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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

William R Donges, et al., 

Plaintiffs, 

v. 

USAA Federal Savings Bank, 

Defendant. 

No. CV-18-00093-TUC-RM

ORDER 

 Pending before the Court are Plaintiffs William and Carolyn Donges’ Motion for 

Partial Summary Judgment (Doc. 54) and Defendant USAA Federal Savings Bank’s 

Motion for Summary Judgment (Doc. 64).1

 The summary judgment motions are fully 

briefed and suitable for determination without oral argument. For the following reasons, 

summary judgment will be granted in favor of Defendant. 

I. Standard of Review 

Summary judgment is proper “if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a). A fact is material if it “might affect the outcome of the suit under the 

governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual 

dispute is genuine if the evidence is such that a reasonable trier of fact could resolve the 

dispute in favor of the nonmoving party. Id. In evaluating a motion for summary judgment, 

 1

 Also pending are Plaintiffs’ Requests for Judicial Notice (Docs. 74, 75). 

They ask the Court to take notice of the “Great Recession,” the “Banking Crises,” the “Mortgage Crises,” and certain statutes, regulations, and agency guidelines. Their requests are granted. 
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the court must “draw all reasonable inferences from the evidence” in favor of the nonmovant. O’Connor v. Boeing N. Am., Inc., 311 F.3d 1139, 1150 (9th Cir. 2002). A 

reasonable inference is one which is supported by “significant probative evidence” rather 

than “threadbare conclusory statements.” Barnes v. Arden Mayfair, Inc., 759 F.2d 676, 

680–81 (9th Cir. 1985) (internal quotation marks omitted). If “the evidence yields 

conflicting inferences [regarding material facts], summary judgment is improper, and the 

action must proceed to trial.” O’Connor, 311 F.3d at 1150. 

The party moving for summary judgment bears the initial burden of identifying 

those portions of the record, together with affidavits, if any, that it believes demonstrate 

the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 

(1986). If the movant meets this burden, the burden shifts to the nonmovant to “come 

forward with specific facts showing that there is a genuine issue for trial.” Matsushita 

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks 

and emphasis omitted); see also Fed. R. Civ. P. 56(c)(1).

II. Background2

On April 9, 2004, Plaintiffs entered into a Home Equity Line of Credit (“HELOC”) 

with Defendant, establishing a line of credit of $50,000. (Doc. 70, ¶ 6.) Plaintiffs 

subsequently entered into two more HELOC agreements, increasing their line of credit by 

$50,000 and $183,800, respectively. (Id. ¶¶ 8, 10.) All three HELOCs were consolidated 

and secured by deeds of trust on Plaintiffs’ home in Tucson, Arizona.3

 (Id. ¶¶ 2, 6, 8, 10.) 

 2

 The following recitation of facts is undisputed. Additional facts are discussed in subsequent sections as relevant. As a preliminary note, Plaintiffs’ 36-page controverting statement of facts (Doc. 72), which is responsive to Defendant’s 8-page statement of facts (Doc. 65), is a gross violation of Rule 56.1(b) of the Local Rules of Civil Procedure. See Pruett v. Arizona, 606 

F. Supp. 2d 1065, 1075 (D. Ariz. 2009) (explaining that Rule 56.1(b) does not permit explanation or argument). Plaintiffs use their controverting statement to “argue over the legal significance of facts, purport to dispute a fact simply because [Defendant] did not also include additional information that [Plaintiffs] think[] is important, [and] argue over semantics by identifying a fact as undisputed but then following with a needless re-wording of the fact[.]” Lowe v. Maxwell & Morgan PC, No. CV-15-02481-PHX-DLR, 2018 WL 

4693532, at *1 n.1 (D. Ariz. Sept. 27, 2018). The Court has not considered any information provided by Plaintiffs in their controverting statement beyond whether the fact is disputed, whether there is an objection, and citations to evidence. The Court considers only the arguments set forth in the briefs. See Pruett, 606 F. Supp. 2d at 1075. 3

 For convenience, the Court hereinafter refers to the three consolidated 
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The HELOC has a maturity date of April 9, 2024. (Id. ¶¶ 6, 8, 10.) 

