Montano et al v. First Light Federal Credit Union

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re:
RALPH MONTANO and
ELSIE M. MONTANO,
Case No. 7-04-17866-TL
Debtors.
RALPH MONTANO and
ELSIE M. MONTANO, et al.,
Plaintiffs,
v. 	Adv. No. 07-1026
FIRST LIGHT FEDERAL CREDIT UNION,
Defendant.
MEMORANDUM OPINION
By their Motion For Relief from Order Decertifying Classes Entered on March
21, 2013 (the “Motion”), Plaintiffs ask the Court to reconsider its Order Decertifying
Classes (the “Decertification Order”). Defendant responded to the Motion April 29, 2013
(the “Response”). For the reasons set forth below, the Court finds that the Motion is not
well taken and should be denied.
I. 	BACKGROUND
Plaintiffs filed this adversary proceeding on February 19, 2007, and filed their
First Amended Class Action Complaint on October 1, 2007, doc. 19 (the “Amended
Complaint”).
On October 15, 2008, the Court1 entered an order (the “Certification Order”)
certifying the following classes:
1 Hon. James S. Starzynski, now retired.
Case 07-01026-t Doc 173 Filed 05/21/13 Entered 05/21/13 09:18:17 Page 1 of 14

-2-
Class 1 shall consist of the Rule 23(b)(2) class that seeks injunctive and
declaratory relief. 	It shall consist of all persons that, since January 1,
1997, have received a discharge under Title 11 of the United States
Bankruptcy Code from the United States Bankruptcy Court for the District
of New Mexico, that scheduled First Light Federal Credit Union or Fort
Bliss Federal Credit Union (its predecessor) as a creditor on his or her
bankruptcy schedules or who, in fact, owed a debt to either First Light
Federal Credit Union or Fort Bliss Federal Credit Union on the date they
filed their bankruptcy petition, whether they listed First Light Federal
Credit Union or Fort Bliss Federal Credit Union on their bankruptcy
schedules or not.
Class 2 shall consist of the Rule 23(b)(3) class that seeks actual and/or
punitive damages in addition to the relief sought by Class 1. 	It shall
consist of all persons that, since January 1, 1997, have received a
discharge under Title 11 of the United States Bankruptcy Code from the
United States Bankruptcy Court for the District of New Mexico, that
scheduled First Light Federal Credit Union or Fort Bliss Federal Credit
Union (its predecessor) as a creditor on his or her bankruptcy schedules or
who, in fact, owed a debt to either First Light Federal Credit Union or Fort
Bliss Federal Credit Union on the date they filed their bankruptcy petition,
whether they listed First Light Federal Credit Union or Fort Bliss Federal
Credit Union on their bankruptcy schedules or not, and, who claims he or
she was damaged by an alleged incorrect reporting to the national credit
reporting agencies of the status of their debt or was induced by either
credit union to repay a dischargeable or discharged debt in exchange for
correction of the credit reporting information.
The Class 1 members seek to enjoin further alleged violations of the discharge
injunction, while the Class 2 members seek money damages.
On December 21, 2012, Defendant filed a Motion to Decertify Class Actions, doc.
161 (the “Decertification Motion”). The matter was fully briefed, and on March 21, 2013
the Court entered a Memorandum Opinion and the Decertification Order. 	The Motion
followed.
Case 07-01026-t Doc 173 Filed 05/21/13 Entered 05/21/13 09:18:17 Page 2 of 14

