United States District Court, D. Arizona
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notary commission, however, had been revoked by the Arizona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notary commission had been revoked and that she had thirty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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