Plaintiffs borrowed the full line of credit. (Doc. 72, ¶ 18.) Plaintiffs made timely 

minimum payments until defaulting on a monthly minimum payment due on October 19, 

2009. (Doc. 70, ¶ 16.) Defendant sent Plaintiffs a letter on October 4, 2017, stating that a 

foreclosure would occur if Plaintiffs did not show the debt was invalid or pay the debt 

within 30 days. (Doc. 72, ¶ 33.) On November 27, 2017, Defendant filed a Notice of 

Trustee’s Sale. (Doc. 72, ¶ 34.)4

III. Discussion 

A. Statute of Limitations5

Defendant contends that it is entitled to summary judgment because the statute of 

limitations on its right to foreclose did not begin running until it accelerated the debt in 

November 2017, through the initiation of foreclosure proceedings. Plaintiffs assert that 

Defendant’s right to foreclose accrued no later than May 2011, which puts Defendant’s 

October 2017 demand for payment outside of Arizona’s six-year statute of limitations. 

Summary judgment will be granted in favor of Defendant. 

There is a threshold legal question on which the parties disagree: when does the 

statute of limitations begin running on a claim for a borrower’s default on a HELOC that 

has a defined maturity date? Plaintiffs argue that the statute begins running on the entire 

outstanding debt when the borrower first fails to make a full minimum monthly payment. 

They rely exclusively on the Arizona Supreme Court’s recent decision in Mertola, LLC v. 

Santos, 422 P.3d 1028 (Ariz. 2018). Defendant relies on Navy Federal Credit Union v. 

Jones, 930 P.2d 1007, 1008 (Ariz. Ct. App. 1996), which set forth the longstanding rule 

 

HELOCs simply as “HELOC.” 4

 Plaintiffs neither admit nor dispute this statement of fact. Instead, they argue that Defendant failed to respond to a letter they sent to Defendant prior to the filing of the Notice—a point wholly irrelevant to the truthfulness of Defendant’s statement. (Doc. 72, 

¶¶ 34.1–34.2.) Because they failed to properly address Defendant’s statement of fact, it is 

treated as undisputed. Fed. R. Civ. P. 56(e)(2). 5

 Both parties seek summary judgment on Plaintiffs’ statute-of-limitations 

claim. The following analysis is based on Defendant’s summary judgment motion so that Plaintiffs are given the benefit of all reasonable inferences. However, the Court considers 

all materials submitted in connection with both motions, including the briefing. See Fed. 

R. Civ. P. 56(c)(3) (court may consider other materials in the record). 
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that the statute of limitations “commences on the due date of each matured but unpaid 

installment and, as to unmatured future installments, the period commences on the date the 

creditor exercises the optional acceleration clause.” For the following reasons, the Navy 

Federal rule applies. 

In Navy Federal, the defendant’s husband defaulted on a promissory note that was 

payable to the plaintiff over 15 years in equal monthly installments. Id. Years after the 

first missed payment, the plaintiff accelerated the balance on the note and then filed suit 

when the defendant did not pay. Id. The defendant argued that the plaintiff’s claim accrued 

at the time of the first missed payment, thus making the plaintiff’s claim untimely under 

the six-year limitation period. Id. The plaintiff argued that its claim did not accrue until it 

accelerated the balance on the note. Id. at 1008–09. 

The Arizona Court of Appeals concluded that both parties were “partly correct.” Id.

at 1009. The defendant was “partially correct in contending that each time her husband 

defaulted on an installment payment, [the plaintiff] could have sued for the amount of that 

installment any time within the six-year statute of limitations.” Id. The plaintiff was “also 

partly correct, however,” because “the statute of limitations runs as to future installments 

from the date the creditor exercises the [optional] acceleration clause.” Id. In other words, 

the statute of limitations does not commence on an unmatured installment unless the 

creditor accelerates it. See id. 

