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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSE MASTRANZO VELAZQUEZ, et al., Plaintiffs/Appellees,

v.

FMZ INDUSTRIES, INC., Defendant/Appellant.

No. 1 CA-CV 22-0136

Appeal from the Superior Court in Maricopa County

No. CV2019-008150

The Honorable Joseph P. Mikitish, Judge

REVERSED AND REMANDED WITH INSTRUCTIONS

COUNSEL

Combs Law Group, P.C., Phoenix

By Christopher A. Combs, Darlene Z. Twiss (argued)

Counsel for Plaintiffs/Appellees

Fennemore Craig, P.C., Phoenix

By Timothy J. Berg, Tyler D. Carlton (argued)

Counsel for Defendant/Appellant

FILED 2-21-2023
VELAZQUEZ, et al. v. FMZ

Decision of the Court

2

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding 

Judge Brian Y. Furuya and Judge Jennifer B. Campbell joined.

M c M U R D I E, Judge:

¶1 FMZ Industries, Inc. (“FMZ”) appeals the superior court’s 

grant of summary judgment quieting title in favor of José Mastranzo 

Velazquez and Maria Soledad Velazquez. FMZ argues that even if the

statute of limitations bars it from collecting debt accrued under a land sale 

contract, no statute prevents it from asserting its title to the land.

¶2 Because A.R.S. § 12-1104 applies to the “enforcement” of a 

“lien or interest”—and title is not an interest requiring enforcement to be 

effective—the superior court erred by reading A.R.S. § 12-1104 to prevent 

FMZ from asserting title, regardless of any limitation that may apply to the 

debt collection. And because the Velazquezes have established no rights or 

interests superior to FMZ’s legal title, we reverse the judgment with 

instructions to grant summary judgment to FMZ.

FACTS AND PROCEDURAL BACKGROUND

¶3 In 2005, FMZ agreed to sell two parcels of real property in 

Phoenix (“Property”) to Augustina Uriarte. The sale agreement 

(“Agreement”) provides that FMZ could seek “[f]orfeiture by notice and 

reinstatement of the Purchaser’s interest . . . in the manner provided in 

Arizona Revised Statutes Section 33-741 et seq.” The Agreement also 

prohibited Uriarte from transferring or assigning her rights that did not 

comply with the servicing agency’s requirements and provided that the 

Agreement is “binding upon the . . . successors and assigns” of the parties.

¶4 According to FMZ’s servicing agency, the last payment 

Uriarte made was in December 2007. Despite Uriarte’s default in making

payments, FMZ did not pursue forfeiture after waiting for the prescribed

period.

¶5 In 2007, the Velazquezes purported to purchase the Property 

from Manny La Farga, Uriarte’s son. There are no documents evidencing 

this sale except for payment receipts from La Farga. Still, the Velazquezes 

placed a mobile home on the Property and have lived there since, making 
VELAZQUEZ, et al. v. FMZ

Decision of the Court

3

monthly payments to La Farga—until he died in 2018—totaling $138,000. 

They also paid all property taxes since 2007, built a wall around the 

perimeter, and use the Property as an auto repair business.

¶6 In early 2019, Uriarte gave the Velazquezes a warranty deed 

conveying the Property. Then, in February of that year, Uriarte filed suit 

against the Velazquezes, alleging they had no ownership interest in the 

Property but had been leasing it from La Farga and that they fraudulently 

obtained the warranty deed. Uriarte passed away the same year, and the 

court dismissed her claims with prejudice.

¶7 The Velazquezes filed suit against FMZ soon after Uriarte’s 

complaint was dismissed, claiming they were entitled to the Property under 

theories of adverse possession and quiet title. The parties filed 

cross-motions for summary judgment, and the court granted the 

Velazquezes’ motion in part. The court found that the six-year statute of 

limitation for written contracts for debt and trust deeds barred FMZ from 

suing to foreclose and that the Velazquezes were entitled to quiet title. See

A.R.S. §§ 12-548, 12-1104, and 33-816. The court also awarded the 

Velazquezes attorney’s fees of nearly $75,000 and taxable costs under A.R.S. 

