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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 IN THE MATTER OF THE ESTATE OF 3 HAROLD V. “JACK” GARRETT, Deceased,
4 WILLIAM H. GARRETT, KAREN LYNN 5 HUFFMON, and MILT RODNEY GARRETT, heirs,
6 Appellants,
7 v. NO. 34,368 & 34,446 8 (consolidated)
9 SALENA M. GARRETT, Personal 10 Representative,
11 Appellee,
12 and
13 KIMMEL STEWART COLLINS and 14 DEBORA ELAINE COLLINS, husband and wife,
15 Plaintiffs-Appellees,
16 v.
17 WILLIAM H. GARRETT, KAREN LYNN HUFFMON, 18 MILT RODNEY GARRETT, RYAN M. GARRETT, 19 THE UNKNOWN HEIRS OF THE FOLLOWING NAMED 20 DECEASED PERSON: HAROLD V. (JACK) GARRETT, and 21 ALL UNKNOWN CLAIMANTS OF INTEREST IN THE 1 PREMISES ADVERSE TO THE PLAINTIFFS,
2 Defendants-Appellants.
3 APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY 4 Albert J. Mitchell Jr., District Judge
5 Warren F. Frost 6 Logan, NM
7 for Appellants William H. Garrett, Karen Lynn Huffmon and Milt Rodney Garrett
8 Border Law Office 9 Nancy G. English 10 Tucumcari, NM
11 for Appellee Salena M. Garrett
12 Border Law Office 13 Nancy G. English 14 Tucumcari, NM
15 for Appellees Kimmel Stewart Collins and Debora Elaine Collins
16 Warren F. Frost 17 Logan, NM
18 for Appellants William H. Garrett, Harlold (Jack) Garrett, Karen Lynn Huffmon, Ryan 19 Garrett and Milt Rodney Garrett
20 MEMORANDUM OPINION
21 GARCIA, Judge.
22 {1} Appellants appealed from two separate cases, referred to herein as the probate
2 1 case and the foreclosure case, involving related legal issues and parties, which we
2 consolidated for efficiency and ease of discussion. In the appeal from the probate case,
3 Petitioners-Appellants William H. Garrett, Karen Lynn Huffmon, and Milt Rodney
4 Garrett filed a docketing statement, appealing the district court’s order of complete
5 settlement of estate and order denying Petitioners’ motion to remove personal
6 representative and motion to set aside personal representative’s deeds. [CN 3, 10] In
7 our notice of proposed disposition, we proposed to dismiss the appeal from the
8 probate case as moot in light of our proposed disposition with regard to the
9 foreclosure case. [CN 3, 10] We additionally proposed to conclude that, to the extent
10 the probate case was not mooted by our proposed disposition with regard to the
11 foreclosure case, the notice of appeal was untimely and, as such, proposed to grant
12 Personal Representative’s motion to dismiss the probate case as untimely. [CN 10–12]
13 Neither party submitted objections to these proposals; therefore, we dismiss the appeal
14 from the probate case.
15 {2} In the appeal from the foreclosure case, Defendants-Appellants appealed the
16 district court’s findings of fact and order of foreclosure and order correcting findings
17 of fact and order of foreclosure. [See CN 2–3, 9] In our notice of proposed disposition,
18 we proposed to reverse and remand. Appellees filed a timely memorandum in
19 opposition (MIO), which we have duly considered. Remaining unpersuaded, we
3 1 reverse and remand the appeal from the foreclosure case.
2 {3} In their memorandum in opposition, Appellees argue that the estate of Deceased
3 had no liability for payment of the debt of the surviving co-tenants of the joint tenancy
4 property because the property passed out of probate upon Deceased’s death and that,
5 accordingly, they were entitled to enforcement of the note and the mortgage. [MIO 2]
6 First, the underlying premise of Appellees’ argument—that Appellants owed a debt
7 to Appellees—is erroneous. As set forth in more detail in our notice of proposed
8 disposition, Deceased (and his wives) executed notes in favor of Citizens Bank and
9 Plaintiffs in 1982 and 2005. [CN 7; see also CN 3–7 (pertinent background and facts);
10 MIO 2 (Appellees do not dispute the facts)] Appellants did not assume the obligations
11 of the notes at any point. [CN 8; see also CN 5] Although Appellants were joint
12 tenants on the real property at issue [CN 3], they were not co-obligors on the notes.
