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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ANTHONY J. DELPRETE, et al., Plaintiffs/Appellants,

v.

DITECH FINANCIAL LLC, et al., Defendants/Appellees.

No. 1 CA-CV 17-0056

Appeal from the Superior Court in Maricopa County

No. CV2014-051492

The Honorable Aimee L. Anderson, Judge

AFFIRMED

COUNSEL

Anthony J. Delprete, Elizabeth A. Delprete, Anthem

Plaintiffs/Appellants

Wolfe & Wyman LLP, Phoenix

By Colt B. Dodrill

Counsel for Defendants/Appellees

FILED 12-5-2017
DELPRETE, et al. v. DITECH, et al.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, 

in which Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.

W I N T H R O P, Presiding Judge:

¶1 Anthony J. Delprete and Elizabeth A. Delprete (the 

“Delpretes”) appeal the superior court’s order of dismissal in favor of

Ditech Financial LLC (“Ditech”) and Federal National Mortgage 

Association (“Fannie Mae”) (collectively “Defendants”). For the following 

reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In 2004 the Delpretes purchased a residential property (the 

“Property”) in Anthem. In 2006 the Delpretes refinanced the existing loan 

secured by the Property and obtained a new loan for $417,000 from New 

Century Mortgage Corp. (“Century Mortgage”). The 2006 loan was 

evidenced by a promissory note (the “Note”), and secured by a deed of trust

on the Property, which listed Mortgage Electronic Registration Systems 

(“MERS”) as beneficiary and nominee of Century Mortgage. In 2011 MERS 

assigned the Deed of Trust to Bank of America, NA (“Bank of America”),

and in 2013 Bank of America assigned the Deed of Trust to Green Tree 

Servicing LLC (“Green Tree”).

¶3 After the assignment in 2013, Green Tree notified the 

Delpretes that future payments on the Note should be made to Green Tree. 

The Delpretes requested Green Tree verify it owned the Note, and it did so 

by sending the Delpretes a copy of the Note. Green Tree subsequently sent 

the Delpretes a letter identifying Fannie Mae as the noteholder, but the 

Delpretes were unable to verify Fannie Mae owned the Note, and stopped 

making payments.1 In August 2015, Green Tree merged with Ditech. After

the Delpretes’ refusal to pay, Ditech recorded a notice of trustee’s sale on 

the Property for January 2016. The Delpretes then paid Ditech, and Ditech 

cancelled the trustee’s sale.

 

1 The Delpretes attached to their reply brief a screenshot which shows 

Fannie Mae owns the Note and Ditech services the Note.
DELPRETE, et al. v. DITECH, et al.

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¶4 In the meantime, the Delpretes in 2014 filed a complaint 

against Century Mortgage, seeking quiet title, declaratory relief, and 

rescission. Approximately one month later, the Delpretes moved for entry 

of default based on Century Mortgage’s failure to respond to the complaint. 

Century Mortgage filed a suggestion of bankruptcy with the court, stating

it had petitioned for relief under Chapter 11 of Title 11 of the United States 

Code.

¶5 The superior court denied the Delpretes’ motion for entry of 

default judgment without prejudice, finding the complaint was improperly 

served because it was delivered to the “Blank Rome” law firm in Delaware 

instead of to Century Mortgage. The court further found, contrary to the 

Delpretes’ proposed judgment, that Bank of America owned the loan, and

the loan was not extinguished by Century Mortgage’s bankruptcy.

2 In its 

ruling, the court advised the Delpretes to consider filing an amended 

complaint, with proper service of process.

¶6 Rather than file an amended complaint or properly serve the 

original complaint, the Delpretes moved for declaratory judgment in July 

2015, again identifying Century Mortgage as the sole defendant.

3 The 

superior court denied the motion, reiterating its previous ruling that the 

complaint had not been properly served. The Delpretes next filed

“emergency” motions for summary judgment, which the superior court 

denied, again based on improper service. In April 2016, the Delpretes filed 

their first amended complaint, naming Ditech and Fannie Mae as 

defendants.

¶7 In their amended complaint, the Delpretes sought: (1) 

injunctive relief to stop the trustee’s sale of the Property; (2) declaratory 

judgment that Defendants had no rights under the Note and the Deed of 

Trust; (3) quiet title; (4) damages for the recording of a notice of trustee’s

sale; and (5) rescission. Defendants moved to dismiss and the Delpretes 

responded, and in turn moved for summary judgment.

 

2 The Delpretes’ request for declaratory judgment proposed that the 

superior court find that Century Mortgage’s bankruptcy “wipe[d] out the 

loan.”

3 The Delpretes alleged Century Mortgage could not assign the Note 

because of its bankruptcy; however, they did not support this allegation 

with facts from the record or legal authority.
DELPRETE, et al. v. DITECH, et al.