In Mertola, the Arizona Supreme Court refused to apply the Navy Federal rule to 

credit-card debt, holding instead that “when a credit-card contract contains an optional 

acceleration clause, a cause of action to collect the entire outstanding debt accrues upon 

default: that is, when the debtor first fails to make a full, agreed-to minimum monthly 

payment.” 422 P.3d at 1032. The court distinguished between closed accounts, which 

typically involve a fixed principal amount and defined schedule of repayment, and creditcard contracts, under which the ultimate debt, monthly payment, and final payment date 

vary depending on how the card is used and the current interest rate, and found that 

[b]ecause a closed-end installment contract involves an exact sum that must 

be paid in full in equal payments by an agreed-on date, a cause of action for 
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the entire balance owed will accrue no later than that date. After that date, 

the creditor may not prevent the statute of limitations from running simply 

by refusing to accelerate the debt. 

Under credit-card contracts like the one at issue here, however, the 

date when the entire debt will become due is uncertain and may not occur 

until far in the future. To hold that a cause of action on the debt does not 

accrue until the creditor exercises his right to accelerate would vest the 

creditor with unilateral power to extend the statutory limitation period and 

permit interest to continue to accrue, long after it is clear that no further 

payments will be made, subject only to a standard of reasonableness and 

other equitable doctrines. This would functionally eliminate the protection 

provided to [borrowers] by the statute of limitations. We decline to extend 

such power to the creditor. 

Id. at 1031–32. 

 Because the Arizona Supreme Court expressly declined to decide which rule applies 

“for other types of debt,” Plaintiffs devote much of their briefing to arguing that HELOCs 

are open-end accounts, similar to credit-card accounts, and that the Mertola rule of accrual 

therefore applies. Id. at 1032. For two related reasons, their argument is unavailing. 

First, Mertola did not announce a bright-line “open-end account versus closed-end 

account” rule. Although the court distinguished between the two types of accounts, it did 

so only to explain how the Navy Federal rule would give creditors of a certain type of 

open-end account (i.e., credit cards) the unfair ability to unilaterally extend the statute of 

limitations. See id. at 1031–32. Specifically, because the date when the entire debt 

becomes due on a credit-card account is uncertain, application of the Navy Federal rule 

“would vest the creditor with unilateral power to extend the statutory limitation period,” 

thereby “functionally eliminat[ing] the protection provided to [borrowers] by the statute of 

limitations.” Id. at 1032. This risk is not present with Plaintiffs’ HELOC debt because 

their HELOC agreement clearly states a final maturity date. (See Doc. 56-1 at 1 (April 9, 

2024).) And although the ultimate amount of debt is not certain, because the total debt 

“must be paid in full . . . by an agreed-on date, a cause of action for the entire balance owed 

will accrue no later than that date,” which means “the creditor may not prevent the statute 

of limitations from running simply by refusing to accelerate the debt.” Mertola, 422 P.3d 
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at 1032. In other words, the HELOC’s defined due date eliminates the very risk that led 

the Mertola court to create a new rule for credit-card accounts. 

Second, Plaintiffs’ argument largely ignores the terms of their HELOC. See id. at 

1033 (“Parties remain free to contractually define default and otherwise negotiate 

repayment of debt.”). Defendant does not exaggerate in arguing that, to apply the Mertola 

rule, the Court would need to ignore the parties’ clear contractual intent. Plaintiffs agreed 

that they would repay the entire outstanding principal “in a single payment” “[a]t maturity,” 

and that, if they missed an interest payment, Defendant could, but was not required to, 

accelerate the principal. (Doc. 56-1 at 1–2; Doc. 56-2 at 1–2; Doc. 56-3 at 1–2.) Accepting 

Plaintiffs’ position would make the HELOC maturity date meaningless and turn the 

optional acceleration clause—which generally is a protective device for the lender, see 

