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Bank of New York Mellon v. Dodev

Court of Appeals of Arizona, First Division

November 20, 2018

THE BANK OF NEW YORK MELLON, Plaintiff/Appellee,
v.
IVAYLO DODEV, Defendant/Appellant.

          Appeal from the Superior Court in Maricopa County No. CV2017-009322 The Honorable David W. Garbarino, Judge Pro Tempore The Honorable Michael L. Barth, Judge Pro Tempore

          McCarthy & Holthus LLP, Scottsdale By Ross Matthew Mumme, Melissa Robbins Coutts Counsel for Plaintiff/Appellee

          Ivaylo Dodev, Gilbert Defendant/Appellant Pro Se

          Judge Paul J. McMurdie delivered the opinion of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.

          OPINION

          McMURDIE, JUDGE:

         ¶1 Ivaylo Dodev appeals from a judgment finding him guilty of forcible detainer. We affirm the judgment and hold: (1) the pendency of Dodev's appeal from a previous dismissal without prejudice did not divest the superior court from jurisdiction to consider the current action; (2) Arizona Rule of Civil Procedure ("Civil Rule") 41 is not incorporated into the Arizona Rules of Procedure for Eviction Actions ("Eviction Rule"), therefore, the court did not err by refusing to dismiss the current action based on two prior voluntary dismissals; (3) the superior court properly allowed alternative service based on sufficient evidence of impracticability; (4) the superior court did not err by ordering Dodev to file an answer after determining it had personal jurisdiction; and (5) Arizona Revised Statutes ("A.R.S.") section 12-1178 allows for the awarding of attorney's fees in a forcible detainer action in a trial court, but A.R.S. § 12-1182 does not provide for attorney's fees on appeal.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 This case has a lengthy history, spanning many courts, [1] cases, and years. This history provides the context for the issues raised and why an eviction proceeding-which statutorily must be resolved within two weeks - has taken years to reach its final non-discretionary review. As of the filing of this appeal, Dodev continued to occupy the Gilbert residence at issue (the "Property"), which he originally acquired in 2004. Dodev defaulted on his home loan in November 2008 but has since succeeded in remaining on the Property by filing numerous legal actions that delayed the foreclosure and subsequent trustee's sale. This appeal is Dodev's most recent attempt to retain possession of the Property.

         ¶3 In February 2016, the Bank of New York Mellon (the "Bank") acquired the Property through a trustee's sale. The Bank served Dodev written notice to vacate the premises. When Dodev failed to do so, the Bank pursued forcible detainer (or "eviction") actions pursuant to A.R.S. § 12-1173.01.

         The March and August 2016 Actions

         ¶4 The Bank filed the first eviction action (the "March 2016" action) in superior court in March 2016, naming both Dodev and his wife as defendants. After the Dodevs failed to appear for the trial, the court entered a default judgment against them. The Dodevs moved to set aside the judgment, claiming they were out of town and had not been properly served. The court granted the motion. The Dodevs then filed numerous motions, including, but not limited to, motions to dismiss for lack of subject matter jurisdiction and for insufficient service. Eventually, the court scheduled the matter for trial and ordered the Dodevs to file an answer.

         ¶5 When the Dodevs failed to answer, the Bank again moved for a default judgment. The court denied the Bank's motion, stating "Defendants assert that they filed the Motion to Dismiss in lieu of an Answer to the Complaint. It appears, therefore, that Defendants may have misunderstood the Court's Order setting filing deadlines." The court extended the Dodevs' deadline to file an answer. On the eve of trial, rather than filing an answer, the Dodevs filed a notice of removal to federal court.

         ¶6 Eventually, the district court remanded the case for lack of jurisdiction and the superior court rescheduled the trial. The Dodevs again moved to dismiss raising jurisdictional challenges. Dodev's wife additionally argued that she was not properly served because while Dodev was personally served at the Property, the process server only provided one copy of the summons and complaint and did not ask if she was present or lived on the premises. By the scheduled trial date, Dodev and his wife had not answered. The court granted Dodev's wife's motion to dismiss but refused to dismiss the action against Dodev. The trial was continued because Dodev asserted he was not required to file an answer until after the court ruled on his jurisdictional motion. The trial was rescheduled with a new deadline to file an answer.

         ¶7 The Bank filed a new eviction action in superior court (the "August 2016" action), naming only Dodev's wife as a defendant. On the day set for trial, Dodev filed an "Emergency Motion to Stay All Proceedings Pending Filing a Petition for a Writ of Certiorari." The court continued the trial and scheduled oral argument on the stay motion. Before the argument, the Bank requested the March 2016 and August 2016 actions be voluntarily dismissed. The cases were dismissed without prejudice.

