01/10/2012 — CV2011007217 BANK N A, JPMORGAN CHASE 01/10/2012 HONORABLE J. RICHARD GAMA View Minute Entry ↑ top
- Source
- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
01/11/2012 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2011-007217
01/10/2012
Docket Code 049
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
C. Castro
Deputy
JPMORGAN CHASE BANK N A
JEFFREY B MESSING
v.
E GROUP LANDSCAPE ARCHITECTURE/
ENVIRONMENTAL DESIGN INC, et al.
CONI RAE GOOD
JEFFREY A MCKEE
JUDGMENT SIGNED
Pursuant to the parties’ Stipulation for Entry of Judgment as to Defendant Las Torres
Homeowners Association, filed December 19, 2011,
IT IS ORDERED granting judgment in favor of Plaintiff, all in accordance with the
formal written Final Judgment signed by the Court on January 4, 2012, and filed (entered) by the
Clerk on January 10, 2012.
Please note: The Court has signed a hard-copy version of the judgment provided with an
electronically filed pleading. Therefore, copies of the judgment and self-addressed, stamped
envelopes were not available for mailing to the parties. After the judgment has been scanned and
docketed by the Clerk of Court, copies of this judgment may be available through ECR Online at
clerkofcourt.maricopa.gov or through AZTurboCourt.gov and from the Public Access Terminals
at the Clerk of Court’s offices located throughout Maricopa County.
ALERT: Effective September 1, 2011, the Arizona Supreme Court Administrative Order
2011-87 directs the Clerk's Office not to accept paper filings from attorneys in civil cases. Civil
cases must still be initiated on paper; however, subsequent documents must be eFiled through
AZTurboCourt unless an exception defined in the Administrative Order applies.
04/26/2013 — CV2011007217 BANK N A, JPMORGAN CHASE 04/26/2013 HONORABLE BENJAMIN E. VATZ View Minute Entry ↑ top
- Source
- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
04/29/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2011-007217
04/26/2013
Docket Code 046
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE BENJAMIN E. VATZ
S. Hack
Deputy
JPMORGAN CHASE BANK N A
JEFFREY B MESSING
v.
E GROUP LANDSCAPE ARCHITECTURE/
ENVIRONMENTAL DESIGN INC, et al.
CONI RAE GOOD
WELLS FARGO BANK
LEVY PROCESSING MAC S3928-021
P O BOX 29779
PHOENIX AZ 85038-9779
REALTY EXECUTIVES
21040 N PIMA RD
SCOTTSDALE AZ 85255
JEFFREY A MCKEE
BANK OF THE WEST
P O BOX 2573
OMAHA NE 68403
MINUTE ENTRY
IT IS ORDERED setting Hearing on Objection to Garnishment filed by the Judgment
Debtor on May 2, 2013 at 11:00 a.m., in this division:
Maricopa County Superior Court
Old Court House
125 W. Washington
Courtroom 001
Phoenix, AZ 85003
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2011-007217
04/26/2013
Docket Code 046
Form V000A
Page 2
LET THE RECORD SHOW that notification of the above hearing is given to:
Judgment Creditor via email and minute entry;
Judgment Debtor via telephone and minute entry.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.
05/02/2013 — CV2011007217 BANK N A, JPMORGAN CHASE 05/02/2013 HONORABLE BENJAMIN E. VATZ View Minute Entry ↑ top
- Source
- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
05/03/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2011-007217
05/02/2013
Docket Code 005
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE BENJAMIN E. VATZ
S. Hack
Deputy
JPMORGAN CHASE BANK N A
JEFFREY B MESSING
v.
E GROUP LANDSCAPE ARCHITECTURE/
ENVIRONMENTAL DESIGN INC, et al.
CONI RAE GOOD
WELLS FARGO BANK
LEVY PROCESSING MAC S3928-021
P O BOX 29779
PHOENIX AZ 85038-9779
REALTY EXECUTIVES
21040 N PIMA RD
SCOTTSDALE AZ 85255
JEFFREY A MCKEE
BANK OF THE WEST
P O BOX 2573
OMAHA NE 68403
MINUTE ENTRY
Courtroom: OCH 001.
10:59 a.m. This is the time set for Garnishment Objection Hearing. Plaintiff/Judgment
Creditor is represented by counsel, Jeffrey Messing. Defendant/Judgment Debtor, Claudia
Swartz, is present on her own behalf.