Mertola, 422 P.3d at 1030—into a sword for the debtor. Fundamental principles of contract 

law weigh against this result. See Grosvenor Holdings, L.C. v. Figueroa, 218 P.3d 1045, 

1050 (Ariz. Ct. App. 2009) (“The purpose of contract interpretation is to determine the 

parties’ intent and enforce that intent.” (citing Taylor v. State Farm Mut. Auto. Ins. Co., 

854 P.2d 1134, 1138 (Ariz. 1993))). 

Consequently, the Navy Federal rule applies. The maturity date for the entire debt 

was in 2024; therefore, if Defendant had not accelerated the debt, the six-year limitation 

period would have commenced at that time. See Navy Fed., 930 P.2d at 1009; cf. Bird v. 

Real Time Resolutions, Inc., 183 F. Supp. 3d 1058, 1062–63 (N.D. Cal. 2016) (applying 

California’s version of the Navy Federal rule to a HELOC and finding that, if the lender 

had not accelerated, the four-year statute of limitations would have commenced in 2030, 

when the loan matured). 

Because Defendant did accelerate the debt, however, the determinative issue is 

when that event occurred: this is the date on which Defendant’s claim accrued and which 

marks the commencement of the statute of limitations.6

 Defendant contends that it 

 6

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the jury,” but where the facts leave only one reasonable conclusion, the Court may decide 

the issue as a matter of law. Thompson v. Pima County, 243 P.3d 1024, 1028–29 (Ariz. 
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accelerated the debt on November 27, 2017, by initiating foreclosure proceedings. 

Plaintiffs rely almost entirely on their position that the statute of limitations began running 

on the entire debt at the time of their first default; in so doing, Plaintiffs fail to meaningfully 

develop an alternative argument regarding the specific date on which their debt was 

accelerated. (See Doc. 54 at 15 (“Perhaps Defendant gave notice of acceleration and 

perhaps not[.]”); Doc. 71 at 12 (same).) 

 To accelerate a debt, the creditor “must undertake some affirmative act to make 

clear to the debtor it has accelerated the obligation.” Baseline Fin. Servs. v. Madison, 278 

P.3d 321, 322 (Ariz. Ct. App. 2012). Arizona courts have held that a creditor accelerates 

a debt by repossessing property, sending a written demand for full payment, or filing suit 

to collect the debt. See id. at 323 (collecting cases). An internal write-off is not an 

affirmative act that accelerates a debt. Id. at 324. 

Defendant initiated foreclosure proceedings on November 27, 2017, by filing a 

Notice of Trustee’s Sale. (Doc. 72, ¶ 34.) This is an affirmative act that makes clear that 

the debt was accelerated. Cf. Frei v. Hamilton, 601 P.2d 307, 310 (Ariz. Ct. App. 1979) 

(filing a lawsuit to collect debt exercises acceleration clause). Furthermore, Defendant 

offers evidence that it did not accelerate the debt on an earlier date. (See Doc. 65, ¶¶ 24, 

25; Doc. 65-2, Ex. B, ¶¶ 17–20 (declaration of Defendant’s foreclosure manager stating 

that the debt was not accelerated until the Notice of Trustee’s Sale).) This evidence, which 

Plaintiffs do not properly dispute or object to (see Doc. 72, ¶¶ 24.1–24.3, 25.1 (providing 

only one irrelevant citation to evidence)), satisfies Defendant’s initial burden to show the 

absence of a genuine dispute regarding the acceleration date. See Celotex Corp., 477 U.S. 

at 323. 

