NOTICE: NOT FOR OFFICIAL PUBLICATION. 

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE 

ARIZONA COURT OF APPEALS

DIVISION ONE

KARL and FABIANA STAUFFER, Plaintiffs/Appellants,

v.

PREMIER SERVICE MORTGAGE, LLC, et al., Defendants/Appellees. 

No. 1 CA-CV 15-0026 

Appeal from the Superior Court in Maricopa County 

No. CV2011-005567 

The Honorable Katherine Cooper, Judge 

AFFIRMED 

COUNSEL 

Ronald Warnicke PLC, Phoenix 

By Ronald E. Warnicke 

Co-Counsel for Plaintiffs/Appellants 

Warnicke Law PLC, Phoenix 

By Robert C. Warnicke 

Co-Counsel for Plaintiffs/Appellants 
2

Snell & Wilmer L.L.P., Tucson 

By Andrew M. Jacobs, Robert A. Bernheim 

Counsel for Defendant/Appellee U.S. Bank National Association 

Wright, Finlay & Zak, LLP, Phoenix 

By Kim R. Lepore, Jamin S. Neil 

Counsel for Defendants/Appellees First American Title Insurance Company and 

First American Servicing Trustee Solutions, LLC

MEMORANDUM DECISION 

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Peter B. Swann and Judge Donn Kessler joined. 

W I N T H R O P, Judge: 

¶1 Karl Stauffer and Fabiana Stauffer (the “Stauffers”) appeal the 

trial court’s order granting a Rule 12(b)(6) motion to dismiss their complaint 

for failure to state a claim. For the following reasons, we affirm. 

FACTS AND PROCEDURAL HISTORY 

¶2 In 2005, the Stauffers executed a promissory note secured by 

a deed of trust on their residential property (the “Property”) in Scottsdale, 

Arizona. The deed of trust listed Premier Service Mortgage, LLC 

(“Premier”) as the lender; Stewart Title and Trust of Phoenix, Inc. (“Stewart 

Title”) as the trustee; and Mortgage Electronic Registration Systems, Inc. 

(“MERS”) as “acting solely as a nominee for Lender” and as “the beneficiary 

under this Security Instrument.” On the same day, Premier executed an 

Endorsement Allonge to the promissory note, endorsing the note to Ohio 

Savings Bank. 

¶3 The Stauffers defaulted on the note. In September and 

October of 2010, First American Title Insurance Company (“First American

Title”) in turn caused three documents—Notice of Trustee Sale, Notice of 

Substitution of Trustee, and Assignment of Deed of Trust (collectively 

“Recorded Documents”)—to be recorded with the county. The Recorded 

Documents gave notice that First American intended to hold a trustee’s sale 

of the Property under the terms specified in the deed of trust, and that, as 

the named beneficiary under the deed of trust, MERS appointed First 
STAUFFER v. PREMIER et al. 

Decision of the Court 

3

American as a substitute trustee, and assigned the note and the deed of trust 

to U.S. Bank National Association (“U.S. Bank”).

1

¶4 In 2011, the Stauffers filed a special action complaint against 

First American Title and First American Trustee Servicing Solutions, LLC 

(collectively “First American”), Premier, and U.S. Bank. In the complaint, 

the Stauffers alleged all defendants, except Premier, caused the recording 

of the Recorded Documents, and that those documents contained false 

statements. The Stauffers contended that such recording violated Arizona 

Revised Statute (“A.R.S.”) § 33-420,

2 which prohibits any person from 

recording false or fraudulent documents that assert an interest in, or a lien 

or encumbrance against, a property. The Stauffers also sought an order 

quieting title in the Property. 

