Stauffer-V-usbank Petition for Review 9-13

7/29/2019 Stauffer-V-usbank Petition for Review 9-13

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ARIZONA SUPREME COURT

KARL and FABIANA STAUFFER,

Plaintiffs/Appellees,

v.

US BANK NATIONAL

ASSOCIATION, a national banking

association, as Trustee for CSMC

Mortgage-Backed Pass-Through

Certificates, Series 2006-3,

Defendants/Appellants.

CV-13-____-PR

No. 1 CA-CV 12-0073

1 CA-CV 12-0132

(Consolidated)

Maricopa County Superior Court

No. CV 2011-005567

PETITION FOR REVIEW

Barbara J. Dawson (012104)

[email protected]

Gregory J. Marshall (019886)

[email protected]

Andrew M. Jacobs (021146)

[email protected]

SNELL & WILMER L.L.P.

One Arizona Center

Phoenix, AZ 85004-2202

(602) 382-6000

Attorneys for Defendants/Appellants

US Bank National Association


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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................................................................... ii

ISSUES PRESENTED FOR REVIEW ..................................................................... 1

WHY THIS PETITION MERITS REVIEW ............................................................. 1

FACTS MATERIAL TO ISSUES FOR REVIEW ................................................... 6

ARGUMENT ............................................................................................................. 7

I. A.R.S 33-420 DOES NOT APPLY TO NOTICES

OF SUBSTITUTION, OF ASSIGNMENT, OR OF TRUSTEES

SALES .................................................................................................... 7

A. A.R.S 33-420 APPLIES ONLY TO DOCUMENTS THAT

CREATE FALSE CLAIMS AGAINST ONES OWN

PROPERTY, AND THE NOTICES, WHICH ARE NOT

LIENS, DONT DO THAT ........................................................ 7

B. EVEN IF A.R.S 33-420 APPLIES MORE BROADLY, IT

APPLIES ONLY TO DOCUMENTS CREATING NEW

CLOUDS UPON TITLE ........................................................... 11

II. THE APPELLEES LACK STANDING TO SUE UNDER A.R.S.

33-420 FOR ERRORS IN THE NOTICES ......................................... 13

CONCLUSION ........................................................................................................ 16

CERTIFICATE OF COMPLIANCE ....................................................................... 17


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TABLE OF AUTHORITIES

FEDERAL CASES

McNally v. United States,483 U.S. 350, 359 (1987) ......................................................................................9

Reiter v. Sonotone Corp.,

442 U.S. 330, 339 (1979) ....................................................................................10

STATE CASES

Adams v. Bolin,

77 Ariz. 316, 320, 271 P.2d 472, 474 (1954) .......................................................7

Andreola v. Arizona Bank,

26 Ariz. App. 556, 559, 550 P.2d 110, 113 (1976) ..............................................3

Brandt v. Scribner,

13 Ariz. 169, 175, 108 P. 491, 493 (1910) ......................................................... 11

Hayes v. Contl Ins. Co.,

178 Ariz. 264, 268, 872 P.2d 668, 672 (1994) .....................................................7

Hogan v. Wash. Mut. Bank, N.A.,

230 Ariz. 584, 587, 277 P.3d 781, 784 (2012) ........................................... passim

Richey v. W. Pac. Dev. Corp.,

140 Ariz. 597, 684 P.2d 169 (App. 1984) ..................................................... 7, 11

Scottsdale Meml Health Sys., Inc. v. Clark,

157 Ariz. 461, 467, 759 P.2d 607, 613 (1988) .....................................................9

Sears v. Hull,

192 Ariz. 65, 69, 961 P.2d 1013, 1017 (1998) ...................................................13

Sitton v. Deutsche Bank Natl Trust Co.,

No. 1 CA-CV 12-0557, 2013 WL 4766283, *6-*7

(Ariz. App. Sept. 5, 2013). ..................................................................................14


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State v. Mabery Ranch, Co., L.L.C.,

216 Ariz. 233, 236-37, 165 P.3d 211, 214-15 (App. 2007) ................................12

Strawberry Water Co. v. Paulsen,

220 Ariz. 401, 406, 207 P.3d 654, 659 (App. 2008) ..........................................13

Wyatt v. Wehmueller,

167 Ariz. 281, 286, 806 P.2d 870, 875 (1991) .................................................4, 8

STATE STATUTES

A.R.S. 33-420 ................................................................................................ passim

