Green Tree Servicing, LLC v. Popovich ( 2013 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 GREEN TREE SERVICING, LLC,
3 a foreign Limited Liability Company,
4 Plaintiff-Appellee,
5 v. NO. 32,527
6 BOZENA POPOVICH, JUAN HERRERA,
7 JR., and DENISE HERRERA,
8 Defendants,
9 and
10 JUAN HERRERA and MARILYN HERRERA,
11 Defendants-Appellants.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Nan G. Nash, District Judge
14 Daniel E. Duncan
15 Salt Lake City, UT
16 for Appellee
17 Alex Chisolm
18 Albuquerque, NM
19 for Appellants
1 MEMORANDUM OPINION
2 VANZI, Judge.
3 {1} Defendants-Appellants Juan and Marilyn Herrera (Defendants) appeal from a
4 judgment, writ of replevin, and order resolving the underlying proceedings in
5 Plaintiff’s favor. We issued a notice of proposed summary disposition, proposing to
6 uphold the decision of the district court. Defendants have filed a memorandum in
7 opposition, which we have duly considered. Because we remain unpersuaded by
8 Defendants’ assertions of error, we affirm.
9 {2} The underlying dispute concerns the purchase of a manufactured home. Below,
10 Plaintiff-Appellee Green Tree Servicing LLC (Plaintiff) successfully demonstrated
11 that it was in possession of and the holder of a note and security interest and that it
12 was entitled to a judgment of foreclosure, writ of replevin, and order of assistance.
13 [RP 293-96]
14 {3} On appeal Defendants have challenged the district court’s ruling on two
15 grounds. First, they contend that Plaintiff failed to provide adequate documentary
16 proof of its authority to enforce the security agreement, insofar as Plaintiff did not
17 present original or accurate copies of the power of attorney, servicing agreement, asset
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1 purchase agreement, and/or securitization contract. [DS 5-6] Second, Defendants
2 assert that the district court erred in rejecting an agency-based defense relative to the
3 lender, Origen. [DS 6]
4 {4} With respect to the first issue, we explained in the notice of proposed summary
5 disposition that Plaintiff appeared to have presented adequate proof of its authority,
6 insofar as it provided copies of the relevant documents, which were duly authenticated
7 by its director of document custody. See generally Rule 11-803(6) NMRA (providing
8 that business records may be admitted); Rule 11-901(A), (B)(1) NMRA (providing
9 that in order to authenticate a document, “the proponent must produce evidence
10 sufficient to support a finding that the item is what the proponent claims it is,” which
11 may be accomplished by a variety of methods including through the testimony of a
12 witness with knowledge); and see, e.g., Roark v. Farmers Group, Inc., 2007-NMCA-
13 074, ¶¶ 20-32, 142 N.M. 59, 162 P.3d 896 (discussing and applying the business
14 records exception to the hearsay rule). We further noted that the significance of the
15 asserted irregularities, including lack of pagination and certain omissions, was unclear
16 and appeared to go only to the weight, rather than the admissibility, of the documents.
17 See generally Murken v. Deutsche Morgan Grenfell, Inc., 2006-NMCA-080, ¶ 21, 140
18 N.M. 68, 139 P.3d 864 (distinguishing between arguments challenging the
19 authenticity of a document and arguments challenging the accuracy of a document,
20 and observing that the latter type of challenge does not go to admissibility, but to
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1 weight). We therefore proposed to hold that the district court acted well within its
2 discretion in admitting the documents and giving them such weight as it did. See id.
3 (applying an abuse of discretion standard with respect to the district court’s
4 determination relative to the admissibility and weight afforded documentary
5 evidence).
6 {5} In their memorandum in opposition Defendants continue to argue that the
7 documents should not have been “considered authentic or reliable or given any
8 weight” in light of irregularities, principally including discrepancies relative to
9 pagination. Specifically, the seal on the power of attorney indicated that the document
10 contained three pages, when a total of eight pages were actually presented. [MIO 1-2]
11 Additionally, the “trust documents” were not originals, the signature pages were not
12 paginated, and due to the lack of sequential page numbering, the documents were
13 allegedly incomplete. [MIO 2-3] However, neither the docketing statement nor the
14 memorandum in opposition indicate that these irregularities were substantive.
