Darrel Mendez v. NRZ REO X LLC

Currently Arizona uses a scheme of statutes to effectuate forced conveyances of residential single- family property via a non-judicial foreclosure. It is known as the Deed of Trust Scheme. Generally, the property is taken from its owner, as here, by way of using the county recorder’s office where the property is located. The process includes a total of three documents typically all recorded by the lenders substituted in a 90-day period after which time the trustee sells the property at a trustee sale granting the property to the highest bidder at that sale. Arizona Revised Statutes (A.R.S.) § 12-1177 (A) states a trustee’s deed is presumed to comply with Arizona law and under A.R.S. 83-11(c) the homeowner waives all defenses to that sale once it has occurred. Consequently, any subsequent homeowner claims are mute. See A.R.S. § 12-1177(A) and A.R.S. § 33-811(C) where borrower “waives all defenses and objections to the sale not raised in an action that results in the issuance of a Court order granting relief...” Under these combined statutes Petitioner “waived” his claims asserted under A.R.S. § 39-161 which prohibiting any person or entity from recording false instruments that give rise to fraudulent, baseless claims of interest in real property. However, Petitioner clearly did not “waive” these claims and therefore has been deprived of his property without due process of law under the fifth amendment. In some instances, as here, a constitutional injury arises as a result of two or more statutory provisions operating together. See, Seila Law LLC u. Consumer Financial Protection Bureau, March, 2020 citing, Free Enterprise Fund, supra, at 509 (stating that the convergence of “a number of statutory provisions” produce a constitutional violation). The provision requiring “good-cause removal is only one of [the] statutory provisions that, working together, produce a constitutional violation.” Arizona provides no path for a homeowner to assert challenges to the trustee sale after it has occurred and the Deed of Trust Scheme is an arrangement of statutes leading to non-judicial forced conveyances without due process and is therefore unconstitutional.