July 30, 2019- Don C. Toland v. Wells Fargo Bank, N.A., No. A-1-CA-36079

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	DON C. TOLAND,
3 	Plaintiff-Appellant,
4 v. 	No. A-1-CA-36079
5 WELLS FARGO BANK, N.A.,
6 	Defendant-Appellee.
7 	APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Nan G. Nash, District Judge
9 	Don C. Toland
10 	Albuquerque, NM
11 	Pro Se Appellant
12 	Snell and Wilmer L.L.P.
13 	Sandra A. Brown
14 	Albuquerque, NM
15 	for Appellee
16
17 	VARGAS, Judge.
MEMORANDUM OPINION
18 	{I} 	Don C. Toland (Plaintiff) appeals, pro se, from the district court's order
19 dismissing 	with 	prejudice 	his 	complaint 	alleging 	Wells 	Fargo 	(Defendant)
20 	wrongfully refused to provide him with payoff information for its loan to Robert
21 	Carmignani (Borrower). Plaintiff argues that the district court erred in dismissing
Court of Appeals of New Mexico
Filed 7/30/2019 9:03 AM

1 his complaint because Defendant had a duty to provide him with a pay off figure for
2 Borrower 's loan. We affirm.
3 BACKGROUND
4 	{2} 	Borrower executed a promissory note payable to North American Mortgage
5 Company, secured by a mortgage on Borrower' s home (property). After Borrower
6 defaulted on his loan, he died, and the loan was assigned to Defendant. Defendant
7 filed a complaint for foreclosure, naming the unknown heirs, devisees, or legatees
8 of Borrower as defendants. Plaintiff was not named as a party to the foreclosure
9 action. The district court entered default judgment in Defendant' s favor in the
10 foreclosure action.
11 	{3} 	Plaintiff then commenced the instant action against Defendant, asserting
12 	claims for breach of contract, unjust enrichment, enforcement of Rule 1-068 NMRA,
13 	violation of the UP A, and prima facie tort. In his complaint, Plaintiff alleged that
14 after Defendant filed its foreclosure action, Borrower' s granddaughters (the heirs)
15 	transferred their redemption rights to the property to Plaintiff, and provided him with
16 quitclaim deeds as well as a limited power of attorney authorizing him to speak with
17 Defendant. Plaintiff's complaint fails to allege what interest, if any, the heirs had in
18 	the property or what authority, if any, they had to act on behalf of the estate of
19 Borrower. Plaintiff claimed he repeatedly contacted Defendant to convey his desire
20 to " pa y off the mortgage and take possession," but Defendant did not respond. The
2

1 district court dismissed Plaintiffs complaint with prejudice pursuant to Rule 1-
2 	012(8)(6) NMRA. Plaintiff filed a motion to reconsider, which the district court
3 denied. This appeal followed.
4 	DISCUSSION
5 Standard of Review
6 	{4} 	"A district court's decision to dismiss a case under Rule 	1-012(8)(6) is
7 reviewed de novo." Mendoza v. Tamaya Enters ., Inc., 2010-NMCA-074, ,-r 5, 148
8 N.M. 534, 238 P.3d 903. "A motion to dismiss for failure to state a claim tests the
9 	legal sufficiency of the complaint, not the factual allegations of the pleadings which,
10 	for purposes of ruling on the motion, the court must accept as true." Id. (internal
11 	quotation marks and citation omitted). "Dismissal on Rule 1-012(8)(6) grounds is
12 	appropriate only if the plaintiffl is] not entitled to recover under any theory of the
13 	facts 	alleged in [his] 	complaint." Mendoza, 	2010-NMCA-074, ,-r 5 (alterations,
14 	internal quotation marks, and citation omitted). "We review the evidence in the light
15 	most favorable to the party resisting the motion." Id. Further,"[ w ]e review the denial
16 	of a motion for reconsideration for abuse of discretion." Unified Contractor, Inc. v.
l 7 Albuquerque Haus. Auth., 2017-NMCA-060, ,-r 77,400 P.3d 290.
18 	Defendant's Duty to Provide a Payoff Figure
19 	{5} 	All of Plaintiffs claims are ba sed on his assertion that Defendant had a legal
20 	duty to respond to his request for a payoff figure. He contends that the district court
3

