4.2.7 Pendency of Separate Action on the Debt.

• Jurisdiction: Arizona

With respect to a mortgage, if separate actions are brought on the debt and to foreclose the mortgage given to secure it, the plaintiff must elect which action to prosecute and the other shall be dismissed. A.R.S. § 33-722. This statute does not prohibit separate claims on the note and mortgage in the same action. Any foreclosure action necessarily includes a demand for judgment on the note. Citibank (Ariz.) v. Bhandhusavee, 188 Ariz. 434, 438, 937 P.2d 356, 360 (App. 1996) (“An action on the note and an action seeking a deficiency are one and the same.”)

The many enforcement options open to lenders lead to frequent issues concerning election of remedies. Interpreting A.R.S. § 33-722, the court in Smith v. Mangels, 73 Ariz. 203, 240 P.2d 168 (1985), held that a subrogated party did not “waive the mortgage” by proceeding to judgment on the secured note, stating:

Obviously, the election required by this section is limited to the circumstance where both actions are pending simultaneously. Equally obvious, a mortgagee-creditor has two rights, first, to have the...