IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

KEVORK BEKELIAN, et al., Applicants/Appellants, 

v.

JP MORGAN CHASE BANK NA, Claimant/Appellee. 

No. 1 CA-CV 18-0360 

Appeal from the Superior Court in Maricopa County

No. CV2017-000467 

The Honorable Lindsay P. Abramson, Judge Pro Tempore

AFFIRMED

COUNSEL

LaBenz Law PLLC, Sedona

By Julie A. LaBenz

Counsel for Applicants/Appellants 

Tiffany & Bosco P.A., Phoenix

By Leonard J. McDonald, Jr., Michael F. Bosco 

Counsel for Claimant/Appellee

OPINION

Presiding Judge Paul J. McMurdie delivered the opinion of the Court, in 

which Judge Randall M. Howe and Judge Jennifer B. Campbell joined.

FILED 3-19-2019
BEKELIAN, et al. v. JP MORGAN

Opinion of the Court

2 

M c M U R D I E, Judge:

¶1 Kevork and Christiane Bekelian appeal the superior court’s 

order releasing the excess proceeds from a trustee’s sale to JP Morgan Chase 

Bank NA (“Chase Bank”). We hold if a junior claimant files an application 

for excess proceeds resulting from a trustee’s sale, and the superior court 

has reason to know a senior claimant may exist, the court may not issue an 

order releasing the proceeds until at least 180 days from the date the 

complaint is filed. See Ariz. Rev. Stat. (“A.R.S.”) § 33-812(G), (J). In so 

holding, we reject the argument that A.R.S. § 33-812(J) imposes a 180-day 

deadline for applying for excess proceeds. Accordingly, we affirm. 

FACTS AND PROCEDURAL BACKGROUND

¶2 The Bekelians owned real property in Scottsdale. In 2003 and 

2007, they executed deeds of trust against the property. Chase Bank is the 

beneficiary of the 2007 deed of trust. In November 2016, a trustee sold the 

property at a trustee’s sale for $375,100 based on the 2003 deed of trust. 

After satisfaction of the debt owed to the foreclosing beneficiary and 

payment of the trustee’s attorney’s fees and costs, excess proceeds totaling 

$167,031.42 remained. At the time of the trustee’s sale, Chase Bank’s 

principal payoff balance was $220,000. 

¶3 On January 9, 2017, the trustee deposited the excess proceeds 

with the county treasurer, filed a civil complaint, and was discharged from 

the proceedings. See A.R.S. § 33-812(C), (D). On July 10, 2017, the Bekelians 

applied for release of the excess proceeds. See A.R.S. § 33-812(G).

Approximately three weeks later, Chase Bank filed a response and

separately applied for release of the excess proceeds, arguing that as the 

second lien holder it was entitled to the excess proceeds. In response, the 

Bekelians argued Chase Bank’s application was untimely.

¶4 Chase Bank moved for entry of judgment. The parties 

stipulated to material facts, including that the complaint identified Chase 

Bank’s second lien as having priority over the Bekelians’ interest. The

superior court awarded Chase Bank the excess proceeds, finding it timely 

responded to the Bekelians’ application and had a superior claim to the 

proceeds. The Bekelians appealed, and we have jurisdiction under A.R.S. 

§ 12-2101(A)(1). 
BEKELIAN, et al. v. JP MORGAN

Opinion of the Court

3 

DISCUSSION

¶5 The Bekelians argue the superior court erred by releasing the 

excess proceeds to Chase Bank. They contend A.R.S. § 33-812(J) establishes 

a 180-day deadline for applying for excess proceeds and any response. 

Accordingly, they argue they timely filed their application, while Chase 

Bank untimely filed its application and response. Therefore, the court 

should have awarded the Bekelians the excess proceeds. The text of A.R.S. 

§ 33-812, however, does not support the argument.

¶6 Statutory interpretation presents a question of law, which we 

review de novo. In re Estate of Bradley, 244 Ariz. 431, 432, ¶ 7 (App. 2018). Our

primary goal when interpreting a statute is to give effect to the legislature’s 

intent. J.D. v. Hegyi, 236 Ariz. 39, 40, ¶ 6 (2014). “If a statute’s language is 

clear and unambiguous, it is the best indicator of that intent, and we apply 

it as written without resorting to other methods of statutory interpretation.” 

State v. Kemmish, 244 Ariz. 314, 316, ¶ 10 (App. 2018). “When possible, we 

seek to harmonize statutory provisions and avoid interpretations that result 

in contradictory provisions.” Premiere Physicians Grp., PLLC v. Navarro, 240 

Ariz. 193, 195, ¶ 9 (2016); see also State v. Seyrafi, 201 Ariz. 147, 150, ¶ 14 

(App. 2001) (statutory provisions must be “construed in context with 

related provisions and in light of their place in the statutory scheme”). “We 

presume the legislature did not intend to write a statute that contains a 

void, meaningless, or futile provision,” and when possible, we interpret a 

statute to give meaning to every word or phrase. State v. Pitts, 178 Ariz. 405, 

407 (1994). 

