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Autovest L.L.C. v. Misquez

Court of Appeals of New Mexico

December 14, 2017

AUTOVEST L.L.C., Plaintiff-Appellant,
v.
TOMAS B. MISQUEZ and ANNETTE MISQUEZ, Defendants-Appellees.

         This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

         APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY Mary W. Rosner, District Judge.

          Jenkins, Wagnon & Young, P.C. Jody D. Jenkins Dan G. Young Lubbock, TX for Appellant.

          Jane B. Yohalem Santa Fe, NM for Appellees.

          MEMORANDUM OPINION

          JONATHAN B. SUTIN, JUDGE.

         {1} Autovest L.L.C. (Autovest) appeals an adverse judgment dismissing its action against Thomas B. Misquez and Annette Misquez (together, the Misquezes) to collect a deficiency after the Misquezes' vehicle was repossessed and sold at auction. Autovest also appeals an adverse attorney fee award. Autovest contends that the district court erred in holding that Autovest lacked standing and in further holding that its claim was barred by the statute of limitations. In addition, Autovest contends that the attorney fee award against it was "manifestly unreasonable" and that the sale of the repossessed vehicle was "commercially reasonable." We hold that the district court did not err in holding that Autovest lacked standing or in awarding attorney fees. We need not address the statute of limitations issue.

         BACKGROUND

         {2} In 2008 the Misquezes purchased a used vehicle from Sisbarro's Autoworld Inc. (Sisbarro), pursuant to an installment contract. In 2010 Wells Fargo Auto Finance Inc., the assignee of the contract, repossessed the vehicle, and the vehicle was sold at auction, leaving a deficiency owed to Wells Fargo Auto Finance Inc. Autovest sued the Misquezes in June 2014 for the deficiency, claiming to be "the owner and holder of this account[.]"

         {3} The record reflects the following pertinent documents.

         A. A January 2008 Motor Vehicle Sales Contract and Purchase Money Security Agreement, including Sisbarro's assignment of its rights to Wells Fargo Auto Finance Inc. (the purchase agreement), by which the Misquezes bought from Sisbarro and obtained financing for the purchased vehicle, with the purchase agreement assigned to Wells Fargo Auto Finance Inc.

         B. A January 2011 Flow Purchase Agreement by and between Autovest, "State Affiliates of Wells Fargo Financial, Inc. listed on the signature page hereto, and Wells Fargo Bank, N.A.[, ]" reflecting Autovest's bulk purchase of defaulted automobile purchase agreements. "Wells Fargo Financial New Mexico, Inc." is listed on the Flow Purchase Agreement signature page as a State Affiliate."Wells Fargo Auto Finance Inc." is not listed as a State Affiliate. The district court found that "Autovest . . . relies on the Flow Purchase Agreement (Exhibit 27) . . . to establish that Wells Fargo Auto Finance[] Inc. became a direct or indirect predecessor to Wells Fargo Bank, N.A. sometime on or before February 7, 2013." The district court further found that "[w]ith or without Exhibit 27, [Autovest] has failed to carry its burden of proof to demonstrate a valid, legally sufficient assignment, from Sisbarro Auto World[] Inc., to Wells Fargo Bank, N.A., to Wells Fargo Auto Finance[] Inc., back to Wells Fargo [Bank] N.A. and then to Autovest[.]" The court excluded this exhibit from evidence as an admissible exhibit.

         C. An Assignment of Installment Contract signed by "Darren Kazich, Agent" of "Wells Fargo Bank, N.A.[, ]" stating that "[o]n May 19, 2011, Wells Fargo Bank, N.A. . . . hereby assigns the Installment Contract . . . to Autovest[.]"

         D. A February 2013 document (Exhibit 26), stating "This is to certify that Wells Fargo Bank, N.A., is successor in interest (directly or indirectly) to[, ]" among many other listed entities, "Wells Fargo Auto Finance Inc." A reference to the date of February 7, 2013 contained in the district court's finding discussed earlier in regard to the Flow Purchase Agreement appears to relate to Exhibit 26.

         {4} The district court found from the documents admitted into evidence and testimony in regard to the documents that "[t]here is no evidence of a clear and legally sufficient assignment between Wells Fargo Auto Finance[] Inc., and Wells Fargo Bank, N.A., and from Wells Fargo Bank, N.A. to Autovest . . . regarding the . . . Misquez[es]' loan." The court further found that "[f]or purposes of this [lawsuit], the most important notice of assignment was from Wells Fargo Bank, N.A. to Autovest" and that ...


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