NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

DONALD W. KAMELA and SIERRA W. KAMELA, 

Plaintiffs/Appellants,

v.

ONE WEST BANK, FSB; IMB HOLD CO.,

LLC; MORTGAGE ELECTRONIC REGISTRATION

SYSTEMS, INC. (MERS),

Defendants/Appellees.

No. 1 CA-CV 13-0361

Appeal from the Superior Court in Maricopa County

No. CV2011-053584

The Honorable Alfred M. Fenzel, Judge

AFFIRMED

COUNSEL

Donald W. Kamela and Sierra W. Kamela, Scottsdale

Plaintiffs/Appellants

Quarles & Brady LLP, Phoenix

By John M. O’Neal and Ryan S. Patterson

Counsel for Defendants/Appellees
KAMELA v. ONE WEST BANK

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in 

which Judge Lawrence F. Winthrop and Judge John C. Gemmill joined.

N O R R I S, Judge:

¶1 Plaintiffs/appellants Donald and Sierra Kamela appeal from 

the superior court’s judgment dismissing their claims for unlawful 

foreclosure, wrongful foreclosure, fraud, to set aside the trustee’s sale, to 

void/cancel the trustee’s deed, to void/cancel notice of the trustee’s sale, 

false advertising, widespread consumer fraud, to void/cancel assignment 

of the deed of trust, gross negligence, and quiet title against 

defendants/appellees One West Bank FSB, IMB Hold Co., LLC, and 

Mortgage Electronic Registration Systems, Inc. (collectively, “One West”). 

All of the Kamelas’ claims arise from a trustee’s sale of their home pursuant 

to a deed of trust they executed to secure their obligations under a 

promissory note. 

¶2 On appeal, the Kamelas first argue the superior court should 

not have dismissed their claims because the trustee’s sale was invalid. 

According to the factual allegations in their complaint, which we must 

accept as true, see Fidelity Sec. Life Ins. Co. v. State, Dep’t of Ins., 191 Ariz. 222, 

224, ¶ 4, 954 P.2d 580, 582 (1998), the successor trustee, MTC Financial, Inc. 

DBA Trustee Corps (“MTC”), did not become an Arizona-licensed insurer 

until February 5, 2010 and was not, therefore, qualified to act as trustee

when it recorded the notice of trustee’s sale on April 30, 2009.

1 See Ariz. 

Rev. Stat. (“A.R.S.”) § 33-803(A) (2014) (“licensed insurance producer under 

the laws of this state” may serve as a trustee under a deed of trust). Thus, 

they argue the trustee’s sale was unlawful and invalid, and they were 

entitled have it set aside. Reviewing the dismissal of the Kamelas’ claims 

de novo, see Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶ 7, 284 P.3d 863, 

866-67 (2012), we hold the superior court properly dismissed their claims 

under A.R.S. § 33-811(C) (2014) because they failed to obtain a court order 

enjoining the sale. 

 

1The notice of substitution of trustee identified MTC as an 

“Insurance Agent.” MTC received its license on February 5, 2010, and, thus, 

was a qualified trustee at the time of the trustee’s sale. 
KAMELA v. ONE WEST BANK

Decision of the Court

3

¶3 Under A.R.S. § 33-811(C), a trustor waives all defenses and 

objections to a trustee’s sale unless the trustor obtains a court order 

enjoining the sale before the sale date. As relevant, the statute reads as 

follows: 

The trustor, its successors or assigns, and all 

persons to whom the trustee mails a notice of a 

sale under a trust deed pursuant to § 33-809

shall waive all defenses and objections to the 

sale not raised in an action that results in the 

issuance of [an injunction] entered before 5:00 

p.m. . . . on the last business day before the 

scheduled date of the sale. 

A.R.S. § 33-811(C). The statute by its plain terms applies to all defenses and 

objections. See, e.g., Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 

526, 529, 869 P.2d 500, 503 (1994). Consequently, under the statute, after a

trustee’s sale is completed, a trustor cannot “challenge the sale based on 

pre-sale defenses or objections.” BT Capital, LLC v. TD Serv. Co. of Ariz., 229 

Ariz. 299, 301, ¶ 11, 275 P.3d 598, 600 (2012). The only objection a trustor 

may raise to challenge a completed sale is lack of notice, a challenge the 

Kamelas did not raise in the superior court. Steinberger v. McVey ex rel. 

