IN THE

SUPREME COURT OF THE STATE OF ARIZONA

MARIA CARMEN ZUBIA, INDIVIDUALLY, AND IN HER CAPACITY AS TRUSTEE 

ON BEHALF OF THE MARIA C. PENA REVOCABLE LIVING TRUST,

Plaintiff/Appellant,

v.

DAVID SHAPIRO, INDIVIDUALLY, AND AS THE TRUSTEE OF THE SHAPIRO 

TRUST DATED FEBRUARY 14, 2006; ILANA SHAPIRO a/k/a ILLANA SHAPIRO,

INDIVIDUALLY, AND AS TRUSTEE OF THE SHAPIRO TRUST DATED 

FEBRUARY 14, 2006,

Defendants/Appellees.

No. CV-16-0255-PR

Filed January 12, 2018

Appeal from the Superior Court in Maricopa County

The Honorable Robert H. Oberbillig, Judge

No. CV2015-002563

AFFIRMED 

Memorandum Decision of the Court of Appeals

Division One

 1 CA-CV 15-0404

Filed Sept. 29, 2016

AFFIRMED

COUNSEL:

Kyle A. Kinney (argued), Law Offices of Kyle A. Kinney, PLLC, Scottsdale, 

Attorney for Maria Carmen Zubia

Patrick J. Davis, Nathaniel B. Rose (argued), Fidelity National Law Group, 

Phoenix, Attorneys for David and Ilana a/k/a Illana Shapiro 

JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF 

JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES 

TIMMER, BOLICK, GOULD, and LOPEZ joined.

JUSTICE BRUTINEL, opinion of the Court:
ZUBIA v. SHAPIRO, et al.

Opinion of the Court

2

¶1 The issue in this case is whether a homeowner’s failure to 

obtain injunctive relief under A.R.S. § 33-811(C) results in the waiver of her 

damages claim arising from a trustee’s sale, where the homeowner alleges 

that her name was forged on the promissory note and deed of trust. We 

hold that failing to obtain an injunction before the trustee’s sale results in 

the waiver of damage claims dependent on the validity of the sale.

I. BACKGROUND

¶2 Maria Zubia and her husband, Jose Pena, acquired title to a 

single-family residence (the “Property”) as joint tenants in 1995. Zubia and 

Pena separated in 2006. In 2008, Pena executed a $150,000 Promissory Note 

(the “Note”) in favor of David Shapiro, Ilana Shapiro, and the Shapiro Trust 

(collectively “Shapiro”) and Advanced Capital Group, LLC (“Advanced”). 

To secure the loan, Pena simultaneously executed a Deed of Trust (“DOT”) 

on the Property. The Note and DOT list Shapiro and Advanced as the 

Lender and Land America Lawyers Title as the Trustee.

¶3 Both the Note and DOT purport to be signed by Pena and 

Zubia. The DOT was recorded on January 13, 2009. Zubia contends that 

her signatures on the Note and DOT were forged and that she first learned

of the loan and DOT in December 2013, when she tried to borrow against 

the Property.

¶4 The loan went into default in 2013. In August 2013, Advanced 

assigned its interest in the Property to Shapiro. Subsequently, Shapiro 

substituted Empire West Title Agency, LLC (“Empire”), as the trustee of the 

DOT. Empire then recorded a notice of trustee’s sale stating that the 

Property was to be sold at public auction in February 2014.

¶5 In January 2014, Pena quitclaimed his joint tenancy interest in 

the Property to Zubia, who recorded the quitclaim deed on February 10. 

Shortly thereafter, Zubia filed a separate action against Pena, Shapiro, 

Advanced, Empire, and others, asserting that her signatures on the Note 

and DOT were forged. Representing herself, Zubia sought to quiet title to 

the Property but did not seek to enjoin the trustee’s sale. Her complaint 

was dismissed without prejudice for lack of prosecution.
ZUBIA v. SHAPIRO, et al.

Opinion of the Court

3

¶6 In January 2015, after Zubia’s action was dismissed, Empire 

conducted a trustee’s sale and Shapiro purchased the Property on a credit 

bid and recorded a trustee’s deed.

¶7 After the sale, Zubia filed this action against Pena, Shapiro, 

Advanced, and others, reasserting her forgery allegations. She sought 

damages under A.R.S. § 33-420(A) and to quiet title to the Property in her 

name. As relevant here, Zubia alleged that because the Note and DOT were 

forged, “Shapiro[] never obtained a security interest in the property as the 

basis for a non-judicial foreclosure sale,” and thus the trustee’s deed 

resulting from the sale was invalidly recorded. Zubia also added a 

“wrongful foreclosure” claim, asked the trial court to declare the January 

2015 sale invalid, and sought to enjoin any future trustee’s sales. Shapiro 

moved to dismiss, arguing Zubia had waived any claim to title of the 

Property and all defenses and objections to the sale pursuant to A.R.S. § 33-

811(C).

