Arizona Now Requires “Due Diligence” by Parties Seeking Foreclosure

Submitted by a gifted pro se litigant. See Comments.

My only comment before quoting his comment (editor’s discretion) is that the obligation to perform due diligence is present in all cases, in all courts and in all legal procedures. Failure to do so will negate any attempted action once it is pointed out by the opposing party. In some cases around the country lawyers and their clients are being sanctioned — fines against the attorney, the law firm and the pretender lender who has no interest in the mortgage, note or obligation but who is trying to bluff their way into getting the property anyway.

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The Arizona Supreme Court authorized a new set of civil procedures which apply to ‘Eviction Actions”; which are defined as forcible detainer and special detainer actions. These actions of course include a lenders attempt to remove a homeowner once a foreclosure sale is allegedly complete.

I am not an attorney so there is the disclaimer.

However, I have been involved in Pro Se litigation for nearly a year in Arizona. One of the things I set up at the beginning of my lawsuit was a subscription to West Publications for the Rules of Court.

On Friday I received the (effective date) January 30, 2009 rules addendum.

There is an entire NEW set of Civil Rules. The title of the rule is: “Rules of Procedure for Eviction Actions”, shortened in Rule 1 to “RPEA”. I do not yet know the history behind the rule making as I didn’t see this coming. The Arizona Supreme Court web site as a rule making forum which should have the historical data behind the new rules.

I just started reading the rules, which encompass 13 pages of 8 point type, dual paragraphs.

I suggest that anyone with a UD/FE action on the horizon make sure they have a copy of the NEW Arizona Rules.

Upon reading the new rules I was actually shocked (in a good way) to read RPEA 4(a). I’ll quote the actual verbiage from section 4(a):

a. Due Diligence. Each party and attorney filing or appearing in an eviction action or defense shall exercise due diligence to ensure that the action has a good faith basis; that the relief sought is consistent with the applicable rental agreement or applicable law; and that all required notices have been properly served. Attorneys must exercise reasonable care that their pleadings are accurate and well-ground in fact and law.

4(b) is a good faith requirement.

4(c) is a section under which a party of attorney can be sanctioned for (a) or (b).

While Rule 11 of the Arizona Rules of Civil Procedure require due diglgence in the filing of papers (generally) my opinion is Rule 11 is a rule hard to enforce. RPEA 4(a) seems to invoke a harsher set of rules for the party or attorney who simply wants to file boiler plate pleadings in a UD/FE action.

I can see what is coming with Rule 4(a). Immediately upon filing a complaint the Defendant responds with a Rule 4(a) motion alleging that the Complaint is defective because their was no due diligence to ascertain the name of the real part in interest. Arizona Rules allow the Trustee to escape most liability for failure to conduct due diligence in the conduct of their non-judical foreclosure sales and subsequent filing of trustee deeds. Rule 4(a) looks a back door to unraveling a non-judicial foreclosure.

When you read these NEW rules you get a sense of, well, at least I did, someone, somewhere finally understanding that the Forcible Detainer actions filed before Commissioners have become a mill and, in my opinion, rarely if ever give rise to due process for the Defendant(s).

There are a few gotchas though; most notably Rule 5(g) which refers to failure to obtain service. If the Defendant ‘appears’ the rule construes a waiver of any objections of service unless the Defendant asserts the ground at the initial hearing or in a ‘previously’ filed written statement. Given that the usual time frame are shortened in a UD/FE action, it would seem prudent to lay out a plan of attack the moment the Defendant knows an action has to is about to be filed.

These new Eviction Rules are complex and written by both sides of the industry. I’ am still digesting the Rules but I can sure forecast and rightly hope that at least in Arizona will may finally see a shift of the power away from the UD/FE lawyers.

Hopefully a real lawyer will weigh in with a concise synopsis of these long overdue rule changes.

2 Responses

  1. Excellent!! before this you were dead meat in this state! Of course we will need judges with a backbone to create case law! Are there any out there?

    what is the URL to get a west subscription for AZ? i want one!

  2. WOW! I cannot believe non of this is info being shared in Arizona. Shows you this is wide open in this state. Any other updates or reference to using this as a defense of eviction anywhere?

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