The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23- 112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _____________
3 Filing Date: November 7, 2022
4 No. A-1-CA-38144
5 WELLS FARGO BANK N.A., as 6 Trustee for the Certificateholders 7 of Banc of America Alternative Loan 8 Trust 2003-8, Mortgage Pass-Through 9 Certificates, Series 2003-8,
10 Plaintiff-Appellee,
11 v.
12 DAVID GRAHAM,
13 Defendant-Appellant,
14 and
15 DARLENE E. GURULE and 16 PHOENIX MECHANICAL, L.L.C.,
17 Defendants.
18 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY 19 Emilio J. Chavez, District Judge
20 McCarthy & Holthus, LLP 21 Jason Bousliman 22 Albuquerque, NM
23 for Appellee 1 Law Offices of Brian A. Thomas, P.C. 2 Brian A. Thomas 3 Albuquerque, NM
4 for Appellant 1 OPINION
2 WRAY, Judge.
3 {1} Defendant David Graham appeals the district court’s grant of summary
4 judgment in favor of Plaintiff Wells Fargo Bank, N.A. (the Bank) in this foreclosure
5 action, relating to a mortgage (the 2003 Loan) taken out on property Defendant owns
6 in Taos, New Mexico (the Property). Defendant contends that the 2003 Loan violates
7 public policy and additionally that certain payments were not properly credited. We
8 affirm.
9 BACKGROUND
10 {2} Defendant first purchased the Property and obtained a mortgage in 1993. In
11 1999, he effectively refinanced the 1993 mortgage with a line of credit from Centinel
12 Bank of Taos. The line of credit was modified and renewed in both 2000 and 2001.
13 In late December 2002, Defendant applied for and received a “no document loan.”
14 According to his affidavit, Defendant applied for the “no document” loan to avoid
15 having the lender verify his ability to repay the loan; instead, approval depended on
16 whether his “equity and [his] credit score met the guidelines.” Defendant used part
17 of this loan to repay Centinel Bank of Taos, and “a substantial balance” of the
18 remaining proceeds “was paid directly to [Defendant] in cash and was used to pay
19 ongoing [business] operating expenses as well as to service [Defendant’s] debt.”
20 Between June and August 2003, Defendant obtained the 2003 Loan, which is the 1 loan at issue in this case. The 2003 Loan was a second “no document” loan, and
2 Defendant used the $294,000 to pay off the loan he had received six months prior.
3 {3} In October 2014, the Bank filed a complaint for foreclosure and alleged that
4 Defendant had defaulted on the 2003 Loan. The Bank moved for summary judgment,
5 which the district court granted. Defendant appeals.
6 DISCUSSION
7 {4} Defendant argues that (1) the district court improperly granted summary
8 judgment because the 2003 Loan is unenforceable as a matter of public policy based
9 on statutory and equitable grounds; and (2) the district court incorrectly refused to
10 credit a 2011 payment. We address each issue in turn.
11 I. The Enforceability of the 2003 Loan
12 {5} Defendant argues that the 2003 Loan is unenforceable based on statutory
13 policy statements and the Bank’s unclean hands. The district court ruled that
14 Defendant failed to legally or factually support these claims and granted summary
15 judgment in favor of the Bank. “Summary judgment is appropriate where there are
16 no genuine issues of material fact and the movant is entitled to judgment as a matter
17 of law.” Bank of N.Y. Mellon v. Lopes, 2014-NMCA-097, ¶ 6, 336 P.3d 443 (internal
18 quotation marks and citation omitted). For both arguments, Defendant contends that
19 disputed facts should have prevented summary judgment, but ultimately
20 acknowledges that the statutory policy argument turns on the existence of a public
2 1 policy—a question of law—and the unclean hands argument relies on unrebutted
2 facts. Absent disputes of fact, we review de novo the grant of summary judgment.
3 See City of Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-NMCA-081, ¶ 7,
4 146 N.M. 717, 213 P.3d 1146 (observing that if the facts are undisputed, “and an
5 appeal presents only a question of law, we apply de novo review”); State Pub. Educ.
6 Dep’t v. Zuni Pub. Sch. Dist., 2018-NMSC-029, ¶¶ 16-17, 458 P.3d 362 (reviewing
7 de novo summary judgment, questions of law, and statutory construction).
8 {6} We first consider the Home Loan Protection Act (HLPA), NMSA 1978, §§
9 58-21A-1 to -14 (2003, as amended through 2021),1 and second turn to the doctrine
10 of unclean hands.