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¶8 After hearing oral argument, the superior court denied the 

Delpretes’ motion for summary judgment, finding the Delpretes’ motion 

was based on “speculation and a general misunderstanding of not only 

mortgage banking law, but also [] the Uniform Commercial Code,” and

granted Defendants’ motion to dismiss.

¶9 The Delpretes moved for reconsideration, but the court 

denied the motion. The Delpretes timely appealed. We have jurisdiction 

pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona 

Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2016) and 12-

2101(A)(1) (2016).

ANALYSIS

¶10 We review de novo a superior court’s grant of a Rule 12(b)(6) 

motion to dismiss.

4 Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 9 (2012). 

A 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). See also Logan v. 

Forever Living Prods. Int’l, Inc., 203 Ariz. 191, 193, ¶ 7 (2002) (finding a court 

will grant a motion to dismiss if “the plaintiff should be denied relief as a 

matter of law given the facts alleged.”). To determine whether a motion to 

dismiss should be granted, we look to the sufficiency of the complaint.5 See 

Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008). In reviewing 

the complaint, “the court must assume the truth of all of the complaint’s 

material allegations, accord the plaintiffs the benefit of all inferences which 

the complaint can reasonably support, and deny the motion unless certain 

that plaintiffs can prove no set of facts which will entitle them to relief upon 

their stated claims.” Gatecliff v. Great Republic Life Ins. Co., 154 Ariz. 502, 508 

(App. 1987). See Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, 389, ¶ 4 (App. 2005) 

(stating the court does not “accept as true allegations consisting of 

conclusions of law, inferences or deductions that are not necessarily 

 

4 Because we affirm the superior court’s dismissal, we do not 

specifically address each of the Delpretes’ arguments raised in their motion 

for summary judgment.

5 “[E]xhibits, or public records regarding matters referenced in a 

complaint, are not ‘outside the pleading,’ and courts may consider such 

documents without converting a Rule 12(b)(6) motion into a summary 

judgment motion.” Coleman, 230 Ariz. at 356, ¶ 9. See also Ariz. R. Civ. P. 

10(c) (“A copy of a written instrument which is an exhibit to a pleading is a 

part thereof for all purposes.”).
DELPRETE, et al. v. DITECH, et al.

Decision of the Court

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implied by well-pleaded facts, unreasonable inferences or unsupported 

conclusions from such facts, or legal conclusions alleged as facts.”).

¶11 All documents attached to the first amended complaint and 

filed with the Defendants’ motion to dismiss are either public records or

central to the complaint.6 As such, we need not treat the superior court’s 

grant of Defendants’ motion to dismiss as a motion for summary judgment. 

See Strategic Dev. & Constr., Inc. v. 7th & Roosevelt Partners, LLC, 224 Ariz. 60, 

64, ¶¶ 14-15 (App. 2010). Based on the allegations in the first amended 

complaint and the associated documents, the Delpretes failed to allege any 

facts, which if taken as true, establish a claim upon which relief can be 

granted.

I. Injunction

¶12 The Delpretes’ request for an injunction to bar a trustee’s sale 

on the Property is moot because Defendants cancelled the notice of sale. 

However, even if the issue was not moot, the Delpretes are not entitled to 

an injunction because they failed to state a claim for which relief can be 

granted. To obtain injunctive relief, a party must demonstrate “actual or 

imminent harm,” Home Builders Ass’n of Cent. Ariz. v. Kard, 219 Ariz. 374, 

378, ¶ 18 (App. 2008), and a “strong likelihood that [it] will succeed at trial 

on the merits.” Shoen v. Shoen, 167 Ariz. 58, 63 (App. 1990). The Delpretes 

have not provided any information—beyond their stated belief that a 

trustee’s sale “will cause irreparable injury”—that establishes imminent 

harm or that they are likely to succeed on the merits. And, since Defendants 

cancelled the notice of sale, the Delpretes cannot show any actual or 

imminent harm.

 

6 The Delpretes attached copies of the following documents to their 

amended complaint: (1) the warranty deed conveying the Property to the 

Delpretes; (2) the Note; (3) the Deed of Trust securing the Note; (4) a notice 

of rejection of executory contract between Century Mortgage and MERS; (5) 

the assignment of the beneficial interest in the Deed of Trust from Century 

Mortgage to Bank of America; (6) the assignment of the beneficial interest 

in the Deed of Trust from Bank of America to Green Tree; (7) the Delpretes’

request that Green Tree produce the original promissory note; (8) a 

screenshot of a Fannie Mae online “look up” search for the Delpretes; and 

(9) the notice of the January 2016 trustee sale of the Property set for January 

11, 2016.
DELPRETE, et al. v. DITECH, et al.