         The January 2017 Action

         ¶8 In January 2017, the Bank refiled the eviction action (the "January 2017" action) against Dodev. The Bank served Dodev via "post and mail." See Ariz. R.P. Evic. Act. 5(f), 18(h). Dodev moved to dismiss, asserting the superior court lacked both personal and subject matter jurisdiction. Dodev argued the court improperly ordered the alternative service because the Bank failed to establish "impracticability." Dodev also argued the Bank's voluntary dismissals in the March and August 2016 actions precluded it from refiling a third eviction action under Civil Rule 41(a)(1)(B). The court granted Dodev's motion to dismiss based on insufficient process, ruling the Bank failed to show impracticability. Regarding Dodev's motion to dismiss based on Civil Rule 41, the court found that the remaining grounds offered in support of Dodev's motion to be "without sufficient factual and/or legal basis for the relief requested." Although the court granted Dodev's motion to dismiss, Dodev appealed the dismissal order.

         The Instant Case

         ¶9 The Bank refiled the dismissed claims from the January 2017 action. The Bank-again unable to effectuate personal service-moved for alternative service and filed an affidavit of non-service, stating the process server knocked on Dodev's door on five separate occasions on different days without result. The court granted the Bank's motion, and an affidavit of service was filed showing process was completed by alternative means. Dodev appeared by special appearance for the initial hearing. He made several personal and subject matter jurisdiction arguments.

         ¶10 First, Dodev argued that he had not been personally served, and the Bank's affidavit of non-service did not "establish that there was some kind of impediment." Thus, he asserted, the order granting alternative service was not appropriate and the court lacked personal jurisdiction over him. Dodev also argued the Bank's motion for alternative service conflicted with the process server's affidavit. The motion for alternative service stated the Property's "no trespassing" signs made it impracticable to personally serve Dodev. Yet the affidavit of non-service indicated that the front door was reached. After hearing from both parties, the court found that the "disagreement as to the minor details as to what happened when the process server came out [to the Property] the first five times" was "[not] material as to whether or not [] service was actually effectuated in the case." The court denied Dodev's oral motion to dismiss, ruling "service was effectuated," and the court had jurisdiction.

         ¶11 Next, referring to the January 2017 action, Dodev argued that the "court [was] divested from jurisdiction" because the case was pending on appeal in the Arizona Supreme Court. The court denied the motion to dismiss on that basis because an appeal is "not pending if [it was] dismissed without prejudice."

         ¶12 Finally, Dodev refused to enter a plea during the hearing, asserting he should have the time to move for reconsideration regarding service. The court explained statutory evictions are quick proceedings, Dodev had properly made a record, and he could appeal an adverse decision after a final judgment. The court warned Dodev of the consequences of not filing an answer. The court ordered Dodev to file his answer by the following day; gave the parties a date to file any dispositive motions; and scheduled the matter for trial. Dodev orally responded by asking when he could have the minute entry because he could not answer until he could see how it was structured, as he intended to appeal the ruling. The court reiterated its rulings and again warned Dodev of the consequences of failing to file an answer. Ignoring the court's warning, Dodev opted to file a written motion to dismiss for lack of jurisdiction rather than file an answer. The motion was effectively a motion for reconsideration as the arguments had been previously raised and rejected by the court. When no answer was filed, the Bank moved for judgment on the pleadings.

         ¶13 At the time set for trial, Dodev again presented the court with a notice of removal to federal court. The superior court proceedings were stayed until the district court remanded the case. The superior court held a status hearing on the complaint after the remand. At the status hearing, Dodev appeared by special appearance and the Bank pressed the court to hold the trial that day to avoid additional delays from Dodev. Dodev stated that he could not proceed because he was "under medication," and "not sure [he could] say anything that would lead to a legal conclusion." Dodev re-argued that the court did not have sufficient evidence to order alternative service because of the conflicting statements in the record. Because of the "confusion [in] the record," the court scheduled a hearing for the process server to testify on the same day as the trial. Dodev challenged the court's decision to hold trial on the same day because he was "pretty sure [he would] need more time to prepare for trial if the court determine[d] [that it had jurisdiction]." The court again warned Dodev of the consequences of not filing an answer.

         ¶14 Nevertheless, Dodev did not file an answer. After hearing testimony from the process server, the court reaffirmed that service was properly effectuated and entered a default judgment. Dodev timely appealed, posted the proper bonds, and still resides on the ...


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