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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2   DEUTSCHE BANK NATIONAL TRUST
 3   COMPANY, AS TRUSTEE FOR FFMLT
 4   TRUST 2005-FF2, MORTGAGE PASS-
 5   THROUGH CERTIFICATES, SERIES
 6   2005-FF2,

 7          Plaintiff-Appellee,

 8 v.                                                                                     No. 32,869

 9 ROBERT H. PRICE,

10          Defendant-Appellant.

11 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
12 Raymond Z. Ortiz, District Judge

13 Rose L. Brand & Associates, P.C.
14 Eraina M. Edwards
15 Albuquerque, NM

16 for Appellee

17   Eric Ortiz Law
18   Eric N. Ortiz
19   Jean Y. Kao
20   Joseph C. Gonzales
21   Albuquerque, NM

22 for Appellant
 1                            MEMORANDUM OPINION

 2 SUTIN, Judge.

 3   {1}   Defendant Robert Price appeals the district court’s dismissal of his

 4 undenominated counterclaim against Deutsche Bank National Trust Company (the

 5 Bank) for an alleged violation of the Real Estate Settlement Procedures Act (RESPA),

 6 12 U.S.C §§ 2601 to 2617 (2012). We conclude that the district court properly

 7 determined that, as a matter of law, the Bank could not be sued pursuant to RESPA

 8 under the circumstances of this case. We affirm.

 9 BACKGROUND

10   {2}   We note that this case has a long and convoluted history. However, because

11 this is a memorandum opinion and the parties are familiar with the facts, we provide

12 limited background information only to the extent that it is required to place our

13 discussion in context.

14   {3}   Defendant executed and delivered a mortgage note for the at-issue mortgage in

15 2004 payable to First Franklin Financial Corporation. In 2008 First Franklin Financial

16 Corporation assigned the note and mortgage to the Bank, which then became the

17 owner and holder of the note and mortgage. First Franklin Home Loan Services

18 (Franklin) remained the loan servicer until October 2010. See 12 U.S.C. § 2605(i)(2),

19 (3) (stating that a servicer is the entity responsible for “receiving . . . scheduled

                                             2
 1 periodic payments from a borrower . . . and making the payments of principal and

 2 interest and such other payments with respect to the amounts received from the

 3 borrower as may be required pursuant to the terms of the loan”).

 4   {4}   In October 2008, the Bank filed a complaint for foreclosure against Defendant

 5 based on Defendant’s failure to pay his mortgage. Defendant filed an answer to the

 6 Bank’s complaint for foreclosure that included, among other things, an allegation

 7 Defendant was never given notice that the note and mortgage was transferred to

 8 another lender or lien holder “as required by [l]aw.” The Bank understood

 9 Defendant’s answer to its complaint to have included an “undenominated

10 counterclaim,” and it filed a reply accordingly.

11   {5}   In June 2012, the district court granted the Bank’s motion for a judgment on the

12 pleadings as to all of the allegations set out in the Bank’s complaint. In light of

13 Defendant’s counterclaim, however, the court determined that it would not enter a

14 judgment of foreclosure at that time. Several months later, in December 2012, the

15 district court issued a pretrial order stating the general nature of the claims of the

16 parties and stating the four contested facts and one contested issue of law that were

17 to be the subject of a February 2013 trial. The pretrial order stated that the general

18 nature of Defendant’s claim was that the Bank “failed to comply with RESPA . . .

19 when it failed to note that the debts were disputed and, when it gave false information


                                               3
 1 pursuant to a [q]ualified [w]ritten [r]equest and when it failed to fully answer the

 2 [q]ualified [w]ritten [r]equest.” See 12 U.S.C. § 2605(e)(1)(B) (stating that a

 3 “qualified written request” in the context of RESPA is “a written correspondence . . .

 4 that includes, or otherwise enables the [loan] servicer to identify, the name and

 5 account of the borrower; and . . . includes a statement of the reasons for the belief of

 6 the borrower, to the extent applicable, that the account is in error or provides sufficient

 7 detail to the servicer regarding other information sought by the borrower”).

