Hernandez v. Wells Fargo Bank New Mexico, N.A.

2006 NMCA 018, 128 P.3d 496, 139 N.M. 68
CourtNew Mexico Court of Appeals
DecidedDecember 8, 2005
DocketNo. 24662
StatusPublished
Cited by5 cases

This text of 2006 NMCA 018 (Hernandez v. Wells Fargo Bank New Mexico, N.A.) 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
Hernandez v. Wells Fargo Bank New Mexico, N.A., 2006 NMCA 018, 128 P.3d 496, 139 N.M. 68 (N.M. Ct. App. 2005).

Opinion

OPINION

WECHSLER, J.

{1} Daniel Hernandez (Plaintiff) appeals from the trial court’s order granting summary judgment in favor of Wells Fargo Bank New Mexico (Bank). Plaintiff argues that Bank’s charging of overdraft fees violates the New Mexico Unfair Practices Act (UPA), NMSA 1978, § 57-12-2(E)(2) (2003). We hold that summary judgment was proper because Plaintiff failed to meet his burden to rebut Bank’s prima facie evidence that the overdraft fee was not grossly disproportionate to the value received by Plaintiff and affirm.

FACTS AND PROCEDURAL BACKGROUND

{2} Plaintiff maintains a checking account with Bank, a nationally chartered bank. Plaintiff occasionally used a debit card to make purchases that are charged against his account. On more than one occasion, Plaintiff used his debit card for a purchase transaction when his checking account did not have sufficient funds. On such occasions, Bank approved the transaction, covered the difference, and charged Plaintiff an overdraft fee between $28 and $31. Most of the overdrafts were in amounts less than the overdraft fee. Plaintiff sued Bank under Section 57-12-2(E)(2), alleging that Bank’s overdraft fees are extensions of credit that are unconscionable because of a gross disparity between the value received (Bank coverage of the overdrafts) and the price paid (the resultant overdraft fee).

{3} Bank moved for summary judgment, arguing that Plaintiffs UPA claim is preempted by the National Banking Act, 12 U.S.C. §§ 21-216 (2000) (NBA), and that the overdi-aft fees are not unconscionable as a matter of law. Bank’s motion for summary judgment included an affidavit of Bank Vice President Victor A. Valdez and supporting documentation of a 1997 Account Agreement and a 1999 Account Agreement (Account Agreements). The Account Agreements set forth Bank’s rights to cover or to decline transactions, including electronic transactions when presented on insufficient funds, and to charge Plaintiff a resultant fee. Valdez’s affidavit also referred to and attached a 2000 Consumer Account Fee and Information Schedule, which provided Plaintiff with information on available overdraft protection plans and overdraft fees. Plaintiff signed account applications in which he acknowledged having received and being bound by the Account Agreements and the Consumer Account Fee. In addition, Valdez’s affidavit referred to attached bank statements in which Bank gave Plaintiff notice of his overdrafts, provided the amounts of the overdraft fees that Plaintiff agreed to pay, notified Plaintiff that it was Bank’s policy to approve as many debit card transactions as possible, and offered Plaintiff the option to apply for overdraft protection.

{4} In response to Bank’s motion for summary judgment, Plaintiff disputed receiving all of the above-noted documentation, disputed the reasonableness and justification for Bank’s overdraft policies, and argued that preemption did not apply. The trial court granted summary judgment in Bank’s favor, determining that there was no genuine issue of material fact with respect to Bank’s statement of material facts, and that (1) federal law preempted Plaintiffs claim, and (2) as a matter of law, Bank was otherwise entitled to summary judgment.

STANDARD OF REVIEW

{5} Summary judgment is properly granted when no genuine issues of material fact exist “and the movant is entitled to judgment as a matter of law.” Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. We review de novo the issue of whether the movant was entitled to judgment as a matter of law. Id. The movant must make a prima facie showing that summary judgment is merited. Roth v. Thompson, 113 N.M. 331, 334, 825 P.2d 1241, 1244 (1992). Upon such a prima facie showing, the burden shifts to the party opposing summary judgment to show specific evidentiary facts in the form of admissible evidence that require a trial on the merits. Id. at 334-35, 825 P.2d at 1244-45; Ciup v. Chevron U.S.A., Inc., 1996-NMSC-062, ¶ 7, 122 N.M. 537, 928 P.2d 263. General assertions of the existence of a triable issue are insufficient. See Clough v. Adventist Health Sys., Inc., 108 N.M. 801, 803, 780 P.2d 627, 629 (1989) (“[MJere argument or bare contentions of the existence of a material issue of fact is insufficient.”); Spears v. Canon de Carnue Land Grant, 80 N.M. 766, 769, 461 P.2d 415, 418 (1969) (“Mere argument or contention of existence of material issue of fact ... does not make it so. The party opposing a motion for summary judgment cannot defeat the motion ... by the bare contention that an issue of fact exists, but must show that evidence is available ____”) (citation omitted); Schmidt v. St. Joseph’s Hosp., 105 N.M. 681, 683, 736 P.2d 135, 137 (Ct.App.1987) (stating that “a general allegation without an attempt to show the existence of those factual elements comprising the claim or defense” is insufficient to overcome a motion for summary judgment) (internal quotation marks and citation omitted).

PLAINTIFF’S FAILURE TO MEET HIS BURDEN

{6} Section 57-12-2(E)(l), (2) defines an “unconscionable trade practice” as:

[A]n act or practice in connection with the sale, lease, rental or loan, or in connection with the offering for sale, lease, rental or loan, of any goods or services, including services provided by licensed professionals, or in the extension of credit or in the collection of debts which to a person’s detriment:
(1) takes advantage of the lack of knowledge, ability, experience or capacity of a person to a grossly unfair degree; or
(2) results in a gross disparity between the value received by a person and the price paid.

{7} Plaintiff premises his claim on Bank’s alleged violation of Section 57-12-2(E)(2), arguing specifically that Bank made an extension of credit that was unconscionable because it resulted in a gross disparity between the value received and the price paid. Plaintiff claims that the overdraft fees are excessive for the services rendered and that the amount of the overdraft fees and the actual expenses incurred by Bank for processing Plaintiffs overdrawn debit transactions do not justify the amount of the fees imposed.

{8} As a national bank, Bank is subject to the NBA and regulations of the Office of the Comptroller of the Currency (OCC) under its authority to supervise and regulate federally chartered banks pursuant to the NBA. See 12 U.S.C. § 1 (2000). In connection with its motion for summary judgment, Bank presented evidence that it established its overdraft fees in accordance with sound banking principles under the OCC regulation pertaining to a national bank’s adoption of customer fees.

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Cite This Page — Counsel Stack

Bluebook (online)
2006 NMCA 018, 128 P.3d 496, 139 N.M. 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hernandez-v-wells-fargo-bank-new-mexico-na-nmctapp-2005.