Bank of NY v. McDonald

• Court: New Mexico Court of Appeals
• Decided: June 20, 2018
• Docket: A-1-CA-36853
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 THE BANK OF NEW YORK MELLON f/k/a 3 THE BANK OF NEW YORK, as Trustee 4 for THE CERTIFICATEHOLDERS OF 5 CWMBS, INC., CHL MORTGAGE PASS- 6 THROUGH TRUST 2001-15 MORTGAGE 7 PASS-THROUGH CERTIFICATE SERIES 8 2007-15,

9 Plaintiff-Appellee,

10 v. No. A-1-CA-36853

11 TOBY P. GARCIA; BEATRICE GARCIA; 12 NEW MEXICO BANK & TRUST; 13 MORTGAGE ELECTRONIC REGISTRATION 14 SYSTEMS, INC. (solely as a nominee for lender 15 and lenders’ successors and assigns),

16 Defendants,

17 and

18 MATT MCDONALD, as Trustee for THE 19 3 QUIET LANE TRUST,

20 Proposed Intervenor-Appellant.

21 APPEAL FROM THE DISTRICT COURT SANDOVAL COUNTY 22 John F. Davis, District Judge 1 Weinstein & Riley, P.S. 2 Jason Bousliman 3 Albuquerque, NM

4 for Appellee 5 Patrick Lopez 6 Albuquerque, NM

7 for Appellant

8 MEMORANDUM OPINION

9 HANISEE, Judge.

10 {1} Proposed Intervenor-Appellant Matt McDonald, as Trustee for the 2 Quiet Lane

11 Trust (McDonald) appeals from the district court’s denial of his motion to reconsider

12 denial of his motion to intervene. [DS unnumbered 2] We issued a notice proposing

13 to affirm. [CN 1, 5] McDonald has filed a memorandum in opposition, which we have

14 duly considered. Remaining unpersuaded, we affirm.

15 {2} McDonald continues to argue his motion to intervene should not have been

16 denied on timeliness grounds. [MIO 1-2] In support, McDonald cites Cooper v.

17 Albuquerque City Commission, 1974-NMSC-006, ¶ 22, 85 N.M. 786, 518 P.2d 275,

18 in which our Supreme Court held the district court did not err in granting intervention

19 where the intervenor filed his motion after the conclusion of the trial but before entry

20 of the final judgment. Unlike in Cooper, however, McDonald filed his motion to

21 intervene eight months after entry of the final judgment of foreclosure. [1 RP 213, 2

2 1 RP 253] Also unlike the facts of Cooper, McDonald fails to demonstrate the existence

2 of any relationship between the parties which would have indicated to McDonald his

3 interests were being protected during the foreclosure litigation obviating a need to

4 intervene sooner. See id. ¶ 21. This Court has no duty to review an argument that is

5 not adequately developed. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045,

6 ¶ 15, 137 N.M. 339, 110 P.3d 1076 (declining to entertain a cursory argument that

7 included no explanation of the party’s argument and no facts that would allow this

8 Court to evaluate the claim); see also Elane Photography, LLC v. Willock, 2013-

9 NMSC-040, ¶ 70, 309 P.3d 53 (“We will not review unclear arguments, or guess at

10 what a party’s arguments might be.” (alteration, internal quotation marks, and citation

11 omitted)). We therefore conclude McDonald has not demonstrated the district court

12 abused its discretion in denying his motion to intervene.

13 {3} McDonald also continues to argue his counsel’s new knowledge of a “No

14 Deficiency Agreement” between McDonald, as trustee, and the former homeowner

15 constitutes newly discovered evidence justifying reconsideration of his motion to

16 intervene. [MIO 3] We first note the agreement, along with the quitclaim deed, was

17 executed March 9, 2015, approximately a month after entry of the foreclosure

18 judgment and seven months before the motion to intervene. [2 RP 289-91] Thus, we

19 suggest the existence of the agreement, apparently signed by McDonald, himself, was

3 1 not newly discovered evidence McDonald’s counsel could not have found through the

2 exercise of due diligence. Moreover, McDonald’s memorandum in opposition does

3 not adequately explain how the creation of the agreement and any resulting

4 relationship would have affected the outcome of the foreclosure proceedings such that

5 intervention was justified. See Elane Photography, LLC, 2013-NMSC-040, ¶ 70. We

6 therefore conclude McDonald has not demonstrated the district court erred in denying

7 the motion to reconsider.

8 {4} Accordingly, for the reasons explained in our notice of proposed disposition

9 and herein, we affirm.

10 {5} IT IS SO ORDERED.

11 ________________________________ 12 J. MILES HANISEE, Judge

13 WE CONCUR:

14 ________________________________ 15 HENRY M. BOHNHOFF, Judge

16 ________________________________ 17 STEPHEN G. FRENCH, Judge