 8   {6}   The district court scheduled a non-jury trial on Defendant’s counterclaim to be

 9 held on February 11, 2013. Before trial commenced, the Bank objected to the

10 admission of Defendant’s exhibits and argued that Defendant’s counterclaim should

11 be dismissed. Specifically, the Bank argued that, from Defendant’s proposed exhibits,

12 it was clear that Defendant intended to use them to support a RESPA claim. The Bank

13 argued that RESPA only applies to loan servicers, and because the loan servicer was

14 not a party in the lawsuit, any alleged RESPA violations were not properly before the

15 court. The district court summarized its understanding of the Bank’s argument by

16 stating that the core issue was whether there was “a proper party before the court as

17 to which RESPA would apply.”

18   {7}   The district court reviewed the exhibits that Defendant sought to introduce.

19 Among them was a letter to which Defendant referred as a “qualified written request”


                                                4
 1 from Defendant to Bank of America dated October 20, 2009, and a response from

 2 Bank of America to Defendant dated November 2, 2009. Defendant’s “qualified

 3 written request” to Bank of America was sent approximately one year before Bank of

 4 America became the servicer of the at-issue loan (in October 2010). Bank of

 5 America’s response to Defendant’s October 20, 2009, letter referenced a loan that

 6 Defendant had with Bank of America in 2000 and that he paid off in 2002.

 7   {8}   Also among the exhibits was a November 3, 2009, letter from Franklin to

 8 Defendant responding to an inquiry (presumably the same or a similar qualified

 9 written request as that which was sent to Bank of America) from Defendant. The

10 November 3, 2009, letter from Franklin to Defendant referred to the loan at issue in

11 the present case and indicated, in what the district court described as “no uncertain

12 terms,” that Franklin was the then-current loan servicer. Franklin is not a party in the

13 lawsuit.

14   {9}   In response to the Bank’s argument, Defendant argued that his exhibits should

15 be admitted and that his claim was viable because Bank of America was an agent of

16 the Bank. As such, Defendant argued the Bank was liable for a RESPA violation

17 committed by Bank of America. In Defendant’s view, Bank of America violated

18 RESPA when it responded to Defendant’s October 20, 2009, letter because “[b]y

19 basically sending this letter it’s confusing to the borrower. It makes it look like Bank


                                              5
 1 of America is a loan servicer. In addition[,] it seems to provide faulty information.

 2 What should have been provided was merely that Bank of America was not the

 3 servicer on this particular loan.”1

 4   {10}   Having heard the parties’ respective arguments and having reviewed

 5 Defendant’s proposed exhibits, the court ruled that Defendant’s exhibits did not

 6 support his RESPA-based counterclaim and were therefore inadmissible on that issue.

 7 The district court concluded that Defendant had failed to support his counterclaim

 8 with admissible evidence. In stating its ruling, the court noted that there were a

 9 number of problems with Defendant’s argument, “[f]irst and foremost” of which was

10 that Franklin was the only entity against which a RESPA claim could be brought, and

11 it is not a party. The court concluded that, as a matter of law, a RESPA claim could

12 not be made against the Bank. Additionally, the court ruled that the three-year statute

13 of limitations within which Defendant could have brought a RESPA claim against

14 Franklin had expired in November 2012, and it was, therefore, too late to join Franklin

15 as a party. Accordingly, the district court dismissed Defendant’s undenominated

16 counterclaim with prejudice.




            1
19              Defendant did not specify what subsection of RESPA was allegedly violated.

                                                6
 1   {11}   In light of its dismissal of Defendant’s counterclaim and its earlier order

 2 granting the Bank’s motion for a judgment on the pleadings as to its complaint for

 3 foreclosure, the district court entered a decree of foreclosure in April 2013.