§§ 12-1103(B), 12-341, and 12-341.01. But the court ruled against the 

Velazquezes on the adverse possession issue, finding that “the 

[Velazquezes’] interests were not adverse to the world because [they] were 

making regular payments to Mr. La Farga.”

¶8 The Velazquezes did not appeal the adverse possession 

ruling. But FMZ timely appealed the quiet title judgment, and we have 

jurisdiction under A.R.S. § 12-2101(A)(1).

DISCUSSION

¶9 We review the entry of summary judgment de novo. Modular 

Mining Sys., Inc. v. Jigsaw Techs., Inc., 221 Ariz. 515, 518, ¶ 9 (App. 2009). 

“[W]e view the facts in the light most favorable to the party against whom 

[summary] judgment was entered and draw all justifiable inferences in its 

favor.” Id. at 517, ¶ 2. Summary judgment is appropriate when the “moving 

party shows that there is no genuine dispute as to any material fact and the 

moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P.

56(a). We also view questions of law, such as those about statutes of 

limitations, de novo. Rogers v. Bd. of Regents of Univ. of Ariz., 233 Ariz. 262, 

265, ¶ 6 (App. 2013).
VELAZQUEZ, et al. v. FMZ

Decision of the Court

4

A. Section 12-1104 Does Not Apply to the Assertion of Title.

¶10 When quieting title in the Velazquezes’ favor, the superior 

court cited A.R.S. §§ 12-1104(B), 12-548, and Rogers. Arizona Revised 

Statutes Section 12-1104(B) reads:

If it is proved that the interest or lien or the remedy for 

enforcement thereof is barred by limitation, or that plaintiff 

would have a defense by reason of limitation to an action to 

enforce the interest or lien against the real property, the court 

shall have jurisdiction to enter judgment and plaintiff shall be 

entitled to judgment barring and forever estopping assertion 

of the interest or lien in or to or upon the real property adverse 

to plaintiff.

¶11 The superior court found that this statute, as interpreted by 

Rogers, barred FMZ from asserting its title. See Rogers, 233 Ariz. at 271, ¶ 35 

(“[T]he quiet title statute requires the court to enter judgment on behalf of 

a plaintiff against a defendant who cannot enforce a real property interest 

because the defendant’s action is barred by limitation.”).

¶12 But FMZ argues that the superior court erred when applying

§ 12-1104 because the statute “only gives the court power to determine if an 

interest is time-barred” and “no statute of limitations bars FMZ’s ability to 

assert its interest as legal title holder.” We agree.

¶13 Throughout this case, FMZ has had two distinct rights. The 

first, granted by the Agreement, was the right to installment payments over 

the life of the Agreement. The second, not created under but remaining 

despite the Agreement, was the right to ownership of the property. See Wayt 

v. Wayt, 123 Ariz. 444, 446 (1979) (“A contract for the sale of realty does not 

effect a transfer of legal title. The vendor remains the owner of the legal 

estate, while the vendee holds an equitable interest in the property.”). The

instrument of legal title represents the right to ownership. See Title, Black’s

Law Dictionary (11th ed. 2019) (“Legal evidence of a person’s ownership 

rights in property; an instrument (such as a deed) that constitutes such 

evidence.”).

¶14 Uriarte’s default in 2007 granted FMZ the power to pursue a 

remedy for nonpayment. And the opportunity to collect on debt expires

after six years. A.R.S. § 12-548(A)(1) (“An action for debt shall be 

commenced and prosecuted within six years after the cause of action 

accrues, and not afterward, if the indebtedness is evidenced by . . . . [a]

contract in writing that is executed in this state.”); see also Mertola, LLC v.
VELAZQUEZ, et al. v. FMZ

Decision of the Court

5

Santos, 244 Ariz. 488, 490, ¶ 10 (2018) (explaining statutes of limitation 

accrue incrementally as to individual installment payments).

¶15 But no such statute applies a limitation to FMZ’s title. 