In their response to Defendant’s summary judgment motion, Plaintiffs only briefly 

touch on the specific question of when the debt was accelerated. None of their analysis, 

save one statement, is supported by citation to the record. (See Doc. 71 at 9–10.) This 

 

Ct. App. 2010) (quoting Doe v. Roe, 955 P.2d 951, 961 (Ariz. 1998)); see Kopacz v. Banner 

Health, 425 P.3d 586, 589 (Ariz. Ct. App. 2018). 
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statement cites to a paragraph in their controverting statement of facts, asserting that the 

paragraph recites “the overt events that clearly and unequivocally signaled to the Plaintiff, 

as it would to any other reasonable borrower, that Defendant had exercised” the 

acceleration clause. (Id. at 10.) The cited paragraph, however, is comprised of improper 

argument, none of which is supported with citation to evidence. (See Doc. 72, ¶ 11.1.) 

Plaintiffs’ summary judgment motion is no more helpful, as it is devoted entirely to their 

argument that the Mertola rule applies. Because invocation of an acceleration clause is not 

necessary under that rule, Plaintiffs do not argue when the debt was accelerated (or even 

that Defendant accelerated it). (See Doc. 54 at 12–13.) 

 Plaintiffs draw the Court’s attention to the declaration of Plaintiff William Donges, 

who asserts that he called Defendant in September 2010 and spoke to an unnamed 

employee, who told Plaintiff that “the only payment accepted would be the entire 

$284,301.27.” (Doc. 73, ¶ 13.) As a matter of law, however, no reasonable juror could 

find that this Plaintiff-initiated conversation was an “affirmative act” by Defendant to 

accelerate the debt. Cf. Navy Fed., 930 P.2d at 1008–09 (finding creditor accelerated by 

sending written notice); Wheel Estate Corp. v. Webb, 679 P.2d 529, 531 (Ariz. Ct. App. 

1983) (finding creditor accelerated by repossessing property); Frei, 601 P.2d at 310 

(finding creditor accelerated by filing lawsuit). 

 Plaintiffs have failed to show a genuine dispute of material fact as to when their debt 

was accelerated. Because the record shows that Defendant accelerated the debt in 2017, 

Defendant’s attempt to foreclose was well within the applicable six-year statute of 

limitations. Therefore, summary judgment will be granted in favor of Defendant on Count 

One and Count Five of the First Amended Complaint.7

B. Promissory Estoppel

Defendant argues that it is entitled to summary judgment on Plaintiffs’ claim of 

promissory estoppel because Plaintiffs can establish none of the elements of that claim. 

See Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000) 

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declaration that the statute of limitations bars Defendant’s right to foreclose. 
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(stating that summary judgment is appropriate if the moving party can “show that the 

nonmoving party does not have enough evidence of an essential element of its claim or 

defense to carry its ultimate burden of persuasion at trial”); Mendiola-Martinez v. Arpaio, 

836 F.3d 1239, 1247 (9th Cir. 2016). Plaintiffs respond that they have made a showing 

sufficient to proceed to trial. The Court will grant summary judgment in favor of 

Defendant. 

Plaintiffs’ claim of promissory estoppel is based on a 1099-C that was issued by 

Defendant to Plaintiffs for the 2013 calendar year.8

 (Doc. 35 at 19–21.) The 1099-C states 

“289,691.63” as the “amount of debt discharged.” (Doc. 72-5.) Plaintiffs allege that 

although they knew the 1099-C did not extinguish their debt, it nevertheless constituted an 

enforceable promise from Defendant to not attempt to collect the debt. (Doc. 35 at 20.) 

They allege that they reasonably relied on that promise by “undert[aking] several measures 

to preserve long term residency in the property securing the cancelled debt and . . . 

under[taking] several measures to improve [their] financial condition, such as efforts to 

obtain a reverse mortgage.” (Id. at 21.) 

Under Arizona law, “[p]romissory estoppel provides an equitable remedy that 

renders a promise enforceable, where a promise has been made which the promissor should 

reasonably foresee would cause the promisee to rely, and upon which the promisee actually 

relies to his detriment.” Sholes v. Fernando, 268 P.3d 1112, 1117 (Ariz. Ct. App. 2011) 

(internal citations, quotations marks, and brackets omitted). Detrimental reliance requires 

a “substantial and material change of position . . . for the worse.” Weiner v. Romley, 381 

P.2d 581, 584 (1963); see Leal v. Allstate Ins. Co., 17 P.3d 95, 99 (Ariz. Ct. App. 2000). 