A.R.S. 33-705 ..........................................................................................................9

A.R.S. 33-804 ........................................................................................................ 11

A.R.S. 33-808 ........................................................................................................ 12

A.R.S. 33-817 ........................................................................................................ 12

A.R.S. 33-818 ........................................................................................................ 12

OTHER AUTHORITIES

Arizona Legislative Council, Summary Analysis of H.B. 2458,

Conveyances: Recording Liens (Mar. 12, 1981) ..................................................4

State of Arizona, 35th Legislature,

Chapter 259, H.B. 2458 (Apr. 28, 1981) ..............................................................4


Minutes of the Meeting, Committee on Commerce and Labor, H.B. 2458

(Apr. 8, 1981) ........................................................................................................4


Minutes of Committee on Commerce and Labor, H.B. 2356 (Apr. 15, 1992) ....8

The Deed of Trust: Arizona's Alternative to the Real Property Mortgage,


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15 Ariz.L.Rev. 194 (1973) .................................................................................... 2


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ISSUES PRESENTED FOR REVIEW

1. Whether A.R.S. 33-420 a statute applying to documents protecting

Arizonans against liens clouding their titles should now be applied to notices of

substitution, of assignment, and of trustees sales following an executed and

recorded Deed of Trust, none of which are liens, and none of which cloud

Plaintiffs title?

2. Whether, despite Hogan v. Washington Mutual Bank, there is a

private right of action within A.R.S. 33-420 allowing defaulting mortgagees to

stop trustees sales because of alleged errors in notices of substitution, of

assignment, and of trustees sales that dont cloud their title?

WHY THIS PETITION MERITS REVIEW

1 This Court already decided that trustees sales under Title 33 proceed

without beneficiaries needing first to show ownership of the note their deed

secures. The decision on review (the Decision) fails to follow Hogan, creating a

new right supposedly emanating from Title 33. Under it, defaulting mortgagees

can sue to challenge the propriety of a trustees sale solely because of alleged

defects in documenting the transfer of the note. The Decision thus reinstates the

show me the note defense proscribed in Hogan, and does so by finding an injury

and cloud upon title where none could possibly exist for if a defaulting

mortgagee has no right to hold up the trustees sale based upon show me the


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note, then there is no injury to the same defaulting mortgagee from issues as to

documentation of the transfer of the note. Yet that is the very injury and cloud

upon title the Court of Appeals has found constitutes Plaintiffs standing and is

the basis for its novel interpretation of A.R.S. 33-420 that contradicts Hogan.

This Court should grant review, reverse the Decision, and restore Title 33s careful

balance among the concerns of trustors, trustees, and beneficiaries. See Hogan,

230 Ariz. 584, 587, 277 P.3d 781, 784 (2012).

2 This Court should grant review because the Decision, which cannot be

squared with Hogan, presents an important issue of law that was decided

incorrectly. Given how frequently A.R.S. 33-420 is litigated, the Decision

clearly presents a recurring issue of statewide importance. This Court should also

grant review because the Decision places the Court of Appeals in conflict with

every federal court that has ruled on the same issue no less than six different

judges. This Court should step in and resolve the confusion the Decision creates

about the basic rights of lenders and borrowers in real estate transactions.

3 This is one of many cases arising during the recent recession in which

defaulting borrowers sought to forestall a trustees sale by complaining about

failures of documentation that never injured them. Here, Plaintiffs Karl and

Fabiana Stauffer (the Stauffers) sued under section 33-420 to prevent a trustees

sale of property for which it is undisputed that they owed money, but had stopped


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paying. The Stauffers only reason to hold up the sale? One common error in

notices of the substitution of a trustee, of assignment of a deed of trust, and of a

trustees sale (the Notices). The Superior Court dismissed the Complaint for

failure to state a claim. The Court of Appeals reversed and remanded.

4 The first reason to grant this Petition is that the Court of Appeals has

interpreted section 33-420 against the expressed will of the Arizona legislature.

The Court of Appeals opinion (the Decision) holds that the Notices are

documents that assert an interest in, or a lien or encumbrance against real

property within the meaning of section 33-420. The Decision does this without

proper analysis of the statutes critical text, policy, and structure.