Although the superior court applied A.R.S. § 12-1104(B) to find such a 

limitation, under its plain language § 12-1104(B) applies to claims or 

defenses in just two circumstances: (1) when they arise from an “interest or 

lien” that is “barred by limitation,” or (2) when “the remedy for 

enforcement thereof” is “barred by limitation.” Even if FMZ’s title falls 

under the umbrella of the “interest[s]” governed by § 12-1104(B), its title is 

not barred by limitation, nor does its title require any “enforcement” to 

remain effective. If anything, a quiet title action is an action to enforce the 

title.1 See A.R.S. § 12-1102(5). But title owners are not time-barred from 

raising a quiet title action. See Rogers, 233 Ariz. at 266–67, ¶ 13 (quoting 

Bangerter v. Petty, 225 P.3d 874, 877, ¶ 12 (Utah 2009)) (“[I]f the action is a 

true quiet title action, meaning an action merely to ‘quiet an existing title 

against an adverse or hostile claim of another,’ then the statute of 

limitations will not bar the claim.”); City of Tucson v. Morgan, 13 Ariz. App. 

193, 195 (1970) (“[A] cause of action to quiet title for the removal of the cloud 

on title is a continuous one and never barred by limitations while the cloud 

exists.”). Thus, § 12-1104(B) does not apply to the title claim.

¶16 Under the correct A.R.S. § 12-1104 interpretation, it becomes 

apparent that the Velazquezes cannot rely on Rogers. The barred party in 

Rogers was not trying to assert title. Rogers, 233 Ariz. at 267, ¶ 15. Instead, 

the interest the barred party sought to enforce was an easement hostile to 

the title owner. Id. at 264, ¶ 1. And the barred party could not assert his 

easement because the very existence of the easement depended on another 

already-barred claim. Id. at 267, ¶¶ 13, 15 (quoting In re Hoopiiaina Trust, 144 

P.3d 1129, 1137, ¶ 27 (Utah 2006)) (“[I]f the party’s claim for quiet title relief 

can be granted only if the party succeeds on another claim, then the statute 

1 Our holding today does not require that a plaintiff must always 

assert present ownership of record title to begin a quiet title action. For 

example, plaintiffs asserting adverse possession may seek quiet title relief 

under § 12-1104(B) as a bar to the current record title owners’ ability to 

enforce their recorded title interests, without having any recorded title 

interest themselves. See, e.g., Sparks v. Douglas & Sparks Realty Co., 19 Ariz. 

123, 125 (1917) (“When one acquire[s] such a title or right [of adverse 

possession] it may be used either as a weapon or as a shield.”). Even so,

because the Velazquezes did not appeal the superior court’s decision about

their claim of adverse possession, these considerations do not apply.
VELAZQUEZ, et al. v. FMZ

Decision of the Court

6

of limitations applicable to the other claim will also apply to the quiet title 

claim.”). Here, by contrast, FMZ is asserting its title, ownership of which is 

not dependent upon another claim.

¶17 Because § 12-1104 does not prevent the title holder from 

asserting title, the superior court erred by barring FMZ’s claim. So we turn 

next to the merits of the cross-motions for summary judgment.

B. The Velazquezes Have Not Obtained Title to the Property, Only 

Acquiring the Purchaser’s Interest Under the Agreement.

¶18 Throughout this case, legal title to the Property has been held 

solely by FMZ. It remains with FMZ today. While the Agreement 

established a promise to tender title “upon fulfillment of Purchaser’s 

obligation,” Uriarte never fulfilled her obligation or obtained title because 

she defaulted on the payments in the installment contract in December 

2007. Upon default, FMZ did not need to act to acquire the title because 

FMZ never conveyed the title to Uriarte. See Mining Inv. Grp., LLC v. Roberts, 

217 Ariz. 635, 639, ¶ 13 (App. 2008) (“It is well-established that ‘[a] contract 

for the sale of realty does not effect a transfer of legal title,’ which remains 

in the seller’s name until the close of escrow.”) (quoting Wayt, 123 Ariz. at 

446); Hoyle v. Dickinson, 155 Ariz. 277, 280 (App. 1987) (“In a land contract, 

legal title to the property is not conveyed but remains in the vendor. . . .