-3-
The Motion is based on Fed.R.Civ.P. 60(b)(1) 2 and advances the following
arguments in support of Plaintiffs’ request for relief:
1. 	The Court held that the size and make-up of Class 2 is unknown,
while in fact the plaintiffs identified the class members as the same
members as Class 1 (Motion, p. 2);
2. 	The Court stated that Plaintiffs’ counsel said he did not want to
send a questionnaire to the Class 1 members because they would ‘not
understand’ the survey and would not want to ‘go back and re-live’
anything 	related 	to 	their 	bankruptcy. 	This 	statement 	is 	false 	and
misleading (Motion, p. 4);
3. 	The Court bases its opinion on the incorrect fact that “As much as
80% of the time, Defendant did not update its reporting to credit reporting
agencies 	to 	indicate 	that 	a 	Member’s 	debt 	to 	Defendant 	has 	been
discharged in bankruptcy, and continued to report the discharged debt as
past due” (Motion, p. 4);
4. 	The Court bases its opinion on many other disputed factual
findings (Motion, p. 5);
5. 	The Court’s ruling that “credit reporting of the sort complained of
in this adversary proceeding, if it qualifies as an “act,” is facially
permissible and does not constitute a per se violation of § 524(a)(2)” is
improper for purposes of determining class certification issues (Motion, p.
5); and
6. 	The Court, construing In re Paul, 534 F.3d 1301 (10th Cir. 2008),
incorrectly concluded that only Plaintiffs who literally paid the debt can be
damaged and therefore a member of either Class (Motion, p. 5).
II. 	Rule 60(b) Motions
“[R]elief 	under 	Rule 	60(b) 	is 	extraordinary 	and 	may 	only 	be 	granted 	in
exceptional circumstances.” Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1153 (10th
Cir. 2007) (quoting Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242 (10th Cir.
2006)). See also Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10 th Cir. 1999) (to the same
2 “[T]he court may relieve a party . . .from a final judgment, order, or proceeding for . . . mistake,
inadvertence, surprise, or excusable neglect. . . .” 	Fed.R.Civ.P. 60(b) applies in adversary
proceedings. Bankruptcy Rule 9024.
Case 07-01026-t Doc 173 Filed 05/21/13 Entered 05/21/13 09:18:17 Page 3 of 14

-4-
effect). “Rule 60(b) relief is not available to allow a party merely to reargue issues
previously addressed to the court.” Allender, 439 F.3d at 1242. In the Motion, Plaintiffs
for the most part reargue matters the Court has already addressed. Thus, summary denial
of the Motion under Rule 60(b) could be appropriate, 	Because this proceeding is
somewhat unusual (it may be the only class action ever filed in the New Mexico
bankruptcy court, it has been pending for more than six years, and it is now on its second
judge), however, the Court will address Plaintiffs’ arguments.
III. 	Identification of Class 2
Plaintiffs object to the Court’s finding that the Class 2 members have not been
identified. Motion, p. 2. Plaintiffs argue that they identified the Class 2 claimants
in many hearings that were held. The Class Action was an “opt out” case.
If the Class 1 members did not want to participate as Class 2 claimants,
they were required to “opt out.” 	Only one such individual opted out and
this 	was 	made 	known 	to 	the 	Court 	in 	many 	various 	proceedings.
However, all parties and the Court were on notice that the case was
proceeding and the Class 2 claimants were substantially the same as the
Class 1 claimants with the one exception.
Motion, p. 2. 	It may be true that Plaintiffs stated in “many various hearings” that only
one Class 1 member “opted out” of being a Class 2 member, and/or that Class 2 consisted
of the same members as Class 1.3 If so, the statements appear to have been made in error.
The definition of Class 2 in the Certification Order, and the form of notice approved by
the Court and Plaintiffs,4 require more than inactivity to turn a Class 1 member into a
Class 2 member. The agreed-upon notice states:
1. 	If 	you 	meet 	the 	“Class 	1” 	definition 	above, 	you
3 The docket does not reflect any filing that identifies the members of Class 2. It seems to the
Court that the Stipulated Order Regarding Means and Timetable to Provide Adequate Notice to
Classes, entered March 26, 2009, doc. 57 (the “Stipulated Order”) may have required that the
members would be identified in a writing filed in the adversary proceeding.
4 The form of notice is attached to the Stipulated Order as Exhibit 1.
Case 07-01026-t Doc 173 Filed 05/21/13 Entered 05/21/13 09:18:17 Page 4 of 14