5 The Decision unquestionably frustrates the aims of the Arizona Deed

of Trust Act. A major purpose of the Deed of Trust Act was to provide relatively

inexpensive and speedy foreclosure proceedings. Andreola v. Arizona Bank, 26

Ariz. App. 556, 559, 550 P.2d 110, 113 (1976) (citation omitted). As this Court

reminded just last year, trustees sales are meant to operate quickly and

efficiently, outside of the judicial process. Hogan v. Wash. Mut. Bank, N.A., 230

Ariz. 584, 587, 277 P.3d 781, 784 (2012) (citation omitted). This Court rejected

the show me the note argument for enjoining a trustees sale because requiring a

beneficiary to prove ownership of the note as a prerequisite to a trustee sale would

. . . re-inject litigation, with its attendant cost and delay, into the process. Id.


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6 Yet the Decision lets the Stauffers do precisely what this Court said in

Hogan they cant do. It empowers them to blow up the trustees sale, substituting

in its place costly and time-consuming litigation here about whether Premier (the

lender under the Deed of Trust) endorsed the Note to Ohio Savings Bank and

thus lacked authority to substitute the trustee, authorize the notice of sale, and

assign the Deed of Trust to U.S. Bank. The Stauffers thus repackaged the

discredited show me the note argument so litigation could impede and delay

foreclosure.

7 This is not what section 33-420 is for to protect property owners

from actions clouding title to their property. Wyatt v. Wehmueller, 167 Ariz.

281, 286, 806 P.2d 870, 875 (1991). Section 33-420 is not there to provide a

remedy for defaulting homeowners like the Stauffers. As this Court pointed out in

Hogan, homeowners have other protections under Arizona law if there is some

dispute about who is the proper beneficiary under a deed of trust. 230 Ariz. at 587,

277 P.3d at 784.

8 The statutes history stands foursquare behind this view. The purpose

of the statute was to help prevent nuisance suits purporting to create a so-called

common law lien against the property of [public] official[s]. Arizona

Legislative Council, Summary Analysis of H.B. 2458, Conveyances: Recording

Liens (Mar. 12, 1981) (emphasis added). Contemporaneous minutes and the


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preface to the house bill show that the laws aim was documents purporting to

create liens. See State of Arizona, 35th Legislature, Minutes of the Meeting,

Committee on Commerce and Labor, H.B. 2458 (Apr. 8, 1981) (describing the

statute as establish[ing] liability for filing any document purporting to create a

lien . . .); State of Arizona, 35th Legislature, Chapter 259, H.B. 2458 (Apr. 28,

1981) (describing the statute as establishing liability for recording or filing any

documents purporting to create a lien against real property). Reviving show me

the note under a patina of section 33-420 analysis, the Decision makes something

of Section 33-420 that is wholly alien to its provenance.

9 This Court should also grant review because the Decision conflicts

with rulings by six different federal judges applying Arizona law. Not citable to

this Court by rule, and thus not cited herein, twenty decisions by federal judges in

Arizona have all found section 33-420 inapplicable to the notices at issue either

because they do not create interests, liens or encumbrances, or because the

plaintiffs suffered no injury and lacked standing to sue. Because of the confusion

the Decision sows concerning section 33-420, and because of the implications the

Decisions novel holding has for lenders and borrowers conducting business in

Arizona, the Court should grant this Petition.


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FACTS MATERIAL TO ISSUES FOR REVIEW

10 The Stauffers took out a loan to purchase property in Scottsdale,

Arizona (the Property). [R. at 1, 2]. This loan was secured by a Deed of Trust.

[R. at 1, 2]. The Stauffers defaulted on their repayment obligations and received

a Statement of Breach. [R. at 1, Ex. G]. Consequently, a Notice of Trustees Sale

was recorded by the trustee at the time. [R. at 1, Ex. C]. After the notice of sale

was recorded but before the trustees sale, the Deed of Trust was assigned to U.S.

Bank National Association, as Trustee for CSMC Mortgage-Backed Pass-Through

Certificates (US Bank). [R. at 1, Ex. E].

11 Before the trustees sale, the Stauffers brought suit under section 33-

420, claiming that the Notices, including the notice of sale, contained false

statements. [R. at 1, 11-12]. They sought an order to show cause, an injunction

against the trustee sale, damages, and clear title. They claimed that the alleged

defects in the Notices injured them through the pending trustees sale, and damage

relating to their credit score and other debts secured by the Property. [R. at 1,

18-19]. After they sued, the sale was cancelled. [R. at 19-20, at p. 3 and Ex. 1].

