BAC HOME LOANS v. SEMPER INVESTMENTS LLC, 2 CA-CV 2011-0129. (2012)
Court: Court of Appeals of Arizona
Number: inazco20120326000
Visitors: 4
Filed: Mar. 22, 2012
Latest Update: Mar. 22, 2012
Summary: FootNotes 1. Although Semper's briefs refer to the appellee under the name of its predecessor Mortgage Electronic Registration Systems, Inc. (MERS), we identify the appellee and its predecessors in interest as "BAC," the party awarded judgment below. The record reflects some confusion as to the proper parties to this lawsuit. MERS's motion to substitute "BAC Home Loans" as party plaintiff was granted and, after the trial court granted summary judgment in favor of BAC Home Loans, the party pla
Summary: FootNotes 1. Although Semper's briefs refer to the appellee under the name of its predecessor Mortgage Electronic Registration Systems, Inc. (MERS), we identify the appellee and its predecessors in interest as "BAC," the party awarded judgment below. The record reflects some confusion as to the proper parties to this lawsuit. MERS's motion to substitute "BAC Home Loans" as party plaintiff was granted and, after the trial court granted summary judgment in favor of BAC Home Loans, the party plai..
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FootNotes
1. Although Semper's briefs refer to the appellee under the name of its predecessor Mortgage Electronic Registration Systems, Inc. (MERS), we identify the appellee and its predecessors in interest as "BAC," the party awarded judgment below. The record reflects some confusion as to the proper parties to this lawsuit. MERS's motion to substitute "BAC Home Loans" as party plaintiff was granted and, after the trial court granted summary judgment in favor of BAC Home Loans, the party plaintiff was corrected to reflect "BAC Home Loans Servicing, LP." See Ariz. R. Civ. P. 17(a), 25(d). On appeal, we denied Semper's motion to substitute Curia L.L.C., assignee of Semper's interest in the subject property, as party appellant in its place, see Ariz. R. Civ.App. P. 27(b), and Semper's motion to stay this appeal and revest jurisdiction in the trial court to modify the judgment to substitute Bank of New York Mellon as creditor in place of MERS, see Ariz. R. Civ. P. 60(c).
2. In September 2006, First Magnus electronically transferred its interest in the 2006 note and deed of trust to BAC Home Loans Servicing L.P., formerly known as Countrywide Home Loans. On October 1, 2009, BAC Home Loans, a member of MERS, assigned its interest in the 2006 deed to BAC Home Loans Servicing, L.P. Semper initially argued that MERS and related entities were not beneficiaries of the note and lacked standing to pursue this claim, but did not renew that argument in its amended opening brief; therefore, we do not address the issue on appeal.
3. The parties stipulated to mutual preliminary injunctions against their respective trustees' sales, and BAC withdrew Count One, Invalid Deed of Trust, leaving only the issue of equitable subrogation on appeal. See Harris v. Cochise Health Sys., 215 Ariz. 344, ¶ 8, 160 P.3d 223, 226 (App.2007) (appellate jurisdiction limited to final judgments disposing of all claims and parties).
4. We lack jurisdiction to consider Semper's appeal from the unsigned May 31, 2011, minute entry denying a new trial and do not address that ruling. See Hall Family Props., Ltd. v. Gosnell Dev. Corp., 185 Ariz. 382, 387, 916 P.2d 1098, 1103 (App.1995).
5. Semper cites no authority for the proposition that imposition of increased late penalties in a subrogating loan prejudices intervening lienholders. See Ariz. R. Civ.App. P. 13(a)(6). And, because Semper did not raise this argument below, it is waived in any event. Airfreight Express Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, ¶ 17, 158 P.3d 232, 238-39 (App.2007).
6. BAC asserts Semper's disparate-interest-rate argument was "little more than an afterthought during the summary judgment proceedings." Although the judgment lacks reference to Semper's interest-rate comparison, and we do not have the benefit of reviewing the hearing transcript, Semper did include the theory in its summary judgment pleadings which were considered by the trial court. Cf. A Tumbling-T Ranches v. Flood Control Dist. of Maricopa Cnty., 222 Ariz. 515, ¶ 24, 217 P.3d 1220, 1232 (App.2009) (inference some evidence presented where implied in finding by trier of fact).
7. In its opening brief, Semper asked this court to take judicial notice of published interest rates to extrapolate the current rates of the subrogated loans and determine it was prejudiced by subrogation of the higher-interest rate BAC loan. During oral argument, however, Semper acknowledged that when D'Esprit made its revolving loan agreement with Russo, it assumed the risk that the variable rates on the original loans might increase up to 19.9 percent and twenty-one percent. Semper nevertheless argues prejudice should be evaluated by comparing the BAC loan rate to theoretical interest rates that would have applied to the original loans when Russo defaulted in 2008. The appropriate rates, however, are the historical ones in November 2005 when D'Esprit entered into its agreement with Russo. At that time, the first and second mortgages would have reflected rates around 6.75 percent and 6.8 percent, respectively. Therefore, at the time D'Esprit made the loan, it was aware it took its interest behind two loans with those variable rates and it accepted the risk that the priority loan rates might continue to rise; indeed, it was aware rates had been rising for over a year. In this context, the trial court could implicitly find the subrogation of a fixed-rate loan at 7.25 percent was not materially prejudicial.
8. Semper also asserts the judgment contains a "fundamental error" demonstrating the trial court did not understand its argument that additional payouts would not have been made under the revolving loan had D'Esprit known of the BAC loan: "Semper unconvincingly contends it was prejudiced as it would not have extended to Russo a favorable interest rate had it been aware of the [BAC] loan." Although the trial court's statement appears incongruous, we have no way to determine what arguments Semper made during the hearing, and we presume the missing portion of the record supports the trial court's judgment. See Evans, 15 Ariz.App. at 103 & n. 6, 486 P.2d at 215 & n. 6. In any event, having reviewed the entire record de novo, we do not find the error material to our resolution of this appeal. Moreover, we will affirm a summary judgment if correct for any reason. United Ins. Co. v. Lutz, 227 Ariz. 411, ¶ 8, 258 P.3d 229, 231 (App.2011).
Source: Leagle
