                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                      October 10, 2012

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
In re: Daniel William Cook and Yolanda
Teresa Cook,

           Debtors.
____________________________________                       No. 12-2036
                                                (D.C. No. 1:09-CV-00803-JCH-CG)
DANIEL WILLIAM COOK, individually                            (D. N.M.)
and as Debtor in Possession,

             Plaintiff-Appellant,

and

YOLANDA T. COOK, individually and as
Debtor in Possession,

             Plaintiff,

v.

EASTERN SAVINGS BANK, FSB,

             Defendant-Appellee,

and

KRISTA TRICARICO, Special Master,

             Defendant.


                            ORDER AND JUDGMENT*

*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
                                                                            (continued)
Before GORSUCH, Circuit Judge, BRORBY, Senior Circuit Judge, and HOLMES,
Circuit Judge.


      Plaintiff Daniel William Cook appeals1 from a district court order granting

summary judgment for defendant Eastern Savings Bank (ESB) on Mr. Cook’s fraud

and related state-law claims relating to the foreclosure sale of his real property,

which was purchased by ESB. This action began as an adversary proceeding in

bankruptcy court, but after the trustee abandoned any interest in the subject matter

the district court withdrew the reference to the bankruptcy court and resolved the

action directly. On de novo review, N. Tex. Prod. Credit Ass’n v. McCurtain Cnty.

Nat’l Bank, 222 F.3d 800, 806 (10th Cir. 2000), we affirm the grant of summary

judgment in all but one limited respect.

      All of Mr. Cook’s claims are based on the same conduct: after transferring the

subject property to Spica Properties, Inc., ESB continued to represent itself as the

owner throughout the statutory redemption period, which it extended by agreement

with Mr. Cook. Mr. Cook claims this misrepresentation denied him the opportunity

to redeem from the true owner, causing him to lose all equity he had in the property,



precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
      Plaintiff Yolanda T. Cook died before the proceedings concluded below.


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and unjustly enriched ESB by the amount of the payments he made for its agreement

to extend the redemption period. Noting that redemption may be effected by paying

the foreclosure-sale price to the purchaser or its assigns, or to the court registry, see

N.M. Stat. § 39-5-18 (2005),2 and that Mr. Cook did not offer payment to any of

these entities during the redemption period, the district court held that his “loss of the

equity in his former property was caused not by any misrepresentation regarding

legal ownership, but by [his] failure to even attempt to tender the redemption price

during the redemption period.” R. at 229. We agree. ESB’s misrepresentation as to

ownership simply had nothing to do with Mr. Cook’s loss of the property. He can

hardly claim detrimental reliance or harm when he did not tender the redemption

amount even to the party he was misled into believing owned the property.3




2
      We refer to the version of the statute in effect at the time of the events here.
See Chapel v. Nevitt, 203 P.3d 889, 898 n.1 (N.M. Ct. App. 2009). The statute was
amended, with some changes in language but not relevant substance, in 2007.
3
       Mr. Cook assumes ESB’s transfer of the property to Spica Properties meant he
could no longer redeem by paying ESB, i.e., where the redemption statute provides
for payment to the purchaser or its assigns, the “or” must be read as an exclusive
disjunction leaving the assignee the sole party to whom payment may be made after a
transfer of the property. ESB assumes the contrary. Neither party cites any relevant
authority. There is some support for Mr. Cook’s view: in First State Bank of Taos v.
Wheatcroft, 8 P.2d 1061 (N.M. 1931), the court held that “the redemptioner can
redeem from the purchaser at the foreclosure sale . . . so long as he is not divested of
legal title.” Id. at 1063 (emphasis added). Whether the emphasized proviso applies
to the particular transfer between ESB and Spica Properties is a question that has not
been engaged by the parties. Our disposition of this appeal does not require us to
resolve the point and we pursue it no further.