11 A. The HLPA and New Mexico Public Policy
12 {7} Defendant maintains that he has a complete defense to foreclosure of the 2003
13 Loan because the Legislature’s findings set forth in the HLPA established a public
14 policy that the 2003 Loan violated and the 2003 Loan is therefore unenforceable.
15 Generally, agreements are not void for public policy reasons “unless they are clearly
16 contrary to what the [L]egislature or judicial decision has declared to be the public
17 policy.” Berlangieri v. Running Elk Corp., 2002-NMCA-060, ¶ 11, 132 N.M. 332,
18 48 P.3d 70 (internal quotation marks and citation omitted). To evaluate whether an
1 Even though the HPLA has been amended through 2021, in this opinion, we refer to the 2003 version of the HLPA, unless otherwise noted, because that is the version of the statute in effect at the time the 2003 Loan originated.
3 1 agreement is void for public policy, we consider whether the Legislature has
2 declared a public policy, and if so, whether the 2003 Loan is clearly contrary to that
3 public policy. See DiGesu v. Weingardt, 1978-NMSC-017, ¶ 7, 91 N.M. 441, 575
4 P.2d 950 (“Contracts in violation of the public policy of the state cannot be
5 enforced.”). Because we conclude that the Legislature did not intend for the HLPA’s
6 findings to apply to the 2003 Loan, we do not continue to consider further whether
7 the terms of the 2003 Loan are clearly contrary to any policy set forth in the HLPA
8 findings.
9 {8} In 2003, our Legislature adopted the HLPA. Bank of N.Y. v. Romero, 2014-
10 NMSC-007, ¶ 41, 320 P.3d 1. The HLPA includes, in relevant part, the following
11 specific Legislative findings:
12 A. abusive mortgage lending has become an increasing problem 13 in New Mexico, exacerbating the loss of equity in homes and causing 14 the number of foreclosures to increase in recent years;
15 B. one of the most common forms of abusive lending is the 16 making of loans that are equity-based, rather than income-based.
17 Section 58-21A-2(A), (B). Relying on Section 58-21A-2(A) and (B), Defendant
18 contends, in part, that the HLPA establishes New Mexico’s “explicit public policy,”
19 which he argues forms a defense to foreclosure of the 2003 Loan. The HLPA,
20 however, did not bring every loan within its purview. When passing the HLPA, the
21 Legislature, in Chapter 436, Section 19 of the New Mexico Laws of 2003, stated,
4 1 A. Except as provided in Subsection B of this section, the [HLPA] 2 shall apply to all home loans made or entered into after January 1, 2004.
3 B. The effective date of the provisions of Section 10[2] of this act 4 is July 1, 2003 and, on or after that date, no county or municipality shall 5 enact or enforce any ordinance, resolution or rule regarding home loans 6 that are subject to the [HLPA] or that, except for the delayed 7 applicability date of Subsection A of this section, would otherwise be 8 subject to that act.
9 Subsequently, the official annotations for Section 58-21A-2 set forth the following:
10 Effective dates. — Laws 2003, ch. 436 contains no effective date 11 provision, but, pursuant to N.M. Const., art. IV, § 23, is effective June 12 20, 2003, 90 days after adjournment of the [L]egislature.
13 Applicability. — Laws 2003, ch. 436, § 19A makes the [HLPA] 14 applicable to all home loans made or entered into after January 1, 2004.
15 Section 58-21A-2 annot. Citing the “Effective dates,” Defendant maintains that the
16 legislative findings are policies set forth in the HLPA that were in effect at the time
17 the 2003 Loan originated. The Bank, however, argues that the Legislature did not
18 intend for the 2003 Loan to be subject to the HLPA. We agree with the Bank. While
19 the HLPA states a June 20, 2003 effective date, the Legislature used the applicability
20 date to clarify the class of home loans to which the HLPA applies—thus explicitly
21 narrowing the class to loans that were made or entered into after January 1, 2004.
22 The 2003 Loan originated on July 29, 2003, before the January 1, 2004 applicability
23 date for the category of loans that the Legislature made subject to the HLPA. The
Section 10 refers to Section 58-21A-10, the HLPA provision addressing the 2
preemption of conflicting county or municipal ordinances.
