NOT FOR PUBLICATION

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

MEMORANDUM DECISION

SWANN, Judge.

¶1 This appeal requires us to decide whether a debtor and a guarantor were entitled to a hearing on the fair market value of trust property sold after the entry of a stipulated judgment in favor of the lender. We affirm the superior court's denial of a hearing. We conclude that the fair-market-value provisions of A.R.S. § 33-814 do not apply, and that to the extent a fair-market-value hearing may have been available under A.R.S. § 12-1566, the debtor and guarantor did not timely request a hearing.

FACTS AND PROCEDURAL HISTORY

¶2 Jiffy, L.L.C., executed a promissory note in favor of SunBank, N.A. The note was secured by a deed of trust on commercial real property in Sun City, Arizona (the "Property"), and Jiffy's payment obligations were guaranteed by Brian D. O'Connor. When Jiffy defaulted on the note and O'Connor failed to honor the guarantee, SunBank commenced an action for breach of contract against both parties. SunBank also successfully applied for the appointment of a receiver with respect to the Property, and recorded a notice of trustee's sale.

¶3 Before the trustee's sale took place, the parties entered into a settlement agreement, and the trustee's sale and the breach of contract action were continued. Thereafter, however, Jiffy and O'Connor failed to pay the amount due under the settlement agreement. Accordingly, the parties submitted a stipulated judgment to the court. The stipulated judgment provided that Jiffy and O'Connor were jointly and severally liable for over $646,000 plus pre-judgment interest, late charges, receiver's fees and costs, and attorney's fees and costs. The stipulated judgment further provided: "[A]ny cash recovery made by [SunBank] pursuant to the Trustee's Sale shall be applied first to payment of the Receiver's approved fees and expenses incurred, and then to any aspect of this Judgment as determined by [SunBank] in its sole discretion."

¶4 The court entered the stipulated judgment in June 2012. On August 10, 2012, the Property was sold at a trustee's sale to a third party for approximately $489,000. Several days later, SunBank filed a motion to continue the case on the inactive calendar, noting the occurrence of the trustee's sale and stating its intent to "proceed with post-judgment collection and enforcement remedies." The motion was e-mailed to defense counsel and a copy of the recorded trustee's deed was e-mailed to O'Connor. According to counsel, however, counsel did not receive actual notice of the trustee's sale until, at the earliest, September 14. SunBank thereafter conducted a judgment debtor's examination of O'Connor and filed applications for writs of garnishment on O'Connor's interests in various entities.

¶5 On November 26, Jiffy and O'Connor filed an application for a hearing on the Property's fair market value under A.R.S. § 12-1566. SunBank objected, arguing that the application was untimely under that statute. After holding oral argument, the court denied the application. The court also denied Jiffy and O'Connor's motion for reconsideration.

¶6 On December 21, Jiffy and O'Connor filed an application for a hearing on the Property's fair market value under a different statute, A.R.S. § 33-814. SunBank objected, arguing that the issue was governed by § 12-1566, not § 33-814, and that the application was untimely under § 12-1566. After holding oral argument, the court denied the application, finding that "there was notice and that the time expired under A.R.S. § 12-1566(C)." Jiffy and O'Connor moved for reconsideration and the court again held oral argument. The court then denied the motion for reconsideration in an appealable order.

DISCUSSION

¶7 Jiffy and O'Connor contend that their request for a fair-market-value hearing was governed by A.R.S. § 33-814 and that the request was timely under that statute. They alternatively contend that the trustee's sale proceeds satisfied the judgment in full because SunBank untimely sought recovery under § 33-814. We review de novo the superior court's interpretation and application of statutes. Schwarz v. City of Glendale, 190 Ariz. 508, 510, 950 P.2d 167, 169 (App. 1997). We conclude that the superior court correctly denied a fair-market-value hearing.

¶8 Section 33-814 governs deficiency actions. A deficiency action allows a lender to obtain a deficiency judgment "after the date of sale of trust property under a trust deed" for the difference between the total amount owed "as of the date of the sale" and the greater of the sale price or the property's fair market value "on the date of the sale." A.R.S. § 33-814(A). The case before us involves a post-stipulated-judgment trustee's sale — not a post-sale deficiency action. Section 33-814 simply does not apply. See Citibank (Arizona) v. Bhandhusavee, 188 Ariz. 434, 937 P.2d 356 (App. 1996) ("Citibank enforced the 1990 judgment by trustee's sale of the property, as the terms of the settlement agreement allowed it to do, and then credited the net proceeds of the sale against the outstanding indebtedness, as the terms of the settlement agreement required. Its current attempt to further satisfy the 1990 judgment by garnishment is a continuing enforcement action on the original judgment to recover the balance remaining, not a new action for a `deficiency judgment.'"). Jiffy and O'Connor were not entitled to a fair-market-value hearing under § 33-814, and the statute did not bar SunBank from continuing to pursue collection on the judgment after the trustee's sale.

¶9 We need not decide whether Jiffy and O'Connor were entitled to request a fair-market-value hearing under A.R.S. § 12-1566, or whether they would have been so entitled but for the terms of the stipulated judgment. As an initial matter, Jiffy and O'Connor no longer contend that § 12-1566 applies. Moreover, that statute requires that a request for a fair-market-value hearing be filed "not later than thirty days after sale of the real property." A.R.S. § 12-1566(C). Jiffy and O'Connor first applied for a fair-market-value hearing more than three months after the trustee's sale and more than two months after they allege counsel received actual notice of the sale. Even if the protections set forth in § 12-1566 were available to Jiffy and O'Connor, they were waived.

CONCLUSION

¶10 We affirm for the reasons set forth above. We grant SunBank's request for reasonable attorney's fees and costs under the parties' contracts and A.R.S. §§ 12-341 and -341.01(A), pending compliance with ARCAP 21.