1 improperly dismissed his complaint because Defendant failed to satisfy that duty.
2 The basis of Plaintiffs argument appears to be: (1) Plaintiff was authorized to
3 request and receive payoff information by the heirs; and (2) Defendant had a
4 statutory or other duty to provide payoff figures.
5 Authority to Request and Receive Payoff Figures
6 	{6} 	Plaintiff contends that he had authority to request and receive payoff figures
7 because he "stood in the shoes of the heirs." Plaintiffs complaint, however, fails to
8 explain what interest the heirs had in the property that would allow them to authorize
9 him to request and receive payoff information for Borrower's loan. He does not
10 allege that the property had been transferred to the heirs by Borrower's estate thereby
11 	entitling the heirs to deed the property to him. Nor does he allege that one or both of
12 	the 	heirs 	were 	the 	personal 	representative 	of Borrower' s estate, giving them
13 	authority to obtain information related to the property that they could then grant to
14 Plaintiff. See 	NMSA 	1978, 	§ 45-3-711(A) 	(2017) 	(providing 	that 	a personal
15 	representative has the same power over the title to property of the estate that an
16 absolute owner would have); NMSA 1978, § 45-3-103 (1975) (providing that a
17 	person must be appointed by order of the district court or probate court, qualify and
18 	be issued letters to acquire the powers and undertake the duties and liabilities of a
19 personal 	representative 	of a decedent). Plaintiff has failed to provide us with
20 authority that supports his contention that because he "stood in the shoes" of the
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1 heirs, he was entitled to pay off figures. "Although pro se pleadings are viewed with
2 tolerance, a pro se litigant, having chosen to represent himself, is held to the same
3 standard of conduct and compliance with court rules, procedures, and orders as are
4 members of the bar." Woodhull v. Meinel, 2009-NMCA-015, ,r 30, 145 N.M. 533,
5 202 P.3d 126 (internal quotation marks and citation omitted). "Pro se litigants must
6 comply with the rules and orders of the court and will not be treated differently than
7 litigants with counsel." Id. Thus, as Rule 12-318(A)(4) NMRA requires Plaintiff to
8 provide arguments in his brief in chief "with citations to authorities," we do not
9 consider this argument. See In re Adoption of Doe, 1984-NMSC-024, ,r 2, 100 N.M.
10 	764,676 P.2d 1329 ("We assume where arguments in briefs are unsupported by cited
11 	authority, counsel after diligent search, was unable to find any supporting authority.
12 	We therefore will not do this research for counsel. Issues raised in appellate briefs
13 	which are unsupported by cited authority will not be reviewed by us on appeal."
14 	(citation omitted)).
15 	{7} 	Plaintiff also alleges his apparent authority as an authorized agent of the heirs
16 placed the burden upon Defendant to verify his authority, if necessary, and to
17 	respond to his inquiry. Here, again, Plaintiff has provided no authority to support
18 	this argument, and we therefore decline to review it. See id.
5

1 Statutory or Other Duty to Provide a Payoff Figure
2 	{8} 	Plaintiff also argues that regardless of his authority to request payoff figures
3 received from the heirs, Defendant had a duty to provide him with a payoff figure.
4 Whether Defendant owed this duty is a question of law, which we review de novo.
5 See Azar v. Prudential Ins. Co. of Am. , 2003-NMCA-062, ,-r 42, 133 N.M. 669, 68
6 P.3d 909. Plaintiff first contends Defendant had a statutory duty to provide this
7 information to Plaintiff. However, he cites no statutory authority on point, referring
8 only to NMSA 1978, Section 39-5-1 (1895), 1 and analogizing that Defendant "had
9 a statutory duty to provide [this information] 	in the newspaper as part of the
10 	foreclosure process" and therefore should have provided payoff figures to him.
11 	Because Section 39-5-1 does nothing more than set out the publication requirements
12 	for a notice of foreclosure sale and does not speak to a bank's duty to provide an
13 	individual who is not a borrower on a loan with a payoff figure, we do not agree.
14 Plaintiff points us to no other statutory authority to support such a duty, we are not
15 	persuaded that any such authority exists. See In re Adoption of Do e, 1984-NMSC-
16 	024, ,-r 2.
1 Section 39-5-1 provides "[t]hat no lands, tenements, goods or chattels shall
be sold by virtue of any execution or other process, including chattel or real estate
mortgages, . .. unless the time and place of holding such sale and full description of
property to be sold shall have previously been published for four weeks preceding
said sale[.]"
6