A record of the proceedings is made by audio and/or videotape in lieu of a court reporter.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2011-007217
05/02/2013
Docket Code 005
Form V000A
Page 2
Claudia Swartz is sworn and testifies.
Discussion is held regarding pending issues and judgment in effect.
Based on the testimony presented, counsel has no objection to reducing the garnishment
to the statutory minimum. Accordingly,
IT IS ORDERED that the non-exempt earnings of the Judgment Debtor withheld by the
Garnishee after Service of the Writ of Garnishment shall be transferred to the Judgment Creditor
in an amount not to exceed 15% of the Judgment Debtor’s disposable earnings.
IT IS FURTHER ORDERED that any non-exempt earnings withheld in excess of 15%
shall be refunded to the Judgment Debtor.
IT IS FURTHER ORDERED the garnishment is a continuing lien against the non-exempt
earnings of the Judgment Debtor and subject to the 15% limitation set forth above.
A formal Order, in accordance with the above, is signed by the Court on May 2, 2013 and
filed (entered) with the clerk on May 2, 2013.
11:15 a.m. Matter concludes.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.
05/03/2012 — CV2011007217 BANK N A, JPMORGAN CHASE 05/03/2012 HONORABLE J. RICHARD GAMA View Minute Entry ↑ top
- Source
- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
05/04/2012 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2011-007217
05/03/2012
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
D. Harding
Deputy
JPMORGAN CHASE BANK N A
JEFFREY B MESSING
v.
E GROUP LANDSCAPE ARCHITECTURE/
ENVIRONMENTAL DESIGN INC, et al.
CONI RAE GOOD
JEFFREY A MCKEE
MINUTE ENTRY
The Court has reviewed and considered Plaintiff’s Rule 60(a) Motion to Correct
Judgment, filed February 7, 2012.
IT IS ORDERED granting Plaintiff’s Motion and correcting a typographical error in the
address of the property. The correct address of the property should be listed as 7346 E. Hum
Road.
In addition, the form of Judgment failed to attach the Exhibit “A” from the Deed of Trust
which was attached as Exhibit “B” to both the Complaint and Motion for Summary Judgment.
Accordingly,
IT IS ORDERED amending the previously entered Judgment to reflect the correct
address of the subject property and to add the missing Exhibit “A”.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.
05/14/2012 — CV2011007217 BANK N A, JPMORGAN CHASE 05/14/2012 HONORABLE J. RICHARD GAMA View Minute Entry ↑ top
- Source
- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
05/15/2012 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2011-007217
05/14/2012
Docket Code 021
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
D. Harding
Deputy
JPMORGAN CHASE BANK N A
JEFFREY B MESSING
v.
E GROUP LANDSCAPE ARCHITECTURE/
ENVIRONMENTAL DESIGN INC, et al.
CONI RAE GOOD
JEFFREY A MCKEE
MINUTE ENTRY
IT IS ORDERED nunc pro tunc amending the Minute Entry dated May 3, 2012,
paragraph 2, to read as follows:
“IT IS ORDERED granting Plaintiff’s Motion and correcting a typographical error in
the address of the property. The correct address of the property should be listed as 7436 E. Hum
Road.”
The balance of the minute entry remains unchanged.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.
11/10/2014 — CV2011007217 BANK N A, JPMORGAN CHASE 11/10/2014 HONORABLE J. RICHARD GAMA View Minute Entry ↑ top
- Source
- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
11/14/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2011-007217
11/10/2014
Docket Code 099
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
T. DeRaddo
Deputy
JPMORGAN CHASE BANK N A
JEFFREY B MESSING
v.
E GROUP LANDSCAPE ARCHITECTURE/
ENVIRONMENTAL DESIGN INC, et al.