Maricopa Cnty., 234 Ariz. 125, 136, ¶ 42, 318 P.3d 419, 430. 

¶4 Thus, the statute required the Kamelas to raise their objections 

and obtain an injunction no later than one business day before the sale to 

preserve their claims. See A.R.S. § 33-811(C). Although the Kamelas filed 

an action to enjoin the sale in the superior court before the sale date, the 

court denied their request and the sale went forward. Nevertheless, the 

Kamelas argue A.R.S. § 33-811(C) is inapplicable to their claims because 

MTC was not qualified to serve as a trustee and thus “no trustee mailed a 

notice of sale pursuant to A.R.S. [§] 33-809.” We disagree with this 

argument. 

¶5 Section 33-811(C) applies to the trustor and to “all persons to 

whom the trustee mails a notice of sale under the trust deed . . . .” As we 

explained in Madison v. Groseth, 230 Ariz. 8, 12, ¶ 11, 279 P.3d 633, 637 (App. 

2012), “[t]he plain language of § 33-811(C) does not require the trustee to 

comply with the mailing requirements of § 33-809 for the waiver provision 

to apply later to the trustor.” There, we held that service of the notice of 
KAMELA v. ONE WEST BANK

Decision of the Court

4

trustee’s sale required by A.R.S. § 33-809(C) (2014)2 was not a prerequisite 

to the application of A.R.S. § 33-811(C) to a trustor because to interpret the 

statute in that fashion would render its reference to “trustor” superfluous. 

Id. We recognized the potential for due process violations when the trustor 

does not receive sufficient notice of the sale to allow adequate time to seek

an injunction, but concluded the trustor in that case was not deprived of 

due process because she had sufficient notice of the sale, which, is the case 

here as well. Id. at 12-13, ¶ 12, 279 P.3d at 637-38. 

¶6 Because A.R.S. § 33-811(C) is applicable even when the trustee

does not send a notice of trustee’s sale to the trustor, the statute is also 

applicable when, as alleged by the Kamelas, an unqualified trustee sends 

the notice to the trustor. MTC’s status as an unqualified trustee when it 

sent the notice of trustee’s sale does not affect the applicability of A.R.S. §

33-811(C) to the Kamelas’ claims. Therefore, the superior court properly 

granted One West’s motion to dismiss. 

¶7 The Kamelas also argue the superior court should not have 

dismissed their claims without allowing them to file an amended

complaint, arguing that “[l]eave to amend shall be freely given when justice 

requires,” Ariz. R. Civ. P. 15(a)(1), and they did not receive notice that the 

superior court had granted One West’s motion to dismiss on September 27, 

2012 until November. Although leave to amend should be freely granted 

when justice requires, it is not automatic. Id.; In re Estate of Torstenson, 125 

Ariz. 373, 376, 609 P.2d 1073, 1076 (App. 1980). A court does not abuse its 

discretion in denying a motion to amend when a plaintiff’s request is 

unduly delayed or when the amendment would be futile. Bishop v. State

Dep’t of Corrections, 172 Ariz. 472, 474-75, 837 P.2d 1207, 1209-10 (App. 1992). 

In this case the Kamelas unduly delayed in seeking to amend and then 

presented an amended complaint that would have been futile. Thus, the 

court did not abuse its discretion in denying the request to amend. See Hall 

v. Romero, 141 Ariz. 120, 124, 685 P.2d 757, 761 (App. 1984) (appellate court

will not overturn superior court’s denial of request for leave to amend 

absent abuse of discretion). 

¶8 On October 3, the Kamelas requested “as much time as 

possible” to prepare an amended complaint. On November 19, 2012, the 

Kamelas notified the court and One West they intended to file a request for 

 

2The statute provides: “The trustee, within five business days 

after the recordation of a notice of sale, shall mail by certified or registered 

mail, with postage prepaid, a copy of the notice of sale to each of the persons 

who were parties to the trust deed except the trustee.” A.R.S. § 33-809(C). 
KAMELA v. ONE WEST BANK

Decision of the Court

5

leave to file an amended complaint, noting that they had just recently 

received the court’s ruling granting the motion to dismiss, and asked the 

court for at least 90 days to file their request for leave to amend. They did 

not file their request for leave to amend until April 10, 2013. Thus, even 

accepting the Kamelas’ allegation they did not receive the September 27

ruling dismissing their claims until November, they still delayed almost 

five months before requesting leave to file an amended complaint. 