After payment in full of the sums due under the contract, the purchaser 

then receives legal title to the property.”).

¶19 Under the Agreement, FMZ could pursue “forfeiture by 

notice and reinstatement of the Purchaser’s interest . . . in the manner 

provided in [A.R.S. §] 33-741 et seq.” Thus, “after expiration of the 

applicable period” and “after serving the notice of election to forfeit,” FMZ 

could pursue forfeiture of Uriarte’s interest under A.R.S. § 33-742. See A.R.S. 

§ 33-743 (notice of election to forfeit). The applicable waiting period varies 

between 30 days and nine months, depending on how much of the purchase 

price has been paid. See A.R.S. § 33-742(D)(1)–(4). Despite its power to do 
VELAZQUEZ, et al. v. FMZ

Decision of the Court

7

so, FMZ has not pursued forfeiture after the waiting period.

2 As a result, 

Uriarte retained her interest under the Agreement—the right to keep

making payments, after which, FMZ would transfer title to the property.

¶20 Still, the Velazquezes did not receive Uriarte’s interest when 

they moved onto the Property in September 2007. Instead, they contracted 

with La Farga. While it is true that the Velazquezes made installment 

payments from 2007 to 2018 to purchase the Property, La Farga had no 

recognized interest in the Property to convey to the Velazquezes. Thus, 

despite their tender of value to La Farga, by the end of 2018, the 

Velazquezes had no rights in the Property because they had not been 

assigned rights under the Agreement, nor had their payments been given 

to FMZ.

¶21 In 2019, Uriarte purported to convey her “right(s), title and 

interest” to the Velazquezes via a warranty deed. The record does not show 

that she notified or consulted FMZ’s servicing agency in this process. Her 

failure to do so was a breach of the Agreement:

No transfer or assignment of any rights hereunder shall be 

made by anyone having an interest herein, unless made in 

such manner and accompanied by such deeds and other 

instruments as shall be required by the Account Servicing 

Agent, nor until its regular fees and other costs shall have 

been fully paid, and all instruments deposited with the 

Account Servicing Agent.

¶22 Still, we have held that even where an assignment breaches 

the agreement, the assignment remains effective. See Hanigan v. Wheeler, 19 

Ariz. App. 49, 52 (1972) (“Where a contract contains a Promise to refrain 

from assigning, an assignment which violates it would not be ineffective. 

The promise creates a Duty in the promisor not to assign. It does not 

deprive the assignor of the Power to assign and its breach, therefore, would 

2 FMZ asserts that “[n]o provision within §§ 33-741 to 33-750 specifies 

any limitation period for effecting a forfeiture of a buyer’s interest in the 

property once the buyer defaults by failing to pay. Instead, § 33-742 

expressly provides that the seller has discretion on whether to enforce a 

forfeiture if the buyer defaults.” Because of this discretion, FMZ argues that

it should now, over ten years into Uriarte’s default, still have a right to 

pursue forfeiture. As we reverse the summary judgment on other grounds, 

we do not reach this issue.
VELAZQUEZ, et al. v. FMZ

Decision of the Court

8

simply subject the promisor to an action for damages while the assignment 

would be effective.”) Thus, while Uriarte’s conveyance breached the

agreement, it was not void, and her interest was transferred to the 

Velazquezes in 2019.

¶23 But Uriarte could not convey what she did not have. See Melni 

v. Custer, 162 Ariz. 153, 155 (App. 1989) (The receiver of a quitclaim deed 

“got nothing since [grantor] had nothing” and the deed “was of no legal 

effect.”). Although her interest conveyance was valid, Uriarte did not have, 

and could not transfer, legal title. As a result, the Velazquezes acquired only 

Uriarte’s interest under the Agreement. And because the Agreement is 

“binding upon the . . . successors and assigns” of the parties, as successors 

in interest, the Velazquezes received Uriarte’s interest subject to the 

Agreement. Under the Agreement, the Velazquezes may only obtain title 

from FMZ “upon fulfillment of Purchaser’s obligation.” But the 

Velazquezes have not fulfilled the purchaser’s obligation, so the title 

remains with FMZ under the Agreement.

