Motion for Summary Judgment

What is a Motion for Summary Judgment?

A Motion for Summary Judgment is a pleading filed with an Arizona court where a party is asking the judge to rule on a single issue—or the whole case—without the need for a trial. In order for summary judgment to be granted, there must be “no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law”. This means that the undisputed facts presented in a particular case entitle one side to win because of the existing law relating to that issue.

When considering a Motion for Summary Judgment, the Arizona judges must view all “the evidence and all reasonable inferences in the light most favorable to the non-moving party.” Rowland v. Kellogg Brown and Root Inc. Under Arizona Rules of Civil Procedure 56(c), only if the Arizona court makes a finding that no genuine issue of material fact exists can the moving party be granted a judgment as a matter of law. If issues of material fact exist then the Motion for Summary Judgment should be dismissed in its entirety.

Arizona courts are cautioned not to use summary judgment proceedings as a substitute for trials, the motion should be granted if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense.

The burden of persuasion on the party seeking summary judgment is heavy and if there is any genuine issue as to a material factual issue is present, the motion should be denied.

Statement of Facts and Affidavit

There are two documents filed in conjunction with the motion for summary judgment; 1) a Statement of Facts and 2) an Affidavit in support of the facts.

  • Statement of Facts– The statement of facts lays out the facts as the person filing the motion for summary judgment sees them. More than just stating the “facts”, the facts must cite to specific documents that supports that statements.
  • Affidavit in Support– Additionally, the person filing the motion for summary judgment must file an affidavit in which they swear under oath that each of the statements they make are true.

Why File a motion for Summary Judgment?

Just because the opposing party filed a Motion for Summary Judgment it doesn’t mean that you did something wrong or they have an extraordinarily strong case where the judge will enter judgment in their favor without even going to trial.

It is quite common for Motions for Summary Judgment to be filed in Arizona cases. In part because a judge can rule on just one aspect of the case. This will allow them to see if they can “chip at the edges” of our lawsuit and see if they can get anything dismissed at this time.

response to the motion for summary judgement

A response to the Motion for Summary Judgment must be filed within 30 days of receiving the motion. A response gives a party the opportunity to respond to the allegations made in the Motion for Summary Judgment. As part of the response, a statement of facts and affidavit must also be filed. Similar to the opposing party’s statement of facts, the respondent must cite a source for every statement made to the court. Doing this is incredibly tedious and time consuming!

RULING ON THE MOTION FOR SUMMARY JUDGMENT

There are three basic ways an Arizona court can rule in response to the MSJ.

  1. The Arizona Judge may grant the opposing party a judgment summarily dismissing the whole case.
  2. The Arizona Judge may grant partial summary judgment. Meaning she may dismiss one or some of their requests and allow the others to move forward. The remaining issues will continue moving towards trial.  
  3. The Arizona Judge may completely the opposing party’s Motion for Summary Judgment. If their Motion is completely rejected then the case will continue moving towards trial as if the Motion for Summary Judgment had never been filed.

What If the Summary Judgment is Granted?

If the Motion for Summary Judgment is granted, the judgment on the issue or case is deemed to be a final judgment from which a party may appeal. An Arizona court of appeal can reverse the summary judgment and reinstate the claim in the Superior Court. However, this is rarely done and most summary judgments are upheld on appeal.

It is likely the winning party will be granted an award of their attorneys’ fees and court costs.

If you need help from an Arizona attorney then contact the Dunaway Law Group at or 480-389-6529 by sending us a message HERE.

Motion In Limine

What is a Motion in Limine?

A motion in limine is a pleading filed with the court where on party is asking the judge to prevent certain pieces of evidence from being used during a trial.

What is the Definition of Motion in limine?

The phrase, in limine is a Latin phrase that means “at the threshold”. Hence if granted a Motion in limine will stop certain evidence “at the threshold” or prevented from even being let “in the door”.

At What Point is a Motion in limine Filed?

In Arizona these Motions must typically be filed by a certain date established at an earlier time by the court. For instance, the judge may say, “all Motions in limine” must be filed by this certain date or you may not raise the argument at a later date.

What are the Factors Determined by the Judge?

Historically three elements must be met before a judge will grant the Motion in limine.

  1. When the evidence is not relevant to any of the issues at dispute in the current case.
  2. When evidence is extremely prejudicial to one party without helping the jury decide on the case in front of them.
  3. When admitting the evidence would violate a state or federal law or the rules of evidence. 

If you need help from an Arizona real estate attorney then contact the Dunaway Law Group at 480-389-6529 or send us a message HERE.

Partitioning Real Estate

Partitioning Arizona real estate is a way to resolve a situation where two people who own real estate together but disagree about whether to sell the property and or how to manage it. I typically see this scenario where a boyfriend-girlfriend purchased a home together and then later have a falling-out. In this situation they are both equal owners, so can one of the parties force the other to sell even if they don’t want to? Yes! There is an Arizona Statute that specifically addresses what to do in these situations.

A.R.S. § 12-1211 states:

A. The owner or claimant of real property or any interest therein may compel a partition of the property between him and the owners or claimants by filing a complaint in the superior court of the county in which the property, or a portion thereof, is situated.

B. The complaint shall state:

  1. The names and residences, if known, of each of the owners or claimants.
  2. The share or interest which plaintiff and the owners or claimants own or claim, so far as known to plaintiff.
  3. A description of the real property to identify it and its estimated value. 