13 [CN 5, 8] Thus, even if Appellees were still owed something by someone on the notes,
14 they were not owed by Appellants. [See CN 5, 8] See Simon v. Bilderbeck Inc., 1966-
15 NMSC-170, ¶ 13, 76 N.M. 667, 417 P.2d 803 (stating that “a mortgage is but an
16 incident to the debt, the payment of which it secures”).
17 {4} Second, Appellees acknowledge that they entered into a stipulated order
18 whereby they relieved the estate of any further obligation on the notes. [MIO 2 (¶ 1)]
19 As the only obligors on the note that is the subject of the foreclosure case were
4 1 Decedent and his first wife [MIO 2–3 (¶ 2)], and as Decedent’s first wife died in or
2 before 1996 [MIO 3 (¶ 3)], the only individual obligated to pay Appellees on the note
3 was Decedent [CN 8 (reiterating that the district court found that Appellants did not
4 assume the obligations of the notes at any point); MIO 2 (stating that Appellees do not
5 dispute the recitation of the pertinent facts); see also CN 5] or, after his death, his
6 estate. Appellees have not cited any authority or explained in their memorandum in
7 opposition how joint-ownership of real property automatically creates an obligation
8 by the joint-owners to pay on indebtedness for which they did not assume the
9 obligations. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d
10 683 (“Our courts have repeatedly held that, in summary calendar cases, the burden is
11 on the party opposing the proposed disposition to clearly point out errors in fact or
12 law.”); State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003
13 (stating that a party responding to a summary calendar notice must come forward and
14 specifically point out errors of law and fact, and the repetition of earlier arguments
15 does not fulfill this requirement), superseded by statute on other grounds as stated in
16 State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374; see also Curry v. Great Nw. Ins.
17 Co., 2014-NMCA-031, ¶ 28, 320 P.3d 482 (“Where a party cites no authority to
18 support an argument, we may assume no such authority exists.”).
19 {5} Rather, Appellees contend that, because the property passed outside of probate
5 1 upon Decedent’s death [MIO 4], the debt was also not an estate debt [MIO 4], and, as
2 such, Appellees “have established their right to collect on the note against
3 Appellants.” [MIO 5] Appellees further assert that, because they are holders of a
4 mortgage, and because the notes were not yet paid upon Decedent’s death, Appellees
5 have a right to collect on the note as against Appellants. [MIO 5–6] But, again,
6 Appellants did not assume the obligations of the notes at any point [CN 8; see also CN
7 5], so Appellees have no right to collect on the note(s) as against Appellants.
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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 IN THE MATTER OF THE ESTATE OF 3 HAROLD V. “JACK” GARRETT, Deceased,
4 WILLIAM H. GARRETT, KAREN LYNN 5 HUFFMON, and MILT RODNEY GARRETT, heirs,
6 Appellants,
7 v. NO. 34,368 & 34,446 8 (consolidated)
9 SALENA M. GARRETT, Personal 10 Representative,
11 Appellee,
12 and
13 KIMMEL STEWART COLLINS and 14 DEBORA ELAINE COLLINS, husband and wife,
15 Plaintiffs-Appellees,
16 v.
17 WILLIAM H. GARRETT, KAREN LYNN HUFFMON, 18 MILT RODNEY GARRETT, RYAN M. GARRETT, 19 THE UNKNOWN HEIRS OF THE FOLLOWING NAMED 20 DECEASED PERSON: HAROLD V. (JACK) GARRETT, and 21 ALL UNKNOWN CLAIMANTS OF INTEREST IN THE 1 PREMISES ADVERSE TO THE PLAINTIFFS,
2 Defendants-Appellants.
3 APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY 4 Albert J. Mitchell Jr., District Judge
5 Warren F. Frost 6 Logan, NM
7 for Appellants William H. Garrett, Karen Lynn Huffmon and Milt Rodney Garrett
8 Border Law Office 9 Nancy G. English 10 Tucumcari, NM
11 for Appellee Salena M. Garrett
12 Border Law Office 13 Nancy G. English 14 Tucumcari, NM
15 for Appellees Kimmel Stewart Collins and Debora Elaine Collins
16 Warren F. Frost 17 Logan, NM
18 for Appellants William H. Garrett, Harlold (Jack) Garrett, Karen Lynn Huffmon, Ryan 19 Garrett and Milt Rodney Garrett
