1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
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6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 NORBERT A. SCHUELLER,
8 Plaintiff-Appellant,
9 v. NO. 30,492
10 WELLS FARGO BANK, N.M., d/b/a
11 WELLS FARGO HOME MORTGAGE,
12 Defendant-Appellee.
13 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
14 John W. Pope, District Judge
15 Norbert A. Schueller
16 Belen, NM
17 Pro se Appellant
18 Moses, Dunn, Farmer & Tuthill, PC
19 Alicia L. Gutierrez
20 Albuquerque, NM
21 for Appellee
22 MEMORANDUM OPINION
1 CASTILLO, Judge.
2 Plaintiff appeals from an order dismissing his complaint with prejudice after the
3 district court entered summary judgment in favor of Defendant on all of Plaintiff’s
4 claims. In this Court’s notice of proposed summary disposition, we proposed to
5 reverse the summary judgment on Plaintiff’s conversion claim and to affirm the
6 summary judgment on Plaintiff’s remaining claims. Plaintiff and Defendant have each
7 filed a memorandum that partially opposes and partially supports our proposed
8 summary disposition, and we have duly considered the arguments presented in these
9 memoranda. Plaintiff has also filed a response to Defendant’s memorandum, which
10 we have not considered, as no such response is contemplated by the Rules of
11 Appellate Procedure. As the parties’ arguments have not persuaded this Court that its
12 proposed summary disposition should not be made, we reverse the summary judgment
13 on Plaintiff’s conversion claim and otherwise affirm.
14 Summary Judgment on Plaintiff’s Claims
15 Plaintiff contends that the district court erred in granting summary judgment in
16 favor of Defendant on Plaintiff’s claims of fraud, conversion, and breach of fiduciary
17 duty when there was a disputed issue of fact about whether Defendant used the funds
18 in Plaintiff’s escrow account to purchase a temporary insurance policy as provided in
19 the agreements between the parties. [DS 10-11] “Summary judgment is appropriate
2
1 where there are no genuine issues of material fact and the movant is entitled to
2 judgment as a matter of law.” Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶
3 6, 126 N.M. 396, 970 P.2d 582. “We review these legal questions de novo.” Id. “We
4 are mindful that summary judgment is a drastic remedial tool which demands the
5 exercise of caution in its application, and we review the record in the light most
6 favorable to support a trial on the merits.” Woodhull v. Meinel, 2009-NMCA-015, ¶
7 7, 145 N.M. 533, 202 P.3d 126 (internal quotation marks and citation omitted), cert.
8 denied, 2009-NMCERT-001, 145 N.M. 655, 203 P.3d 870.
9 Plaintiff’s complaint alleged that he took out a loan using his home as collateral
10 and Defendant purchased the loan. [RP 7] The loan’s terms required Plaintiff to
11 maintain hazard insurance for the property. Plaintiff was in the hospital and in
12 rehabilitation from August 24, 2007, through September 18, 2007. [RP 7] On August
13 29, 2007, he received a letter from Defendant informing him that Defendant had
14 received notice that Plaintiff’s insurance policy was not going to be renewed, effective
15 October 22, 2007. [RP 8] The letter stated that if Plaintiff did not purchase a new
16 policy, Defendant would obtain temporary insurance coverage for the property. [RP
17 8] Plaintiff did not obtain new insurance, and assumed that Defendant had done so.
