, Coleman used the line of credit for cash advances.

¶3 In September 2009, after Coleman had defaulted on both loans, a successor to the first position lender exercised its rights under its deed of trust to initiate a trustee's sale of the property. The property was sold at the trustee's sale in December 2009.

¶4 Lender subsequently filed a complaint against Coleman for breach of contract for failing to make timely payments against the outstanding balance owed on the line of credit. After Coleman answered the complaint, Lender moved for summary judgment. Lender argued that summary judgment was appropriate because (1) Coleman did not deny the validity of the contract and her breach thereof and (2) the loan is not subject to Arizona's anti-deficiency provisions. Coleman moved to dismiss, arguing that Lender's complaint failed to state a claim. Alternatively, Coleman requested summary judgment in her favor on the basis that Lender's complaint was barred by estoppel and laches because Lender failed to object to the amount of the trustee's sale and failed to assert its rights as a junior lien holder under the deed of trust.

¶5 After reviewing the pleadings and the supporting record, the superior court granted summary judgment in favor of Lender, denied Coleman's motions to dismiss and for summary judgment, and awarded Lender its reasonable attorney's fees and costs.

¶6 Coleman timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections ...


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