Case Information
*2 Before GORSUCH , Circuit Judge, BRORBY , Senior Circuit Judge, and HOLMES , Circuit Judge.
and unjustly enriched ESB by the amount of the payments he made for its agreement
to extend the redemption period. Noting that redemption may be effected by paying
the foreclosure-sale price to the purchaser or its assigns, or to the court registry, N.M. Stat. § 39-5-18 (2005),
[2]
and that Mr. Cook did not offer payment to any of
these entities during the redemption period, the district court held that his “loss of the
equity in his former property was caused not by any misrepresentation regarding
legal ownership, but by [his] failure to even attempt to tender the redemption price
during the redemption period.” R. at 229. We agree. ESB’s misrepresentation as to
ownership simply had nothing to do with Mr. Cook’s loss of the property. He can
hardly claim detrimental reliance or harm when he did not tender the redemption
amount even to the party he was misled into believing owned the property.
[3]
*4
Mr. Cook also argues in passing that his ignorance about the true ownership of
the property prevented him from negotiating a better price for the redemption from
Spica. This argument rests on a misunderstanding of the “narrow right” of statutory
redemption, which “affords a debtor . . . one last opportunity to reclaim his property”
after a foreclosure sale, by “comply[ing] strictly with the terms set forth by statute as
a condition to redemption.”
Cortez v. Cortez
,
We note that the district court’s rationale for rejecting the lost-equity aspect of
Mr. Cook’s claims does not necessarily address his associated complaint that ESB’s
misrepresentation of ownership also induced him to pay ESB for its agreement to
extend the redemption period. But Mr. Cook does not show detrimental reliance or
other resultant harm in this respect either. As ESB notes in its brief on appeal, Aplee. Br. at 21, Mr. Cook conceded by stipulation that he in fact “obtained [the
promised] extensions of [his] right to redeem the property under New Mexico law
through October 22, 2004,” the agreed upon deadline. R. at 20. Mr. Cook objects
*5
that ESB should have passed the payments on to Spica Industries (an ESB
subsidiary), but if that is a matter for complaint at all, it is a matter to be pursued by
Spica Industries, not Mr. Cook. He also objects that the last one-month extension,
from September 22 to October 22, was not memorialized in a court order or
otherwise reduced to writing, but that is immaterial. New Mexico courts (like those
of many other states) countenance private extension agreements and do so even if
they are not reduced to writing.
See, e.g.
,
Reger
,
In sum, the district court correctly ruled that Mr. Cook failed to show a triable
issue of detrimental reliance or harm relating to ESB’s alleged misrepresentation.
This is fatal to his common law tort claims. But Mr. Cook insists it is not fatal to his
claim for violation of the New Mexico Unfair Practices Act (UPA), N.M. Stat.
§ 57-12-10(B), and relevant precedent supports his case. The UPA provides for
alternative forms of damages: actual damages or statutory damages of $100 (trebled
for willful violations), whichever is greater.
Id.
And New Mexico courts have held
that a plaintiff who cannot show detrimental reliance or actual harm may nevertheless
recover statutory damages.
Page & Wirtz Constr. Co. v. Solomon
,
Finally, we note that Mr. Cook’s briefing digresses onto a number of points that have not been adequately preserved and/or presented, or are simply not material to our disposition of the merits of this appeal. While we have reviewed all of his arguments, we have addressed here only those warranting explicit discussion.
The judgment of the district court is AFFIRMED in all respects except insofar as it relates to the claim for violation of the UPA. As to that claim, we REVERSE the grant of summary judgment and remand for further proceedings.
Entered for the Court Wade Brorby Senior Circuit Judge Plaintiff Daniel William Cook appeals
Notes
[1] from a district court order granting
summary judgment for defendant Eastern Savings Bank (ESB) on Mr. Cook’s fraud
and related state-law claims relating to the foreclosure sale of his real property,
which was purchased by ESB. This action began as an adversary proceeding in
bankruptcy court, but after the trustee abandoned any interest in the subject matter
the district court withdrew the reference to the bankruptcy court and resolved the
action directly. On de novo review,
N. Tex. Prod. Credit Ass’n v. McCurtain Cnty.
Nat’l Bank
,
[1] Plaintiff Yolanda T. Cook died before the proceedings concluded below.
[2] We refer to the version of the statute in effect at the time of the events here.
Chapel v. Nevitt
,
[3] Mr. Cook assumes ESB’s transfer of the property to Spica Properties meant he
could no longer redeem by paying ESB, i.e., where the redemption statute provides
for payment to the purchaser or its assigns, the “or” must be read as an exclusive
disjunction leaving the assignee the sole party to whom payment may be made after a
transfer of the property. ESB assumes the contrary. Neither party cites any relevant
authority. There is some support for Mr. Cook’s view: in
First State Bank of Taos v.
Wheatcroft
,