¶7 After a property is sold at a trustee’s sale, A.R.S. § 33-812(A) 

“governs the trustee’s application of the sale proceeds and specifies the 

order of priority to be given.” PNC Bank v. Cabinetry by Karman, Inc., 230 

Ariz. 363, 365, ¶ 7 (App. 2012). “Rather than distribute the funds, the trustee 

may elect to deposit the balance of the proceeds with the county treasurer 

and commence a civil action.” Id. (citing A.R.S. § 33-812(C)–(D)). In a 

complaint commencing a civil action, the trustee must include a “narrative 

description of the liens and encumbrances [on the property], including an 

analysis of the apparent priority of potential claimants.” Id. (citing A.R.S. 

§ 33-812(D)(4)). Once the trustee fulfills the obligations outlined in A.R.S. 

§ 33-812, including mailing a copy of the complaint to any “person known 

by the trustee to have an interest of record in the property at the time of the 

sale,” A.R.S. § 33-812(D), the trustee is discharged without prejudice from 

the action, A.R.S. § 33-812(F). 
BEKELIAN, et al. v. JP MORGAN

Opinion of the Court

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¶8 Any person with a “legal interest in the property at the time 

of the sale may apply for the release of the proceeds by filing an application 

for distribution in the civil action.” A.R.S. § 33-812(G). The applicant must

acknowledge “any apparent lien, encumbrance or interest that could have 

priority.” A.R.S. § 33-812(J); PNC Bank, 230 Ariz. at 365, ¶ 9. The applicant 

must also mail a copy of the application to every interested party. A.R.S. 

§ 33-812(G). Then, “[a]ny person who receives the application or who 

claims a right to the proceeds may file a response to the application within 

forty-five days of the latest mailing of the application.” A.R.S. § 33-812(I). 

¶9 Under A.R.S. § 33-812(J), the superior court must issue an 

order releasing the excess proceeds “to the party entitled to receive them” 

based on the priorities delineated by A.R.S. § 33-812(A). If competing claims 

to the proceeds are filed, the court must hold a hearing to determine who 

has the superior right to the funds. A.R.S. § 33-812(J). Further, “[i]f the court 

finds that a person other than an applicant or respondent has a superior 

right to receive the proceeds, the court shall not issue an order on the 

proceeds until one hundred eighty days from the date the complaint was filed.” 

A.R.S. § 33-812(J) (emphasis added); see also PNC Bank, 230 Ariz. at 366, ¶ 11 

(“[W]here the court has information regarding potential priority lien 

holders, the requirements set forth in § 33-812(J) must be followed.”). Any 

time before the 180-day period expires, “an applicant or respondent may 

move for a hearing to determine whether the claimed superior right is valid 

or enforceable and whether the claim is entitled to receive priority over the 

claim of the applicant or respondent.” A.R.S. § 33-812(J). “If a response is 

not filed within the one hundred eighty day period by the person found by 

the court to have a superior right to receive the proceeds, the court shall 

enter an order in favor of any applicant or respondent entitled to the 

proceeds.” Id.

¶10 Contrary to the Bekelians’ argument, the 180-day period 

referenced in A.R.S. § 33-812(J) is not a deadline. Instead, it is the earliest 

possible date the superior court may issue an order releasing the proceeds

if it has information that a claim superior to an applicant’s claim may exist. 

See PNC Bank, 230 Ariz. at 366, ¶ 10 (“Because the court had information 

regarding a lien superior to the applicant’s, it should not have issued an 

order on the proceeds until 180 days from the date the complaint was 

filed.”). To hold that A.R.S. § 33-812(J) imposes a 180-day deadline for filing 

any applications and responses would render other provisions of A.R.S. 

§ 33-812 meaningless, which we will not do. See PNC Bank, 230 Ariz. at 365, 

¶ 8 (“We must read the statute as a whole and give meaningful operation 

to all of its provisions.”).
BEKELIAN, et al. v. JP MORGAN

Opinion of the Court

5 

¶11 Under A.R.S. § 33-812(L), “[e]xcess proceeds . . . are presumed 

abandoned if the monies remain with the treasurer for at least two years 

from the date of deposit and there is no pending application for 

distribution.” Therefore, claimants have two years from the date the trustee 

deposits the funds with the county treasurer to apply. If a senior claimant 

applies, the superior court may issue an order releasing the proceeds after 

the 45-day response period has run. And the court may do so before the 

180-day period expires.

¶12 If, however, a junior claimant applies, A.R.S. § 33-812(J)’s 

requirements must be followed. See PNC Bank, 230 Ariz. at 366, ¶ 11. If a 

junior claimant files an application, and the court has reason to know a 

senior claimant may exist, the court may not issue an order releasing the 

proceeds until at least 180 days from the date the complaint is filed. A.R.S. 