C. The Velazquezes Have Not Established a Superior Claim to the 

Property over FMZ’s Title.

¶24 “It is, of course, the universal rule requiring no citation of 

authority, that it is plaintiffs’ burden to establish their titles.” Allison v. State, 

101 Ariz. 418, 421 (1966). The Velazquezes did not meet this burden.

¶25 First, the Velazquezes claim that FMZ has “bare legal title.” 

The Velazquezes define this term: “the holder of such title is missing some 

of the rights that full ownership would permit.” Without citation, the 

Velazquezes assert that FMZ cannot retain ownership of the Property on 

“bare” title and that FMZ needed to exercise forfeiture to acquire “full legal 

title.”

¶26 This argument is meritless. A title holder does not forgo land 

ownership because he has assigned one or more property rights to another. 

See, e.g., Sturm v. Heim, 95 Ariz. 300 (1964) (In a land sale contract, the seller 

delivered possession of land to the buyer, but the title remained, and was 

quieted in favor of, the seller.). And for cases involving transfers of real 

property, Arizona courts have used the term “bare legal title” to refer to 

what is held by trustees under deeds of trust. See, e.g., In re Bisbee, 157 Ariz. 

31, 34 (1988). We use the term because the title held by a trustee “may at 

any time prior to sale be terminated by unilateral action of the beneficiary.” 

Brant v. Hargrove, 129 Ariz. 475, 481 (App. 1981). This is unlike where the 

seller retains title to the property and is under no obligation to transfer it 
VELAZQUEZ, et al. v. FMZ

Decision of the Court

9

until the purchaser satisfies the sale-agreement terms. While FMZ’s title 

remains encumbered under the Agreement until it completes the forfeiture 

requirements under A.R.S. § 33-742, this does not equate to “bare legal title” 

applicable to deeds of trust.

¶27 Second, the Velazquezes argue that FMZ “lost any right to 

claim full legal title to the Property when [FMZ] chose not to take any action 

to enforce its rights for almost fourteen years.” They conclude that “[FMZ] 

is barred from continuing to claim any ownership interest.” But the mere 

passage of time does not divest a landowner of title.

¶28 As we explained, A.R.S. §§ 12-548 and 12-1104 do not bar 

FMZ from asserting title. And while limitations may apply to block the 

enforcement of debt under a sales contract, this is not relevant to the inquiry 

in a quiet title action. Cf. Rogers, 233 Ariz. at 266, ¶ 12 (“A quiet title action 

seeks a judicial determination of adverse claims in order to clear title of the 

disputed property.”).

¶29 To be sure, we have held that the statute of limitations can bar 

a plaintiff from beginning a foreclosure on a mortgage. See, e.g., De Anza 

Land and Leisure Corp. v. Raineri, 137 Ariz. 262 (App. 1983). In De Anza, a 

debtor sought to invalidate a foreclosure action brought by a creditor 

“almost ten years after the date of the first installment payment.” Id. at 264. 

The debtor argued that “A.R.S. § 12-548 applies to an action to foreclose a 

mortgage given as security for a note, and thereby bars the foreclosure 

remedy when the action for debt is barred.” Id. at 265. In reviewing this 

argument, we considered whether a statute of limitations bar for a remedy 

also affects the right associated with that remedy. See id. at 265. Although 

we identified two rules from other jurisdictions, we decided De Anza

without adopting either rule, holding that “A.R.S. § 12-548 applies to 

foreclosure actions as well as to actions on the underlying debt.” Id. at 266.