-5-
automatically qualify for participation as a Class 1 member. 	Individuals
who only are members of Class 1 do not need to take any action to be
included in the lawsuit, and may not request to be excluded from the class.
If the Court grants the requested injunctive and/or declaratory relief, Class
1 members may benefit indirectly if the court orders that First Light
terminate the alleged wrongful credit reporting practices described above.
Class 1 members are not, however, entitled to receive any economic or
monetary distribution in any potential settlement or judgment.
2. 	Certain members of Class 1 may also qualify as members
of Class 2. Class 2 members may be eligible to receive a monetary benefit
if the court grants plaintiffs’ requested relief. 	If you meet the Class 1
definition and also claim that you have been (a) damaged by First Light’s
alleged incorrect reporting practices OR (b) induced by First Fight to
repay a debt to First Light that was dischargeable or discharged in
exchange for correction of credit reporting information, you are also a
member of Class 2.
If you are a member of Class 2, you have a decision to make:
A. 	DO NOTHING. 	Stay in the lawsuit. 	Await the outcome.
Give up certain rights, Let Plaintiffs’ attorney represent your rights. 	By
doing nothing, you keep the possibility of getting money or benefits from
the case; but you also will be bound by the outcome and rulings in the case
and will give up any rights to sue First Light separately about the same
legal claims in this lawsuit.
OR
B. 	ASK TO BE EXCLUDED. Get out of the lawsuit. Get no
benefits from it. 	Keep rights. 	Hire your own attorney to represent your
right if you think you are entitled to receive some money from Defendant.
By asking to be excluded, you will not receive any money or benefits from
the case, but you will not be bound by the outcome and rulings in the case.
To ask to be excluded, you must fill out, sign, and send in the “Exclusion
Request” form that is provided with this Notice. 	In order for any
Exclusion request to be effective, it must be postmarked not later than
June 30, 2009
3. 	If you are not sure whether you are included in Class 2,
you can get free help by calling or writing the lawyers representing
plaintiffs in this case.
(italics added). 	The quoted language and the definition of Class 2 in the Certification
Case 07-01026-t Doc 173 Filed 05/21/13 Entered 05/21/13 09:18:17 Page 5 of 14

-6-
Order make it very clear that a Class 1 member does not become a class 2 member
simply by “doing nothing.” Rather, to be a class 2 member a debtor must:
1. 	Be a class 1 member;
2. 	Claim to have been damaged by Defendant’s credit reporting practices;
and
3. 	Decline to “opt out.”
Based upon the Motion and the remainder of the record in this proceeding, it is
clear that Plaintiffs derived the identity of the purported Class 2 members by using steps
1 and 3 above, ignoring step 2. 	That is contrary to the Court’s orders. 	Just because a
debtor is a Class 1 member and did not “opt out” does not mean that the debtor claims to
have been damaged by Defendant’s credit reporting practices. 	In other words, a debtor
cannot “opt out” of participating as a class 2 member without first qualifying for Class 2
membership, and a debtor cannot be a Class 2 member unless she claims Defendant
damaged her. 	The missing step of determining which Class 1 members claim to have
been damaged has never been completed, although this proceeding is more than six years
old.
Furthermore, even if Plaintiffs were right that all Class 1 members automatically
became Class 2 members simply by failing to “opt out,” the essential problems identified
in the Memorandum Opinion would remain, i.e., nobody knows which of the class
members actually claim to have been damaged, and nobody knows what damages they
claim. Even under Plaintiffs’ theory of class membership, hundreds of Class 2 members
do not have claims against Defendant, because their discharge was properly reported.
Hundreds more likely would admit, if asked, that they assert no damages claims against
Case 07-01026-t Doc 173 Filed 05/21/13 Entered 05/21/13 09:18:17 Page 6 of 14

-7-
Defendant. Continued certification of Class 2 with so many members who have no claim
is improper. See, e.g., Oshana v. Coca-Cola Bottling Co., 225 F.R.D. 575, 580 (N.D. Ill.
2005), affirmed, 472 F.3d 506 (7th Cir. 2006) (citing Guillory v. American Tobacco Co.,
2001 WL 290603 (N.D. Ill. 2001), the district court stated that “the description must not
be so broad as to include individuals who are without standing to maintain the action on
their own behalf”).
IV. 	Questionnaire to Class 1 Members
Plaintiffs’ next argue:
The Court states that, “In a recent status conference held in this adversary
proceeding, 	Plaintiff’s 	counsel 	stated 	he 	did 	not 	want 	to 	send 	a
questionnaire to the Class 1 members because the Members would ‘not
understand’ the survey and would not want to ‘go back and re-live’
anything related to their bankruptcy.” See, Order, Page 24. This statement
is taken completely out of context as to what was said by Plaintiffs’
counsel. As a result, it is false and misleading.
Motion, p. 4. At a March 4, 2013 status conference, the following exchange took place:
THE COURT: Mr. Arvizu, what was your thinking about the proposal to
surveying [sic] the 1600 New Mexico members about whether they paid
as an alternative to looking through the files?
MR. ARVIZU: 	I did oppose it when it was originally suggested, but
Judge Starzynski was the one who ultimately struck down that proposal.
And I agree with his reasoning; in that, I don’t want to send something to
these particular debtors and, you know, half of them get thrown in the mail
right off the bat. 	Second thing is, you know, people -- this was so long
ago at this point that they’re not going to understand, you know, what
we’re even talking about. You know, bankruptcy is something they have
in the furthest, you know, corner of their mind at this point and they don’t
want to go back and relive anything in regards to this.
Transcript, March 4, 2013 hearing, p. 8, (attached as an exhibit to Defendant’s
Response). 	In light of the foregoing question and answer, the Court’s statement that
Plaintiffs’ counsel did not want to send a questionnaire to the Class 1 members because
Case 07-01026-t Doc 173 Filed 05/21/13 Entered 05/21/13 09:18:17 Page 7 of 14