18 [RP 8]
19 In March 2008, Plaintiff received a letter from Defendant with an insurance
3
1 binder that was retroactive for the sixty-day period of October 22, 2007 through
2 December 21, 2007. [RP 8] The letter from Defendant stated that if Plaintiff did not
3 provide Defendant with proof of insurance by December 21, 2007 (a date which had
4 passed several months previously), Defendant would obtain a one-year policy on
5 Plaintiff’s property for a premium of $1,628, which would be charged to Plaintiff’s
6 escrow account on December 21, 2007. [RP 8] Plaintiff purchased his own policy on
7 April 2, 2008, and provided Defendant with notification of the coverage. [RP 9]
8 Defendant then sent Plaintiff a letter stating that the temporary insurance purchased
9 by Defendant had been cancelled and that no premium was due. [RP 9] Despite
10 Defendant’s representation that no premium was due, Defendant disbursed Plaintiff’s
11 escrow funds to cover the temporary insurance for the period of the lapse. [RP 10]
12 Plaintiff’s complaint alleged that Defendant had committed fraud by making
13 misrepresentations about the binder, by failing to disclose the material fact that his
14 escrow account would be charged, and by providing a fraudulent binder that provided
15 no insurance coverage. [RP 10-11] It alleged that Defendant converted the funds in
16 Plaintiff’s escrow account by disbursing the funds without providing Plaintiff with a
17 valid insurance policy, and it alleged a breach of fiduciary duty based on the foregoing
18 conduct. [RP 12-13] Plaintiff sought compensatory and punitive damages. [RP 13-
19 15]
4
1 Defendant filed two separate motions for summary judgment. [RP 169-83, 485-
2 96] The district court granted both motions, and because these motions disposed of
3 all of Plaintiff’s claims, the district court dismissed Plaintiff’s complaint with
4 prejudice. [RP 458-59, 662]
5 In our notice of proposed summary disposition, we proposed to hold that the
6 district court erred in granting summary judgment on Defendant’s claim for
7 conversion. “Conversion is the unlawful exercise of dominion and control over
8 property belonging to another in defiance of the owner’s rights, or acts constituting
9 an unauthorized and injurious use of another’s property, or a wrongful detention after
10 demand has been made.” Security Pac. Fin. Servs. v. Signfilled Corp.,
11 1998-NMCA-046, ¶ 15, 125 N.M. 38, 956 P.2d 837. Plaintiff’s complaint asserted
12 that Defendant never obtained a valid temporary insurance policy for the period
13 between when his prior policy ended on October 22, 2007, and when he obtained new
14 insurance on April 2, 2008. In Defendant’s motions for summary judgment,
15 Defendant offered evidence of a binder for the sixty-day period of October 22, 2007,
16 through December 21, 2007. [RP 204] Defendant also offered the affidavit of
17 Jennifer Robinson, a default litigation specialist who worked for Defendant. [RP 184-
18 87, 490] Ms. Robinson’s affidavit stated that Defendant “did procure temporary
19 insurance for which Plaintiff was charged $727.00.” [RP 186] The affidavit did not
5
1 provide any other information about the policy, and did not specify what the
2 temporary policy insured against or the period of the temporary insurance. [RP 186]
3 In Plaintiff’s responses to Defendant’s motions, Plaintiff pointed out that no
4 insurance policy was ever issued to him and that the binder that was issued would be
5 valid only with reference to some particular policy. [RP 534-37, 541-42] We
6 conclude that since Defendant did not produce the claimed policy in support of either
7 of its motions for summary judgment, and instead, simply offered Ms. Robinson’s
8 affidavit stating generally that a temporary policy was obtained, the evidence, when
9 viewed in the light most favorable to Plaintiff as the non-moving party, did not
10 support summary judgment on his conversion claim. Although Defendant asserted,
11 through Ms. Robinson, that Defendant obtained appropriate hazard insurance for the
12 entire period of the lapse, Plaintiff asserted that no such insurance was actually
13 obtained, because he never received documentation of the policy. See 13.18.3.12
14 NMAC (requiring that creditor-placed insurance “be set forth in an individual policy
15 or certificate of insurance” and that “copy of the individual policy, certificate of
16 insurance coverage, or other evidence of insurance coverage shall be mailed, first class
17 mail, or delivered in person to the last known address of the debtor”). Defendant only
18 produced documentation of a binder for a sixty-day period and did not produce
19 evidence that any policy was purchased that covered the entire period of October 22,
6
1 2007, through April 2, 2008. While a factfinder might well believe Ms. Robinson that
2 appropriate insurance was obtained for the entire period, credibility determinations
3 should not be made on summary judgment, and circumstantial evidence should not be
4 weighed. Juneau v. Intel Corp., 2006-NMSC-002, ¶ 23, 139 N.M. 12, 127 P.3d 548
5 (“Judges should not make credibility determinations or weigh circumstantial evidence
6 at the summary judgment stage.”).
7 In Defendant’s memorandum in opposition, Defendant argues that reversal is
8 inappropriate because Plaintiff did not set forth specific facts by affidavit or other
9 evidence that would defeat summary judgment. [Def.’s MIO 2-5] In particular,
10 Defendant argues that Plaintiff’s statements that Defendant never purchased insurance
11 was based on opinion or improper speculation. [Def.’s MIO 2-5] We disagree.