§ 33-812(J); PNC Bank, 230 Ariz. at 366, ¶ 10 (superior court had information 

a senior lienholder may have existed and erred by releasing the proceeds to 

a junior lienholder before 180 days from the date the complaint was filed, 

despite the senior lienholder failing to respond to the junior lienholder’s 

application within 45 days). Under A.R.S. § 33-812, the superior court must 

also allow potential respondents 45 days to respond, even if the response 

time extends beyond 180 days from the date the complaint is filed. See PNC 

Bank, 230 Ariz. at 365, ¶ 8. 

¶13 If we were to accept the Bekelians’ argument that A.R.S. 

§ 33-812(J) imposes a 180-day deadline on filing any applications and 

responses, then in certain instances, like the present case, A.R.S. § 33-812(I) 

would have no applicability. The Bekelians filed their application 182 

calendar days after the trustee filed the complaint, which under their theory 

was the last possible day to file a claim because the 180th day was on 

Saturday. Thus, under their interpretation, Chase Bank would not have an 

opportunity to respond to their application, despite having a superior right 

to the proceeds. This interpretation contradicts the plain language of A.R.S. 

§ 33-812 when read as a whole, and we reject it.

¶14 In this case, Chase Bank filed its response and a separate 

application 23 days after the Bekelians filed their application, well within 

A.R.S. § 33-812(I)’s 45-day response period. After receiving the application 

and the response, the superior court appropriately held a hearing to 

determine which party was entitled to the proceeds. See A.R.S. § 33-812(J).

After the hearing, the court found: (1) “Chase Bank has a superior claim to 

the excess proceeds, and that the 45 day response period articulated in 

A.R.S. 33-812 (I) permits Chase Bank’s application”; (2) that the Bekelians’ 

argument “would render the intent of A.R.S. 33-812 (I) completely 
BEKELIAN, et al. v. JP MORGAN

Opinion of the Court

6 

meaningless”; and (3) Chase Bank timely responded to the Bekelians’ 

application. Thus, the superior court issued an order releasing the excess 

proceeds to Chase Bank.

¶15 The superior court correctly interpreted A.R.S. § 33-812 to 

permit Chase Bank to file its application and response more than 180 days 

after the complaint was filed. The court did not err by releasing the excess 

proceeds to Chase Bank.

ATTORNEY’S FEES

¶16 Chase Bank requests attorney’s fees under A.R.S. 

§ 12-341.01(A), which provides that “[i]n any contested action arising out of 

a contract, express or implied, the court may award the successful party 

reasonable attorney fees.” The contract fee statute “does not apply to purely 

statutory causes of action” or “if the contract is a factual predicate to the 

action but not the essential basis of it.” Hanley v. Pearson, 204 Ariz. 147, 151, 

¶ 17 (App. 2003). Moreover, if “a cause of action is based on a statute rather 

than a contract, the peripheral involvement of a contract does not support 

the application” of the contract fee statute. Id. at 151, ¶ 17. 

¶17 In Hanley, the purchaser of a property following a trustee’s 

sale sought a declaratory judgment establishing that, under A.R.S. 

§ 33-812(A), excess proceeds must be paid to extinguish a tax lien on the 

property before any proceeds can be released to the former property owner. 

204 Ariz. at 148, ¶ 4. This court held the case did not arise out of a contract 

and declined to award fees on that basis. Id. at 151, ¶¶ 18, 20. We explained

the deed of trust, which obligated the former owner to pay the property 

taxes, “formed only a factual predicate for the action and was not its 

essential basis,” that it was unnecessary to interpret the deed of trust to 

resolve the case, and that the essential basis of the dispute was the meaning 

of A.R.S. § 33-812(A)(3). Id. at ¶ 18. 

¶18 Likewise, the deed of trust here between Chase Bank and the 

Bekelians formed only a factual predicate for the action and is not its 

essential basis. Instead, the essential basis for the dispute is the 

interpretation of A.R.S. § 33-812(J) and whether Chase Bank or the 

Bekelians are entitled to the excess proceeds. We were not required to 

interpret the deed of trust, nor was the document a factor that caused the 

dispute. See Keystone Floor & More, LLC v. Ariz. Registrar of Contractors, 223 

Ariz. 27, 30, ¶ 10 (App. 2009) (“Generally, the words ‘arising out of a 

contract’ describe an action in which a contract was the main factor causing 
BEKELIAN, et al. v. JP MORGAN

Opinion of the Court

7 

the dispute.”). Therefore, A.R.S. § 12-341.01(A) does not apply to this case, 

and we decline to award Chase Bank attorney’s fees on appeal.

CONCLUSION

¶19 For the foregoing reasons, we affirm the superior court’s 

order releasing the excess proceeds to Chase Bank. Chase Bank is entitled 

to its costs upon compliance with Arizona Rule of Civil Appellate 

Procedure 21. See A.R.S. § 12-341.