 4   {12}   On appeal Defendant argues that the district court erred in excluding his

 5 exhibits and dismissing his counterclaim. In several subpoints, Defendant argues that

 6 (1) he was pursuing his RESPA claims against the Bank under an “agency theory,”

 7 namely, that the Bank, as a principal, was liable for the alleged RESPA violation

 8 committed by its agent, Bank of America; (2) his exhibits were relevant and

 9 admissible; (3) he brought his RESPA claim against the Bank within the statute of

10 limitations; (4) the district court erred in dismissing his counterclaim for lack of

11 evidence; and (5) the court erred in dismissing “counterclaims against all other loan

12 servicers” based on a finding that the statute of limitations for a RESPA claim against

13 them had expired “when they were not even parties to the lawsuit.”

14   {13}   We conclude that Defendant’s arguments do not demonstrate that the district

15 court erred in excluding Defendant’s exhibits or dismissing his counterclaim.

16 Accordingly, we affirm the district court’s judgment.

17 DISCUSSION

18 Standard of Review




                                              7
 1   {14}   At the February 11, 2013, hearing, the Bank made an oral motion to dismiss

 2 Defendant’s counterclaim on the ground that there was no proper party before the

 3 court as to which RESPA would apply. The district court did not state the procedural

 4 ground upon which it dismissed Defendant’s counterclaim. Defendant proposes that

 5 the court dismissed his counterclaim pursuant to Rule 1-041(B) NMRA. Rule 1-

 6 041(B) provides, in relevant part, that “in an action tried by the court without a jury,

 7 [after the plaintiff] has completed the presentation of evidence, the defendant . . . may

 8 move for a dismissal on the ground that upon the facts and the law the plaintiff has

 9 shown no right to relief.” Here, the district court reviewed and considered the parties’

10 arguments concerning Defendant’s documentary evidence before ruling that it was

11 inadmissible. The issue before the court based on the Bank’s dismissal request was

12 whether the Bank could be held liable pursuant to Defendant’s RESPA theory. That

13 issue was argued by both parties before the district court ultimately dismissed

14 Defendant’s counterclaim. The court stated its rationales underlying the dismissal on

15 the record. The merits of whether Defendant stated a claim was, in essence, “tried by

16 the court[.]” Id. Thus, Defendant’s view that the district court’s dismissal was

17 grounded in Rule 1-041(B) is not unreasonable.

18   {15}   In our view, however, the district court’s order is more appropriately reviewed

19 as an order granting summary judgment in favor of the Bank. After hearing arguments


                                               8
 1 on the issue of the lack of a proper counterdefendant, the district court concluded that,

 2 as a matter of law, Defendant could not sue the Bank for an alleged violation of

 3 RESPA. In concluding that the counterclaim should be dismissed, the court obviously

 4 reasoned that Defendant’s proffered documentary evidence did not, as a matter of law,

 5 support a claim that RESPA applied to the Bank, and therefore, the documentary

 6 evidence was not admissible to support the claim. The court essentially determined

 7 that Defendant failed to state a claim against the Bank on which relief could be

 8 granted taking the documentary evidence into consideration, thus turning the evidence

 9 into a summary judgment proceeding. See Tunis v. Country Club Estates Homeowners

10 Ass’n, Inc., 2014-NMCA-025, ¶ 17, 318 P.3d 713 (stating that “where matters outside

11 the pleadings are considered on a motion to dismiss for failure to state a claim” the

12 appellate court will treat the district court’s ruling as a summary judgment (alteration,

13 internal quotation marks, and citation omitted)).

14   {16}   As a practical matter under the circumstances of this case, it is of no

15 consequence whether we treat the district court’s order as a summary judgment or as

16 an involuntary dismissal under Rule 1-041(B). Because the relevant facts were not in

17 dispute and the district court entered judgment as a matter of law, we would apply a

18 de novo review regardless of whether we were to construe the ruling as a Rule 1-

19 041(B) dismissal or a summary judgment. Fowler Brothers, Inc. v. Bounds, 2008-


                                               9
 1 NMCA-091, ¶ 7, 144 N.M. 510, 188 P.3d 1261 (stating that in reviewing an

 2 involuntary dismissal pursuant to Rule 1-041(B), we apply a de novo standard of

 3 review to the district court’s determination of the applicable law and its application

 4 of the law to the facts); Estate of Haar v. Ulwelling, 2007-NMCA-032, ¶ 10, 141 N.M.

