EB Attorney Brigitte Finley Green Has Become a Member of the Madison Education Foundation

Engelman Berger would like to announce that in September 2019, attorney Brigitte Finley Green became a member of the Board of Directors of the Madison Education Foundation. This foundation is close to her heart as both of Brigitte’s kids attended Pre-K through 8th grade at Madison Schools. During that time, Brigitte participated in the parent teacher organizations to raise money for art, music, drama, and other extracurriculars that are not sufficiently funded by the State of Arizona. Exposure to the arts have provided significant benefits to Brigitte’s kids, which fueled her interest in the PTO, as well as joining the Board of Directors of the Madison Education Foundation. Brigitte’s membership on the Board of Directors allows her to continue raising money for arts education that benefit all of the children in the Madison District, providing significant benefits to children within the district, just as it did with her own kids.

The Madison Education Foundation is a non-profit foundation that aims to both enrich the quality of each student’s academic and creative education through the innovative and hands-on music and art programs, as well as raise funds, in the form of grants, for the Madison School District. These programs and grants are designed and intended to both enhance and benefit each student’s life inside and out of the classroom. Special components of the Foundation include its partnership with the Musical Instrument Museum (MIM), which fully funds trips for all district students. Every school year, the Foundation awards thousands of dollars to Madison District teachers, in the form of grants, impacting all Madison students for the better. The Foundation is also an annual sponsor of the Art Masterpiece program, a district-wide volunteer program that provides students with art education, history, and hands-on projects, in which all eight Madison schools participate.

EB Attorney Damien Meyer appointed as a Judge Pro Tempore for the Maricopa County Superior Court

Damien R. Meyer, Engelman Berger shareholder, has recently been appointed as a Judge Pro Tempore for the Maricopa County Superior Court.

This distinguished honor, meaning temporary judge, allows the appointed pro tem attorney to temporarily sit for another judge and to conduct settlement conferences. Pro tem judges are selected by the court and are volunteer, pro bono positions that serve in the various Court Departments of their specific county.

Congratulations on this honor, Damien!

Engelman Berger Wishes you a Relaxing and Enjoyable Labor Day

Engelman Berger would like to wish you a relaxing and enjoyable Labor Day. We thank all of you that are in the workforce for your significant contributions and hard work. We hope you have an opportunity to relax over the three-day weekend with friends and family.

Labor Day was first observed on Tuesday, September 2, 1882 but it wasn’t until 1884 that it was decided that the holiday would be recognized on the first Monday of September every year. The holiday was first celebrated in New York City, and spread to many other industrial rich cities around the country in 1855. Labor Day originally included a street parade that honored the public’s strength and common loyalty to labor organizations. It was then followed by a festival, filled with amusements and recreational activities provided for workers and their families. To this day, Labor Day is intended to celebrate and honor “the American worker” including their dedication, hard work, strength, and leadership.

Meet Paul Manley, EB’s Litigation Legal Assistant

Meet Paul Manley, EB’s Litigation Legal Assistant. After working for smaller boutique firms, Paul is enjoying the larger environment at EB, which provides him with greater exposure to a wider range of practice areas. He works directly with EB attorneys Brad Pack and Michael Rolland, learning the ins and outs of Bankruptcy Law from his work with them. Paul believes one of the things that makes EB so special is our office environment, which enables him to foster beneficial and important relationships with all of EB’s attorneys.

Paul attended Pima Community College where he studied Pre-Business from 2005 to 2008. Prior to his work at EB, Paul has worked as a paralegal, an assistant client services director, an officer for the Pima County Sheriff’s Department, and a vendor contracts manager for various firms and companies in Arizona including EZ Messenger, Pezzuto Law, the State of Arizona-ADOH, and Guglielmo & Associates. Paul has volunteered his time at the YMCA in Tucson, Arizona, and hopes to volunteer for his local animal shelter. He also recently volunteered with EB co-founder and attorney, Steve Berger, at Lambda Legal. Born and raised in Tucson, Arizona, Paul enjoys hiking, traveling (often internationally) with his wife and friends, going to the gym, playing with his dogs, and attending networking events throughout the year.