12 The Superior Court dismissed the Stauffers complaint for failure to

state a claim, holding that the Notices are not subject to section 33-420 and that the

Stauffers lacked standing because the statute only allows suit for documents


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creating liens, while the Stauffers were not owners or beneficial title holders

under section 33-420. The Court of Appeals reversed.

ARGUMENT

I. A.R.S. 33-420 DOES NOT APPLY TO NOTICES OFSUBSTITUTION, OF ASSIGNMENT, OR OF TRUSTEES SALES.

A. A.R.S. 33-420 Applies Only to Documents That Create FalseClaims Against Ones Own Property, and the Notices, Which Are

Not Liens, Dont Do That.

13 The text, policy, and structure of section 33-420 show that it only

applies to documents that create liens and not to the Notices. The Court of

Appeals concluded without explanation that section 33-420 is unambiguous,

despite earlier cases in which it has stated that the statute is not a model of

clarity. See Richey v. W. Pac. Dev. Corp., 140 Ariz. 597, 602, 684 P.2d 169, 174

(App. 1984). The intent and purpose of the law control the construction of an

ambiguous statute. Adams v. Bolin, 77 Ariz. 316, 320, 271 P.2d 472, 474 (1954).

This Court will consider the statutes context; its language, subject matter, and

historical background; its effects and consequences; and its spirit and purpose.

Hayes v. Contl Ins. Co., 178 Ariz. 264, 268, 872 P.2d 668, 672 (1994).

14 The history of section 33-420 shows that the legislature meant it to

apply to documents that create liens. The legislative discussion consistently

referred only to documents that purport to create liens. See supra 7. Later

discussions about possible amendments to section 33-420 confirmed the narrower


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scope of section 33-420 by referring only to liens. See, e.g., State of Arizona, 37th

Legislature, Minutes of Committee on Judiciary, S.B. 1071 (Mar. 12, 1985)

(discussing possible increase to penalties for filing liens against property); State

of Arizona, 40th Legislature, Minutes of Committee on Commerce and Labor,

H.B. 2356 (Apr. 15, 1992) (explaining that an amendment would eliminate the

requirement that a suit to clear title of a false lien be filed against the county

recorder).

15 This Court reads the subsections of section 33-420 together so that

they are interpreted consistently. See Wyatt, 167 Ariz. at 285, 806 P.2d at 874.

Subsections A, C, and E of section 33-420 create the liability the statute imposes.

Subsection B is most relevant to this case because it creates a private right of

action for the liability detailed in subsections A and C. Subsection B empowers an

owner or beneficial title holder to bring a special action to clear title on the

ground that the lien is forged, groundless, contains a material misstatement or false

claim or is otherwise invalid. (Emphasis added.) The third sentence of

subsection B specifies that a special action can be brought for damages as

described in this section along with the special action to clear title. The

damages to which this sentence refers are the damages authorized by subsections A

and C. Read together, section 33-420 creates a private right of action only when it


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is alleged that a lien is groundless or invalid. It creates no right of action for other

recorded documents.

16 The Decision incorrectly read the statute to encompass documents that

dont create liens, incongruously making claim[ing] an interest different and

wholly separate from claim[ing] a lien or encumbrance. It did so illogically

by ignoring the fact that Arizona courts and the legislature use the terms interest,

encumbrance, and lien interchangeably in and construing Title 33. See, e.g.,

Scottsdale Meml Health Sys., Inc. v. Clark, 157 Ariz. 461, 467, 759 P.2d 607, 613

(1988) (Clarks lien continued, of course, and was unaffected by the trustee sale

because it was a senior encumbrance.); A.R.S. 33-705 (A mortgage or deed of

trust that is given as a security for a loan made to purchase the real property that is

encumbered by the mortgage or deed of trust has priority over all other liens and

encumbrances that are incurred against the purchaser before acquiring title to the

real property.) (emphasis added).

17 Listing synonymous terms as the Legislature did with lien,

encumbrance, and interest in A.R.S. 33-420(A) doesnt mean the

Legislature meant three different things. Legislatures often use synonyms for

emphasis, to make a statutes application unmistakable. See McNally v. United

States, 483 U.S. 350, 359 (1987). Phrases connected by or are not necessarily

disjunctive. See id. Consistently, canons of statutory construction dictate that


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terms connected by or should not be construed separately when the context

dictates otherwise. Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979).