1 {9} 	In further support of his argument that Defendant had a duty to provide him
2 with payoff figures, Plaintiff, without any explanation of its applicability, quotes
3 Huntington National Bank v. Sproul, 1993-NMSC-051, ,r 26, 116 N.M. 254, 861
4 P.2d 935, for the proposition that "[a] stranger to a transaction' ... was nonetheless
5 granted an expectation under New Mexico law ... ' that he had rights in the
6 transaction." However, Sproul involved a husband's default on a note he signed with
7 a bank, and the bank's subsequent suit against both the husband and wife to foreclose
8 its judgment lien, obtained in Ohio and domesticated in New Mexico, on their New
9 Mexico house. Id. ,r,r 2-5 . Our Supreme Court held that "[a]lthough [the wife] did
10 	not join in the execution of the note, the [b Jank, a stranger to the [husband and
11 	wife's] marital community, was nonetheless granted an expectation under New
12 	Mexico law that the community property of [the husband and wife] would be subject
13 	to satisfy the community debt in the event of default." Id. ,r 26. Sproul has no bearing
14 on whether a stranger to a loan is entitled to receive a payoff figure from the lending
15 	bank. 	Plaintiffs 	reliance 	on 	Sproul 	is therefore 	misplaced. 	See Fernandez 	v.
16 Farmers Ins. Co. of Ariz., 1993-NMSC-035, ,r 15, 115 N.M. 622, 857 P.2d 22 ("The
17 	general rule is that cases are not authority for propositions not considered." (internal
18 	quotation marks and citation omitted)).
19 	{IO} 	Plaintiff also contends that Defendant should have provided him with payoff
20 figures because the requested information was not confidential and should therefore
7

1 have been provided upon request. We first note that Plaintiff provides no authority
2 	to support his contention. Nonetheless, responding to Defendant's answer brief,
3 	wherein Defendant cites R.A. Peck, Inc. 	v. Liberty Federal Savings Bank, 1988-
4 NMCA-111 , 108 N.M. 84, 766 P.2d 928, Plaintiff argues in his reply brief that Peck
5 	supports his argument. In R.A. Peck Inc., this Court noted "that a bank generally has
6 a duty to its customers not to disclose the customers' financial conditions to third
7 parties[,]" and adopted a two-part analysis to determine whether a duty to disclose
8 exists. Id. ,r,r 17-20, 23 ( emphasis added). First, we must determine whether the
9 	relationship between the parties falls within three distinct classes:
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12
13
14
15
1. 	Where there is a previous definite fiduciary relation between the
parties.
2. 	Where it appears one or each of the parties to the contract
expressly reposes a trust and confidence in the other.
3. 	Where the contract or transaction is intrinsically fiduciary and
call s for perfect good faith .
16 Id. ,r 17 (internal quotation marks and citation omitted). Once we determine that the
17 	parties ' relationship falls under one or more of these classes, we consider whether
18 "certain special circumstances that may give rise to this specific duty of disclosure"
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20
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22
23
24
exist:
(a) 	One who speaks must say enough to prevent his words from
misleading the other party.
(b) 	One who has special knowledge of material facts to which the
other party does not have access may have a duty to disclose these facts
to the other party.
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(c) 	One who stands in a confidential or fiduciary relation to the other
party to a transaction must disclose material facts.
[( d) 	A] 	bank may 	have 	a 	duty to 	disclose 	financial 	information
concerning a depositor if a bank had actual knowledge that its customer
is committing fraud.
7 Id. , 20 (internal quotation marks and citation omitted).
8 {11} 	We therefore first discuss whether the relationship between Plaintiff and
9 	Defendant 	fell 	within 	the three 	distinct 	classes. 	Plaintiff concedes 	he 	had 	no
10 relationship with Defendant under the first distinct class. With regard to the second
11 	distinct class, Plaintiff argues Defendant is unable to explain why the limited power
12 	of attorney received from the heirs does not demonstrate the repose of "trust and
13 	confidence." Also, in his discussion of the third distinct class, Plaintiff argues his
14 "offer to pay off the entire loan obligation of the .. . heirs" established good faith
15 	and that his banker was a fiduciary. However, it is Plaintiffs burden to explain how
16 the limited power of attorney provided by the heirs established a relationship under
17 the second distinct class, and Plaintiff fails to make any such argument or provide
18 	us with any authority supporting his bare allegation. Nor does he provide any
19 authority to support his argument regarding the third distinct class and how his offer
20 	to pay off Borrower's loan is intrinsically fiduciary. We therefore decline to review
21 	these arguments further, se e In re Adoption of Doe , 1984-NMSC-024, , 2; see also
22 	Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, , 	15 , 137 N.M. 339 , 110 P.3d
9