15 Whether the documents were or were not properly paginated seems a matter of
16 relatively little significance. With respect to both authentication and the ultimate
17 assessment of probative value, so long as the custodian was able to verify that the
18 documents were what they appeared to be, and so long as the contents of the
19 documents established that Plaintiff was in possession of and the holder of the note
20 and security interest, such that Plaintiff was entitled to the requested relief, the
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1 documents were properly admitted and given such weight as the district court deemed
2 appropriate. Nothing within Defendants’ submissions to this Court reflect otherwise.
3 We therefore remain unpersuaded by Defendants’ first assertion of error.
4 {6} With respect to the second issue, we previously explained that insofar as the
5 agency defense did not appear to have been mentioned until after the trial had
6 concluded, when Defendants filed amended proposed findings and conclusions, [RP
7 278-83] the matter was not properly before the district court. See Credit Inst. v.
8 Veterinary Nutrition Corp., 2003-NMCA-010, ¶ 25, 133 N.M. 248, 62 P.3d 339
9 (observing that “[d]ue process still requires that the opposing party have notice and
10 an opportunity to defend against the theory not stated in the pleadings” and
11 specifically abjuring any prejudicial eleventh-hour shifting of the theory of the case).
12 We also noted that Defendants did not appear to have presented clear evidence in
13 support of such a theory. [RP 279, 284-85] See, e.g., Hansler v. Bass, 106 N.M. 382,
14 386-87, 743 P.2d 1031, 1035-36 (Ct. App. 1987) (rejecting a claim of agency for lack
15 of supporting evidence).
16 {7} In their memorandum in opposition Defendants suggest that insofar as the
17 pretrial order is not paginated, it is unclear whether agency was duly raised. [MIO 3]
18 However, the preservation requirement cannot be satisfied by such a vagary. See
19 generally Gallegos ex rel. Gallegos v. Sw. Comm. Health Servs., 117 N.M. 481, 486,
20 872 P.2d 899, 904 (Ct. App. 1994) (observing that, “to preserve an issue for appeal,
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1 the party seeking to raise the issue must affirmatively demonstrate that the issue was
2 raised below and a ruling of the trial court invoked on the issue” (emphasis added)).
3 Defendants also contend that their allegations of “fraud” should be deemed sufficient
4 to preserve the agency issue. [MIO 3-4] We disagree, insofar as the question of
5 agency is a distinct and separate matter, to which general allegations of fraud relate
6 neither directly nor implicitly. Defendants also suggest that their citation to
7 Chavarria v. Fleetwood Retail Corp., 2006-NMSC-046, ¶ 30, 140 N.M. 478, 143 P.3d
8 717, in their response to a motion for summary judgment should have been sufficient
9 to raise the issue. [MIO 3] However, within this brief document Defendants noted
10 that Chavarria was “not on point,” failed to explain whether or how the question of
11 agency should apply to the specific facts presented in this case, and did not indicate
12 whether the salesperson should be characterized as the agent of Plaintiff or a third
13 party such as Origen. [RP 217-221] As such, we do not regard this as sufficient to
14 provide due notice that agency relative to Origen was an issue. See generally Credit
15 Inst., 2003-NMCA-010, ¶ 25 (providing that “[d]ue process still requires that the
16 opposing party have notice and an opportunity to defend against the theory not stated
17 in the pleadings”). Defendants further suggest that the agency issue was raised by
18 virtue of witness testimony that Origen paid a commission to its agents. [MIO 4]
19 However, as we previously noted in the notice of proposed summary disposition, in
20 the absence of testimony indicating that Origen paid any commission to any relevant
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1 person in this case, the vague testimony upon which Defendants rely is of no apparent
2 probative value. Finally, Defendants contend that “even if the issue of agency was not
3 perfectly anticipated and outlined . . . the underlying conduct was known to everyone
4 and tried with the consent of all parties.” [MIO 4] Simply stated, we disagree that
5 such generalized knowledge could be regarded as sufficient to alert Plaintiff that
6 claims and/or defenses based on an agency theory relative to a non-party (Origen)
7 were at issue.
8 {8} Accordingly, for the reasons stated above and in the notice of proposed
9 summary disposition, we affirm.
10 {9} IT IS SO ORDERED.
11 __________________________________
12 LINDA M. VANZI, Judge
13 WE CONCUR:
14 _________________________________
15 RODERICK T. KENNEDY, Chief Judge
16 _________________________________
17 JAMES J. WECHSLER, Judge
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