¶5 U.S. Bank and First American moved to dismiss, arguing that 

the complaint failed to state a claim upon which relief could be granted. In 

granting that motion, the court found that (1) the Recorded Documents did 

not constitute documents that asserted an interest in, or a lien or 

encumbrance against, real property, as required under A.R.S. § 33-420(A); 

(2) the Stauffers could not clear title under § 33-420(B) because that 

subsection can be used only when false or fraudulent liens have been 

recorded, which the Stauffers had not alleged; and (3) the Stauffers lacked 

standing to seek to clear title because they were neither owners nor 

beneficial title holders under § 33-420(B). The Stauffers appealed, and in 

Stauffer v. US Bank Nat’l Ass’n, 233 Ariz. 22, 26–29, ¶¶ 15, 19, 22, 27, 308 P.3d 

1173, 1177–80 (App. 2013), we reversed the trial court, holding that the 

Recorded Documents did assert an interest in the Property, that the 

Stauffers thus could seek to clear title under § 33-420(B), and the Stauffers 

had standing to clear title as owners of the Property. 

¶6 While this case was on remand to the superior court, we 

issued another opinion, Sitton v. Deutsche Bank Nat’l Trust Co., 233 Ariz. 215, 

311 P.3d 237 (App. 2013), where we held certain misstatements in three 

recorded documents (notice of trustee’s sale, notice of substitution of 

trustee, and assignment of note and deed of trust)—similar to the Recorded 

Documents here—do not constitute material misstatements. Id. at 222, ¶ 34, 

311 P.3d at 244. Relying on Sitton, U.S. Bank again moved to dismiss under 

 

1 The trustee’s sale was cancelled after the Stauffers filed the present 

complaint. 

2 Absent material revisions since the relevant date, we cite a statute’s 

current version. 
STAUFFER v. PREMIER et al. 

Decision of the Court 

4

Rule 12(b)(6) for failure to state a claim. First American joined the motion 

with an additional argument that the case should be dismissed as to First 

American as the trustee of the deed of trust under A.R.S. § 33-807(E); the 

Stauffers did not timely respond to First American’s motion. The trial court 

granted both motions, and entered under Rule 54(b) a final judgment of 

dismissing all claims against U.S. Bank and First American. 

¶7 The Stauffers timely appealed;

3 we have jurisdiction pursuant 

to A.R.S. § 12-2101(A)(1).

ANALYSIS 

I. U.S. Bank

¶8 The Stauffers argue the trial court erred in granting U.S. 

Bank’s motion to dismiss under Rule 12(b)(6) as they have alleged sufficient 

facts in the complaint to support the materiality of the misstatements in the 

Recorded Documents, and this second Rule 12(b)(6) motion is barred by 

Rule 12(g) and the law of the case doctrine. We disagree. 

A. Material Misstatement

¶9 We review de novo a trial court’s ruling on a Rule 12(b)(6) 

motion. Coleman v. City of Mesa, 230 Ariz. 352, 355–56, ¶ 7, 284 P.3d 863, 

866–67 (2012). A Rule 12(b)(6) motion to dismiss should be granted if the 

complaint fails to state a claim upon which relief can be granted. Ariz. R. 

Civ. P. 12(b)(6). In considering the motion, “the court must assume the 

truth of all of the complaint’s material allegations, accord the plaintiffs the 

benefit of all inferences [that] the complaint can reasonably support, and 

deny the motion unless certain that plaintiffs can prove no set of facts [that] 

will entitle them to relief upon their stated claims.” Gatecliff v. Great Republic 

Life Ins. Co., 154 Ariz. 502, 508, 744 P.2d 29, 35 (App. 1987). The court, 

however, does not “accept as true allegations consisting of conclusions of 

law, inferences or deductions that are not necessarily implied by wellpleaded facts, unreasonable inferences or unsupported conclusions from 

such facts, or legal conclusions alleged as facts.” Jeter v. Mayo Clinic Ariz., 

211 Ariz. 386, 389, ¶ 4, 121 P.3d 1256, 1259 (App. 2005). 

¶10 The facts alleged in the complaint do not support the legal 

conclusion that the misstatements in the Recorded Documents are material 

 

3 Premier is not party to this appeal as it did not file or join the motion 

to dismiss. 
STAUFFER v. PREMIER et al. 

Decision of the Court 

5

and, accordingly, the Stauffers have failed to state a claim upon which relief 

can be granted under A.R.S. § 33-420. That statute provides: 

A person purporting to claim an interest in, or a lien or 

encumbrance against, real property, who causes a document 

asserting such claim to be recorded in the office of the county 

recorder, knowing or having reason to know that the 

document is forged, groundless, contains a material

misstatement or false claim or is otherwise invalid is liable to 

the owner or beneficial title holder of the real property for the 

sum of not less than five thousand dollars, or for treble the 

actual damages caused by the recording, whichever is greater, 

and reasonable attorney[s’] fees and costs of the action. 