¶9 Further, the claims in the Kamelas’ proposed amended 

complaint still relied primarily on the allegation that MTC was not a 

qualified trustee when it sent the notice of sale. Consequently, the claims 

would still have been barred by A.R.S. § 33-811(C), and, thus, the proposed 

amendments were futile. 

¶10 One West requests an award of attorneys’ fees on appeal 

pursuant to Section 22 of the deed of trust. One West is not entitled to a fee 

award under the deed of trust, however.

¶11 Section 22 of the deed of trust provides, “[l]ender shall be 

entitled to collect all expenses incurred in pursuing the remedies provided 

in this Section 22, including, but not limited to, reasonable attorneys’ fees 

and costs of title evidence.” Under this provision, One West is entitled to 

an award of fees incurred in “pursuing the remedies” available for the 

Kamelas’ default. In the current litigation, however, One West is not 

pursuing its remedies; it is defending against an action by the Kamelas for 

alleged improprieties in the trustee’s sale. Accordingly, it is not entitled to 

a fee award under Section 22 of the deed of trust. Although we will enforce 

a contract provision for fees according to its terms, First Fed. Sav. & Loan 

Ass’n of Phoenix v. Ram, 135 Ariz. 178, 181, 659 P.2d 1323, 1326 (App. 1982), 

we cannot revise or rewrite the agreement. Mining Inv. Group, LLC v. 

Roberts, 217 Ariz. 635, 639, ¶ 16, 177 P.3d 1207, 1211 (App. 2008).

¶12 One West also seeks fees under A.R.S. § 12-341.01 (2013), a 

statute that authorizes an award of reasonable attorneys’ fees to the 

successful party “[i]n any contested action arising out of a contract.” That 

statute is inapplicable here as this action did not arise out of a contract, but 

instead, out of tort and statutory claims. 

¶13 Under the statute, an action arises out of a contract when the 

contract is “the factor” giving rise to the litigation; it does not arise out of 

contract if the contract is merely peripheral to the cause of action. Lewin v. 

Miller Wagner & Co., 151 Ariz. 29, 37, 725 P.2d 736, 744 (App. 1986); accord

Hanley v. Pearson, 204 Ariz. 147, 151, ¶ 17, 61 P.3d 29, 33 (App. 2003) (a 
KAMELA v. ONE WEST BANK

Decision of the Court

6

contract cannot merely be a factual predicate to the action, but must be the 

essential basis of it). The statute does not apply to a “purely statutory”

cause of action even when a contract is peripherally involved. Id.; Kennedy 

v. Linda Brock Auto. Plaza, Inc., 175 Ariz. 323, 325, 856 P.2d 1201, 1203 (App. 

1993). Similarly, when the cause of action involves a tort, the statute applies

only when the tort action could not have existed but for the breach of the 

contract. A.H. By and Through White v. Ariz. Prop. & Cas. Guar. Fund, 190

Ariz. 526, 529, 950 P.2d 1147, 1150 (1997); Ramsey Air Meds, L.L.C. v. Cutter 

Aviation, Inc., 198 Ariz. 10, 15-16, ¶ 27, 6 P.3d 315, 320-21 (App. 2000).

¶14 The Kamelas’ claims were all based on the allegation that 

MTC was not a qualified trustee under A.R.S. § 33-803(A), not on the note 

or deed of trust. Based on this foundational allegation, they asserted One

West had failed to strictly comply with the statutory scheme governing 

deeds of trust and had tortiously dispossessed them of their home by 

selecting and using an unqualified trustee. Although the note and deed of 

trust were factual predicates to the Kamelas’ claims, they were not the

essential basis for their claims against One West. And further, One West 

raised a statutory, and not a contractual, defense to the Kamelas’ claims. 

See A.R.S. § 33-811(C).

¶15 One West is not, therefore, entitled to fees on appeal under 

either the deed of trust or A.R.S. § 12-341.01. 

CONCLUSION

¶16 We affirm the superior court’s judgment in favor of One West

and against the Kamelas. Although, as discussed, One West is not entitled 

to fees on appeal, as the prevailing party on appeal, it is entitled to an award 

of costs under A.R.S. § 12-341 (2003), contingent upon its compliance with 

Arizona Rule of Civil Appellate Procedure 21.