Resolution Trust Corp. v. Barnhart

862 P.2d 1243, 116 N.M. 384
CourtNew Mexico Court of Appeals
DecidedAugust 30, 1993
Docket13043
StatusPublished
Cited by5 cases

This text of 862 P.2d 1243 (Resolution Trust Corp. v. Barnhart) 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
Resolution Trust Corp. v. Barnhart, 862 P.2d 1243, 116 N.M. 384 (N.M. Ct. App. 1993).

Opinion

OPINION

BIVINS, Judge.

Plaintiff, Resolution Trust Corporation (RTC), as receiver for Security Federal Savings and Loan Association (Security Federal), and Defendant, Charles E. Barnhart (Barnhart), pursue separate appeals from the trial court’s decision following a bench trial. Security Federal filed suit against Barnhart for legal malpractice alleging, among other things, that: (1) he failed to properly represent Security Federal in bankruptcy proceedings, including an adverse foreclosure against property belonging to a debtor and on which Security Federal held a mortgage; and (2) he failed to submit a timely claim on Security Federal’s title insurance policy covering the property, which First American Title Company (First American) had issued. RTC contends that the trial court erred in determining that Barnhart's negligence was not the proximate cause of any damages Security Federal may have suffered and in refusing to award damages. In his cross-appeal, Barn-hart argues that: (1) the trial court erred in finding that he was negligent; and (2) the findings of negligence were not supported by substantial evidence.

We affirm the determination that Barn-hart was negligent in failing to represent Security Federal in the adverse foreclosure proceeding and in failing to give timely notice to First American on Security Federal’s insurance policy. We reverse the determination that Barnhart’s negligence was not a proximate cause of any damages. We remand for the entry of a judgment in favor of RTC for damages resulting from Barnhart’s negligence in failing to represent Security Federal in the adverse foreclosure proceeding. We also remand for the entry of findings of fact and conclusions of law determining the basis, if any, of Security Federal’s negligence in failing to timely notify First American of the adverse claim and, if any negligence is found, to apportion liability on this issue.

FACTS

The legal malpractice action initiated by Security Federal against Barnhart grew out of a series of loans from Security Federal to Joe W. and Mary Lee Priestley, husband and wife (the Priestleys). In May 1976, Security Federal loaned $100,000 to the Priestleys and took a mortgage as security on real estate the Priestleys owned. The mortgage was duly recorded. In August 1977, the Priestleys executed a revocable trust agreement (the Trust) naming Joe W. Priestley as trustee, and both Joe W. and Mary Lee Priestley as settlors and beneficiaries of the Trust. The Trust specified that the Priestleys would retain a life estate in the assets of the Trust, and the Trust contained a spendthrift clause purporting to restrain transfer or assignment of the interests of the beneficiaries in order to satisfy the claims of any creditors. The Trust authorized the trustee to grant mortgages on the trust corpus.

The Priestleys conveyed real property to the Trust in August 1977, including the real estate they had conveyed to Security Federal as security for the 1976 loan. The Priestleys remained in possession and occupancy of the real property quitclaimed to the Trust. In December 1977, the Priestleys negotiated a second loan from Security Federal for $24,800. As security for the loan, Joe W. Priestley, as trustee, and Mary Lee Priestley, individually, gave a mortgage to Security Federal on property which was subject to the Trust. This mortgage was also duly recorded. Security Federal made a third loan in the sum of $200,000 to the Priestleys in March 1982. As security for this loan, the Trust also executed and delivered to Security Federal a mortgage on property in the Trust. This property was the same property that had secured the 1976 and 1977 loans. The mortgage was signed by Joe W. Priestley, as trustee, and was recorded in March 1982. As part of this transaction, Security Federal gave releases to the Priestleys for the 1976 and 1977 mortgages. From the proceeds of the 1982 loan, $94,266.84 was applied against the outstanding balance of the 1976 loan, and $24,294.53 was applied against the balance of the 1977 loan. The amount, interest rate, and term of the 1982 loan differed from the provisions of the prior loans, and the mortgagor of the 1982 mortgage was not the same as of the prior mortgages.

Security Federal obtained a mortgagee’s title insurance policy from First American to insure the priority of its lien on the property described in the 1982 mortgage. The title policy indicated that the 1982 mortgage issued to Security Federal was a first lien on the mortgaged property. On April 18, 1979, however, the Bank of New Mexico (Bank) had obtained a judgment against Joe W. Priestley, individually, and others in the amount of $127,595.06, plus interest, attorney fees, and costs in the sum of $12,759. Neither the Trust nor Security Federal were named as parties to this action. In April 1979, the Bank recorded a transcript of this judgment. In September 1983, the Bank assigned its judgment to Joe Roberts (Roberts) for consideration. In December 1983, the Priestleys filed for Chapter 11 bankruptcy.

Before issuing its title insurance policy for the 1982 mortgage, First American conducted a title search and noted the 1979 transcript of judgment. The title policy, however, did not list the judgment as an exception to the policy. When Security Federal made the 1982 loan to the Priestleys, it had no actual knowledge of the 1979 judgment.

Sheryl Snair, Security Federal’s collection manager, testified that she had authority to refer matters to Security Federal’s attorneys for handling and, after the Priestleys defaulted on the 1982 loan, she sent the Priestley loan file to Barnhart for the institution of foreclosure proceedings. When Roberts’ claim in bankruptcy was filed in December 1983, naming Security Federal as an interested party, those pleadings also were sent to Barnhart. At all material times, Barnhart served as general counsel for Security Federal and received a monthly retainer, plus other fees, for the time spent representing Security Federal on its legal matters.

After the 1982 loan became uncollectible, Security Federal filed a legal malpractice action against Barnhart alleging, among other things, that Barnhart negligently failed to represent it in the Priestley bankruptcy proceedings and negligently failed to file a timely claim on Security Federal’s title insurance policy issued by First American. Barnhart denied any negligence.

Following a bench trial on the merits, the trial court adopted findings of fact and conclusions of law, including findings that:

34. Security Federal intended to create a new indebtedness and to extinguish the earlier [Priestley] debt and priority by accepting the 1982 mortgage on materially different terms than those of the 1976 and 1977 mortgages.
41. The Priestley bankruptcy was referred by Security Federal to Barnhart for legal representation of Security Federal’s interests in that proceeding.
42. Barnhart accepted and agreed to represent Security Federal in the Priestley bankruptcy.
46. Barnhart agreed to represent Security Federal in the Roberts adversary foreclosure proceeding.
47.

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Bluebook (online)
862 P.2d 1243, 116 N.M. 384, Counsel Stack Legal Research, https://law.counselstack.com/opinion/resolution-trust-corp-v-barnhart-nmctapp-1993.