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II. Declaratory Judgment

¶13 The Delpretes next sought a declaration that Defendants have 

no legal rights under the Note; however, their argument misapprehends 

their duty to, at the very least, initially state a claim in their complaint for

which relief can be granted. See Ariz. R. Civ. P. 12(b)(6).

¶14 The Delpretes argued that the Note and the Deed of Trust had 

not been “legally transferred” to Ditech. But they alleged no facts to 

support their contention that those instruments were not properly assigned, 

and instead made only conclusory allegations to that effect. Further, the 

Delpretes would have the court disregard A.R.S. § 33-817, which provides 

that a “transfer of any contract . . . secured by a trust deed shall operate as 

a transfer of the security for such contract.” A.R.S. § 33-817 (2014). As the 

superior court correctly found, under A.R.S. § 33-817 a deed of trust 

automatically follows a promissory note. Thus, because Ditech holds the 

Note by statutory transfer as a result of its merger with Green Tree, Ditech 

also holds a beneficiary interest in the Deed of Trust.

III. Quiet Title

¶15 The Delpretes sought to quiet title, alleging they are the

Property’s legal owners. This assertion, however, is contrary to established 

law that, under a deed of trust, “the trustee holds legal title until the loan 

balance is paid.” Steinberger v. McVey, 234 Ariz. 125, 140, ¶ 65 (App. 2014)

(citing A.R.S. §§ 33–801(8), (10) (2007)). Further, a party “cannot seek to 

quiet title solely based on the alleged weakness of his adversary’s title.” Id.

(citing Allison v. State, 101 Ariz. 418, 421 (1966)). The Delpretes did not 

allege that they have paid the Note in full and did not allege any other facts 

which otherwise undermine the Defendants’ legal ownership of the Note

and rights under the Deed of Trust; accordingly, the court did not err in 

dismissing the Delpretes’ claim to quiet title.

IV. False Recording Act

¶16 The Delpretes also alleged Defendants violated A.R.S. § 33-

420 by recording the notice of trustee’s sale on the Property without a legal 

right to foreclose. See A.R.S. § 33-420(A) (2014) (A person claiming an 

interest in real property, “who causes a document asserting such claim to 

be recorded . . . knowing or having reason to know that the document is []

groundless,” is liable for damages.). The Delpretes’ claim, however, fails.

¶17 In 2015, Green Tree sent the Delpretes a letter explaining it 

was authorized to service the Note because Bank of America transferred its 
DELPRETE, et al. v. DITECH, et al.

Decision of the Court

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interest in the Note to Green Tree. Later, Ditech provided a certificate of 

merger showing it merged with Green Tree in 2015. The Delpretes did not 

provide any factual or legal support that suggests the documents 

Defendants provided were groundless or false, and the Delpretes have 

asserted no facts, which if taken as true, provide grounds for relief under 

A.R.S. § 33-420.

V. Rescission

¶18 The Delpretes also sought rescission of the Note, arguing

Bank of America made misrepresentations and failed to make required 

disclosures when refinancing the Note in 2012. The Delpretes alleged they 

properly rescinded under the Truth in Lending Act (“TLA”) by sending a 

letter demanding rescission in February 2015, within three years of the 2012 

loan modification. The Delpretes’ claim for rescission is without legal merit

because the TLA does not allow or provide a basis for rescission of a home 

refinancing in this setting, and in any event, the Delpretes failed to allege

the ability to tender the loan proceeds.

¶19 The TLA grants borrowers the right to rescind certain home 

loans. Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790, 791 (2015). 

The rescission right granted by the TLA, however, does not apply to 

transactions for “a refinancing or consolidation (with no new advances) of 

the principal balance then due and any accrued and unpaid finance charges 

of an existing extension of credit by the same creditor secured by an interest 

in the same property.” 15 U.S.C. § 1635(e)(2). Thus, a borrower cannot 

rescind a refinancing “by the same creditor of an extension of credit already 

secured by the consumer’s principal dwelling . . . [except] to the extent the 

new amount financed exceeds the unpaid principal balance . . . .” 12 C.F.R. 

§ 226.23(f)(2).

¶20 The Delpretes failed to allege specific facts, such as a new loan 

advance, that would create a colorable claim for rescission of the 2012 

refinancing under the TLA. Further, the Delpretes’ claim for rescission fails 

for the additional reason that they did not allege they were able to tender

the loan proceeds. See Yamamoto v. Bank of N.Y., 329 F.3d 1167, 1170-71 (9th 

Cir. 2003) (finding that for borrowers to seek rescission they must show the 

ability to tender money or property to the creditor). See also 15 U.S.C. 

§ 1635(b) (borrower must return the property or pay the property’s 

reasonable value to creditor).
DELPRETE, et al. v. DITECH, et al.

Decision of the Court

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CONCLUSION

¶21 We affirm the superior court’s order granting Defendants’

motion to dismiss. The Defendants, as the prevailing parties, are awarded 

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