20 MEMORANDUM OPINION
21 GARCIA, Judge.
22 {1} Appellants appealed from two separate cases, referred to herein as the probate
2 1 case and the foreclosure case, involving related legal issues and parties, which we
2 consolidated for efficiency and ease of discussion. In the appeal from the probate case,
3 Petitioners-Appellants William H. Garrett, Karen Lynn Huffmon, and Milt Rodney
4 Garrett filed a docketing statement, appealing the district court’s order of complete
5 settlement of estate and order denying Petitioners’ motion to remove personal
6 representative and motion to set aside personal representative’s deeds. [CN 3, 10] In
7 our notice of proposed disposition, we proposed to dismiss the appeal from the
8 probate case as moot in light of our proposed disposition with regard to the
9 foreclosure case. [CN 3, 10] We additionally proposed to conclude that, to the extent
10 the probate case was not mooted by our proposed disposition with regard to the
11 foreclosure case, the notice of appeal was untimely and, as such, proposed to grant
12 Personal Representative’s motion to dismiss the probate case as untimely. [CN 10–12]
13 Neither party submitted objections to these proposals; therefore, we dismiss the appeal
14 from the probate case.
15 {2} In the appeal from the foreclosure case, Defendants-Appellants appealed the
16 district court’s findings of fact and order of foreclosure and order correcting findings
17 of fact and order of foreclosure. [See CN 2–3, 9] In our notice of proposed disposition,
18 we proposed to reverse and remand. Appellees filed a timely memorandum in
19 opposition (MIO), which we have duly considered. Remaining unpersuaded, we
3 1 reverse and remand the appeal from the foreclosure case.
2 {3} In their memorandum in opposition, Appellees argue that the estate of Deceased
3 had no liability for payment of the debt of the surviving co-tenants of the joint tenancy
4 property because the property passed out of probate upon Deceased’s death and that,
5 accordingly, they were entitled to enforcement of the note and the mortgage. [MIO 2]
6 First, the underlying premise of Appellees’ argument—that Appellants owed a debt
7 to Appellees—is erroneous. As set forth in more detail in our notice of proposed
8 disposition, Deceased (and his wives) executed notes in favor of Citizens Bank and
9 Plaintiffs in 1982 and 2005. [CN 7; see also CN 3–7 (pertinent background and facts);
10 MIO 2 (Appellees do not dispute the facts)] Appellants did not assume the obligations
11 of the notes at any point. [CN 8; see also CN 5] Although Appellants were joint
12 tenants on the real property at issue [CN 3], they were not co-obligors on the notes.
13 [CN 5, 8] Thus, even if Appellees were still owed something by someone on the notes,
14 they were not owed by Appellants. [See CN 5, 8] See Simon v. Bilderbeck Inc., 1966-
15 NMSC-170, ¶ 13, 76 N.M. 667, 417 P.2d 803 (stating that “a mortgage is but an
16 incident to the debt, the payment of which it secures”).
17 {4} Second, Appellees acknowledge that they entered into a stipulated order
18 whereby they relieved the estate of any further obligation on the notes. [MIO 2 (¶ 1)]
19 As the only obligors on the note that is the subject of the foreclosure case were
4 1 Decedent and his first wife [MIO 2–3 (¶ 2)], and as Decedent’s first wife died in or
2 before 1996 [MIO 3 (¶ 3)], the only individual obligated to pay Appellees on the note
3 was Decedent [CN 8 (reiterating that the district court found that Appellants did not
4 assume the obligations of the notes at any point); MIO 2 (stating that Appellees do not
5 dispute the recitation of the pertinent facts); see also CN 5] or, after his death, his
6 estate. Appellees have not cited any authority or explained in their memorandum in
7 opposition how joint-ownership of real property automatically creates an obligation
8 by the joint-owners to pay on indebtedness for which they did not assume the
9 obligations. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d
10 683 (“Our courts have repeatedly held that, in summary calendar cases, the burden is
11 on the party opposing the proposed disposition to clearly point out errors in fact or
12 law.”); State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003
13 (stating that a party responding to a summary calendar notice must come forward and
14 specifically point out errors of law and fact, and the repetition of earlier arguments
15 does not fulfill this requirement), superseded by statute on other grounds as stated in
16 State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374; see also Curry v. Great Nw. Ins.
17 Co., 2014-NMCA-031, ¶ 28, 320 P.3d 482 (“Where a party cites no authority to
18 support an argument, we may assume no such authority exists.”).
