Maria Carmen Zubia, individually, and in her capacity as trustee on behalf of The Maria C. Pena Revocable Living Trust, Plaintiff/Appellant,
David Shapiro, individually, and as the Trustee of the Shapiro Trust Dated February 14, 2006; Ilana Shapiro a/k/a Illana Shapiro, individually, and as trustee of the Shapiro Trust Dated February 14, 2006, Defendants/Appellees.
from the Superior Court in Maricopa County The Honorable
Robert H. Oberbillig, Judge No. CV2015-002563
Decision of the Court of Appeals Division One 1 CA-CV 15-0404
Filed Sept. 29, 2016
A. Kinney (argued), Law Offices of Kyle A. Kinney, PLLC,
Scottsdale, Attorney for Maria Carmen Zubia
Patrick J. Davis, Nathaniel B. Rose (argued), Fidelity
National Law Group, Phoenix, Attorneys for David and Ilana
a/k/a Illana Shapiro
JUSTICE BRUTINEL authored the opinion of the Court, in which
CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and
JUSTICES TIMMER, BOLICK, GOULD, and LOPEZ joined.
The issue in this case is whether a homeowner's failure
to obtain injunctive relief under A.R.S. § 33-811(C)
results in the waiver of her damages claim arising from a
trustee's sale, where the homeowner alleges that her name
was forged on the promissory note and deed of trust. We hold
that failing to obtain an injunction before the trustee's
sale results in the waiver of damage claims dependent on the
validity of the sale.
Maria Zubia and her husband, Jose Pena, acquired title to a
single-family residence (the "Property") as joint
tenants in 1995. Zubia and Pena separated in 2006. In 2008,
Pena executed a $150, 000 Promissory Note (the
"Note") in favor of David Shapiro, Ilana Shapiro,
and the Shapiro Trust (collectively "Shapiro") and
Advanced Capital Group, LLC ("Advanced"). To secure
the loan, Pena simultaneously executed a Deed of Trust
("DOT") on the Property. The Note and DOT list
Shapiro and Advanced as the Lender and Land America Lawyers
Title as the Trustee.
Both the Note and DOT purport to be signed by Pena and Zubia.
The DOT was recorded on January 13, 2009. Zubia contends that
her signatures on the Note and DOT were forged and that she
first learned of the loan and DOT in December 2013, when she
tried to borrow against the Property.
The loan went into default in 2013. In August 2013, Advanced
assigned its interest in the Property to Shapiro.
Subsequently, Shapiro substituted Empire West Title Agency,
LLC ("Empire"), as the trustee of the DOT. Empire
then recorded a notice of trustee's sale stating that the
Property was to be sold at public auction in February 2014.
In January 2014, Pena quitclaimed his joint tenancy interest
in the Property to Zubia, who recorded the quitclaim deed on
February 10. Shortly thereafter, Zubia filed a separate
action against Pena, Shapiro, Advanced, Empire, and others,
asserting that her signatures on the Note and DOT were
forged. Representing herself, Zubia sought to quiet title to
the Property but did not seek to enjoin the trustee's
sale. Her complaint was dismissed without prejudice for lack
In January 2015, after Zubia's action was dismissed,
Empire conducted a trustee's sale and Shapiro purchased
the Property on a credit bid and recorded a trustee's
After the sale, Zubia filed this action against Pena,
Shapiro, Advanced, and others, reasserting her forgery
allegations. She sought damages under A.R.S. § 33-420(A)
and to quiet title to the Property in her name. As relevant
here, Zubia alleged that because the Note and DOT were
forged, "Shapiro never obtained a security interest in
the property as the basis for a non-judicial foreclosure
sale, " and thus the trustee's deed resulting from
the sale was invalidly recorded. Zubia also added a
"wrongful foreclosure" claim, asked the trial court
to declare the January 2015 sale invalid, and sought to
enjoin any future trustee's sales. Shapiro moved to
dismiss, arguing Zubia had waived any claim to title of the
Property and all defenses and objections to the sale pursuant
to A.R.S. § 33-811(C).
The trial court dismissed Zubia's complaint under Arizona
Rule of Civil Procedure 12(b)(6), ruling that under §
33-811(C), she had waived her claims by not obtaining
injunctive relief before the January 2015 sale. The court