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Largent v. Bank of New York Trust Co., N.A.

Court of Appeals of Arizona, First Division

November 26, 2013

JAMES RODNEY LARGENT and BRENDA JEAN LARGENT, husband and wife, Plaintiffs/Appellants,
v.
BANK OF NEW YORK TRUST CO., N.A., a banking institution in New York; BAC HOME LOAN SERVICING, L.P. a Texas limited partnership; RECONTRUST CO., N.A., a subsidiary of Bank of America; BANK OF AMERICA, N.A., a North Carolina corporation; COUNTRYWIDE HOME LOANS, INC., a California corporation; MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC., a Delaware corporation, Defendants/Appellees.

Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure

Appeal from the Superior Court in Maricopa County No. CV2011-055823 The Honorable Michael R. McVey, Retired Judge

McCauley Law Offices, PC, Cave Creek By Daniel J McCauley, III Counsel for Plaintiffs/Appellants

Bryan Cave, LLP, Phoenix By Robert W. Shely, Rodney W. Ott Counsel for Defendants/Appellees

Chief Judge Diane M. Johnsen delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Jon W. Thompson joined.

MEMORANDUM DECISION

JOHNSEN, CHIEF JUDGE

¶1 James R. and Brenda J. Largent appeal from the superior court's dismissal of their complaint against Bank of New York Trust Co., BAC Home Loan Servicing L.P., ReconTrust Co., N.A., Bank of America, N.A., Countrywide Home Loans, Inc. and Mortgage Electronic Registration System, Inc. ("MERS") (collectively, "Appellees"). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The Largents borrowed money from Decision One Mortgage Company, L.L.C. in 2005. They gave a promissory note to Decision One and secured the loan with a deed of trust to their home. The deed of trust identified Talon Group as the trustee and named MERS as the beneficiary and "nominee for [Decision One] and [Decision One's] successors and assigns." The Largents defaulted on their loan in late 2009.

¶3 On December 1, 2009, MERS, as beneficiary, assigned the deed of trust and "all beneficial interest" under the instrument to Bank of New York. Christina Balandran, as assistant secretary of MERS, executed the assignment, which was notarized on December 4, 2009. Also on December 4, Bank of New York, as the new beneficiary, executed a substitution of trustee appointing ReconTrust as successor trustee to Talon Group. This document also was executed by Balandran, this time as the assistant secretary of Bank of New York. That same day, ReconTrust recorded a notice of trustee's sale for March 16, 2010. A notice of breach or non-performance was sent to the Largents on December 31, 2009. The trustee's sale did not take place on the noticed date, and according to public record, was canceled. [1]

¶4 The Largents filed a complaint in September 2011 raising four claims. Count one alleges Appellees violated Arizona Revised Statutes ("A.R.S.") section 33-420 (2013) by recording false documents.[2] Count two alleges Appellees breached notice requirements found in the deed of trust and applicable statutes. Count three contends the Appellees lacked standing under Arizona Rule of Civil Procedure 17(a) or otherwise were not real parties in interest under the note. Count four is a claim to quiet title under A.R.S. § 12-1101 (2013).

¶5 Appellees removed the case to federal court in October 2011 and moved to dismiss shortly thereafter. In January 2012, however, the federal court remanded the case. The parties submitted the completed briefing on the motion to dismiss to the superior court, which granted the motion.

¶6 The Largents timely appeal. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. ...


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