-8-
they would “not understand” the survey and would not want to “go back and re-live”
anything, Memorandum Opinion, p. 24, seems fair. 	The Court has never gotten the
impression that Plaintiffs have any interest in asking the alleged Class 2 members
whether they claim to have been damaged, and if so by how much. Given the definition
of Class 2, the Court does not see any other way of prosecuting the Class 2 claims, and
Plaintiffs’ reluctance to pose the most basic questions to potential class members gives
the Court pause.
V. 	Defendant’s Rate of Credit Report Updating
Plaintiffs next take issue with the Court’s using the following fact in its analysis
of class certification:
As much as 80% of the time, Defendant did not update its reporting to
credit reporting agencies to indicate that a Members’ debt to Defendant
had been discharged in bankruptcy, and continued to report the discharged
debt as past due.
Motion, p. 4, citing Memorandum Opinion, p. 3. Instead, Plaintiffs argue that “incorrect
reporting was happening ‘in a minimum’ of 80% of the cases.” 	Motion, p. 5. 	The
Court’s finding was based on Plaintiffs’ Memorandum Brief in Support of Plaintiffs’
Motion for Partial Summary Judgment, filed October 1, 2010, doc. 104, p. 12, ¶¶ 28 and
29, in which Plaintiffs assert as undisputed that, according to Defendant’s employee
Martha Angelica Loya, “research on all New Mexico and Texas totaling over 1,000 cases
going back as far as 2005 indicated that on 80% of the cases, no discharge was being
reflected on credit reports,” and also that “[o]n the list of Identified Class Members going
back to 1997, Ms. Loya states that the research conducted by Defendant again indicated
that on 80% of those cases no discharge information was reflected on the credit reports.”
The Court is not aware of any evidence submitted by Plaintiffs that contradicts
Case 07-01026-t Doc 173 Filed 05/21/13 Entered 05/21/13 09:18:17 Page 8 of 14

-9-
these alleged undisputed facts. If Plaintiffs are unhappy that the Court used the term “as
much as 80% of the time” rather than “80% of the time,” the result would have been the
same regardless of how the 80% figure was characterized. 	The point the Court was
making was that, if 20% (or about 20%, or up to 20%) of the Class 1 members had their
discharge properly reported, then Class 1 contains about 320 people who don’t have
claims. As shown by the case law cited above and in the Memorandum Opinion, that is
impermissible.
VI. 	Other Disputed Facts
A. 	Basis of Class Claims. Plaintiffs dispute that “The class claims are based
solely on Defendant’s alleged improprieties in post-discharge credit reporting.” Motion,
p. 5. 	The Court made this finding by reviewing Plaintiff’s Amended Complaint, filed
October 1, 2007, doc. 19, and particularly by reviewing ¶¶ 38, 40, and 45-55 thereof.
The Court concludes that its finding is fair based on the allegations in the Amended
Complaint. 	Furthermore, 	Plaintiffs’ 	argument 	that 	they 	complained 	not 	only 	of
Defendant’s credit reporting, but also of Defendant’s “collection practices,” lacks force,
because the only “collection practices” mentioned in the Amended Complaint relate to
credit reporting. 	In any event, the argument does not convince the Court that class
certification remains appropriate. 	If Plaintiffs have complaints about Defendant’s
“collection practices” apart from the alleged class-wide credit reporting practice, there is
no indication whatever, and no allegation, that such collection practices were class-wide.
The only class-wide practice complained of is credit reporting. Further, if the actions that
give rise to liability are individualized (collection practices) rather than class-wide (credit
reporting), class certification would not be permitted.
Case 07-01026-t Doc 173 Filed 05/21/13 Entered 05/21/13 09:18:17 Page 9 of 14

