Bank of New York v. Romero

2011 NMCA 110, 266 P.3d 638, 150 N.M. 769
CourtNew Mexico Court of Appeals
DecidedAugust 23, 2011
Docket29,945; 33,224
StatusPublished
Cited by14 cases

This text of 2011 NMCA 110 (Bank of New York v. Romero) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bank of New York v. Romero, 2011 NMCA 110, 266 P.3d 638, 150 N.M. 769 (N.M. Ct. App. 2011).

Opinion

OPINION

VANZI, Judge.

{1} In 2006, Joseph and Mary Romero (the Romeros) refinanced the mortgage on their home in order to pay off existing debts and loans. When they defaulted two years later, The Bank of New York, as trustee for Popular Financial Services Mortgage/Pass Through Certificate Series # 2006, (the Bank) started foreclosure proceedings. In response to the complaint for foreclosure, the Romeros counterclaimed against the Bank, alleging, among other things, predatory lending practices. At issue in this appeal is whether the district court correctly determined that the Bank did not engage in “flipping” the loan in violation of NMSA 1978, Section 58-21A-4(B) (2003) (amended 2009), of the Home Loan Protection Act (HLPA), or violate the Unfair Practices Act (UPA), NMSA 1978, Sections 57-12-1 through -26 (1967, as amended through 2009). Because substantial evidence supports the district court’s findings, we affirm.

BACKGROUND

{2} The Romeros inherited their home, located in Chimayo, New Mexico, from Joseph Romero’s father in the early 1970s. They have owned the property ever since. Prior to refinancing the mortgage at issue in this case, the Romeros were making monthly payments on their home of approximately $1,200 to New Century Mortgage Corporation (New Century). In early 2006, the Romeros were behind on the New Century loan, which had an estimated payoff of $176,450.08, and were in debt on credit card and other loan obligations. Mr. Romero wanted to refinance his home loan in order to repay his debts and to revitalize the Romeros’ clothing and music store in Española, New Mexico. As a result, the Romeros accepted and signed a new home loan offered by Equity One, Inc. (Equity One) for $227,240 that repaid their existing home loan, credit card debt, and other obligations. The loan also gave the Romeros $31,164.82 in cash to pay bills and restock their store. Monthly payments of $1,683.28 became due starting August 1, 2006.

{3} In September 2007, the Romeros stopped making payments on their mortgage and note. They fell behind in repaying the home loan, and by the end of the year, the Romeros owed over $8,000 in payments and fees. They were also eventually locked out of their store for failure to pay rent. The Romeros agree that they were properly served with notices of delinquency and default. Although the Romeros were given an opportunity to cure their default, they did not do so; and on April 1, 2008, the Bank, as trustee/assignee of the Romeros’ mortgage, filed its complaint for foreclosure.

{4} The Romeros answered the complaint and admitted that they had entered into the mortgage and note and that they were several payments behind on the loan. The Romeros also counterclaimed against the Bank, alleging deceptive loan practices and unfair trade practices. The Romeros’ basic contention is that Equity One took advantage of them — two individuals with limited education — and coerced them to incur a debt that Equity One knew they could never afford. Based on these allegations, the Romeros claimed that the Bank had (1) failed to disclose the “actual rate upon the home loan” as required by the HLPA; (2) had “flipp[ed]” the loan in violation of Section 58-21A-4(B); (3) had engaged in predatory lending practices including using deceptive marketing, concealing fees and costs, and structuring the loan to strip the Romeros of their equity; and (4) had violated the federal Truth in Lending Act (Regulation Z), Real Estate Practices Act, as well as the New Mexico HLPA and UPA.

{5} After a bench trial, the district court entered findings and conclusions, ruling in favor of the Bank and ordering the sale of the Romeros’ home. The district court found, among other things, that the Bank did not engage in “flipping” because the loan resulted in a “reasonable, net tangible benefit” to the Romeros, nor did it violate the UPA. Further, the district court found that the HLPA did not apply to the Bank because it was preempted by federal law. The district court ruled against the Romeros on all of their counterclaims.

{6} On appeal, the Romeros raise five issues challenging seven of the district court’s findings of fact and three of its conclusions of law. The Romeros contend that, with the exception of the court’s ruling on preemption, which they claim fails as a matter of law, the remaining four issues fail based on lack of substantial evidence. Because we conclude that substantial evidence exists for each of the district court’s findings and conclusions, and we affirm on those grounds, we do not address the Romeros’ preemption argument.

DISCUSSION

Standard of Review

{7} As we have noted, the issue raised by the Romeros and that we address in this appeal is whether substantia] evidence exists to support certain findings and conclusions made by the district court. In accordance with our standard of review, the judgment of the trial court will not be disturbed on appeal if the findings of fact entered by the court are supported by substantial evidence, are not clearly erroneous, and are sufficient to support the judgment. See Mascarenas v. Jammillo, 111 N.M. 410, 412, 806 P.2d 59, 61 (1991) (stating that it is the appellate court’s duty to interpret the trial court’s findings to determine whether they are sufficient to support the judgment). When considering a claim of insufficient evidence, we resolve “all disputes of facts in favor of the successful party and indulge all reasonable inferences in support of the prevailing party.” Las Cruces Prof'l Fire Fighters v. City of Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177. Thus, “[t]he question is not whether substantial evidence exists to support the opposite result, but rather whether such evidence supports the result reached.” Id. Finally, “we will not reweigh the evidence nor substitute our judgment for that of the fact finder.” Id.

{8} Before we turn to the issues in this case, however, we express our concern about the Romeros’ brief in chief, which, in large measure, fails to conform to the New Mexico Rules of Appellate Procedure. The brief contains almost no argument, it fails to cite the record, and it fails to present the evidence as a whole. In order to properly support a challenge to the sufficiency of evidence, the argument section of the brief in chief must include “citations to authorities, record proper, transcript of proceedings or exhibits relied on.” Rule 12-213(A)(4) NMRA. This Court has no duty to review an argument that is not adequately developed. Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (declining to entertain a cursory argument that relied on several factual assertions that were made without citation to the record). Further, where a party fails to cite any portion of the record to support its factual allegations, we need not consider its argument on appeal. Santa Fe Exploration Co. v. Oil Conservation Comm’n, 114 N.M. 103, 108, 835 P.2d 819, 824 (1992). Although the deficiencies in the Romeros’ brief make it almost impossible to address many of their assertions, we consider their arguments where we can.

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Bluebook (online)
2011 NMCA 110, 266 P.3d 638, 150 N.M. 769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-new-york-v-romero-nmctapp-2011.