 5 252, 154 P.3d 67 (stating that we review the district court’s decision to grant summary

 6 judgment de novo). Nevertheless, because we conclude that the district court’s order

 7 is more appropriately viewed as a summary judgment, we review it accordingly.

 8   {17}   “Summary judgment is appropriate where there are no genuine issues of

 9 material fact and the movant is entitled to judgment as a matter of law.” Montgomery

10 v. Lomos Altos, Inc., 2007-NMSC-002, ¶ 16, 141 N.M. 21, 150 P.3d 971 (internal

11 quotation marks and citation omitted). A district court’s decision to exclude evidence,

12 including a decision made at the summary judgment stage, is reviewed for an abuse

13 of discretion. Flagstar Bank, FSB v. Licha, 2015-NMCA-__, ¶ 20, __ P.3d__ (2015

14 WL 730063) (No. 33,150, Feb. 18, 2015).

15 Defendant’s Arguments

16   {18}   Defendant’s primary argument is that he “was pursuing a RESPA claim against

17 [the Bank] based upon an agency theory.” Based on Defendant’s arguments in the

18 district court as discussed in the background section of this Opinion, we understand

19 Defendant’s argument to be that his “RESPA claim” was premised on Bank of


                                             10
 1 America’s failure to “respond adequately” to his October 20, 2009, qualified written

 2 request. Defendant argues that an agency relationship existed between the Bank and

 3 Bank of America such that Defendant could sue the Bank for an alleged RESPA

 4 violation that was committed by Bank of America. Defendant argues that he intended

 5 to prove the agency relationship between the Bank and Bank of America by using his

 6 proposed exhibits and that by ruling that his exhibits were inadmissible, the district

 7 court erroneously deprived him the opportunity to present his legal theory at trial.

 8   {19}   As noted in the background section of this Opinion, when Defendant sent a

 9 “qualified written request” to Bank of America on October 20, 2009, Bank of America

10 was not the servicer of the at-issue loan. RESPA applies only to loan servicers. In re

11 Madera, 363 B.R. 718, 731 (Bankr. E.D. Pa. 2007). Thus, even were we to assume

12 that Defendant’s exhibits could have established that an agency relationship existed

13 between the Bank and Bank of America, Bank of America was not the servicer of the

14 at-issue loan at the time of the qualified written request and, therefore, cannot have

15 been the subject of Defendant’s RESPA claim.

16   {20}   Furthermore, Defendant fails to show any legal or factual basis that would

17 support going to trial on his theory that Bank of America is liable under RESPA for

18 responding to Defendant in what he argues was a “confusing” manner. In addition,

19 Defendant provides no argument or authority supporting his claim that the Bank is


                                             11
 1 somehow responsible in the status of principal under a claim that Bank of America

 2 was its agent.

 3   {21}   In dismissing Defendant’s counterclaim, the district court observed that “Bank

 4 of America was not the loan servicer on [the at-issue loan] at the time of [Defendant’s]

 5 letter[,]” and therefore, it was not “the party against whom a RESPA claim would

 6 arguably lie.” Because we agree with the district court’s conclusion, and because

 7 Defendant has failed to provide any argument or authority to support a contrary

 8 position or any viable theory of liability, Defendant provides no basis for reversal. See

 9 In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329

10 (recognizing that the appellate courts will not consider an issue in the absence of

11 supporting authority and will assume no such authority exists).

12   {22}   Defendant also argues that his exhibits were “highly probative in determining

13 [Defendant’s] claims against [the Bank,]” and because the Bank “never raised the

14 issue of any prejudice[,]” the district court erred in ruling the exhibits inadmissible.

