Flagstar Bnk v. R Orduno

• Court: New Mexico Court of Appeals
• Decided: May 14, 2009
• Docket: 29,352
• Status: Unpublished

Opinion

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

2 FLAGSTAR BANK, FSB,

3 Plaintiff-Appellee,

4 v. NO. 29,352

5 ROBERT ORDUÑO,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 8 James A. Hall, District Judge

9 Susan C. Little & Associates, P.A. 10 Susan C. Little 11 Albuquerque, NM

12 for Appellee Flagstar Bank

13 Robert Orduno 14 Santa Fe, NM

15 Pro Se Appellant 16 MEMORANDUM OPINION

17 VIGIL, Judge.

18 Defendant appeals the grant of summary judgment to Bank on its complaint for

19 foreclosure. In our notice, we proposed to affirm the judgment. Defendant has timely

20 responded. We have considered his arguments and finding them unpersuasive, we

21 affirm. 1 Defendant appears to be raising a new claim in his memorandum regarding the

2 district court’s jurisdiction over him. He argues that jurisdiction questions can be

3 raised at any time. We note, however, that personal jurisdiction is waived if it is not

4 asserted at the beginning of the action. Sundance Mech. & Util. v. Atlas, 109 N.M.

5 683, 690, 789 P.2d 1250, 1257 (1990). It is only subject matter jurisdiction that can

6 be raised at any time. Id. Defendant’s claim appears to be that the district court did

7 not have personal jurisdiction. [MIO 1] The record does not indicate that Defendant

8 claimed a lack of personal jurisdiction as a defense to the action. Therefore, we

9 conclude that he waived any claim of lack of personal jurisdiction.

10 With regard to any claim of lack of subject matter jurisdiction, Defendant does

11 not fully explain his claim. See Clayton v. Trotter, 110 N.M. 369, 373, 796 P.2d 262,

12 266 (Ct. App. 1990) (explaining that we review pro se arguments to the best of our

13 ability). Insofar as he may be arguing that the federal courts have preemptive

14 jurisdiction over this matter, he cites us to no authority for that proposition. See

15 Wilburn v. Stewart, 110 N.M. 268, 272, 794 P.2d 1197, 1201 (1990) (stating that

16 issues that are unsupported by cited authority will not be reviewed on appeal).

17 Furthermore, our Supreme Court has previously held that a claim of federal

18 preemption must be raised as an affirmative defense. Gonzales v. Surgidev Corp., 120

19 N.M. 133, 140, 899 P.2d 576, 563 (1995). As Defendant did not raise this matter 2 1 below, we conclude that his claim was waived.

2 Defendant continues to argue that there was no contract here. He argues that

3 there is nothing in the contract indicating that the bank was lending him money. He

4 continues to argue that it was his signature on the note that created the money and,

5 therefore, it was his money and he is the creditor. We do not follow the argument.

6 As we pointed out in the notice, Defendant’s signature on the note did not

7 create money, but simply an obligation on his part to pay back the loan. The Bank did

8 not give him credit - it loaned him money that was deposited in his account. In

9 exchange for that loan, Defendant agreed to pay the Bank back. [RP 7] The note that

10 Defendant signed indicates that he received a loan. A loan is defined as “something

11 lent for the borrower's temporary use on condition that it or its equivalent be returned.

12 Case law has defined a loan as a delivery of a sum of money to another under a

13 contract to return at some future time an equivalent amount with or without an

14 additional amount agreed upon for its use.” Security Escrow Corp. v. State Taxation

15 & Revenue Dep’t, 107 N.M. 540, 544, 760 P.2d 1306, 1310 (Ct. App. 1988) (internal

16 quotation marks and citation omitted). Contrary to Defendant’s arguments, we

17 conclude that there was a valid contract, whereby the Bank loaned Defendant money

18 in exchange for his agreement to pay it back.

19 Defendant now argues that the note presented to the district court was a forgery. 3 1 It does not appear from the record that he raised this issue below. He did not respond

2 to the Bank’s motion for summary judgment. None of his pleadings below suggest

3 that a forgery was involved here. Because this matter was not raised below, we do not

4 address it here. See Woolwine v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721

5 (Ct. App. 1987) (stating the rule and the reason for requiring preservation of issues

6 below). Defendant cannot raise new issues here that were not presented to the district

7 court.

8 Defendant argues that the district court prejudged the case. That assertion

9 appears to be the result of the ruling against Defendant. As we pointed out in our

10 notice, bias cannot be based on an adverse ruling. In his memorandum, Defendant

11 makes a number of assertions about the impropriety and illegality of the district

12 court’s rulings. We have reviewed the record before the district court and conclude

13 that Defendant’s assertions are completely unfounded. There is no evidence of

14 prejudgment or bias in this case.

15 Defendant continues to argue about his sovereignty and his claim that he is the

16 real creditor here. As we pointed out in our notice, these arguments are largely

17 incomprehensible and totally without merit. Even sovereigns who borrow money and

18 agree to pay it back must do so.

19 Defendant cites us to a good deal of out-of-state authority for his various 4 1 arguments. We need not consider it as there is New Mexico precedent that answers

2 the issues raised by Defendant.

3 We conclude that the district court properly determined that there were no

4 genuine issues of material fact here. Therefore, summary judgment was properly

5 granted. See Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396,

6 970 P.2d 582 (stating the standard for summary judgment).

7 For the reasons stated herein and in the calendar notice, we affirm the summary

8 judgment.

9 IT IS SO ORDERED.

10 _______________________________ 11 MICHAEL E. VIGIL, Judge

12 WE CONCUR:

13 ________________________________ 14 ROBERT E. ROBLES, Judge

15 ________________________________ 16 LINDA M. VANZI, Judge