Julia Vasquez v. Saxon Mortgage Inc
228 Ariz. 357
| Ariz. | 2011Background
- In a bankruptcy context, Vasquez refinanced in 2005 with a note to Saxon and a deed of trust naming Saxon as beneficiary and Ticor Title as trustee.
- The note was later assigned in blank by Saxon to Deutsche Bank National Trust Company as Trustee for Saxon Asset Securities Trust 2005-3, without recording the assignment.
- A substitution of trustee was recorded in 2008, appointing Tiffany and Bosco as substituting trustee, with a notice of trustee's sale naming Deutsche Bank as current beneficiary in care of Saxon Mortgage Services.
- An assignment of the deed of trust from Saxon to Deutsche Bank occurred in 2008 and was recorded in November 2008, retroactive to August 11, 2008.
- The notice of trustee’s sale was recorded in 2008, and the underlying issue is whether recording the assignment was required prior to that notice under Arizona law.
- The Arizona Supreme Court answered the first certified question and declined to answer the second.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is recording of an assignment required before a trustee’s sale when the assignee holds a bearer note? | Vasquez contends recording is required to effect the assignment. | Saxon/Deutsche Bank argue no recording prerequisite under § 33-808 when note is bearer. | No recording requirement before notice of sale. |
| Must the beneficiary have the right to enforce the secured obligation to foreclose? | Vasquez and related parties contend the beneficiary's enforceability is central. | Defendants argue the issue is not determinative or resolved by the record. | Not determinative; court declines to answer. |
Key Cases Cited
- In re Krohn, 203 Ariz. 205 (Ariz. 2002) (deed-of-trust scheme is statutory and requires interpretation of statutes)
- Newman v. Fidelity Sav. & Loan Ass'n, 14 Ariz. 354 (Ariz. 1912) (recording priority and notice consequences of unrecorded assignments)
- Eardley v. Greenberg, 164 Ariz. 261 (Ariz. 1990) (unrecorded instruments may be binding between parties but risk against third parties)
- Buerger Bros. Supply Co. v. El Rey Furniture Co., 45 Ariz. 1 (Ariz. 1935) (recording assignments to protect against subsequent purchasers without notice)