United States District Court, D. Arizona
K. JORGENSON, UNITED STATES DISTRICT JUDGE
before the Court are the parties' Motions for Summary
Judgment (Docs. 56 and 59). The pending motions are fully
briefed and suitable for determination without oral argument.
judgment is appropriate when, viewing the evidence in the
light most favorable to the nonmoving party, ‘there is
no genuine dispute as to any material fact.'”
United States v. JP Morgan Chase Bank Account No. Ending
8215 in Name of Ladislao v. Samaniego, VL: $446, 377.36,
835 F.3d 1159, 1162 (9th Cir. 2016) (citing Fed.R.Civ.P.
56(a)). “[W]here evidence is genuinely disputed on a
particular issue - such as by conflicting testimony - that
‘issue is inappropriate for resolution on summary
judgment.'” Zetwick v. Cty. of Yolo, 850
F.3d 436, 441 (9th Cir. 2017) (citing Direct Techs., LLC
v. Elec. Arts, Inc., 836 F.3d 1059, 1067 (9th Cir.
2016)). “There is no such issue unless there is
sufficient evidence favoring the nonmoving party for a jury
to return a verdict for that party. In essence, the inquiry
is whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 243
Factual and Procedural Background
17, 2007, Plaintiff Anthony Zandonatti obtained a loan from
Countrywide Bank in the amount of $417, 000.00 for the
purchase of a home (the “Property”). Under the
terms of the loan agreement, Plaintiff agreed to make monthly
payments on the loan until August 1, 2047, when the remaining
balance of the loan would become immediately due. Plaintiff
made regular monthly payments on the loan until January 2009,
when he was sent a Notice of Intent to Accelerate (the
“January 2009 Notice”) stating that he was in
default but had a right to cure that default. Plaintiff cured
his default and continued submitting payments until May 2009.
On July 17, 2009, Defendant Bank of America again sent
Plaintiff a Notice of Intent to Accelerate (the “July
2009 Notice”) stating that he was in default, but that
he had a right to cure his default.
the January 2009 Notice, the July 2009 Notice further
If the default is not cured on or before August 16, 2009, the
mortgage payments will be accelerated with the full amount
remaining accelerated and becoming due and payable in full
and foreclosure proceedings will be initiated at that time.
As such, the failure to cure the default may result in the
foreclosure and sale of your property. If your property is
foreclosed upon, the Noteholder may pursue a deficiency
judgment against you to collect the balance of your loan if
permitted by law.
57-1, pg. 38).
the July 2009 Notice's warning that foreclosure
proceedings would be initiated and that the full amount of
the mortgage payments would become due and payable on or
before August 16, 2009 if the default was not cured, it is
undisputed that Defendant did not demand Plaintiff pay the
full amount of the mortgage payments or initiate foreclosure
proceedings. Plaintiff made no further payments on the loan
and, instead, filed for Chapter 7 bankruptcy on December 3,
2009. On June 23, 2011, Defendant sent Plaintiff another
Notice of Intent to Accelerate (the “June 2011
Notice”). Like the July 2009 Notice, the June 2011
Notice stated that if Plaintiff did not cure his default on
or before July 23, 2011 “the mortgage payments will be
accelerated with the full amount remaining accelerated and
becoming due and payable in full and foreclosure proceedings
will be initiated at that time.” (Doc. 57-1, pg. 41).
the June 2011 Notice stated that the full amount of the
mortgage payments would become due and payable on or before
July 23, 2011 if the default was not cured, Defendant did not
demand Plaintiff pay the full amount of the mortgage
payments. Defendant did, however, follow the June 2011 Notice
by recording a Notice of Trustee Sale on August 25, 2011. In
November 2011, Plaintiff initiated a lawsuit and recorded a
Notice of Lis Pendens to halt the foreclosure process.
Plaintiff later voluntarily dismissed this lawsuit due to his
incarceration. What followed were multiple instances of
Plaintiff's attempts to stall the foreclosure process and
the initiation of another lawsuit in February 2013. After
that lawsuit and a subsequent appeal were dismissed,
Defendant filed a Notice of Trustee Sale on March 15, 2017.
To stop that sale, Plaintiff filed the pending lawsuit and
sought a Temporary Restraining Order (“TRO”) in
Pima County Superior Court. That TRO was granted on June 19,
2017. On June 30, 2017, Defendant removed the lawsuit to this
Court and this Court granted Plaintiff's preliminary
injunction staying Defendant's Trustee Sale upon
adjudication of the pending lawsuit.
argues that the July 2009 Notice accelerated the debt and
that since Defendant “failed to take sufficient
enforcement action within six years of the acceleration,
” Defendant is time-barred from initiating a
foreclosure action on the Property. (Doc. 59, pg. 1). If, as
Plaintiff alleges, Defendant accelerated the debt in July
2009, the statute of limitations would operate to prohibit
Defendant from initiating foreclosure proceedings due to the
lapse of the six-year statute of limitations. See Andra R
Miller Designs LLC v. U.S. Bank NA, 244 Ariz. 265, 270
(Ariz.Ct.App. 2018), review denied (July 3, 2018)
(“When a creditor has the power to accelerate a debt,
the six-year statute of limitations begins to run on the date
the creditor exercises that power”).
alleges that the July 2009 Notice was not an acceleration of
the debt and that even if it was, that acceleration was later
revoked by the June 2011 Notice. Alternatively, Defendant
further alleges that equitable estoppel prevents Plaintiff
from asserting that the statute of limitations has run.
Defendant argues that Plaintiff's actions in delaying and
preventing Defendant from initiating a foreclosure sale
should cause any applicable statute of limitations to be