A.R.S. § 33-420(A) (emphasis added). 

¶11 The Stauffers alleged in the complaint that the falsities in the 

Recorded Documents are: 1) MERS purported to be the nominee of 

Premier, but Premier had no interest in the note as it had endorsed the note 

to Ohio Savings Bank; 2) the Notice of Trustee Sale, where First American 

acted as the trustee, was executed by First American before it had been 

substituted for Stewart Title as the trustee; 3) the signature of one signor 

appeared different in the Statement of Breach from that contained in the 

Notice of Substitution, arguing that those signatures could have been 

forged; and 4) the Recorded Documents did not indicate the relationship 

between the signor of a document and the entity the signor appeared to 

represent, in violation of A.R.S. §§ 33-505 and -506. 

¶12 These “falsities” are relatively minor inconsistencies in 

identifying the assignment dates and assignor’s identity, rather than 

material misstatements. For a misstatement to be material, “a reasonable 

person ‘would attach importance to its existence or nonexistence in 

determining [his or her] choice of action in the transaction in question.’”

Sitton, 233 Ariz. at 221, ¶ 31, 311 P.3d at 243 (alteration in original) (quoting 

Caruthers v. Underhill, 230 Ariz. 513, 521, ¶ 28, 287 P.3d 807, 815 (App. 2012)). 

Like the Recorded Documents here, the documents in Sitton also had errors 

in reciting the assignment dates and the identity of the assignor. Id. at 221,

¶ 32, 311 P.3d at 243. Those misstatements were deemed not material to the 

borrowers because their obligations or choice of actions remained the same: 

to repay the loan according to the terms of the note, to try and renegotiate 

the terms of the note, or to default and accept foreclosure. Id. at 222, ¶ 33, 

311 P.3d at 244. Similarly, the Recorded Documents here do not affect the 

legal obligations or choice of actions for the Stauffers. Although the 
STAUFFER v. PREMIER et al. 

Decision of the Court 

6

Recorded Documents here contain inconsistencies in the identity of the 

assignor and the dates of the assignment, the Stauffers’ options as 

borrowers remain the same: to pay the monthly installments, to renegotiate 

the terms of the note, or to otherwise face foreclosure. 

¶13 The Stauffers alleged in the complaint that the misstatements 

were material because their credit had suffered and would continue to 

suffer from the trustee’s sale, and they might have to pay the accelerated 

amount of a junior loan secured with the Property or otherwise file for 

bankruptcy as the loan secured with the junior lien would be accelerated 

and become unsecured. The latter assertions regarding the junior lien are 

moot because the lien has been released and the Stauffers have filed for 

bankruptcy protection. Moreover, the Stauffers have not disputed they are 

in default on the note, and their default and any notice concerning the same 

would likely result in decreased creditworthiness. Similarly, their credit 

would also be adversely affected by a notice of trustee’s sale, regardless of 

the identities of the trustee or beneficiary. In short, the trial court properly 

granted U.S. Bank’s Rule 12(b)(6) motion to dismiss.4

 