The Court agrees with Defendant that Plaintiffs cannot show that they detrimentally 

relied on the 1099-C. To support their argument, Defendant points to evidence that 

Plaintiffs attempted to negotiate a settlement of the debt after issuance of the 1099-C. (See

Doc. 65-2, Ex. C, at 19; Doc. 73, ¶¶ 20–23.) Plaintiffs’ claim of detrimental reliance is 

 8

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discharged. See Amtrust Bank v. Fossett, 224 P.3d 935 (Ariz. Ct. App. 2009). 
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belied by their attempt to settle (for a very substantial sum, 50% of $280,000) what they 

allegedly thought was an uncollectable debt. Thus, this evidence is sufficient to shift the 

burden on summary judgment to Plaintiffs, who have the ultimate burden of persuasion at 

trial. See Fritz Cos., 210 F.3d at 1106. 

Plaintiffs offer no evidence on which a reasonable jury could find that they 

reasonably relied to their detriment. They merely deny, both in their argument and in the 

cited documents that purportedly support their argument, that their settlement offer is 

linked to whether they relied on the 1099-C. (See Doc. 71 at 13–14 (citing Doc. 72, ¶¶ 

27.1–27.3, 28.1–28.2).) This is insufficient. See Fritz Cos., 210 F.3d at 1103 (“If . . . a 

moving party carries its burden of production, the nonmoving party must produce evidence 

to support its claim or defense.” (emphasis added)). 

Furthermore, the only specific act of reliance alleged by Plaintiffs in the First 

Amended Complaint is their attempt to “improve [their] financial condition” by obtaining 

a reverse mortgage, which they concede was unsuccessful. (See Doc. 35 at 21; Doc. 67.) 

Because they failed to “improve [their] financial condition,” they remained in the same 

position they were in prior to the issuance of the 1099-C (i.e., in significant financial debt). 

Thus, Plaintiffs have offered nothing to suggest that their reliance on Defendant’s promise 

substantially and materially worsened their position. See Weiner, 381 P.2d at 584. This 

failure is fatal to their claim. 

C. Estoppel by Inaction & Estoppel by Misrepresentation9

On October 4, 2017, Defendant sent Plaintiffs a “Notice of Demand for Payment,” 

stating that Plaintiffs’ loan was “in serious default,” that Plaintiffs had “the right to cure,” 

and that if Plaintiffs did not cure their default within 30 days, Defendant would “accelerate 

[the] loan . . . .” (Doc. 65-4, Ex. J, at 9.) On November 15, 2017, Defendant sent a second 

default notice. (Doc. 72, ¶ 35.) The second notice states that Defendant “will assume the 

 9

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“equitable estoppel.” See St. Joseph’s Hosp. & Med. Ctr. v. Reserve Life Ins. Co., 742 P.2d 

808, 818 (Ariz. 1987). Plaintiffs admit that these claims were “poorly” and “inartfully” crafted, and they would have withdrawn the claims had the Court granted them leave to 

file a second amended complaint. (See Doc. 71 at 14; Doc. 78 at 1.) 
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debt to be valid unless [Plaintiffs], within thirty days after receipt of th[e] notice, dispute 

the validity of the debt or a portion thereof.” (Doc. 65-4, Ex. K, at 12.) On November 27, 

2017 (12 days after the second notice), Defendant filed a Notice of Trustee’s Sale. (Doc. 

72, ¶ 34.) 

Plaintiffs allege in their First Amended Complaint that they sent a letter on October 

25, 2017, disputing the validity of the debt. (Doc. 35, ¶ 60.) They do not properly present 

this assertion as an undisputed statement of fact, but they provide evidence that they did in 

fact send the letter. (See Doc. 73, ¶ 28.) Defendant, through its attorneys, failed to respond 

to the letter. (Doc. 35, ¶ 123; Doc. 73, ¶ 29.) 

