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Michael K. Jeanes, Clerk of Court *** Electronically Filed *** 05/16/2011 8:00 AM

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2010-023817 05/13/2011

HON. EDWARD O. BURKE

CLERK OF THE COURT L. Nixon Deputy

JULIA KORYTKOWSKI v. RAYMOND YONAN, et al.

ROBERT P LINDFORS

KIMBERLY A LANE

MINUTE ENTRY

The court has had plaintiff, Julia Korytkowski's Motion for Partial Summary Judgment and defendant, GMAC's Cross-Motion for Summary Judgment under advisement and issues the following rulings. Plaintiff's Motion for Partial Summary Judgment is GRANTED in part and DENIED in part as to Plaintiff's claim for attorneys' fees against Wells Fargo. Defendant, GMAC's Cross-Motion for Summary Judgment is DENIED. Facts March 9, 2006. Plaintiff's husband, Vincent Korytkowski conveyed a one-half undivided fee title interest in his home at 844 East Butler Drive in Phoenix, Arizona, 85020, (the "Home") to Raymond Yonan by warranty deed recorded March 9, 2006, in the Maricopa County Recorder's Office at Instrument No. 2006-0324226. November 27, 2006. Plaintiff's husband, Vincent Korytkowski died leaving plaintiff his remaining one-half undivided fee title interest in the Home. Docket Code 019

Form V000A

Page 1

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2010-023817 05/13/2011

June 22, 2007. Raymond Yonan executed a Deed of Trust on the entire Home to Homecomings Financial, LLC which was recorded on June 27, 2009, as Instrument No. 20070739475 (the "Deed of Trust"), January 13, 2009. Homecomings Financial, LLC assigned the Deed of Trust to GMAC Mortgage, LLC ("GMAC"). January 13, 2009. GMAC caused a notice of trustee's sale of the Home to be held on April 21, 2009 to be recorded. January 13, 2009. GMAC assigned all of its right, title and interest in the Deed of Trust to Wells Fargo Bank, N.A. ("Wells Fargo").. April 23, 2009. An affidavit of transfer of the title to the Home to plaintiff was recorded. July 7, 2009. GMAC's assignment of its interest in the Deed of Trust to Wells Fargo was recorded. December 23, 2009. Plaintiff's attorney mailed a demand to GMAC enclosing a quit claim deed and a $5.00 check demanding that GMAC execute the quit claim deed and return it to him within 20 days pursuant to A.R.S. § 12-1103(B). The enclosed quit claim deed conveyed all of GMAC's interest in plaintiff's one-half interest in the Home to plaintiff.. (emphasis added). GMAC did not execute or return the quit claim deed sent to it. June 30, 2010. Wells Fargo, as beneficiary, caused a Second Notice of Trustee's Sale of the Home on October 1, 2010, to be issued. August 16, 2010. Plaintiff filed this action demanding a judgment quieting her one-half interest in the Home free and clear of the Deed of Trust. . August 31, 2010. Plaintiff's attorney mailed a demand to Wells Fargo enclosing a quit claim deed and a $5.00 check demanding that Wells Fargo execute the quit claim deed and return it to him within 20 days pursuant to A.R.S. § 12-1103(B). The enclosed quit claim deed conveyed all Wells Fargo's interest in the Home to plaintiff. (emphasis added). Wells Fargo did not execute or return the quit claim deed sent to it. September 15, 2010. A Cancellation of the Notice of Trustee's Sale was voluntarily recorded on behalf of Wells Fargo, cancelling the October 1, 2010, trustee's sale.

Docket Code 019

Form V000A

Page 2

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2010-023817 05/13/2011

Analysis Plaintiff is entitled to a declaration that she holds her undivided one-half interest in the Home free and clear of the Deed of Trust. Plaintiff is entitled to summary judgment because Raymond Yonan, had no ability to encumber plaintiff's interest in the Home because he only owned an undivided one-half interest in the Home. Haste v. Blair, 41 Cal. App. 2nd 896, 107 P.2d 393 (1940) and A.R.S. § 33-433. Plaintiff is entitled to have the title to her undivided one-half interest in the Home quieted against Wells Fargo. Because the quit claim deed plaintiff's counsel mailed to Wells Fargo would have conveyed Wells Fargo's entire right, title and interest in the Home to plaintiff at a time when Wells Fargo held a valid deed of trust on Mr. Yonan's undivided one-half interest in the Home, Wells Fargo was not required to execute and return it and plaintiff cannot recover her attorneys' fees from Wells Fargo under A.R.S. § 12-1103. Plaintiff is entitled to have the title to her undivided one-half interest in the Home quieted against GMAC and to recover her attorneys' fees against GMAC for its refusal to sign, execute and return the quit claim deed plaintiff's counsel mailed to it.. Because A.R.S. § 33-810(B) allows a trustee's sale to be postponed by oral declaration at the time of the sale, the public record on December 23, 2009 would indicate that GMAC may still have had a claim against the Home. A.R.S. § 33-813(G) provides for the recordation of cancellation of a recorded notice of sale under the trust deed statute and the court finds that GMAC had an affirmative obligation to record a cancellation of the notice of sale it had caused to be issued and recorded notwithstanding its assignment of the Deed of Trust to Wells Fargo.

ALERT: eFiling through AZTurboCourt.gov is mandatory in civil cases for attorneyfiled documents effective May 1, 2011. See Arizona Supreme Court Administrative Orders 2010-117 and 2011-010. The Court may impose sanctions against counsel to ensure compliance with this requirement after May 1, 2011.

Docket Code 019

Form V000A

Page 3

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