E GROUP LANDSCAPE
ARCHITECTURE/ ENVIRONMENTAL
DESIGN INC
C/O MARK SWARTZ
P O BOX 447
SCOTTSDALE AZ 85261
CONI RAE GOOD
WELLS FARGO BANK
LEVY PROCESSING MAC S3928-021
P O BOX 29779
PHOENIX AZ 85038-9779
REALTY EXECUTIVES
21040 N PIMA RD
SCOTTSDALE AZ 85255
OTAK INC
808 SW 3RD AVE
STE 300
PORTLAND OR 97204
JEFFREY A MCKEE
BANK OF THE WEST
P O BOX 2573
OMAHA NE 68403
DAVID B GOLDSTEIN
CLAUDIA SWARTZ
7209 E. MCDONALD DR. #2
SCOTTSDALE ARIZONA 85250
MARK SWARTZ
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2011-007217
11/10/2014
Docket Code 099
Form V000A
Page 2
P.O. BOX 4473
SCOTTSDALE ARIZONA 85261
DOCKET-CIVIL-CCC
WITHDRAWAL OF COUNSEL
The Court has received and considered the Motion to Withdraw as Counsel of Record
filed by counsel for Defendant in this matter. Accordingly,
IT IS ORDERED granting the Motion and allowing David B. Goldstein, the law firm of
Hymson Goldstein & Pantiliat, PLLC, and Coni Rae Good, an attorney formerly associated with
Hymson Goldstein & Pantiliat, PLLC, to withdraw as counsel of record for Defendants, E Group
Landscape/Environmental Design, Inc., and Mark and Claudia Swartz, for all further
proceedings, all in accordance with the formal written Order signed by the Court on November
7, 2014, and filed (entered) by the Clerk on November 10, 2014.
IT IS FURTHER ORDERED that unless and until E Group Landscape/Environmental
Design, Inc., and Mark and Claudia Swartz retain new counsel, all future correspondence shall
be sent directly to the Defendants at the following addresses:
E Group Landscape/Environmental Design, Inc.
c/o Mark Swartz
P.O. Box 4473
Scottsdale, AZ 85261
Claudia Swartz
7209 E. McDonald Dr., #2
Scottsdale, AZ85250
Please note: The Court has signed a hard-copy version of the order provided with an
electronically filed pleading. Therefore, copies of the order and self-addressed, stamped
envelopes were not available for mailing to the parties. After the order has been scanned and
docketed by the Clerk of Court, copies of this order may be available through ECR Online at
clerkofcourt.maricopa.gov or through AZTurboCourt.gov and from the Public Access Terminals
at the Clerk of Court’s offices located throughout Maricopa County.
12/09/2011 — CV2011007217 BANK N A, JPMORGAN CHASE 12/09/2011 HONORABLE J. RICHARD GAMA View Minute Entry ↑ top
- Source
- Minute Source
Michael K. Jeanes, Clerk of Court
*** Filed ***
12/15/2011 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2011-007217
12/09/2011
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE J. RICHARD GAMA
D. Harding
Deputy
JPMORGAN CHASE BANK N A
JEFFREY B MESSING
v.
E GROUP LANDSCAPE ARCHITECTURE/
ENVIRONMENTAL DESIGN INC, et al.
CONI RAE GOOD
JEFFREY A MCKEE
MINUTE ENTRY
The Court received and considered Plaintiff’s Motion For Summary Judgment, against
Defendants E Group Landscape Architecture/Environmental Design, Inc. (Defendant E Group),
Mark J. Swartz and Claudia L. Swartz (Defendants Swartz), and Robert W. Thompson and
Cynthia Thompson as husband and wife and as Trustees of the Robert W. Thompson and
Cynthia S. Thompson Family Trust dated August 16, 2000, hereinafter referred to collectively as
Defendants Thompson, the responsive pleadings filed by all Defendants and the reply to those
pleadings filed by Plaintiff.
In the interest of expediting the Court’s business and pursuant to Ariz. R. Civ. P. Rule
7.1(c)(2), the Court herein waives oral arguments. The briefing presented adequately frames the
parties’ respective legal positions.
Further argument would not assist the court in its
determination of the issues presented.
General Background. These parties entered into two separate promissory notes, a Deed
of Trust and, in the case of Defendants Swartz and Defendants Thompson, guaranty agreements
securing the indebtedness of Defendant E Group. Briefly stated, on or about February 14, 2008
Defendant E Group executed a promissory note evidencing a $750,000.00 loan from Plaintiff. In
connection with this loan, Defendants Thompson executed a Deed of Trust granting Plaintiff a
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2011-007217
12/09/2011
Docket Code 019
Form V000A
Page 2
secured interest in real property located in Carefree, Arizona. Also on February 14, 2008,
Defendant E Group executed a second promissory note evidencing a loan of $150,000.00 from
Plaintiff. As consideration for these two promissory notes, Defendants Swartz and Defendants
Thompson executed continuing guaranty agreements of all of Defendant E Group’s indebtedness
to Plaintiff. In addition, on September 20, 2010 Defendant E Group executed a modification of
the initial promissory note in the amount of $723,721.84.
It is undisputed that Defendant E Group has failed to pay as required by the two separate
loan agreements it executed with Plaintiff and further that these loans have been and continue to
be in default.