¶8 The trial court dismissed Zubia’s complaint under Arizona 

Rule of Civil Procedure 12(b)(6), ruling that under § 33-811(C), she had

waived her claims by not obtaining injunctive relief before the January 2015 

sale. The court entered final judgment pursuant to Arizona Rule of Civil 

Procedure 54(b).

¶9 The court of appeals affirmed, concluding that § 33-811(C)

bars all claims that are dependent on the trustee’s sale unless an injunction 

is obtained before the sale. Zubia v. Shapiro, 1 CA-CV 15-0404, 2016 WL 

5462039, at *2, ¶ 7 (Ariz. App. Sept. 29, 2016) (mem. decision). Zubia 

argued that A.R.S. § 33-811(B), rather than subsection (C), should apply

because Shapiro had notice of the forgery before the sale. Id. ¶ 9. The court 

of appeals disagreed, explaining that “[s]ubsection (B) does not apply 

because Zubia did not allege that Shapiro failed to comply with the deed of 

trust requirements or the non-judicial foreclosure statutes.” Id. ¶ 10.

¶10 The court of appeals also found no error in the trial court’s 

dismissal of Zubia’s wrongful foreclosure claim. Id. at *3 ¶¶ 13–14. 

Although the court noted that “Arizona has not recognized a cause of action 

for wrongful foreclosure,” it declined to “address whether the cause of 

action exists because Zubia’s specific ‘wrongful foreclosure’ allegations 

would remain subject to the statutory requisites of A.R.S. § 33-811(C) and 

[are] thus barred for failing to seek the required injunctive relief.” Id. ¶ 13. 
ZUBIA v. SHAPIRO, et al.

Opinion of the Court

4

Even assuming Arizona recognizes a cause of action for wrongful 

foreclosure, the court found that Zubia failed to show her claim was not 

precluded by § 33-811(C). Id.

¶11 The court of appeals further found that, to the extent Zubia

claimed damages under A.R.S. § 33-420(A), her claim was based on the

allegation that Shapiro improperly recorded the trustee’s deed, “a claim 

that cannot succeed without first determining whether the trustee’s sale 

was improper.” Id. at *4 ¶ 17. Therefore, the § 33-420(A) claim was 

dependent on the sale and was precluded by § 33-811(C) once the sale 

occurred. Id.

¶12 We granted review to determine whether the failure to seek 

injunctive relief under § 33-811(C) results in a waiver of damages claims

against the trustee resulting from an allegedly fraudulent trustee’s sale, an 

issue of statewide importance that is likely to recur. We have jurisdiction 

pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S. 

§ 12-120.24. 

 

II. DISCUSSION

A. Standard of Review

¶13 We review the dismissal of a complaint under Rule 12(b)(6) 

de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355 ¶ 7 (2012). We assume 

the well-pleaded facts alleged in the complaint are true and will affirm the 

dismissal only if the “plaintiff[] would not be entitled to relief under any 

interpretation of the facts susceptible of proof.” Fid. Sec. Life Ins. Co. v. State, 

191 Ariz. 222, 224 ¶ 4 (1998).

B. Post-Sale Damages Claims

¶14 In its motion to dismiss, Shapiro argued that Zubia waived 

any objections or defenses to the trustee’s sale by failing to seek an 

injunction pursuant to § 33-811(C) before the sale. We agree. In her petition 

in this Court, Zubia acknowledges that § 33-811(C) bars title claims 

following a trustee’s sale; but, because claims both to quiet title and for postsale damages depend on the sale’s validity, we address them together 

below.
ZUBIA v. SHAPIRO, et al.

Opinion of the Court

5

¶15 The “deed of trust scheme is a creature of statutes.” BT 

Capital, LLC v. TD Serv. Co. of Ariz., 229 Ariz. 299, 300 ¶ 9 (2012) (quoting In 

re Vasquez, 228 Ariz. 357, 359 ¶ 4 (2011)). Claims raising objections or 

defenses to a trustee’s sale are governed by § 33-811(C), which provides:

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 a court 

order granting relief pursuant to rule 65, Arizona rules of civil 

procedure, entered before 5:00 p.m. mountain standard time 

on the last business day before the scheduled date of the sale.