Once the Arizona real estate is sold the net proceeds will be distributed between the owners. If you need an Arizona real estate attorney then contact the Dunaway Law Group at 480-389-6529 or HERE.

Rent Striking by AZ Tenants

Arizona does not permit “rent-striking”. Meaning, a tenant cannot legally withhold rent except in a very few exception.

Arizona does not permit “rent-striking”. Meaning, a tenant cannot legally withhold rent except in a very few exceptions.

Section 33-1363(A) and (B) of the Arizona Residential Landlord and Tenant Act specifically address what a tenant must do prior to withholding rent from the landlord.

Section 33-1363(A) states in part: A tenant “may notify the landlord of the tenant’s intention to correct the condition at the landlord’s expense. After being notified by the tenant in writing, if the landlord fails to comply within ten days or as promptly thereafter as conditions require in case of emergency, the tenant may cause the work to be done by a licensed contractor and after submitting to the landlord an itemized statement and a waiver of lien, deduct from his rent the actual and reasonable cost of the work, not exceeding”…an amount less than three hundred dollars, or an amount equal to one-half of the monthly rent, whichever amount is greater.

A.R.S. 33-1363(A)

Additionally Section 33-1363(B) states in part;

“A tenant may not repair at the landlord’s expense if…the condition repaired does not constitute a breach of the fit and habitable condition of the premises.”

A.R.S. 333-1363(B)

before a tenant withhold rent they must:

  1. Write the landlord and notify him of their intention to correct the condition at the landlord’s expense;
  2. The tenant must give the landlord ten days to fix the problems outlined in the written notice;
  3. Give the landlord ten days to fix the problem before seeking any self-help solutions;
  4. Have the repairs completed by a licensed contractor;
  5. Submit the landlord with an itemized statement;
  6. Provide the landlord a waiver of lien;
  7. Deduct from their rent the actual and reasonable cost of the work;
  8. Not to exceed three hundred dollars, or half of the month rent, whichever is greater; and
  9. The repairs must constitute a breach of the fit and habitable condition of the premises.

Unless, and until a tenant has completed each of the steps noted above they cannot withhold rent from their landlord. If you are an Arizona landlord and have a tenant who is wrongfully withholding rent then we may be able to help. Contact the Dunaway Law Group at 480-389-6529 or message us HERE.

Anti Deficiency Statutes

In Arizona, anti-deficiency statutes permit some Arizona home owners to stop making mortgage payments and walk away without negative recourse.

In Arizona, certain home owners are free to stop making payments their home and walk away from it with no financial recourse against them. These people are protected by what is commonly known as Arizona’s Anti-Deficiency Statutes.

Protection for residential borrowers is set forth primarily in A.R.S. §§ 33-729(A) which provides in part:

“if a mortgage is given to secure the payment of the balance of the purchase price, or to secure a loan to pay all or part of the purchase price, of a parcel of real property of two and one-half acres or less which is limited to and utilized for either a single one-family or single two-family dwelling, the lien of judgment in an action to foreclose such mortgage shall not extend to any other property of the judgment debtor, nor may general execution be issued against the judgment debtor to enforce such judgment.”

Qualifying Arizona Properties

To obtain anti-deficiency protection the property securing the loan must be (1) two and one-half acres or less, (2) limited to a single one-family or a single two-family dwelling. The Arizona Supreme Court has interpreted this language to require that the dwelling be built and at least occasionally occupied. Mid Kan. Fed. Sav & Loan Ass’n, 167 Ariz. At 129, 804 P.2d at 1317. The property will qualify under the statute for anti-deficiency protection whether occasionally occupied by the owners or third party renters. Northern Arizona Properties v. Pinetop Properties Group, 151 Ariz. 9, 725 P.2d 501. (3) Additionally, the mortgage must be “given to secure the payment of the balance of the purchase price”. This is commonly known as a “purchase money mortgage”. Therefore, the statute does not protect borrowers who have obtained “non-purchase money mortgages” such as home equity lines of credit.

Qualifying Mortgages

Additionally, the mortgage must be “given to secure the payment of the balance of the purchase price”. This is commonly known as a “purchase money mortgage”. Therefore, the statute does not protect borrowers who have obtained “non-purchase money mortgages” such as home equity lines of credit.

Refinanced Original Loan

In Bank One, Arizona, NA. v. Beauvais, the Arizona Court of Appeals dealt with the extending, renewal or refinance of purchase money loans and held that:

“Given these strong statements concerning the legislature’s consumer protection objective, we believe the legislature did not intend that a loan would lose its character as a purchase-money obligation when, as here, it is extended, renewed, or the remaining portion of the original loan is refinanced and the deed of trust on the property that was bought with the original loan continues or is renewed.”

Debtor Protection

If the property meets Arizona’s anti-deficiency statute, the lender may not obtain a deficiency judgment against the debtor. If a qualifying property is sold by the lender “no action may be maintained to recover any difference between the amount obtained by sale and the amount of the indebtedness and any interest, costs and expenses”. A.R.S. §§ 33-814(G). Therefore, certain Arizonian’s are able to walk away from their homes and face no financial recourse from their lender. 

If you need help from an Arizona real estate attorney then contact the Dunaway Law Group at office@dunawaylg.com or 480-389-6529.