In addition, it is also undisputed that Defendants Swartz and Defendants
Thompson have failed to cure Defendant E Group’s default and they have been and continue to
be in default under the terms of the guaranty agreements executed with Plaintiff.
The Declaration of William Sarver has established that as of July 12, 2011 the
outstanding principle balance due under the terms of the first promissory note was $666,412.36,
plus accrued interest and fees. Further, the outstanding balance due on the second promissory
note was $60,767.04, plus accrued interest and fees.
Discussion. Plaintiff in this matter has made a prima facie showing that it is entitled to
judgment against these collective Defendants on the two underlying promissory notes, the Deed
of Trust and the guaranty agreements. Defendants have failed to substantively set forth specific
facts that show that there exist genuine issues of fact for trial on these issues.
Defendants may not simply rest on the pleadings, but must show by competent evidence
specific facts that create a genuine issue of fact for trial. A.R.C.P., Rule 56(e) clearly provides
that when a motion for summary judgment has been filed and appropriately supported, “…an
adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading,
but the adverse party’s response, by affidavits…must set forth specific facts showing that there is
a genuine issue for trial.”
Defendants have failed to comply with A.R.C.P., Rule 56(e).
By failing to do so,
Defendants have waived any procedural or evidentiary arguments or objections that could have
been made in response to the motion.1
The Court finds as follows:
1 Johnson by Johnson v. Svidergol, 157 Ariz. 333, 335 [App. 1988]; Kelly v. NationsBanc
Mortgage Corp.,199 Ariz. 284, 287[Sup. 2000].
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2011-007217
12/09/2011
Docket Code 019
Form V000A
Page 3
•
That these Defendants entered into two separate promissory note agreements, a Deed of
Trust and guaranty agreements with Plaintiff;
•
That Plaintiff is the holder of these promissory notes and further that pursuant to the
terms of these agreements Plaintiff has performed its obligations;
•
That these Defendants have failed to repay these agreements as required by these loan
documents and as a consequence are in default of the terms of these agreements and have
to date failed to cure these defaults;
•
That the principle balance amount due as of July 12, 2011 on the first note totaled
$666,412.36, together with accrued pre-judgment interest and late fees incurred to date;
•
That the principle balance amount due as of July 12, 2011 on the second note totaled
$60,767.04, together with accrued pre-judgment interest and late fees incurred to date;
and
•
That pursuant to the terms of the first and second promissory notes, the Deed of Trust and
the Guaranties executed by Defendants Swartz and Defendants Thompson, these
Defendants are collectively in breach of these agreements, and contractually obligated to
repay the loans executed with Plaintiff.
Defenses.
These Defendants have asserted in response to this motion that Plaintiff
breached the implied covenant of good faith and fair dealing by refusing to modify the terms of
these promissory notes to allow Defendants to execute a Short Sale. The Court concurs with
Plaintiff that a party does not breach the implied covenant of fair dealing by choosing to enforce
the explicit rights it has secured under an agreement.2
The Court having considered Defendants’ defenses finds that they do not form a
substantive legal basis for challenging Plaintiff’s dispositive motion.
The Court having reviewed the motion does find that there is no genuine issue as to any
material fact and further that the Plaintiff, the moving party, is entitled to judgment as a matter of
law on all issues of liability and the right of Plaintiff to recover a money judgment against these
defendants.
The Court further finds that Plaintiff is entitled to attorney fees in this matter.
2 Southwest Savings and Loan Association v. Sunamp Systems, Inc.,172 Ariz.553, 838 P.2d
1314 [App.1992].
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2011-007217
12/09/2011
Docket Code 019
Form V000A
Page 4
IT IS ORDERED granting Plaintiff’s Motion For Summary Judgment.
IT IS FURTHER ORDERED awarding judgment in favor of Plaintiff JPMorgan Chase
Bank, N.A. and against these collective Defendants.
IT IS FURTHER ORDERED that Plaintiff shall submit a form of judgment, together
with an Affidavit of Fees and Statement of costs for this Court consideration in this matter and in
conformity with A.R.C.P., Rule 58.
Dated: December 12, 2011
/ s / HONORABLE J. RICHARD GAMA
JUDICIAL OFFICER OF THE SUPERIOR COURT
ALERT: Effective September 1, 2011, the Arizona Supreme Court Administrative Order
2011-87 directs the Clerk's Office not to accept paper filings from attorneys in civil cases. Civil
cases must still be initiated on paper; however, subsequent documents must be eFiled through
AZTurboCourt unless an exception defined in the Administrative Order applies.