¶16 “Under this statute, a person who has defenses or objections 

to a properly noticed trustee’s sale has one avenue for challenging the sale: 

filing for injunctive relief.” BT Capital, LLC, 229 Ariz. at 301 ¶ 10. Although 

this Court has long recognized that statutes pertaining to deeds of trust

“must be strictly construed in favor of the borrower,” Patton v. First Fed. 

Sav. & Loan Ass’n of Phx., 118 Ariz. 473, 477 (1978), we must give effect to

§ 33-811(C)’s express language, which requires enjoining the sale as a 

prerequisite to any claim arising out of the sale, see BT Capital, LLC, 229 Ariz. 

at 301 ¶ 14 (rejecting interpretation that would render statute ineffective).

¶17 Zubia argues that a claim for money damages arising out of a 

sale does not seek to undo the sale and is therefore not a defense or objection 

to the sale. But § 33-811(C) prohibits not only actions to void the sale, as 

with her initial quiet title claim, but also those dependent upon the sale.

¶18 In relevant part, § 33-811(C) provides that a trustor waives 

“all defenses and objections to the sale not raised in an action that results in 

the issuance of [an injunction].” (emphasis added). In the express language 

of the statute, the legislature employed the phrase “all . . . objections to the 

sale,” which does not cabin the statute’s operation to a particular claim or 

type of relief sought and therefore does not apply only to those claims 

directly seeking to void a sale. This language in § 33-811(C) thus 

encompasses claims for damages which are based on a defective sale under 

A.R.S. title 33, chapter 6.1. See Morgan AZ Fin., L.L.C. v. Gotses, 235 Ariz. 21, 

23–24 ¶ 7 (App. 2014) (“Under A.R.S. § 33-811(C), a trustor who fails to 

enjoin a trustee’s sale waives his claims to title of the property upon the 

sale’s completion, and also waives any claims that are dependent on the 
ZUBIA v. SHAPIRO, et al.

Opinion of the Court

6

sale.” (citations omitted) (citing BT Capital, LLC, 229 Ariz. at 301 ¶ 10, and 

Madison v. Groseth, 230 Ariz. 8, 13 ¶ 15 (App. 2012))). Zubia’s claims are 

objections to the sale, because they cannot succeed unless the sale was 

defective. That is, if a trustor could proceed with an action for damages 

based on a defective trustee’s sale, her claim would necessarily call into 

question the validity of the sale. Succeeding on the claim would effectively

result in a legal determination that the sale was defective, which is 

inconsistent with the legislature’s intent that A.R.S. § 33-811(E) guarantee 

the legal status of the trustee’s deed following the sale as an “absolute” 

conveyance. See § 33-811(E) (stating that the “conveyance shall be absolute 

without right of redemption”). Allowing a legal challenge based on the 

invalidity of the trustee’s deed permits an end-run around the § 33-811(C) 

waiver provision, resulting in legal expense and potential liability arising 

out of a statutorily valid trustee’s sale, undercutting the finality the 

legislature intended for trustee sales. See, e.g., A.R.S. § 33-808(C)(8) 

(requiring language in the notice of sale to include: “Unless you obtain an 

order, the sale will be final.” (emphasis added)); § 33-811(E) (extinguishing 

the trustor’s interest post-sale, resulting in a trustor losing any interest in 

the property in which to quiet title).

¶19 In addition, our reading is consistent with the further purpose 

of § 33-811(C) and related statutes regulating trustee’s sales — namely, to 

provide for expeditious foreclosures. Gotses, 235 Ariz. at 23 ¶ 7 (noting that 

trustee’s sales “are meant to operate quickly and efficiently, ‘outside of the 

judicial process’” (quoting Hogan v. Wash. Mut. Bank, N.A., 230 Ariz. 584, 

587 ¶ 12 (2012))). A reading of § 33-811(C) that allows for personal liability 

arising out of the sale undercuts the purpose of the statute.

¶20 A trustor who fails to enjoin a sale, however, does not waive 

claims that are independent of the sale. Id. at 24 ¶ 8 (“A completed trustee’s 

sale does not operate to deprive the trustor of the ability to pursue claims 

or defenses that are independent of the sale.”); see also Sitton v. Deutsche Bank 

Nat’l Tr. Co., 233 Ariz. 215, 217–18 ¶¶ 12–13 (App. 2013) (recognizing that 

§ 33-811(C) does not bar claims or defenses that are independent of the 

trustee’s sale). Madison, Gotses, and Sitton recognize the difference between 

claims that are dependent on the trustee’s sale and those that are 

independent.

