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Legal Analysis: The Bank of New York Mellon v. Dodev

Amy D. Sells,  |  December 6, 2018

Post-Trustee’s Sale Eviction

Ivaylo Dodev succeeded in remaining in his Gilbert residence for 10 years after defaulting on his home loan by filing numerous legal actions pro se in order to delay a trustee’s sale and four subsequent eviction proceedings.

In this opinion, the Arizona Court of Appeals, Division One affirmed the Superior Court’s forcible detainer judgment against Dodev and clarified the following issues relating to eviction procedure:

Arizona Rule of Civil Procedure

Rule 41 regarding voluntary dismissals, and specifically the “two dismissal rule” under 41(a)(1)(B), does not apply to eviction actions. Civil rules only apply in eviction actions when they are explicitly incorporated into an Eviction Rule. Eviction Rule 9(h), which permits either party to make “[o]ther appropriate motions” is the appropriate rule to invoke to voluntarily dismiss an eviction action.

Sufficient Evidence of Impracticability of Service

When weighing the impracticability of service justifying service by alternative means in eviction actions, the court may consider that there is a need to make speedy determinations in evictions. However, this cannot be the sole basis for impracticability. Here, the Dodev’s long history of procedural delay tactics supported a finding that further attempts at personal service would not have been fruitful.

The Awarding of Attorney’s Fees

Attorney’s fees can be awarded in a forcible detainer action under ARS § 12-1178(A). However, ARS § 12-1178 applies to trial court proceedings and does not allow fees on appeal. Although ARS § 12-1182 discusses forcible detainer appeals, its provision for “costs” and “damages” does not include attorney’s fees.

Attorney’s Fees and Costs on Appeal

A post-trustee’s sale forcible detainer action does not arise out of contract for purposes of ARS § 12-341.01(A) and therefore, attorney’s fees on appeal will not be awarded under that statute. The Bank failed to provide any authority for the award of attorney’s fees on appeal.

Takeaways from Bank of New York Mellon v. Dodev

Dodev illustrates the complexities that can arise when enforcing creditors’ post-trustee’s sale eviction rights.

At Tiffany & Bosco PA, we help clients regain possession of real estate with our firm’s foreclosure and default servicing practice. To find out how we can help you, contact us or call our head office at 602-255-6000 for more information.

Amy Sells leads the firm’s Appellate Department and focuses her practice on representing clients in federal and state appellate matters and dispositive motions.

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