¶30 Despite our narrow holding (and despite that De Anza 

considered a mortgage, not present here), both parties now cite De Anza in 

support of their positions. The Velazquezes cite De Anza for the proposition 

that A.R.S. § 12-548 applies to actions in rem, “namely forfeiture actions and 

foreclosure actions.” On the other hand, FMZ argues that, under De Anza, 

A.R.S. § 12-548 only “bars the ability to recover a property interest to satisfy 

a debt—e.g., through a foreclosure action—but it does not extinguish the 

property interest itself.”
VELAZQUEZ, et al. v. FMZ

Decision of the Court

10

¶31 The Velazquezes’ interpretation of De Anza is too broad. De 

Anza did not hold that A.R.S. § 12–548 applies to any case in rem. We 

explained:

[W]here a property owner brings suit to remove a cloud on 

his property caused by an unsatisfied mortgage securing a 

debt barred by the statute of limitations, he is required to pay 

off the debt first. . . . [A]lthough the creditor’s remedy [is] 

barred, the landowner should be required to pay the debt if 

he wants equitable relief from the court.

De Anza, 137 Ariz. at 265 (citing Provident Mut. Building-Loan Ass’n v. 

Schwertner, 15 Ariz. 517, 518 (1914) (“[The bar], under the statute of 

limitation, affects the remedy and not the right. It does not extinguish or 

satisfy the debt; it only prevents a recovery when properly invoked by the 

debtor.”)). Thus, FMZ is correct that while De Anza extended the reach of 

A.R.S. § 12-548 to bar the remedy of foreclosure, nothing in our holding in 

De Anza suggests that the statute extinguishes the right of land ownership.

¶32 Furthermore, arguments about the weakness of FMZ’s title do 

not carry the Velazquezes’ burden of proving a superior claim because “[a] 

plaintiff pursuing a quiet title action must allege he holds title to the 

property; he cannot seek to quiet title solely based on the alleged 

weaknesses of his adversary’s title.” Steinberger v. McVey, 234 Ariz. 125, 140, 

¶ 65 (App. 2014). The Velazquezes assert that the “‘strength’ of [their] title 

claim is based upon . . . the facts of this case.” But each argument from these 

facts fails to establish a superior claim to the Property.

¶33 The Velazquezes note that they “obtained warranty deeds 

from Uriarte, who expressly stated . . . that she was the owner of the 

Property.” Uriarte’s erroneous legal claims do not support the Velazquezes’ 

case. The Velazquezes claim that they paid $138,000 for the Property. But 

these payments, made to La Farga, failed to obtain ownership from FMZ. 

FMZ received none of the payments, and La Farga did not hold title to the 

property. The Velazquezes argue that their 12 years of use of the property, 

alongside improvements and operation of a business, support their claim 

to the Property. While these facts may give rise to an adverse possession

claim, the superior court found that the Velazquezes did not adversely 

possess the Property, and the Velazquezes did not appeal that finding. In 

sum, none of the “facts of this case” prove a superior claim to FMZ’s title.

¶34 We conclude that FMZ was not barred from asserting title and 

that the Velazquezes have failed to establish a superior claim. Thus, the 
VELAZQUEZ, et al. v. FMZ

Decision of the Court

11

superior court erred by quieting title in the Velazquezes; instead, it should 

have granted summary judgment to FMZ.

ATTORNEY’S FEES

¶35 FMZ requests that we reverse the superior court’s award of 

attorney’s fees and taxable costs to the Velazquezes. Because we vacate the 

court’s ruling, we also vacate the court’s awards.

¶36 FMZ also requests attorney’s fees under the Agreement and 

A.R.S. § 12-341.01. The Agreement provides, in relevant part, “[i]f [FMZ] 

institutes suit against Purchaser to enforce [FMZ’s] rights under this 

Agreement for Sale and obtains valid judgment against Purchaser, 

Purchaser agrees to pay all costs, expenses and attorney’s fees of [FMZ].”

But the provision of the Agreement does not apply because FMZ did not

initiate an action to enforce the Agreement. Thus, we do not award 

attorney’s fees under the Agreement.

¶37 Per our discretion, we also decline to award attorney’s fees 

under § 12-341.01. But as the prevailing party, we award taxable costs to 

FMZ upon compliance with ARCAP 21.

CONCLUSION

¶38 We reverse the quiet title judgment with instructions to enter 

summary judgment for FMZ.