EB Paralegal Cindy Solomon Attending the Arizona Trustee Association’s 32nd Annual Convention and Education Seminar

On August 21-23, 2019, the Arizona Trustee Association is hosting their 32nd Annual Convention and Education Seminar at Harrah’s Ak-Chin Hotel & Casino in Maricopa, Arizona. EB wishes to raise awareness about this convention that is host to many educational seminars and a large panel of talented and professional speakers. The event will kick off with a Golf Tournament where those in attendance are able to mingle and get to know their fellow attendees. The event will also host a dinner on Thursday, where participants of the seminar are welcome to take part in a raffle and win some amazing prizes. Cindy Solomon, EB paralegal and former board member of the ATA, will be in attendance.

The Arizona Trustee Association was established in 1987 with the mission of educating its members on real estate matters, monitoring legislations that may impact the trustee sale process, and formulating legislation designed to improve the quality of trust deed service. Each member of ATA is always up to date on relevant case law, invited to attend a wide range of educational meetings, trade shows, and events, and collectively, as a group, advocate before the Arizona State legislature.

For more information about the event, visit this link https://www.ectownusa.net/members/evr/reg_event.php?orgcode=AZTR&evid=2650197.

EB Attorney Steve Berger Selected as Phoenix’s 2020 “Lawyer of the Year”

Engelman Berger would like to congratulate EB co-founder and attorney, Steve Berger, for being selected for the third time as Phoenix’s 2020 “Lawyer of the Year” in the area of Bankruptcy and Creditor Rights/Insolvency and Reorganization Law.

Each year, individual lawyers with the highest overall peer-feedback for a specific practice area and geographic region are selected as recipients of this award. Only one lawyer is recognized as the “Lawyer of the Year” for each specialty and location.

Congratulations, Steve!

Eight Engelman Berger Attorneys Recognized in The Best Lawyers in America© 2020

Eight of Engelman Berger’s attorneys have been selected for inclusion in The Best Lawyers in America© 2020, considered by many to be the definitive guide to legal excellence. EB attorneys were chosen in the areas of Bankruptcy, Litigation, Public Finance, and Real Estate Law. EB would like to congratulate Patrick Clisham, Scott Cohen, Brad Pack, and Bill Anger for being our firm’s newest additions to the Best Lawyers list!

            Steven N. Berger (since 2003)

                        Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law

                        Litigation – Bankruptcy

            Brigitte Finley Green (since 2007)

                        Public Finance Law

            Tamalyn E. Lewis (since 2015)

                        Bankruptcy and Creditor Debtor Rights / Insolvency and Recognition Law

            Kurt A. Peterson (since 2018)

                        Real Estate Law

           Patrick A. Clisham

                        Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law

           Scott B. Cohen

                        Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law

           Bradley D. Pack

                        Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law

           William H. Anger

                        Real Estate Law

Best Lawyers® is the oldest and most respected peer review publication in the legal profession. Best Lawyers® selects its honored attorneys entirely by peer review. Their methodology is designed to gather as accurate of a consensus opinion of the leading attorneys in the profession. Selections are made after compiling data from extensive peer review surveys in which tens of thousands of leading lawyers confidentially review and evaluate their professional peers. Opinions are based on the lawyers’ professional abilities which are compared to others in the same geographical location and legal practice area.

Congratulations Steve, Brigitte, Tami, Kurt, Patrick, Scott, Brad, and Bill!

EB Associate Michael Rolland Quoted in Arizona Business Magazine Article

Engelman Berger would like to congratulate associate Michael Rolland on being quoted in a recently published Arizona Business Magazine article entitled, “10 Ways AI Could Disrupt Every Facet of the Legal Industry.”

This article expands on how the adoption of AI in the business world is likely to completely change the legal industry, stating that the practice of law is on the “cusp of a revolution.” AI, otherwise known as artificial intelligence, is the adoption and execution of human intelligence processes by technology, machines, and in particular, computer systems. AI allows these systems to learn as well as perform logical reasoning, self-correction, and more. Some of the topics addressed in this article include, automation, healthcare law, increased efficiency and improved speed with AI, legal research, staffing, and more.

Rolland is quoted, “However bold my prediction, it probably won’t be bold enough” (…) “AI promises – or threatens, depending on your point of view – to disrupt every facet of the legal industry, without exception.” Rolland also states, “You want the newer news?” (…) “I believe a burgeoning frontier is the application of AI to internal firm data to generate viable alternative fee billing arrangements on a broad scale. Legal publications have been predicting the death of the billable-hour model for years … I think the coming years will see a new generation of billing programs that can automatically capture your time and intelligently categorize it with an exponentially improved level of granularity.”

