Deficiency Judgment Arizona A.R.S. 33-814(A)

In Arizona, deficiency judgments are governed by A.R.S. 33-814(A) (2007), which states: The deficiency judgment shall be for an amount equal to the sum of the total amount owed the beneficiary as of the date of the sale, as determined by the court less the fair market value of the trust property on the date of the sale as determined by the court or the sale price at the trustee's sale, whichever is higher. The primary purpose of the statute is to "prohibit a creditor from seeking a windfall by buying property at a trustee's sale for less than fair market value." First Interstate Bank of Ariz., N.A. v. Tatum & Bell Ctr. Assocs., 170 Ariz. 99, 103, 821 P.2d 1384, 1388 (App. 1991). Because of the nature of a trustee's sale, the statute does not contemplate that the purchase price will necessarily reflect the fair market value of the property. Dewey v. Arnold, 159 Ariz. 65, 70, 764 P.2d 1124, 1129 (App. 1988). For this reason, the statute requires a determination by the court of the fair market value before a deficiency judgment may be awarded. A.R.S. 33-814(A). The court is directed then to subtract from the amount owed the higher of the sales price or the fair market value. Section 33-814(A) defines fair market value as: The most probable price, as of the date of the execution sale . . . after deduction of prior liens and encumbrances with interest to the date of sale, for which the real property or interest therein would sell after reasonable exposure in the market under conditions requisite to fair sale, with the buyer and seller each acting prudently, knowledgeably and for self-interest, and assuming that neither is under duress. The courts have similarly explained the term. See TCC Enters. v. Estate of Erny, 149 Ariz. 257, 258, 717 P.2d 936, 937 (App. 1986) (fair market value is "that price a desirous but unobligated purchaser would pay a desirous but unobligated seller after consideration of all uses to which the property is adapted and for which it is capable of being used"); Honeywell Info. Sys., Inc. v. Maricopa Cnty., 118 Ariz. 171, 174, 575 P.2d 801, 804 (App. 1977) (fair market value is "what the property would sell for between a willing buyer and a willing seller in an arms-length transaction"). The common requirement of a transaction free of compulsion led this court to hold that "absent the requisite foundation showing that the sale was made willingly, without coercion or compulsion, the purchase price at a trustee's sale would not be admissible as evidence of the fair market value of the property." Dewey, 159 Ariz. at 70, 764 P.2d at 1129.