Arizona Supreme Court Rules That “Show Me The Note” Defense Is Not A Valid Defense To A Foreclosure

In the recent Arizona Supreme Court case of Hogan v. Washington Mutual Bank, the Arizona Supreme Court ruled that Arizona’s non-judicial foreclosure statutes do not require the beneficiary to prove its authority or “show the note” before the trustee may commence a non-judicial foreclosure.

In Hogan, the borrower, John Hogan, borrowed money to purchase two properties. Each of the loans was secured by a deed of trust. Hogan defaulted on both loans, which triggered non-judicial foreclosure proceedings. After receiving a notice of trustee’s sale for each of the properties, Hogan sued to stop the trustee’s sales. Hogan asserted that the lenders could not proceed with the trustees sales until they “showed the promissory notes” signed by Hogan and the lender in connection with the underlying transaction.

The Superior Court dismissed Hogan’s lawsuit and the Court of Appeals affirmed the trial court’s decision. The Arizona Supreme Court decided to hear the issue because it presented a recurring issue of first impression and statewide importance.


When purchasing a home, homeowners must decide how they wish to hold title to the property. There are numerous considerations for how to take title including taxes, estate planning, avoiding probate and creditor protection. Below are common ways of holding title to a property in Arizona and some of the advantages and disadvantages for each.

Community Property– Only married people can hold title as community property. Each spouse holds an undivided one-half interest in the property. Each spouse may provide by will for the disposition of his or her community interest in the community real property. However, Arizona community property law requires both spouses to join in a conveyance or encumbrance of community real property.

Community Property with Right of Survivorship– This is another way for a married couple to hold title to real property. The advantage of holding title in this manner is that it allows one spouse’s half-interest in community property to pass to the surviving spouse without the need for a probate.