1 1076 ("We will not review unclear arguments, or guess at what his arguments might
2 be."), and we need not proceed to a determination of whether there existed certain
3 special circumstances that may have given rise to the duty of disclosure.
4 	{12} 	Plaintiff also contends that Defendant had no basis to reject a request for a
5 payoff figure from Plaintiffs banker. In support of this argument, Plaintiff cites Los
6 Atrevidos v. Preferred Risk Life Insurance, Co., 1988-NMSC-043, 107 N.M. 217,
7 755 P.2d 61. Los Atrevidos involved Atrevidos- 	a successor in interest on a deed of
8 trust and a promissory note for the purchase of real property-selling its interest to
9 a corporation without obtaining prior approval from Preferred Risk for the transfer,
10 which was a breach of the terms of the deed of trust. Id. ~ 2. After Preferred Risk
11 	rejected Atrevidos's tender of a check on two occasions, it cashed the check after a
12 third tender, writing a restrictive endorsement and informing Atrevidos that it would
13 	not release the deed until Atrevidos paid additional amounts. Id. Our Supreme Court
14 held "that when an offer is tendered with the condition that it is in full satisfaction
15 	of a debt, and the creditor accepts the offer, the condition controls the transaction,
16 regardless of the creditor's attempt to alter the condition upon acceptance." Id.~ 4.
17 Los Atrevidos did not, however, address the issue of whether an alleged transfer from
18 	a borrower's heirs, similar to that which Plaintiff alleges occurred in this case,
19 entitles the transferee or the transferee's banker to a payoff figure. Los Atrevidos is
20 therefore inapplicable to the case at hand, and we decline to further review this
10

1 contention. See Fernandez, 1993-NMSC-035, ~ 15; see also In re Adoption of Doe,
2 	1984-NMSC-024, ~ 2.
3 	{13} 	Finally, 	Plaintiff briefly 	contends 	that 	the 	district 	court 	erred 	when 	it
4 dismissed his undue influence and UP A claims, citing to a handful 	of cases.
5 However, Plaintiff fails to develop his argument by explaining the nature of the
6 district court's error, how his complaint properly states causes of action for these
7 two claims, or the relevance of the cited cases. "We will not review unclear
8 arguments, or guess at what a party's arguments might be." Elane Photography, LLC
9 v. Willock, 2013-NMSC-040, ~ 70,309 P.3d 53 (alteration, internal quotation marks,
10 and citation omitted). "To rule on an inadequately briefed issue, [the appellate court]
11 	would have to develop the arguments itself, effectively performing the parties' work
12 	for them." Id. "T his creates a strain on judicial resources and a substantial risk of
13 	error. It is of no benefit either to the parties or to future litigants for [the appellate
14 	courts] to promulgate case law based on our own speculation rather than the parties'
15 	carefully considered arguments." Id.
16 	{14} 	Having concluded Plaintiff is "not entitled to recover under any theory of the
17 	facts 	alleged 	in 	[his] 	complaint[,]" 	Mendoza, 	2010-NMCA-074, 	~ 	5 (internal
18 	quotation marks and citation omitted), we hold that the district court did not err in
19 	dismissing Plaintiff's complaint.
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1 CONCLUSION
2 	{IS} 	For the foregoing reasons, we affirm the district court.
3 	{16} 	IT IS SO ORDERED.
4
5
6 WE CONCUR:
12