15 Defendant fails to provide any analysis or authority to demonstrate how his exhibits

16 were at all relevant to his RESPA claim against the Bank. Accordingly, we cannot

17 conclude that the district court abused its discretion in failing to admit them. See Rule

18 11-402 NMRA (“Irrelevant evidence is not admissible.”); see also Headley v. Morgan




                                              12
 1 Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (stating that this

 2 Court will not review unclear or undeveloped arguments).

 3   {23}   Defendant argues further that the district court “erred by dismissing [his]

 4 RESPA claim against [the Bank] without accepting his factual allegations that the

 5 statute of limitations had not run.” The district court determined that, as a matter of

 6 law, Defendant could not sue the Bank pursuant to RESPA under the circumstances

 7 of this case. Defendant does not provide any argument or authority to demonstrate that

 8 the court erred in that determination. See In re Adoption of Doe, 1984-NMSC-024, ¶

 9 2 (recognizing that the appellate courts will not consider an issue in the absence of

10 supporting authority and will assume no such authority exists). Thus, we conclude that

11 any question of when Defendant’s RESPA claim against the Bank was filed has no

12 bearing on the issue whether the district court properly dismissed Defendant’s claim.

13   {24}   Defendant also argues, without citing any authority or providing any record

14 citations in support of his argument, that the district court “erred by dismissing

15 [Defendant’s] claim that [the Bank] violated federal law with respect to proper notice

16 and disclosure requirements.” Defendant’s vague reference to the Bank’s alleged

17 violation of “federal law” presented without a citation to any specific federal law and

18 without an explanation of how the Bank violated the unspecified law does not

19 facilitate review of the issue. We decline to consider this argument. See Headley,


                                             13
 1 2005-NMCA-045, ¶ 15 (stating that this Court will not review unclear or undeveloped

 2 arguments).

 3   {25}   Finally, Defendant argues that the district court erred by making “a declaratory

 4 judgment on behalf” of loan servicers who were “non[-]parties to this suit.” Defendant

 5 also appears to argue that the district court erred by dismissing “counterclaims against

 6 all other loan servicers when they were not even parties to the lawsuit.” Defendant’s

 7 argument is presented without citations to the record. See Rule 12-213(A)(4) NMRA

 8 (requiring an appellant to provide record proper citations in support of each

 9 argument). Nevertheless, we construe Defendant’s argument to be a reference to the

10 district court’s observation that Defendant, having failed to amend his complaint to

11 join Franklin as a party, could not do so by the time of the February 2013 hearing

12 because the statute of limitations had expired in October 2012.

13   {26}   Since this was not a declaratory judgment action, and since Franklin was not

14 a party in this case, we see no basis on which to conclude that the district court’s

15 observations regarding Franklin constituted a “declaratory judgment” or a “dismissal”

16 affecting Franklin or any other servicer. See, e.g., NMSA 1978, § 44-6-12 (1975)

17 (stating that in a declaratory judgment action “all persons shall be made parties who

18 have or claim any interest which would be affected by the declaration”).

19 Summary


                                               14
 1   {27}   We conclude that Defendant failed to demonstrate that the district court erred

 2 in excluding his exhibits. We further conclude that Defendant failed to demonstrate

 3 that the district court erred in determining that as to Defendant’s counterclaim, the

 4 Bank was entitled to judgment as a matter of law. Montgomery, 2007-NMCA-002, ¶

 5 16 (“Summary judgment is appropriate where . . . the moving party is entitled to

 6 judgment as a matter of law.” (internal quotation marks and citation omitted)).

 7 CONCLUSION

 8   {28}   We affirm.

 9   {29}   IT IS SO ORDERED.



10                                          __________________________________
11                                          JONATHAN B. SUTIN, Judge


12 WE CONCUR:


13 _______________________________
14 JAMES J. WECHSLER, Judge


15 _______________________________
16 M. MONICA ZAMORA, Judge




                                              15