In their claim for “estoppel by inaction,” Plaintiffs allege that Defendant’s failure to 

respond to their dispute letter “can only be interpreted in favor of” their claim that the 

notice of default was defective. In their equitable estoppel claim, they allege that 

Defendant misrepresented in the second notice that they had 30 days to dispute the debt, 

since Defendant planned to and did initiate foreclosure proceedings less than two weeks 

later. Plaintiffs also allege that both acts were a violation of the Fair Credit Reporting 

Act.10

As an initial matter, Plaintiffs have not stated a claim for violation of the Fair Credit 

Reporting Act, much less offered any evidence that Defendant violated the Act. See Snyder 

v. HSBC Bank, USA, N.A., 913 F. Supp. 2d 755, 778 (D. Ariz. 2012) (stating requirements 

of claim). Plaintiffs do not specify in their First Amended Complaint which statutory 

provision Defendant allegedly violated. Nor do they use their summary judgment response 

as an opportunity to provide clarification. 

 Furthermore, Plaintiffs’ argument completely ignores the elements of an estoppel 

claim: “(1) the party to be estopped commits acts inconsistent with a position it later adopts; 

(2) reliance by the other party; and (3) injury to the latter resulting from the former’s 

repudiation of its prior conduct.” Gorman v. Pima County, 287 P.3d 800, 804–05 (Ariz. 

 10 Defendant’s summary judgment motion purports to challenge only the equitable estoppel claim, but Plaintiffs acknowledge that, in substance, it also challenges the “estoppel by inaction” claim. (Doc. 71 at 14–15.) 
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Ct. App. 2012) (quoting Valencia Energy Co. v. Ariz. Dep’t of Revenue, 959 P.2d 1256, 

1267–68 (Ariz. 1998)). As Defendant points out, the facts belie Plaintiffs’ claims. First, 

Plaintiffs did receive 30 days to dispute the debt. They received the first notice of default 

on October 4, 2017, and sent a dispute letter on October 25, and Defendant initiated 

foreclosure proceedings on November 27. Next, Plaintiffs misread the second notice; it 

states only that Plaintiffs had 30 days to dispute the debt, not that Defendant would wait 

30 days before filing the Notice of Trustee’s Sale. (Doc. 65-4, Ex. K, at 12.) Thus, 

Defendant has offered evidence that it did not make a misrepresentation or act 

inconsistently.

 Additionally, Plaintiffs acknowledge that the heart of their claims is that Defendant 

denied them the opportunity to dispute the validity of Defendant’s right to foreclose. (See

Doc. 71 at 15 (complaining that Defendant never responded to their dispute letter and 

stating that “Defendant should be estopped because the default letter sent to Plaintiff[s] did 

not give Plaintiff[s] the mandated time to dispute the debt”).) Thus, assuming Defendant 

made a misrepresentation or acted inconsistently, for two reasons, there is no evidence of 

injury: first, Defendant’s right to foreclose is not barred by the statute of limitations; 

second, Plaintiffs received the opportunity to dispute the debt by means of this litigation.11

The foregoing is sufficient to shift the burden to Plaintiffs, who must come forward 

with evidence to show a genuine factual dispute. They have failed to do so, offering only 

unsupported denials and improper responses to Defendant’s statements of fact. (See Doc. 

71 at 14–16; Doc. 72, ¶¶ 33.1–33.4, 34.1–34.2.) Summary judgment is therefore 

appropriate. 

IT IS ORDERED:

1. Plaintiffs’ Requests for Judicial Notice (Docs. 74, 75) are granted. 

2. Plaintiffs’ Motion for Partial Summary Judgment (Doc. 54) is denied. 

. . . . 

. . . . 

 11 Defendant agreed to delay the foreclosure sale pending resolution of this case. (Doc. 26.) 
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3. Defendant’s Motion for Summary Judgment (Doc. 64) is granted. 

Dated this 30th day of April, 2019.