5 1 2003 Loan is therefore not subject to the HLPA. We remain unpersuaded by
2 Defendant’s arguments to the contrary and explain.
3 {9} Defendant constructs the case for the application of the HLPA’s public policy
4 as follows. According to Defendant, the different “Effective” and “Applicable” dates
5 render the HLPA ambiguous. While the Legislature affirmatively stated that the
6 HLPA “shall apply to all home loans made or entered into after January 1, 2004,”
7 2003 N.M. Laws, ch. 436, § 19(A) (emphasis added), and Defendant acknowledges
8 as much, he nevertheless maintains that the Legislature did not “declare the inverse,
9 that it does not apply to earlier-made loans and in what context.” Defendant next
10 argues that to follow the Legislature’s direction to liberally construe the HLPA “to
11 carry out its purpose,” see § 58-21A-14, this Court should liberally construe the
12 HLPA in a manner “that is most consonant with the legislative purpose and the
13 general protections[] of the statute.” Defendant additionally contends that the
14 Legislature would not have delayed the implementation of the HLPA’s policies to
15 remediate abusive lending, because the HLPA’s public policy arose out of the
16 earlier-enacted Unfair Practices Act (UPA), NMSA 1978, §§ 57-12-1 to -26 (1967,
17 as amended through 2019). To summarize, Defendant asserts that “[t]o conclude that
18 the Legislature intended the opposite of its declared public policy[] for all loans prior
19 to January 1, 2004, and then to diametrically reverse its policy on January 1, 2004,
20 defies logic” and would permit prohibited “subterfuge.”
6 1 {10} Defendant’s construction of the HLPA fails to consider the statute as a whole.
2 See Brenneman v. Bd. of Regents of Univ. of N.M., 2004-NMCA-003, ¶ 10, 135 N.M.
3 68, 84 P.3d 685 (construing a statute as a whole). Defendant insists that because the
4 HLPA was effective when the 2003 Loan originated, the policies expressed therein
5 must apply to the 2003 Loan in order to accomplish the Legislature’s intent. This
6 view, however, is blind to the full scope of the Legislature’s intent when enacted the
7 HLPA. The Legislature pragmatically implemented the HLPA to provide clarity for
8 which loans would be subject to the statute and give lenders time to adjust their
9 practices and in this manner, was able to address the policy problem of the
10 increasingly abusive lending environment while also limiting the class of loans that
11 would be subject to the HLPA and creating a specific remedy. See § 58-21A-2
12 (policy); § 58-21A-4 (prohibited practices); § 58-21A-5 (more prohibited practices);
13 § 58-21A-9 (civil action). The applicable date, rather than creating an ambiguity,
14 narrows the class of loans subject to the HLPA. See Cabazos v. Calloway Constr.,
15 1994-NMCA-091, ¶ 7, 118 N.M. 198, 879 P.2d 1217 (noting that, “if a statute is not
16 ambiguous, there is no reason to resort to principles of construction or considerations
17 of policy”). The 2003 Loan originated before January 1, 2004, and as a result, the
18 2003 Loan is not subject to the legislative findings set forth in the HLPA.
19 {11} The Legislature anticipated that some loans would not be subject to the HLPA.
20 In establishing a separate effective date for Section 58-21A-10 of the HLPA, the
7 1 preemption provision, the Legislature noted that some loans would be “subject to
2 the [HLPA]” and that some loans would otherwise be subject to the HLPA “except
3 for the delayed applicability date.” 2003 N.M. Laws, ch. 436, § 19(B). The 2003
4 Loan was a loan that would otherwise be subject to the HLPA, “except for the
5 delayed applicability date.” See id.
6 {12} In relation to those loans that are subject to the HLPA, the Legislature
7 expressed a new public policy related to specified abusive lending practices, contrary
8 to Defendant’s argument that the HLPA simply expanded UPA policies. The HLPA
9 expresses the Legislature’s finding that “abusive mortgage lending has become an
10 increasing problem in New Mexico,” Section 58-21A-2(A) (emphases added), and
11 our Supreme Court explained that the “Legislature passed the HLPA in 2003 to
12 combat abusive home mortgage procurement practices.” Romero, 2014-NMSC-007,
13 ¶ 41. The UPA, however, broadly addresses “unconscionable and unfair or deceptive
14 trade practices.” State ex rel. Stratton v. Gurley Motor Co., 1987-NMCA-063, ¶ 8,
15 105 N.M. 803, 737 P.2d 1180. While the HLPA explicitly establishes that violations
16 of the HLPA also constitute UPA violations, see § 58-21A-12, we are unpersuaded
17 that “[t]he public policy expressed in [the] HLPA was supplementary” to the UPA,
18 as Defendant argues.
19 {13} For these reasons, we conclude that the 2003 Loan was not in the class of
20 loans the Legislature intended to be subject to the HLPA. We reject the notion that
8 1 the HLPA’s legislative findings could form the basis to void an agreement when the
2 agreement was not subject to the HLPA. Because we discern no other applicable
3 public policy, we do not further consider Defendant’s arguments that the HLPA
4 provides a defense to enforcing the 2003 Loan.