19 {5} Rather, Appellees contend that, because the property passed outside of probate
5 1 upon Decedent’s death [MIO 4], the debt was also not an estate debt [MIO 4], and, as
2 such, Appellees “have established their right to collect on the note against
3 Appellants.” [MIO 5] Appellees further assert that, because they are holders of a
4 mortgage, and because the notes were not yet paid upon Decedent’s death, Appellees
5 have a right to collect on the note as against Appellants. [MIO 5–6] But, again,
6 Appellants did not assume the obligations of the notes at any point [CN 8; see also CN
7 5], so Appellees have no right to collect on the note(s) as against Appellants.
8 Appellees have cited no authority for their contention that joint-owners on real
9 property automatically become obligors on a note that is secured by a mortgage on
10 such property upon the death of the only actual obligor on the note, and we are aware
11 of no such authority, so we assume none exists. See Curry, 2014-NMCA-031, ¶ 28
12 (“Where a party cites no authority to support an argument, we may assume no such
13 authority exists.”). Moreover, while we do not disagree with Appellees that the real
14 property passed outside of probate upon Decedent’s death because of its nature as
15 joint tenancy property [see MIO 4, 5], Appellees have cited no authority for their
16 conclusion that the note that is secured by a mortgage on such property is not an estate
17 debt or that the estate had no liability for payment of the note, and we are aware of no
18 such authority, so we assume none exists. See id.
19 {6} Additionally, we reiterate that Appellees entered into a stipulated order whereby
6 1 they “settled all claims of Appellees against [D]ecedent’s estate[.]” [MIO 4, 5] Since
2 the only obligor on the note at the time of Decedent’s death was Decedent, and since
3 Appellees settled all claims against Decedent’s estate, there was no debt remaining
4 due on the notes. [See CN 8–9] See NMSA 1978, § 55-3-604(a) (2009) (stating that
5 “[a] person entitled to enforce an instrument . . . may discharge the obligation of a
6 party to pay the instrument . . . by agreeing not to sue or otherwise renouncing rights
7 against the party by a signed record”); NMSA 1978, § 55-3-601(a) (1992) (stating that
8 the “obligation of a party to pay the instrument is discharged as stated in this article
9 or by an act or agreement with the party which would discharge an obligation to pay
10 money under a simple contract” (emphasis added)); cf. NMSA 1978, § 55-3-602(a)
11 (2009) (stating that, to the extent a payment is made on an instrument, “the obligation
12 of the party obliged to pay the instrument is discharged”).
13 {7} Finally, we briefly address Appellees’ argument that, because they were holders
14 of the mortgage and owners of the applicable note, they were entitled to enforce the
15 instruments and that, even if they have no right to enforce the note, they are entitled
16 to enforce the mortgage lien. [MIO 5–6] Although we do not disagree with the fact
17 that, ordinarily, a holder of a mortgage and an owner of a note has a right to enforce
18 such instruments, and we do not disagree that, if a debt still exists under a valid note,
19 then a valid mortgage securing that note can still be foreclosed even if the owners of
7 1 the mortgaged property are not obligors of the note, we reiterate that, because
2 Appellees entered into a stipulated order whereby they settled all claims against
3 Decedent’s estate—the only obligor on the note—there was no obligation remaining
4 due under the note and, as such, the mortgage was fully satisfied and no longer subject
5 to a foreclosure lawsuit. [See CN 9] See Simon, 1966-NMSC-170, ¶ 13 (also stating
6 that “a mortgage is but an incident to the debt, the payment of which it secures”); see
7 also NMSA 1978, § 48-7-4(A) (1991) (stating that, when a debt has been fully
8 satisfied, the mortgagee has a duty to “cause the full satisfaction of it to be entered of
9 record in the office of the county clerk of the county where the mortgage or deed of
10 trust is recorded”).
11 {8} Thus, for the reasons stated in this opinion and set forth in this Court’s notice
12 of proposed disposition, we reverse and remand for dismissal of the foreclosure
13 action.
14 {9} IT IS SO ORDERED.
15 ________________________________ 16 TIMOTHY L. GARCIA, Judge
17 WE CONCUR:
18 _______________________________ 19 J. MILES HANISEE, Judge
8 1 _______________________________ 2 M. MONICA ZAMORA, Judge