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Kester v. CitiMortgage Inc.

United States District Court, D. Arizona

September 24, 2019

David A Kester, Plaintiff,
v.
CitiMortgage Incorporated, et al., Defendants.

          ORDER

          Douglas L. Rayes, United States District Judge.

         At issue is a motion for summary judgment filed on behalf of Defendants CitiMortgage Incorporated (“Citi”) and CR Title Services Incorporated (“CR”), [1] which is fully briefed. (Docs. 103, 122, 124.) For the following reasons, Defendants’ motion is granted.[2]

         I. Background[3]

         Plaintiff David Kester owned real property in Chandler, Arizona. Citi was the beneficiary of a deed of trust securing repayment of Kester’s home loan, and CR was the trustee under that deed of trust.

         On December 16, 2010, Citi executed two documents related to Kester’s property: (1) an Assignment of Deed of Trust (“Assignment”), which purported to transfer all beneficial interest in the deed of trust from Citi’s predecessor in interest to Citi, and (2) a Substitution of Trustee (“Substitution”), which substituted CR as the trustee under the deed of trust. Both documents were notarized by Kristin Lindner on December 16, 2010, and publicly recorded the following day.

         Linder’s notary commission, however, had been revoked by the Arizona Secretary of State’s Office (“Secretary”) on December 6, 2010-ten days before Lindner notarized the documents and eleven days before they were recorded. The revocation stemmed from a complaint submitted to the Secretary in August 2010, which raised concerns about Lindner’s notarization of documents related to the complainant’s mortgage. The Arizona Attorney General’s Office (“AG”) informed Lindner on September 29, 2010, that a complaint had been filed against her, and Lindner advised Citi of the complaint around this same time.

         On December 6, 2010, after receiving Lindner’s written response to the complaint and some requested documentation, the Secretary mailed a letter to Lindner stating that her notary commission had been revoked and that she had thirty days in which to file a written notice of appeal. Copies of the letter were not sent to Defendants, and on January 14, 2011, the letter that was sent to Lindner was returned to the Secretary marked “UNCLAIMED – UNABLE TO FORWARD.” That same day, the Secretary sent a new letter to Lindner’s business address. This new letter stated that the Secretary had decided to revoke Lindner’s notary commission effective immediately, and that Lindner had thirty days in which to file a written notice of appeal. This letter was delivered and received on January 18, 2011.

         Kester filed this action in early 2015. The operative complaint accuses Defendants of violating A.R.S. § 33-420(A), which states:

A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting such a claim to be recorded in the office of the county recorder, knowing or having reason to know that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid is liable to the owner or beneficial title holder of the real property for the sum of not less than five thousand dollars, or for treble the actual damages caused by the recording, whichever is greater, and reasonable attorney fees and costs of the action.

         Kester claims that the documents Citi executed on December 16, 2010, were invalid because they were not properly notarized, and that Defendants violated § 33-420(A) by recording them the next day.

         II. Legal Standard

         Summary judgment is appropriate when there is no genuine dispute as to any material fact and, viewing those facts in a light most favorable to the nonmoving party, the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A fact is material if it might affect the outcome of the case, and a dispute is genuine if a reasonable jury could find for the nonmoving party based on the competing evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). Summary judgment may also be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The burden then shifts to the non-movant to establish the existence of a genuine and material factual dispute. Id. at 324. The non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts, ” and instead “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal quotation and citation omitted).

         III. ...


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