Bank of New York v. Romero
266 P.3d 638
N.M. Ct. App.2011Background
- Romeros refinanced in 2006 with Equity One to pay debts; loan paid off existing mortgage and provided cash to the Romeros.
- Romeros defaulted in 2007; foreclosure filed April 1, 2008 by Bank of New York as trustee.
- Romeros counterclaimed alleging predatory lending, HLPA violations (flipping) and UPA violations.
- District court found no HLPA flipping, no UPA violation, and held HLPA preempted by federal law; denied counterclaims.
- Romeros appealed arguing inadequate evidence for findings; the court affirmed substantial-evidence support and did not address preemption on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the loan violated HLPA’s flipping prohibition | Romero argues the loan was a flip | Bank contends no flip given tangible benefit | No HLPA flip; substantial-benefit supported |
| Whether the loan provided a reasonable, tangible net benefit | Romero claims no tangible net benefit | Bank asserts net benefit from debt payoff and cash | Substantial evidence supports a net benefit |
| Whether the loan violated the Unfair Practices Act (UPA) | Romero alleges unfair practices under UPA | Bank denies unfair practices | No UPA violation |
| Whether the Bank held the note and mortgage with standing to enforce | Romero challenges the Bank’s ownership/assignment | Bank presented evidence of assignment to Bank; standing. | Bank had standing; substantial evidence supported ownership |
| Whether the district court abused its discretion in excluding Harold Johnson’s expert opinions | Johnson’s testimony should be admitted | Johnson not qualified to testify; opinions inadmissible | No abuse of discretion; Johnson’s testimony properly excluded |
Key Cases Cited
- Mascarenas v. Jaramillo, 111 N.M. 410 (1991) (interpretation of factual findings to support judgments; substantial evidence standard)
- Las Cruces Prof’l Fire Fighters v. City of Las Cruces, 1997-NMCA-044 (1997) (standard for substantial evidence; favorable view of record for the prevailing party)
- In re Adoption of Doe, 100 N.M. 764 (1984) (absence of authority supports not considering argument when not cited)
- Jicarilla Apache Nation v. Rodarte, 2004-NMSC-035 (2004) (legislature acts with knowledge of existing statutes; interpretation presumption)
- State v. Alberico, 116 N.M. 156 (1993) (expert testimony admissibility; abuse of discretion standard)