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LSF9 Master Participation Trust v. Sanchez

Court of Appeals of New Mexico

December 28, 2018



          McCarthy & Holthus, LLP Joshua T. Chappell Karen Weaver Albuquerque, NM for Appellant

          Eric Ortiz & Associates Eric N. Ortiz Albuquerque, NM for Appellees


          MICHAEL E. VIGIL, Judge

         {¶1} Wells Fargo (Bank) appealed from the district court's order dismissing its foreclosure action against Joann and Frank Sanchez (Homeowners) with prejudice. During the pendency of the appeal, and after briefing was completed, Bank filed a motion to substitute LSF9 Master Participation Trust (LSF9) as appellant in the case, which we granted. LSF9 raised no new claims after our order of substitution, and as such, we address the arguments raised by Bank. Bank made two arguments on appeal: (1) the district court erred in dismissing its entire foreclosure claim as barred by the applicable statute of limitations, NMSA 1978, § 37-1-3(A) (2015); and (2) the district court abused its discretion in denying Bank leave to amend its complaint to plead the tolling effect on the statute of limitations of Homeowners' three bankruptcy cases. We reverse.


         {¶2} The material facts are not in dispute. On October 30, 2007, Homeowners executed a note and mortgage to secure a $203, 669.41 loan. The mortgage was secured by real property located in Las Cruces, New Mexico. The note and mortgage provided for periodic payments in the amount of $1, 712.55 to be paid on the fourth day of every month beginning on December 4, 2007. The note and mortgage also contained acceleration clauses, providing that in the event of default, Bank "may require [Homeowners] to pay immediately the full amount of [p]rincipal which has not been paid and all the interest that [Homeowners] owe on that amount."

         {¶3} Homeowner defaulted on the loan on October 4, 2008. Bank filed a foreclosure action against Homeowners on October 7, 2009. In this action, Bank asserted that it was exercising its option under the note to accelerate and declare immediately payable and due the full amount of principal and all interest still owed under the note.

         {¶4} On June 21, 2011, during the pendency of the first foreclosure action, Homeowners filed for Chapter 13 bankruptcy, which was dismissed without prejudice on August 18, 2011, for failure to file information. Homeowners filed a second bankruptcy under Chapter 13 on November 17, 2011, which was dismissed for failure to make plan payments on June 15, 2012. During the pendency of the second bankruptcy, Bank voluntarily dismissed the first foreclosure action on March 20, 2012. Homeowners thereafter filed a third bankruptcy under Chapter 7 on August 21, 2012, which resulted in a discharge order entered on January 23, 2013.

         {¶5} On February 22, 2016, Bank filed its second, and the currently operative, foreclosure action against Homeowners stemming from Homeowners' October 4, 2008 default. Bank alleged in the complaint that its claim was for the accelerated unpaid balance and that it had sent Homeowners a notice of default and a demand letter on August 28, 2015, requesting Homeowners cure of the default. Although not specifically alleging Homeowners' three bankruptcy cases, Bank only sought in rem relief in the complaint. However, concurrent with the complaint, Bank filed a notice of bankruptcy discharge and disclaimer of deficiency that referenced Homeowners' successful Chapter 7 bankruptcy and included a copy of the order of discharge as an exhibit.

         {¶6} Homeowners filed a motion to dismiss pursuant to Rule 1-012(B)(1), (6) NMRA. Homeowners argued that the statute of limitations for a written contract of six years pursuant to Section 37-1-3(A) applied, and because more than six years had elapsed between their default on October 4, 2008, and Bank's filing of the second foreclosure action on February 22, 2016, Bank's foreclosure claim was barred.

         {¶7} Bank responded that pursuant to Welty v. Western Bank of Las Cruces, 1987-NMSC-066, 106 N.M. 126, 740 P.2d 120, new and separate breaches of the note and mortgage occurred between Homeowners' original default on October 4, 2008 and October 7, 2009, when Bank accelerated the loan-and each separate breach of the note and mortgage accrued a new six-year period of limitation for each missed payment. Bank therefore argued that while its claim for some of Homeowners' oldest missed payments may have been barred by Section 37-1-3, the majority of Homeowners' missed payments, including the accelerated balance as of October 7, 2009, fell within the statute of limitations in light of the tolling of the limitations period because of Homeowners' three bankruptcy cases pursuant to 11 U.S.C. § 362 (2012) (stating the circumstances in which the filing of a bankruptcy petition triggers an automatic stay of other proceedings involving the property of a debtor or bankruptcy estate), and NMSA 1978, Section 37-1-12 (1880) (governing the effect of a stay on the computation of statutes of limitations).

         {¶8} After a hearing, the district court dismissed Bank's foreclosure complaint with prejudice. The district court ruled that it would not consider the tolling effect of Homeowners' bankruptcy filings and denied Bank's request to amend its complaint to plead facts concerning Homeowners' bankruptcies and their tolling effect on the limitation period for Bank's foreclosure claim. The district court did not provide reasoning explaining why it would not grant Bank leave to amend its complaint, but apparently agreed with Homeowners' argument that "[t]here has been nothing that prevented [Bank] from filing a motion to amend" between the filing of the complaint and litigation of Homeowners' motion to dismiss, and that "if [Bank] wished to remedy the problem by amending the complaint, they had the opportunity to do that and they failed to do so."

         {¶9} Bank appeals from the order of ...

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