12 Plaintiff submitted an affidavit in which he stated that “no homeowner’s
13 insurance policy was ever issued to me.” [RP 389] Defendant never disputed the fact
14 that it did not provide the policy to Plaintiff either prior to or during this litigation.
15 We believe that where Defendant did not provide a copy of the policy to Plaintiff, and
16 provided no evidence of the policy in support of its motion for summary judgment
17 other than a general statement from one of its employees that one was issued, there
18 exists a question of material fact as to whether Defendant did or did not purchase such
19 a policy. Because there is a question of material fact as to whether the $727 was
7
1 disbursed from Plaintiff’s escrow account for appropriate hazard insurance that
2 covered the period of October 22, 2007, through April 2, 2008, we reverse the district
3 court’s grant of summary judgment on Plaintiff’s claim of conversion. To the degree
4 that punitive damages can be based on a claim of conversion, Plaintiff should be able
5 to seek punitive damages on remand.
6 Although we reverse the summary judgment on Plaintiff’s conversion claim,
7 we affirm the summary judgment as to the claims of fraud and breach of a fiduciary
8 duty. In order to prevail on his fraud claims, Plaintiff was required to prove the
9 existence of (1) a misrepresentation of fact by Defendant, (2) either knowledge of the
10 falsity of the representation or recklessness on the part of Defendant in making the
11 misrepresentation, (3) Defendant’s intent to deceive and to induce reliance on the
12 misrepresentation, and (4) Plaintiff’s detrimental reliance on the misrepresentation.
13 See Cain v. Champion Window Co. of Albuquerque, 2007-NMCA-085, ¶ 22, 142
14 N.M. 209, 164 P.3d 90. As we explained in our notice of proposed summary
15 disposition, Plaintiff never established that he detrimentally relied on what he alleges
16 were Defendant’s misrepresentations. In his memorandum in opposition, Plaintiff
17 asserts that he was not required to establish detrimental reliance at the summary
18 judgment phase. [Pl.’s MIO 18] Plaintiff is incorrect. Detrimental reliance was an
19 essential element of his claim, and he was required to demonstrate at least an issue of
8
1 material fact on this issue in order to defeat summary judgment. See Blauwkamp v.
2 University of N.M. Hosp., 114 N.M. 228, 232, 836 P.2d 1249, 1253 (Ct. App. 1992)
3 (holding that the plaintiff’s failure to establish an essential element of a claim is
4 sufficient grounds for summary judgment).
5 In our notice of proposed summary disposition, we proposed to hold that
6 Plaintiff could not prevail on his breach of fiduciary claim because he had not
7 established that the relationship between Defendant and him was a fiduciary one. We
8 relied on American Bank of Commerce v. Covolo, 88 N.M. 405, 407, 540 P.2d 1294,
9 1296 (1975), for the proposition that a banking relationship does not give rise to a
10 fiduciary duty between the creditor and debtor. In Plaintiff’s memorandum in
11 opposition, he points out that American Bank of Commerce is distinguishable from
12 this case in a number of respects. [Pl.’s MIO 22-25] While we agree with Plaintiff
13 that the case is distinguishable, particularly in that American Bank of Commerce did
14 not involve an escrow account, we nevertheless conclude that it supports our
15 determination that the duties owed by Defendant to Plaintiff in this case were not
16 fiduciary duties. Plaintiff cites Bank of New York v. Regional Planning Authority,
17 2005-NMCA-116, 138 N.M. 389, 120 P.3d 471, for the proposition that a bank may
18 sometimes owe a fiduciary duty as a trustee, but there the bank was a successor trustee
19 to an arrangement under a trust indenture executed in connection with the issuance
9
1 and sale of bonds to fund a low income housing project. The bank in that case was
2 specifically engaged as a trustee, and apparently was not acting as a lender. Although
3 Plaintiff does not cite these cases, we are aware that New Mexico law recognizes that
4 when two parties to an agreement entrust a third party with funds in an escrow
5 account, the escrow agent owes a fiduciary duty to the parties. See In re Arrieta, 105
6 N.M. 418, 420, 733 P.2d 866, 868 (1987); Allen v. Allen Title Co., 77 N.M. 796, 800,
7 427 P.2d 673, 676 (1967). However, in those cases, the escrow agent was not acting
8 as a lender. Plaintiff has cited no authority from this or any other jurisdiction to
9 support his argument that a bank that makes a home loan and maintains an escrow
10 account to protect its interest in the mortgaged property has entered into a fiduciary
11 relationship with the debtor. Plaintiff has therefore failed to demonstrate that reversal
12 is warranted. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330
13 (1984) (stating that where a party cites no authority to support an argument, we may
14 assume no such authority exists); Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124
15 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar
16 cases, the burden is on the party opposing the proposed disposition to clearly point out
17 errors in fact or law.”).