-10-
B. 	Facts About How Many Members Paid Discharged Debts. 	The Court
noted the evidence that “for bankruptcy cases filed after January 1, 2005, only four
Members 	paid 	Defendant 	a 	portion 	of 	their 	discharged, 	unreaffirmed 	debts.”
Memorandum Opinion, p. 4. 	Plaintiffs dispute this fact, Motion, p. 5, but point to no
evidence in the record that contradicts it. Plaintiffs also dispute the Court’s finding about
the status of evidence about payment of discharged debts for cases filed before January 1,
2005, but again point to no contrary evidence in the record. 	As shown in the
Memorandum Opinion, class action plaintiffs have an affirmative duty to demonstrate
that class certification is warranted, and the Court is required to “probe behind the
pleadings.” 	See e.g., Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551-52 (2011).
The best evidence available to the Court is set forth above, and if Plaintiffs did not think
the evidence was accurate or complete, Wal-Mart required more than simply “disputing”
it, while insisting on continued class certification.
VII. 	Whether Defendant’s Credit Reporting Constituted a per Se Violation of §
524(a)(2)
The Court concluded that “the credit reporting of the sort complained of in this
adversary proceeding, if it qualifies as an “act,” is facially permissible and does not
constitute a per se violation of § 524(a)(2).” 	Memorandum Opinion, p. 16. 	Plaintiffs
argue that this is an inappropriate ruling on the merits before trial. 	Motion, p. 5. 	This
argument is meritless. 	The only class-wide conduct Plaintiffs have ever alleged is
Defendant’s failure (80% of the time), to report discharged debts to the credit reporting
agencies. 	All other alleged conduct is more or less individualized, not class-wide. 	The
Court reviewed the case law on the credit reporting issue and determined that the alleged
credit reporting practice, if true, is facially permissible and not a per se violation of the
Case 07-01026-t Doc 173 Filed 05/21/13 Entered 05/21/13 09:18:17 Page 10 of 14

-11-
discharge injunction. 	While Plaintiffs apparently think the Court should have waited
until after trial to make that determination, the Court disagrees, for two reasons. First, the
ruling is largely a legal one, and can be made appropriately before trial. 	Second, Wal-
Mart requires the Court to make such inquiries during the course of litigation, as and
when needed. The ruling was required now because Plaintiffs must show that class-wide
evidence could establish liability. Here, the only alleged class-wide evidence would not.
VIII. 	Construction of In re Paul
Finally, Plaintiffs argue that the Court construed In re Paul, 534 F.3d 1303 (10th
Cir. 2008), incorrectly to hold that “only Plaintiffs who literally paid the debt can be
damaged and therefore a member of either Class.” Motion, p. 5. That is incorrect. The
Court’s interpretation of Paul and other case law only concerned whether Defendant’s
failure to report discharged debts to the credit reporting agencies was a per se violation of
the discharge injunction. 	The Court concluded that such an alleged credit reporting
practice was facially permissible, but could nevertheless violate the discharge injunction
if “its objective effect is prohibited, i.e. if it really serves to pressure the debtor to pay a
discharged debt.” 	Memorandum Opinion, p. 17, quoting Paul, 534 F.3d 1313. 	The
Court then reviewed the evidence before it, and concluded that such an objective effect
had not been shown (and indeed, the only evidence before the Court was that Defendant’s
actions did not result in payment). 	Plaintiffs were encouraged to submit class-wide
evidence of payment, pressure, and/or other coercion that might have satisfied Paul’s
objective standard, but they did not do so. The key point here is not the lack of evidence
(although the evidence is weak), but the lack of class-wide evidence. 	Given that the
alleged credit reporting practice is not, by itself, sufficient to establish a violation of the
Case 07-01026-t Doc 173 Filed 05/21/13 Entered 05/21/13 09:18:17 Page 11 of 14