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      Mr. Cook also argues in passing that his ignorance about the true ownership of

the property prevented him from negotiating a better price for the redemption from

Spica. This argument rests on a misunderstanding of the “narrow right” of statutory

redemption, which “affords a debtor . . . one last opportunity to reclaim his property”

after a foreclosure sale, by “comply[ing] strictly with the terms set forth by statute as

a condition to redemption.” Cortez v. Cortez, 203 P.3d 857, 864 (N.M. 2009). One

of those terms is payment of “the sum of money required by [the redemption]

statute.” Chapel, 203 P.3d at 892; see N.M. Stat. 39-5-18(A) (setting payment

amount). In short, there can be no “negotiation” of a lower redemption payment.

Mr. Cook could of course offer to purchase the property from Spica and negotiate as

to the price, but that is a matter distinct from redemption, see Reger v. Sanchez,

426 P.2d 786, 788 (N.M. 1967) (“An offer to repurchase is inconsistent with a claim

of redemption.”).

      We note that the district court’s rationale for rejecting the lost-equity aspect of

Mr. Cook’s claims does not necessarily address his associated complaint that ESB’s

misrepresentation of ownership also induced him to pay ESB for its agreement to

extend the redemption period. But Mr. Cook does not show detrimental reliance or

other resultant harm in this respect either. As ESB notes in its brief on appeal, see

Aplee. Br. at 21, Mr. Cook conceded by stipulation that he in fact “obtained [the

promised] extensions of [his] right to redeem the property under New Mexico law

through October 22, 2004,” the agreed upon deadline. R. at 20. Mr. Cook objects


                                          -4-
that ESB should have passed the payments on to Spica Industries (an ESB

subsidiary), but if that is a matter for complaint at all, it is a matter to be pursued by

Spica Industries, not Mr. Cook. He also objects that the last one-month extension,

from September 22 to October 22, was not memorialized in a court order or

otherwise reduced to writing, but that is immaterial. New Mexico courts (like those

of many other states) countenance private extension agreements and do so even if

they are not reduced to writing. See, e.g., Reger, 426 P.2d at 788; see also 54 A.L.R.

1207, Effect of oral agreement to enlarge time for redemption from sale under

mortgage or other lien on real property, Section II (1928) (collecting cases).

       In sum, the district court correctly ruled that Mr. Cook failed to show a triable

issue of detrimental reliance or harm relating to ESB’s alleged misrepresentation.

This is fatal to his common law tort claims. But Mr. Cook insists it is not fatal to his

claim for violation of the New Mexico Unfair Practices Act (UPA), see N.M. Stat.

§ 57-12-10(B), and relevant precedent supports his case. The UPA provides for

alternative forms of damages: actual damages or statutory damages of $100 (trebled

for willful violations), whichever is greater. Id. And New Mexico courts have held

that a plaintiff who cannot show detrimental reliance or actual harm may nevertheless

recover statutory damages. See Page & Wirtz Constr. Co. v. Solomon, 794 P.2d 349,

354-55 (N.M. 1990); Lohman v. Daimler-Chrysler Corp., 166 P.3d 1091, 1099-1100

(N.M. App. 2007); Brooks v. Norwest Corp., 103 P.3d 39, 53 (N.M. App. 2004);

Jones v. Gen. Motors Corp., 953 P.2d 1104, 1109 (N.M. App. 1998). While there


                                           -5-
may be grounds on which ESB could seek to resist application of the UPA here, it

has not done so on this appeal. We therefore reverse the grant of summary judgment

as it relates to Mr. Cook’s UPA claim and remand for further proceedings solely on

that claim.

      Finally, we note that Mr. Cook’s briefing digresses onto a number of points

that have not been adequately preserved and/or presented, or are simply not material

to our disposition of the merits of this appeal. While we have reviewed all of his

arguments, we have addressed here only those warranting explicit discussion.

      The judgment of the district court is AFFIRMED in all respects except insofar

as it relates to the claim for violation of the UPA. As to that claim, we REVERSE

the grant of summary judgment and remand for further proceedings.


                                               Entered for the Court


                                               Wade Brorby
                                               Senior Circuit Judge




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