5 B. Unclean Hands
6 {14} Defendant additionally argues that the 2003 Loan is unenforceable based on
7 the equitable doctrine of unclean hands and that the unclean hands claim was based
8 on asserted facts that the Bank had failed to rebut. “The question of whether, on a
9 particular set of facts, the district court is permitted to exercise its equitable powers
10 is a question of law, while the issue of how the district court uses its equitable powers
11 to provide an appropriate remedy is reviewed only for abuse of discretion.” Romero
12 v. Bank of Sw., 2003-NMCA-124, ¶ 28, 135 N.M. 1, 83 P.3d 288 (internal quotation
13 marks and citation omitted). Under the doctrine of unclean hands, a complainant
14 may not recover “where he or she has been guilty of fraudulent, illegal or inequitable
15 conduct in the matter with relation to which he or she seeks relief.” Randles v.
16 Hanson, 2011-NMCA-059, ¶ 21, 150 N.M. 362, 258 P.3d 1154 (alteration, internal
17 quotation marks, and citation omitted). Specifically, the doctrine applies “in
18 circumstances where the complainant has dirtied his or her hands in acquiring the
19 right he or she now asserts.” Id. (alterations, internal quotation marks, and citation
20 omitted). Defendant maintains that the Bank dirtied its hands by approving an
9 1 equity-based loan with no investigation into Defendant’s assets and ability to pay,
2 and therefore, the 2003 Loan is unenforceable. Under the circumstances of this case,
3 we cannot conclude the district court abused its discretion in rejecting Defendant’s
4 unclean hands argument.3
5 {15} The undisputed facts before the district court created no material issue of fact
6 to support equitable relief based on “fraudulent, illegal or inequitable conduct” by
7 the Bank in originating the 2003 Loan. See id. (internal quotation marks and citation
8 omitted). To the contrary, Defendant’s testimony demonstrates that he understood
9 the terms of the loan and purposefully sought the loan because its equity-based terms
10 were the only terms available to him in his situation. In his affidavit in response to
11 Plaintiff’s motion for summary judgment, Defendant testified that in 2002, he was
12 advised “due to the sporadic nature of my income and because my debt-to-income
13 ratio fell outside of the recommended guidelines, I would not likely qualify for a
14 mortgage loan using traditional underwriting criteria.” Defendant also testified that
15 he was told about a “no document loan” that “was available to self-employed people
16 like [him], who were unable to document a steady net income sufficient to repay the
17 loan after servicing other existing debt.” Defendant understood that “the loan would
18 be approved if [his] equity and . . . credit score met the guidelines” and further that
3 We assume without deciding that the doctrine of unclean hands can be applied in a situation in which the right to be enforced was secured by one party and later assigned to another.
10 1 “this ‘no document’ loan process was the only option [he] had to get a long-term
2 loan and mortgage approved at that time. By using this method, the bank would
3 never directly evaluate whether [he] had the financial ability to repay the loan.” With
4 this understanding, on the 2003 Loan application, Defendant reported his high
5 business income, low personal expenses, and high net worth, as well as ownership
6 of several properties and high-dollar assets. Later, however, in his affidavit,
7 Defendant explained that the 2003 Loan application was not an accurate picture of
8 his debt-to-income ratio, having omitted his business expenses and some additional
9 debt. Defendant’s evidence does not support fraudulent, inequitable, or illegal
10 conduct by the Bank.
11 {16} The undisputed evidence demonstrates that terms of the 2003 Loan were not
12 concealed and Defendant was not misled. Defendant understood those terms, and he
13 purposefully selected those terms in order to obtain the financing he desired. See
14 Wyrsch v. Milke, 1978-NMCA-085, ¶ 32, 92 N.M. 217, 585 P.2d 1098 (“He who
15 seeks equity must do equity.” (internal quotation marks and citation omitted)). Under
16 these circumstances, the district court did not abuse its discretion to reject
17 Defendant’s equitable defense and grant summary judgment to the Bank.
18 II. The Partial Payment
19 {17} Last, Defendant contends that the district court improperly failed to credit a
20 payment submitted by Defendant to the Bank on September 1, 2011. The Bank
11 1 asserts that Defendant failed to preserve or waived this argument, the 2011 payment
2 was made after default, and the Bank was not obligated to accept it. In reply,
3 Defendant maintains that the 2011 payment was rejected well before March 1, 2014,
4 “the effective date of default.” We conclude that Defendant preserved and did not
5 waive the issue but did not “tender” a payment in September 2011.