To read the article, follow this link: https://azbigmedia.com/business/law/10-ways-ai-could-disrupt-every-facet-of-the-legal-industry/.

Guarantors May Have a New Statute of Limitations Defense

In Monroe v. Arizona Acreage LLC, No. 1 CA-CV 18-0476, 2019 WL 2134794 (Ariz. Ct. App. May 16, 2019), the Arizona Court of Appeals implied that under certain circumstances a general continuing guaranty executed outside the state may be governed by a four year statute of limitations under A.R.S. § 12-544(3), even if the underlying obligation is subject to a six year statute of limitations under A.R.S. § 47-3118. In light of this opinion, counsel for guarantors should consider whether their client’s guaranty was (1) executed out of state, (2) a general, rather than a specific, guaranty and/or executed by a non-owner, and (3) whether more than four years has elapsed since its execution. If the answers to these questions are each “yes,” then Monroe suggests that you may have a meritorious statute of limitations defense. 

Presiding Judge Lawrence F. Winthrop delivered the opinion of the Court, in which Judge Maria Elena Cruz and Chief Judge Samuel A. Thumma joined. 


Two different limited liability companies executed separate promissory notes in favor of multiple lenders in order to develop several acres of land in Mohave County. Both notes were secured by deeds of trust on the land, and personally guaranteed by the same developer. The notes, deeds of trust, and personal guaranties were all executed in Nevada. The borrowers stopped making payments on the notes in June 2008, and in June of 2014, the investors filed two class action lawsuits. The Court entered judgments against the borrowers and guarantor, which they appealed.


Among other issues, on appeal the borrowers and guarantor argued that the promissory notes and guaranties were subject to a four year statute of limitations under A.R.S. § 12-544(3), and that therefore the investors’ actions—brought nearly six years after the default—were time-barred. A.R.S. § 12-544(3) states (with emphasis added):

There shall be commenced and prosecuted within four years after the cause of action accrues, and not afterward, the following actions:

3. Upon a judgment or decree of a court rendered without the state, or upon an instrument in writing executed without the state. This paragraph does not apply to a judgment for support, as defined in section 25-500, and to associated costs and attorney fees.

The investors countered that the notes and guaranties are actually governed by the UCC’s six year limitation for negotiable instruments, found in A.R.S. § 47-3118(A):

Except as provided in subsection E, an action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six years after the due date or dates stated in the note or, if a due date is accelerated, within six years after the accelerated due date.

Both parties agreed with the maxim that a specific statute of limitations shall prevail over a competing general statute, but disagreed as to which statute is specific and which is general. The Court ultimately sided with the investors, reasoning that A.R.S. § 47-3118(A) is the more recent statute (enacted almost 70 years after § 12-544), that its application to negotiable instruments is more specific than § 12-544’s application to instruments generally, and that this approach is more consistent with the policy purpose of the UCC to create uniformity in commercial transactions. Accordingly, the Court unambiguously held that A.R.S. § 47-3118(A) governs the notes and deeds of trusts, notwithstanding the fact that they were executed out of state.

Personal guaranties, however, are not negotiable instruments, and therefore required another layer of analysis. The Court first observed that, in Arizona, guaranty agreements are “contracts separate from their related instruments” and are generally not subject to the U.C.C. Monroe, 2019 WL 2134794 at 5. However, the Court went on to create an exception to this rule where the borrower is an entity owned by the guarantor and where the guaranty is a “specific” guaranty that obligates the guarantor “to repay only the debts of the particular promissory notes.” Id. Finding that the given facts presented such a situation, the Court held that the statute of limitations for the guaranties would be governed by the U.C.C. and track the six year limitations period for the underlying notes.

It should be noted that the decision appears to be based on the Court’s view that it would be “illogical” for a personal guaranty to expire earlier than the underlying obligation. Although the merits of this practical approach are readily apparent, the Court did not root this conclusion in statutory authority or precedent. The plain language of neither A.R.S. § 12-544 nor § 47-3118 contemplate any such exception, and the sole case cited by the Court to support its distinction between specific and general guaranties in this context – Consolidated Roofing & Supply Co., Inc. v. Grimm, 140 Ariz. 452, 682 P.2d 457 (App. 1984) – relied on prior provisions of the U.C.C. that have since been repealed. Nonetheless, the Court’s decision results in a clear rule that out-of-state “specific” guaranties that are executed by the borrower’s owner are subject to A.R.S. § 47-3118, not § 12-544.