¶21 In Madison, a trustor sued the purchasers of property sold at 

a trustee’s sale, asserting claims for conversion, fraud/deceit, and trespass 
ZUBIA v. SHAPIRO, et al.

Opinion of the Court

7

based upon an allegation that the property was wrongly sold. 230 Ariz. 

at 12 ¶ 10. The trustor sought the “return of the [p]roperty and an award 

of compensatory and punitive damages.” Id. at 11 ¶ 7. The court of appeals 

found the tort claims waived under § 33-811(C) because they depended on 

the validity of the trustee’s sale. Id. at 13 ¶ 15. In other words, because the 

trustor could not prevail on claims against the purchaser unless the sale 

itself was invalid, the damage claims were waived. Id.

¶22 Conversely, in Gotses, the court of appeals held that under 

§ 33-811(C), the trustor does not waive defenses to a post-sale deficiency 

claim by the lender. 235 Ariz. at 23–24 ¶¶ 7–10. In that case, the trustors 

did not obtain an injunction before the trustee’s sale of the property. Id. 

at 22–23 ¶ 2. After the lender’s successor-in-interest filed an action seeking 

a deficiency judgment, the trustors asserted that the successor-in-interest 

“had taken the loan documents from the original lender subject to 

fraud-based defenses that rendered them void and unenforceable.” Id. at 23 

¶ 3. The trial court granted summary judgment in favor of the successorin-interest, finding that the trustors had waived all defenses to the sale 

under § 33-811(C). Id. ¶ 4. The court of appeals reversed, reasoning that 

§ 33-811(C) by its terms applied to defenses and objections to the sale, and 

did “not operate to deprive the trustor of the ability to pursue claims or 

defenses that are independent of the sale.” Id. at 24 ¶ 8. Because the court 

found that § 33-811(C) did not “abrogate defenses to deficiency liability by 

its express terms, and no prior judgment precludes such defenses,” it held 

that the trustor’s “defenses under the note remained available in the 

deficiency action.” Id. ¶ 10.

¶23 Likewise, in Sitton, the court of appeals held that a trustor 

who unsuccessfully sought to enjoin a trustee’s sale had not waived claims 

for monetary damages under § 33-420(A). 233 Ariz. at 218 ¶ 14. Before the 

trustee’s sale, Sitton filed a complaint “[a]lleging material misstatements 

and other defects in the assignments and notices of substitution recorded in 

August 2010 and May 2011, as well as in the notice of trustee’s sale recorded 

in May 2011.” Id. at 217 ¶ 8. In addition to monetary damages, Sitton also 

sought an order quieting her title to the property. Id. The trustees then 

moved to dismiss Sitton’s complaint. Id. ¶ 9. Treating the trustees’ motion 

to dismiss as one for summary judgment, the trial court granted the motion, 

dismissed Sitton’s claim, and the property was later sold. Id. at 217 ¶¶ 10–

11, 218 ¶ 14. Although the court of appeals found that Sitton’s unsuccessful 

attempt to enjoin the trustee’s sale waived her claim to quiet title, it also 
ZUBIA v. SHAPIRO, et al.

Opinion of the Court

8

held that § 33-811(C) did not preclude her claims for monetary damages. 

Id. at 218 ¶ 14; but see also id. at 220 ¶ 21 (affirming summary judgment in 

favor of the defendants for failure to prove an essential element of her 

claim).

¶24 Sitton correctly recognized that although the quiet title claim 

would have required invalidation of the trustee’s sale, the false recording 

claim under § 33-420(A) was based upon alleged misstatements and other 

defects in documents that existed irrespective of the trustee’s sale (i.e., 

assignments and notices of substitution). Unlike Sitton’s false-recording 

claim, Zubia’s trial court claims to quiet title and for post-sale damages

depend on the sale’s invalidity and are therefore precluded under § 33-

811(C). 

 

a. The A.R.S. § 33-420(A) Claim

¶25 Zubia asserted two interrelated claims for relief: (1) Pena 

“forged her signatures on both [the DOT and the Note]”; (2) because of the 

forgery, the trustee’s deed was fraudulently recorded and sale of Zubia’s 

home is “invalid and voidable and title should be restored to her.”1

¶26 Zubia’s forgery claim was limited to Pena. In her complaint, 

Zubia alleged that only “Pena forged her signatures on both [the DOT and 

the Note].” Zubia did not allege and does not argue that Shapiro knew of 

or was complicit in forging her signature on either the DOT or the Note. 

