Imh v. Aperion
1 CA-CV 13-0131
| Ariz. Ct. App. | Dec 27, 2016Background
- IMH loaned two amounts in 2007 to Eladio Properties, LLLP and Aperion Communities, LLLP, with Maniatis and Faucher guaranteeing; notes required interest-only payments initially and contained default provisions triggering late fees and 24% default interest.
- Trustee’s sales occurred in 2010, with lenders acquiring Eladio and Aperion properties by credit bid, leading to consolidated deficiency actions against borrowers and guarantors.
- Lenders moved for summary judgment; Darak declared defaults existed and claimed specific outstanding balances, but did not initially specify default dates or supporting calculations.
- Defendants challenged the default balances, presenting Maniatis’s declaration asserting an oral waiver of default interest and late charges; June 2009 loan statements allegedly reflected lower balances.
- The trial court granted partial summary judgment on liability but not on the default balances, scheduled a FMV hearing, and later accepted lenders’ FMV appraisals for purposes of deficiency.
- On appeal, the court vacated the deficiency judgment to the extent it was based on disputed default balances, remanding for proceedings on the balances, while deeming post-judgment collection issues moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper on the defaults | Lenders had established default by Darak declaration; defaults undisputed. | Balances and penalties disputed; waiver and calculations controvert the numbers. | Default existence affirmed; balances not entitled to summary judgment |
| Whether the default balances were properly established given an oral waiver | Waiver defense insufficient; statements showed higher balances consistent with notes. | Maniatis’s declaration and June 2009 statements show oral waiver of late fees and default interest. | Issue of waiver creates genuine dispute of material fact; balance summary judgment improper |
| Whether the court properly denied Rule 60(c) relief relating to the fair market value hearing | Relief denied appropriately; FMV hearing did not prejudice lenders. | Disclosures and time limits prejudiced defense; relief warranted. | Court did not abuse discretion; denial affirmed |
| Whether the court abused its discretion regarding disclosure misconduct under Rule 60(c)(3) | Disclosures complied; no misconduct affecting outcome. | Lenders failed to disclose post-sale offers and other data affecting FMV. | No reversible misconduct; any nondisclosure did not substantially impair preparation |
| Whether the deficiency judgment should be vacated due to erroneous balances | Balances reflect agreed terms and post-sale calculations; FMV supports deficit. | Waiver and evidence create material facts preventing entry of deficiency. | Deficiency judgment vacated and remanded for balance recalculation |
Key Cases Cited
- Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209 (App. 2012) (summary judgment burden and evidentiary sufficiency for balances)
- Norwest Bank (Minn.) v. Symington, 197 Ariz. 181 (App. 2000) (misconduct showings and interference standards in Rule 60(c)(3))
- Norwest Bank v. Symington, 197 Ariz. 181 (App. 2000) (disclosure duty and interference thresholds in discovery misconduct)
- Sitton v. Deutsche Bank Nat’l Trust Co., 233 Ariz. 215 (App. 2013) (reply evidence in summary judgment and prejudice considerations)
- Phx. Orthopaedic Surgeons, Ltd. v. Peairs, 164 Ariz. 54 (App. 1989) (oral modification of contracts and consideration principles)
- Life Investors Ins. Co. of Am. v. Horizon Resources Bethany, Ltd., 182 Ariz. 529 (App. 1995) (fair market value and measurement in deficiency judgments)