The implication of this rule is that a guaranty will be subject to the four year limitation of A.R.S. § 12-544 in circumstances where (i) the out-of-state guaranty is not a specific guaranty but merely a general continuing guaranty, or (ii) the guaranty is not executed by the borrower’s owner. Accordingly, this decision potentially has significant ramifications for lenders and guarantors alike, albeit in narrow circumstances where the guaranty is executed outside the state but being enforced in Arizona.

Lenders and their counsel generally assume a six year limitation applies to all contracts, and likely will not think to analyze whether they need to bring suit within four years. It is also relatively common for lenders to rely on a single general continuing guaranty executed at the start of the lending relationship that is designed to apply to any and all current and future indebtedness of the borrower, rather than to have the guarantor execute a fresh guaranty specifically identifying the underlying obligations each time a new loan is made. Therefore, if you are counsel for a guarantor being sued on their personal guaranty, you should determine:

(1) Was the guaranty executed out of state?

(2) Has four years lapsed since the breach?

If the answer to both 1 and 2 are yes, then you should also determine:

(3) Is it a specific guaranty?

(4) Is your client an owner of the borrower?

If either 3 or 4 are no, then you may have a meritorious argument pursuant to A.R.S. § 12-544 and Monroe that the case should be dismissed.

If you are a lender, the Monroe decision simply reinforces the need to follow, or at minimum deliberately consider, certain standard provisions and lending practices for your form guaranties, such as:

  • A provision stating that the guaranty is being executed in Arizona;
  • A provision specifically stating the period in which an action for breach of the guaranty must be brought;
  • Include continuing guaranty language, but also specifically reference the primary obligations you know are being guaranteed; and
  • Have guarantors execute updated guaranties executes a new loan agreement or loan modification that increases the indebtedness. 

About the Author: Michael Rolland is a member of the civil litigation and commercial transactions practice groups with the law firm of Engelman Berger, P.C. Michael has a special interest in the intersection of technology and the law, and writes on tech law issues.

Disclaimer: This blog is not legal advice and is only for general, non-specific informational purposes. It is not intended to cover all the issues related to the topic discussed. If you have a legal matter, the specific facts that apply to you may require legal knowledge not addressed by this blog. If you need legal advice, consult with a lawyer.

Meet Matthew McCabe Our Summer Law Clerk

Meet Matthew McCabe Engelman Berger’s summer Law Clerk. Matthew graduated from the University of Arizona in 2002 with a Bachelor of Arts in Finance and Entrepreneurship. Prior to attending law school at Arizona State University’s Sandra Day O’Connor College of Law, Matthew founded his own company, Loan Resolution Corporation in Scottsdale, Arizona, which provides financial services to the mortgage industry. Over the course of 11 years, Matthew grew the company from zero to over $21M in annual revenue and nearly 300 full time employees. Matthew’s current goal is to become an attorney and focus his practice on real estate, bankruptcy, and commercial litigation. He has worked as a law clerk for a law firm in Phoenix, and served as a Judicial Intern for the Honorable Daniel P. Collins at the United States Bankruptcy Court in Phoenix, Arizona. While working with Engelman Berger this summer as a law clerk, Matthew will have an opportunity to gain exposure to different areas of law such as real estate, bankruptcy and commercial litigation, which will help him further define his legal path for the future. Over the summer, Matthew will be assisting on a wide variety of project assignments and have a chance to work with all the attorneys in our firm, including a number of out-of-office projects and experiences such as attending court hearings, depositions and closings.

Born in Portland, Oregon, Matthew enjoys spending his free time running and participating in other outside activities. He has competed in multiple triathlons and marathons, including the 2014 New York City Marathon. As an Eagle Scout, he is also active in a local Cub Scout troop. Matthew has been honored for his entrepreneurial accomplishments and received multiple award distinctions such as, “40 Most Influential Mortgage Professionals Under 40” by National Mortgage Professional Magazine, Arizona Republic’s “35 Entrepreneur’s under 35,” and “The Most Powerful Locals Age 40 and Under” by So Scottsdale Magazine.