18 Evidentiary Issues
19 In Plaintiff’s docketing statement, he raised several claimed errors related to the
10
1 evidence that the district court relied upon in granting summary judgment. [DS 11-
2 12] Because we have reversed the summary judgment on Plaintiff’s conversion claim
3 in part because there was a question of fact as to the period of the insurance coverage
4 obtained by Defendant, we have already addressed Defendant’s arguments that the
5 binder was not sufficient to establish coverage beyond the sixty-day binder period.
6 As for Defendant’s argument that the district court erred in determining that the
7 mortgage agreement controlled the hazard insurance authorization, we stated in our
8 notice of proposed summary disposition that it was not clear to this Court what
9 Plaintiff meant by this argument, and that it was not clear that the argument was
10 preserved. Accordingly, we proposed to decline to review this issue. See Headley v.
11 Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We
12 will not review unclear arguments, or guess at what [a party’s] arguments might be.”);
13 Crutchfield v. N.M. Dep’t of Taxation & Revenue, 2005-NMCA-022, ¶ 14, 137 N.M.
14 26, 106 P.3d 1273 (“[A] party must specifically point out where, in the record, the
15 party invoked the court’s ruling on the issue. Absent that citation to the record or any
16 obvious preservation, we will not consider the issue.”). We stated that in any
17 memorandum in opposition Plaintiff wished to file, Plaintiff should explain more
18 clearly what he believed the district court did wrong, must explain how he preserved
19 this argument by bringing it to the attention of the district court, and must provide
11
1 legal authority that supported his argument. In Plaintiff’s memorandum in opposition,
2 Plaintiff does not follow this Court’s instructions or even address his original claim
3 of error, and instead argues that Defendant’s attorney engaged in misconduct. [Pl.’s
4 MIO 26-27] As Plaintiff failed to demonstrate any error with respect to the issue he
5 raised in his docketing statement, we find no reversible error. Judicial Bias
6 Plaintiff contends that the district court was biased against him and in favor of
7 Defendant because Defendant is a bank. [DS 12] In our notice of proposed summary
8 disposition, we explained that improper judicial bias “must be of a personal nature
9 against the party seeking recusal,” and must generally “stem from an extrajudicial
10 source and result in an opinion on the merits on some basis other than what the judge
11 learned from his participation in the case.” State v. Ruiz, 2007-NMCA-014, ¶ 15, 141
12 N.M. 53, 150 P.3d 1003 (internal quotation marks and citation omitted). Because
13 Plaintiff’s docketing statement did not provide any evidence of such bias, we
14 proposed to hold that the judge was not improperly biased in favor of Defendant. In
15 Plaintiff’s memorandum in opposition, he points to a number of actions taken by the
16 district court that he believes are evidence of improper judicial bias. [Pl.’s MIO 29-
17 30] These include the failure to grant certain hearings and the denial of Plaintiff’s
18 request for leave to proceed in forma pauperis. [Pl.’s MIO 29-30] Even if Plaintiff
19 were able to demonstrate that the district court erred in its decisions, such errors are
12
1 simply not evidence of improper bias. Plaintiff’s memorandum in opposition also
2 provides this Court with Plaintiff’s personal theories about the district court judge’s
3 psychology. [Pl.’s MIO 31] Plaintiff’s theories are not evidence of improper bias.
4 Accordingly, reversal is not warranted on this basis.
5 For the reasons stated in this opinion and in our notice of proposed summary
6 disposition, we reverse the summary judgment on Plaintiff’s claim for conversion and
7 affirm the judgment as to Plaintiff’s other claims.
8 IT IS SO ORDERED.
9 ___________________________________
10 CELIA FOY CASTILLO, Judge
11 WE CONCUR:
12 __________________________________
13 MICHAEL D. BUSTAMANTE, Judge
14 __________________________________
15 MICHAEL E. VIGIL, Judge
13