4 In their response to the second motion to dismiss and on appeal, the 

Stauffers have included a purported materiality not alleged in the 

complaint, arguing, despite Arizona’s anti-deficiency statutes, a 

misstatement concerning a beneficiary’s identity could be material. We do 

not consider this purported materiality as it was not alleged in the 

complaint. Even assuming it was timely alleged, on this record, the 

Stauffers did not allege or provide any facts showing U.S. Bank was not a 

true beneficiary. Moreover, the anti-deficiency statutes preclude deficiency 

judgments against the Stauffers after a trustee’s sale, and the Stauffers 

would not thereafter be liable to the true beneficiary even if the sale is in 

favor of the wrong beneficiary. See A.R.S. § 33-814(G) (precluding actions 

that seek deficiency); Hogan v. Wash. Mut. Bank, N.A., 230 Ariz. 584, 587, 

¶ 11, 277 P.3d 781, 784 (2012) (denying a homeowner’s request to require 

the beneficiary to “show the note” for fear of further collection from the 

original noteholder, reasoning the anti-deficiency statutes protect against 

such occurrence by precluding deficiency judgments against debtors whose 

foreclosed residential property consists of 2.5 acres or less); cf. Sitton, 233 

Ariz. at 222 n.6, ¶ 33, 311 P.3d at 244 n.6 (stating that a trustor may, in 

reliance on the anti-deficiency statutes, decide not to contest a trustee’s sale 

in favor of a putative beneficiary, where such decision absolves the trustor 

of any liability in a sale for the true beneficiary, but may leave the trustor 

still liable to the true beneficiary in a sale for any other entity).
STAUFFER v. PREMIER et al. 

Decision of the Court 

7

B. Rule 12(g)

¶14 The Stauffers argue the provisions of Rule 12(g) bar another 

Rule 12(b)(6) motion after a Rule 12(b)(6) has already been filed and ruled 

on. We disagree. Although Rule 12(g) precludes some defenses or 

objections not raised in the first motion responding to a complaint, it does 

not on this record preclude a subsequent Rule 12(b)(6) motion. See Ariz. R. 

Civ. P. 12(g) & (h)(2). 

C. Law of the Case

¶15 The Stauffers further argue the trial court erred in granting 

U.S. Bank’s motion also because the law of the case doctrine precludes the 

trial court from finding the complaint has failed to state a claim. The 

Stauffers’ reliance on this doctrine is misplaced. The law of the case 

doctrine “refers to a legal doctrine providing that the decision of a court in 

a case is the law of that case on the issues decided throughout all 

subsequent proceedings in both the trial and appellate courts, provided the 

facts, issues and evidence are substantially the same as those upon which 

the first decision rested.” Dancing Sunshines Lounge v. Indus. Comm’n, 149 

Ariz. 480, 482, 720 P.2d 81, 83 (1986). However, if the issue was not resolved 

in the first ruling, or if the applicable law has changed, the doctrine does 

not apply. Id. at 482–83, 720 P.2d at 83–84; see Zimmerman v. Shakman, 204 

Ariz. 231, 236, ¶ 15, 62 P.3d 976, 981 (App. 2003) (stating the law of the case 

doctrine does not prevent a judge from reconsidering nonfinal rulings). 

¶16 Here, the materiality issue was never decided in the earlier 

ruling or in our decision in Stauffer. The holding in Stauffer—that the 

Recorded Documents assert an interest in the Property, that the Stauffers 

could file an action to quiet title, and that they had standing to file the action 

as the owner of the Property—does not have any bearing on the materiality 

issue. Id. at 26–29, ¶¶ 15, 19, 22, 27, 308 P.3d at 1177–80. Further, our 

opinion in Sitton signaled a change in the applicable law. Simply stated, 

the law of the case doctrine does not apply here. 

II. First American

¶17 In addition to joining U.S. Bank’s motion to dismiss, First 

American argued below that the Stauffers had waived their objections to its 

motion by failing to timely respond, and also that the Stauffers failed to 

state a claim because claims against a trustee that are not for breach of 

trustee’s obligations must be dismissed under A.R.S. § 33-807(E). Because 

we find the trial court did not err in granting U.S. Bank’s motion, we need 

not address these alternative arguments. 
STAUFFER v. PREMIER et al. 

Decision of the Court 

8

III. Attorneys’ Fees and Costs

¶18 As the losing party to this appeal, the Stauffers are not entitled 

to any award of attorneys’ fees or costs, and their request for such an award 

is denied. First American’s request for attorneys’ fees is also denied because 

it fails to cite any statute, contract, or any other authorities to support such 

a request. See ARCAP 21(a)(2) (requiring a party to specifically state the 

statute, rule, or other authority for an award of attorneys’ fees when 

requesting for such an award). First American and U.S. Bank, however, are 

awarded their costs on appeal, subject to compliance with ARCAP 21.

CONCLUSION

¶19 The trial court’s judgment is affirmed.