18 Here, interest, lien and encumbrance are synonymous. The

statutes purpose was to facilitate the speedy release of groundless liens that

clouded title. The Legislature referred only to liens in enacting the statute, and

does not contain a discussion suggesting distinct meanings for encumbrance or

interest. Also, Arizona law uses the terms interchangeably. In this context, the

Legislature must have listed all three to ensure that the statute provides relief for

all groundless liens, however described. Prying these synonyms apart by using the

Merriam-Websters Collegiate Dictionary to parse lien narrowly, the Decision

misses the history and meaning of A.R.S. 33-420 badly. See Cabell v. Markham,

148 F.2d 737, 739 (2d Cir. 1945) (L. Hand, J.) ([I]t is one of the surest indexes of

a mature and developed jurisprudence not to make a fortress out of the dictionary,

but to remember that statutes always have some purpose to accomplish), affd,

326 U.S. 404 (1945).

19 In sum, the Decision errs because the Notices are not documents that

create liens. None of the Notices created a lien on the Property. It was the Deed of

Trust that created the lien the validity and enforceability of which is not at issue.

The Notices were simply procedural and administrative documents incidental to


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the Deed of Trust. Unlike documents that create liens, they did not further cloud

title to the Property.

B. Even if A.R.S. 33-420 Applies More Broadly, It Applies Only to

Documents Creating New Clouds Upon Title.

20 Even if the statute is construed to apply to documents beyond those

creating liens, the statute can only encompass documents announcing a new cloud

upon a title. Courts apply section 33-420 to a lis pendens. See Wyatt, 167 Ariz. at

283-85, 806 P.2d at 872-74. Before its application, . . . a groundless lis pendens

could be filed with impunity . . . . Richey, 140 Ariz. at 601, 684 P.2d at 173.

Courts closed this loophole, allowing those wronged by a groundless lis pendens to

take quick action to clear their title.

21 Application to a lis pendens is distinguishable from this case,

however, because a lis pendens announces a cloud upon title. Brandt v. Scribner,

13 Ariz. 169, 175, 108 P. 491, 493 (1910). The Notices do not announce a cloud

upon the title as a lis pendens would. Any cloud on the title already existed as a

result of the Deed of Trust.

22 Further, unlike the Recorded Notices in this case, a lis pendens is not

a creature of statute. A lis pendens is a judicial creation. See Brandt, 13 Ariz. at

175, 108 P. at 493. Applying section 33-420 to a lis pendens does not interfere

with the Deed of Trust Act. That Act already sets out the requirements executing

and challenging notices. See A.R.S. 33-804 (requirements for notices of


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substitution); 33-808 (requirements for notices of sale); 33-817 (provision

regarding assignments); 33-818 (requirements for notices of assignment). The

Decisions treatment of section 33-420 creates a novel, additional method of

challenging the Notices and effectively amends the Deed of Trust Act.

23 One Arizona court has also applied section 33-420 to a recorded

Reservation of Rights. See State v. Mabery Ranch, Co., L.L.C., 216 Ariz. 233,

236-37, 165 P.3d 211, 214-15 (App. 2007). This Reservation of Rights was the

first recorded document whereby the defendant State Parks intended to establish a

replacement easement. Id. Like a Deed of Trust or lis pendens, it was the first

document recorded that announced a new cloud upon title.

24 The Notices here did not announce a new cloud upon the title and are

not akin to either a lis pendens or the Reservation of Rights in Mabery Ranch.

Even if section 33-420 were to apply to documents other than those that create

liens, the context of the statute and case law demonstrate that it could only apply to

documents announcing new clouds upon title. Applying section 33-420 to the

Notices is unsound policy that would interfere with the balanc[ing of] the

concerns of trustors, trustees, and beneficiaries in the Deed of Trust Act. See

Hogan, 230 Ariz. at 587, 277 P.3d at 784.


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II. THE APPELLEES LACK STANDING TO SUE UNDER A.R.S. 33-

420 FOR ERRORS IN THE NOTICES.

25 The Decision incorrectly holds that the Stauffers have standing. To

have standing, a plaintiff must allege a distinct and palpable injury. See Sears v.