6 {18} Regarding preservation, an issue is preserved for our review if “a ruling or
7 decision by the trial court was fairly invoked.” Rule 12-321(A) NMRA. The Bank
8 does not dispute that Defendant raised the question in the district court in response
9 to summary judgment. Accordingly, the issue was preserved. The Bank additionally
10 argues that under Rule 1-008 NMRA, Defendant waived the issue by failing “to
11 plead partial tender” as an affirmative defense in a responsive pleading. Rule 1-
12 008(C) requires a party to plead affirmative defenses, including “accord and
13 satisfaction, arbitration and award, contributory negligence, discharge in
14 bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, laches,
15 license, payment, release, res judicata, statute of frauds, statute of limitations, waiver
16 and any other matter constituting an avoidance or affirmative defense.” The Bank
17 does not explain which of these defenses “partial tender” invokes or otherwise how
18 Rule 1-008 applies to the argument Defendant made. We therefore consider the
19 Bank’s waiver argument no further and turn to the merits of Defendant’s tender
20 argument.
12 1 {19} Defendant appears to concede that the 2011 payment was a partial payment.
2 The record appears to support this concession. Payment records show that payment
3 for August 2011 was not made until October 2011. The September 2011 payment
4 was for a single month, but an outstanding balance existed at that time, resulting in
5 an additional required payment to bring the account current. This discrepancy
6 explains the Bank’s communication dated September 27, 2011, stating that
7 “[b]ecause the payment we received was less than the total amount required for the
8 payment, we are returning this check to you.”
9 {20} Defendant argues that the district court’s failure to credit the September 2011
10 payment resulted in “an erroneous application of the Uniform Commercial Code”
11 (UCC). Specifically, Defendant contends that he “tendered” the funds in September
12 2011, and regardless of whether the Bank rejected the “tender,” the UCC required
13 the Bank to discharge the tendered portion of the debt, reduce the balance of the
14 debt, and stop accrual of interest on the debt. Defendant contends that because the
15 UCC does not require a tender to be “in the full amount of the debt,” the Bank could
16 not reject the September 2011 payment without consequence. According to
17 Defendant, the failure to credit a partial payment amounts to a prohibited
18 prepayment penalty. The Bank responds that the UCC permits parties to “override”
19 UCC provisions by agreement and that under the 2003 Loan agreement, the Bank
20 was permitted to reject partial payments. We agree with the Bank.
13 1 {21} The UCC directs that “[t]he parties, by agreement, may determine the
2 standards by which the performance of those obligations is to be measured if those
3 standards are not manifestly unreasonable.” NMSA 1978, § 55-1-302(b) (2005).4
4 The note in the present case identifies the amount of the monthly payment and states
5 that the borrower would be in default if he did not pay “the full amount of each
6 monthly payment on the date it is due.” The mortgage permits the Bank to “return
7 any payment or partial payment if the payment or partial payments [were]
8 insufficient to bring the [l]oan current.” A tender, according to Defendant, “is an
9 offer to perform coupled with the present ability of immediate performance, so that
10 the obligation could be satisfied but for the other party’s refusal to cooperate.” Miller
11 v. Johnson, 1998-NMCA-059, ¶ 21, 125 N.M. 175, 958 P.2d 745. According to the
12 parties’ agreement, the 2011 partial payment was not a tender, because even if the
13 Bank had accepted the payment, it would not have satisfied Defendant’s obligation
14 for the month—the loan would not have been brought current. The 2011 partial
4 The parties cite the current version of the statute, which includes essentially the same language as the statute in effect at the time the 2003 Loan originated. See NMSA 1978, § 55-1-102(3) (1961) (“The effect of provisions of this act may be varied by agreement, except as otherwise provided in this act and except that the obligations of good faith, diligence, reasonableness and care prescribed by this act may not be disclaimed by agreement but the parties may by agreement determine the standards by which the performance of such obligations is to be measured if such standards are not manifestly unreasonable.”).
14 1 payment was therefore not a tender, and Defendant was not entitled to credit for the
2 payment.
3 CONCLUSION
4 {22} For the reasons stated herein, we affirm.
5 {23} IT IS SO ORDERED.
6 _________________________________ 7 KATHERINE A. WRAY, Judge
8 WE CONCUR:
9 _________________________________ 10 ZACHARY A. IVES, Judge
11 _________________________________ 12 MICHAEL D. BUSTAMANTE, Judge, retired, sitting by designation