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restrictions on the citation of unpublished memorandum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.
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.
B. Yohalem Santa Fe, NM for Appellees.
JONATHAN B. SUTIN, JUDGE.
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.
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[.]"
The record reflects the following pertinent documents.
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.
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.
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
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.
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