Hull, 192 Ariz. 65, 69, 961 P.2d 1013, 1017 (1998). Critically, the alleged injury

must have been caused by the complained-of conduct. See Strawberry Water Co.

v. Paulsen, 220 Ariz. 401, 406, 207 P.3d 654, 659 (App. 2008).

26 The Stauffers have no such injury. Their only injury is their own

default, not any error in the Notices. On appeal, the Stauffers did not dispute the

validity of the Deed of Trust or their own default. They claim that, but for one

common error in the Notices, the trustees sale would not have been noticed and

they would not have faced a foreclosure sale or damage to their credit. This is

wrong. Their default, not any alleged error in the documents, caused the notice of

sale to be filed. Regardless of whom the named beneficiaries or trustees were, the

right to foreclose existed. Any alleged damage to their credit score was likewise

caused by their default, not the Notices.

27 The Stauffers also alleged that error in the Notices may result in

acceleration of other debts the Property secures. They claim in their Complaint

that the notice of sale triggered an acceleration clause within a subordinate deed of

trust.1

This bootstrap is the same wrong argument made a second time. The

1R. at 1, Ex. H, 7(d), 10(b).


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Stauffers failed to point out that this subordinate deed of trust allows for

acceleration of the debt if the Stauffers fail to perform their obligations under any

other deed of trust or security agreement on the Property which is precisely

what happened here. Again, the Stauffers default is the efficient cause of their

injury, not the Notices.

28 Just like show me the note plaintiffs, the Stauffers allege

hypothetical harm from a minor recording error irrelevant to their underlying

problem: their default. They do not allege that the error caused their default or

affected whether they met their obligations under the Deed of Trust. Their liability

under the Deed of Trust . . . remained the same no matter who was assigned as

beneficiary, or when. See Sitton v. Deutsche Bank Natl Trust, 2013 WL

4766283, *6-*7 (Ariz. App. Sept. 5, 2013).

29 In Sitton, the Court of Appeals construed the materiality requirement

in section 33-420(A). Id. The court held that the plaintiff, complaining of errors in

similar notices, could not prevail on her claim because the errors were not material

to her. Id. Sitton highlights, albeit indirectly, that such errors are inconsequential

to the homeowner. They do not affect whether the homeowner pays the loan or

defaults. See id. Even if Ohio Savings Bank had some property interest that was

called into question by errors in the Notices, this did not injure the Stauffers. The

Stauffers failure to pay caused their default. The Notices didnt make it worse.


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30 Lacking injury, the Stauffers have no standing to sue under section

33-420. Fairness compels this result, just as it guided this Courts rejection of the

show me the note argument. The Stauffers should not be able to stop the

trustees sale because of an alleged error in notices that caused them no harm.

They allege no personal stake in a hypothetical dispute about who is the

beneficiary and who is the trustee. They should not be allowed to misuse the

statute to obtain a windfall through statutory damages or by keeping a house for

which they no longer pay.

CONCLUSION

31 This Court should review and reverse the Decision, reinstate the

Superior Courts order dismissing the Complaint, and grant Appellant its attorneys

fees under ARCAP 21.

RESPECTFULLY SUBMITTED this 19thday of September, 2013.

SNELL & WILMER L.L.P.

By: /s/Andrew M. JacobsBarbara J. DawsonGregory J. Marshall

Andrew M. JacobsAttorneys for Defendants/Appellants US

Bank National Association


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CERTIFICATE OF COMPLIANCE

Pursuant to Ariz. R. Civ. App. P. 23, I certify that the attached brief

X Uses proportionately spaced type of 14 points or more, is double-

spaced using a Times New Roman font, and contains 3500 words; or

Uses monospaced type of no more than 10.5 characters per inch

and

Does not exceed 40 pages (opening and answering briefs) or 20

pages (reply briefs).

September 19, 2013 /s/ Andrew M. Jacobs

Andrew M. Jacobs


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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this 19th

day of September, 2013, I

electronically transmitted the Petition for Review using the ECF System for filing

to:

Clerk of the Court

ARIZONA COURT OF APPEALS

400 West Congress Street

Tucson, AZ 85701

The undersigned further certifies that on this 19th

day of September, 2013,

two copies of the foregoing Petition for Review were sent via U.S. mail, postage

pre-paid, addressed to the following:

/s/ Andrew M. Jacobs

Andrew M. Jacobs

17936914.3