UTA Amicus Brief Appeal in Arizona Case is Successful

Melissa Robbins Coutts, Esq.

The Arizona Supreme Court has concurred with UTA’s amicus brief that an assignment is not required to be recorded prior to issuing a notice of Trustee’s sale.  UTA’s amicus brief was written by Melissa Robbins Coutts, Esq., of the firm of McCarthy Holthus Levine.

The Arizona Supreme Court had certified two questions for review:

1. Is the recording of an assignment of deed of trust required prior to the filing of a notice of

trustee’s sale under A.R.S. § 33-808 when the assignee holds a promissory note payable to bearer?

And;

2. Must the beneficiary of a deed of trust being foreclosed pursuant to A.R.S. § 33-807 have the right to enforce the secured obligation?

“Several Amicus Briefs were filed by both sides, including the Arizona AG on the borrower’s side and the United Trustees Association on the lender side,” said Robert Finlay, Esq, UTA President.  “The Supreme Court ruled in the industry’s favor on the first question, holding that an Assignment of the DOT does not have to be recorded before recording the Notice of Sale.  Unfortunately, the Supreme Court refused to rule on the second question given the facts of the case.  Nevertheless, this is a good ruling for the industry.”

“This case had the potential to change the pre-recording requirements for a trustee’s sale in Arizona if the first question had been answered differently,” said Rex C. Anderson, Esq., The Law Office of Rex C. Anderson, P.C.  “As the court said in this instance their duty was to interpret what the statute currently provided or required, not what the law should be.  They declined the arguments of the Arizona Attorney General and others to layer on an additional recording requirement.”

Read article on the ruling by Melissa Robbins Coutts, Esq., McCarty & Holthus