-12-
discharge injunction, the apparent lack of other class-wide evidence was fatal to Class 2’s
continued class certification.
IX. 	Proof of Damages and the Supreme Court’s Comcast Decision
Less than a week after the Court entered the Decertification Order, the Supreme
Court handed down Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). In Comcast, the
Supreme Court addressed, inter alia, whether class certification was proper under Rule
23(b)(3) when plaintiffs had not shown that damages could be measured on a class-wide
basis. 	The Supreme Court concluded that class certification was not appropriate absent
such a demonstration. 	133 S. Ct. at 1433. 	In so ruling, the Supreme Court rejected the
lower court’s conclusion that they should not inquire into the methodology of plaintiffs’
damages calculation at the class certification stage, but should instead wait until trial.
The District Court and the Court of Appeals saw no need for respondents
to “tie each theory of antitrust impact” to a calculation of damages. 655
F.3d, at 206. That, they said, would involve consideration of the “merits”
having “no place in the class certification inquiry.” Id., at 206–207. That
reasoning flatly contradicts our cases requiring a determination that Rule
23 is satisfied, even when that requires inquiry into the merits of the claim.
Wal–Mart, supra, at ––––, and n. 6, 131 S. Ct., at 2551–2552, and n. 6.
The Court of Appeals simply concluded that respondents “provided a
method to measure and quantify damages on a classwide basis,” finding it
unnecessary 	to 	decide 	“whether 	the 	methodology 	[was] 	a 	just 	and
reasonable inference or speculative.” 655 F.3d, at 206. Under that logic,
at the class-certification stage any method of measurement is acceptable so
long 	as 	it 	can 	be 	applied 	classwide, 	no 	matter 	how 	arbitrary 	the
measurements may be. 	Such a proposition would reduce Rule 23(b)(3)'s
predominance requirement to a nullity.
133 S. Ct. at 1433.
Comcast bolsters the Court’s decision to decertify Class 2, because there is no
evidence before the Court that if Class 2 prevailed in its claims against Defendant, the
damages they suffered would be susceptible of class-wide measurement. Rather, it seems
Case 07-01026-t Doc 173 Filed 05/21/13 Entered 05/21/13 09:18:17 Page 12 of 14

-13-
clear that any such damages would be individualized, especially given the evidence that
payment of the discharged debt likely would not be an element of damages in more than a
few cases. 	If in fact Class 2 damages could be measured class-wide, Plaintiffs had an
obligation to come forward with evidence thereof. 	They did not, and Comcast does not
allow them the luxury of waiting until trial.
X. 	CONCLUSION
The Court’s decision to decertify both classes in this proceeding, and to deny the
Motion, should not be taken for indifference to the discharge injunction. The bankruptcy
discharge, which is the raison d’etre of most consumer cases, would be rendered
meaningless without the discharge injunction. If a violation of the discharge injunction is
shown, the Court will compensate the debtor appropriately and/or sanction the creditor.
Furthermore, the Court is not ruling that Defendant never violated the discharge
injunction protecting any Class 1 or Class 2 member. Rather, the Court has reviewed as
best it can the claims and evidence before it, and has evaluated whether, under Wal-Mart,
Comcast, Paul, etc., Plaintiffs’ claims against Defendant continue to qualify for class
certification. The Court concludes that they do not because, inter alia, of the following:
Class 1 is not properly defined and does not meet the requirements of
Fed.R.Civ.P. 23(a)(1), (2), and/or (3); and
Class 2 is not properly defined and does not meet the requirements of
Fed.R.Civ.P. 23(a)(1)(2), and/or (3), or Fed.R.Civ.P. 23(b)(3).
The Court therefore concludes that Plaintiff’s Motion should denied. 	A separate
order will be entered.
________________________________________
Hon. David T. Thuma,
United States Bankruptcy Judge
Entered on the docket: May 21, 2013.
Case 07-01026-t Doc 173 Filed 05/21/13 Entered 05/21/13 09:18:17 Page 13 of 14

-14-
Copies to:
Trey Arvizu
P.O. Box 1479
Las Cruces, NM 88004-1479
Kelly Albers
650 Montana Ave., Ste. D
Las Cruces, NM 88001-4294
Dennis E. Jontz
201 Third St., NW, Suite 1950
Albuquerque, NM 87102
Case 07-01026-t Doc 173 Filed 05/21/13 Entered 05/21/13 09:18:17 Page 14 of 14