Rather, Zubia claims that because the Note and DOT were forged, 

“Shapiro[] never obtained a security interest in the property as the basis for 

a non-judicial foreclosure sale” and thus, the trustee’s deed resulting from 

the sale is invalid. As a result, Zubia claims Shapiro’s recording of the postsale trustee’s deed constituted the recording of a false document in

violation of § 33-420(A), which states:

 1 Zubia also argues that preventing her from bringing her § 33-420(A)

damage claim violates the anti-abrogation clause of article 18, section 6, of 

the Arizona Constitution. Because Zubia did not fully develop that 

argument, the claim is waived. State v. Dann, 205 Ariz. 557, 570 ¶ 46 n.8 

(2003) (failure to develop a legal argument constitutes waiver of that 

argument on appeal), opinion supplemented by 206 Ariz. 371 (2003); State v. 

Bolton, 182 Ariz. 290, 298 (1995) (“Failure to [sufficiently] argue a claim on 

appeal constitutes waiver of that claim.”).
ZUBIA v. SHAPIRO, et al.

Opinion of the Court

9

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 fees and costs of the action.

¶27 Zubia’s claim that the trustee’s deed was falsely recorded 

necessarily requires a determination that the sale was invalid, and is 

therefore waived by operation of § 33-811(C). See supra ¶ 18. As any defects 

in the trustee’s sale were waived under the statute, the sale was not 

improper, and the trustee’s deed is therefore valid. Because Zubia’s § 33-

420(A) claim against Shapiro is based upon the invalidity of the trustee’s 

deed, and because Zubia did not obtain an injunction before the trustee’s 

sale of the Property, her damage claim for the wrongful recording of the 

trustee’s deed under § 33-420(A) is waived by operation of § 33-811(C).

¶28 This result is consistent with the purpose of § 33-811(C) and 

other statutes governing trustee’s sales — namely, to provide for 

expeditious foreclosures. See supra ¶ 19. Consistent with that policy, our 

interpretation of § 33-811(C) ensures the finality of the sale, while 

preserving claims that are independent of the sale.

C. The Wrongful Foreclosure Claim

¶29 Finally, Zubia asks this Court to recognize a new tort for 

wrongful foreclosure, something our courts have not yet done. See In re 

Mortg. Elec. Registration Sys., Inc., 754 F.3d 772, 784 (9th Cir. 2014) (“Arizona, 

though a nonjudicial foreclosure state, has not expressly recognized the tort 

of wrongful foreclosure.”). Citing California law, the Ninth Circuit Court 

of Appeals listed the following elements to assert a wrongful foreclosure

claim:

(1) [T]he trustee or mortgagee caused an illegal, fraudulent, 

or willfully oppressive sale of real property pursuant to a 
ZUBIA v. SHAPIRO, et al.

Opinion of the Court

10

power of sale in a mortgage or deed of trust; (2) the party 

attacking the sale (usually but not always the trustor or 

mortgagor) was prejudiced or harmed; and (3) in cases where 

the trustor or mortgagor challenges the sale, the trustor or 

mortgagor tendered the amount of the secured indebtedness

or was excused from tendering.

Id. (emphasis omitted) (quoting Lona v. Citibank, N.A., 134 Cal. Rptr. 3d 622, 

633 (Ct. App. 2011)). Although we do not preclude the possibility that 

Arizona may recognize a cause of action for wrongful foreclosure in the 

future, we do not do so here.

¶30 As the court of appeals correctly recognized, “Zubia’s specific 

‘wrongful foreclosure’ allegations would remain subject to the statutory 

requisites of A.R.S. § 33-811(C),” and are waived by her failure to seek and 

obtain the required injunctive relief. Shapiro, 2016 WL 5462039, at *3 ¶ 13. 

Even if we chose to recognize a cause of action for wrongful foreclosure like 

that in California, it would not apply here, because Shapiro is neither the 

trustee nor the mortgagee of the property. Moreover, as set forth above, 

Zubia’s claim against Shapiro arises out of the execution and recording of 

the trustee’s deed. As such, her claim is an objection to the validity of the 

sale and would, therefore, be precluded by § 33-811(C).

¶31 To be clear, our holding in this case does not preclude Zubia 

from pursuing an action against Pena or others for claims independent of 

the sale. Zubia may still have a claim for damages arising from the 

recording of the deed of trust considering the alleged forgeries. So long as 

such a claim does not depend on whether a trustee’s sale occurred, it would 

not be barred by § 33-811(C).

III. CONCLUSION

¶32 We affirm the decision of the court of appeals and the 

judgment of the trial court. We deny Zubia’s request for attorney fees.