Opinion
A-1-CA-40612
01-04-2023
WELLS FARGO BANK, N.A., Plaintiff-Appellee, v. WONG-LIN, INC. f/d/b/a LAMS CHINESE RESTAURANT and PHILLIP WONG, Defendants-Appellants.
Snell & Wilmer L.L.P. Gregory J. Marshall Phoenix, AZ Andrea M. Hicks Denver, CO for Appellee Ferrance Law P.C. David A. Ferrance Albuquerque, NM for Appellants
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Beatrice J. Brickhouse, District Judge
Snell & Wilmer L.L.P.
Gregory J. Marshall
Phoenix, AZ
Andrea M. Hicks
Denver, CO
for Appellee
Ferrance Law P.C.
David A. Ferrance
Albuquerque, NM
for Appellants
MEMORANDUM OPINION
EMILES HANISEE, CHIEF JUDGE
{¶1} Defendants appeal the district court's order granting summary judgment in favor of Plaintiff. Unpersuaded by Defendants' docketing statement, we issued a notice proposing to summarily affirm. Defendants have responded to our notice with a memorandum in opposition. After due consideration, we remain unpersuaded and affirm.
{¶2} Defendants do not respond to the proposed holdings in our notice that the affidavit attached to Plaintiff's motion was properly admitted [CN 1-6] and that Plaintiff sufficiently established grounds for standing. [CN 6-7] Thus, we consider these matters abandoned and do not address them further. See Taylor v. Van Winkle's Iga Farmer's Mkt., 1996-NMCA-111, ¶ 5, 122 N.M. 486, 927 P.2d 41 (recognizing that issues raised in a docketing statement, but not contested in a memorandum in opposition, are abandoned).
{¶3} Defendants' memorandum in opposition to our notice contends: (1) statements made in the affidavit attached to Plaintiff's motion are contradicted by the very business records on which the affiant purported to rely, leaving a material question of fact [MIO 2-3]; and (2) this Court improperly ruled in Fed. Nat'l Mortg. Ass'n v. Trissell, 2022-NMCA-001, ¶ 2, 503 P.3d 381, cert. denied (S-1-SC-38867, Dec. 22, 2021), that "in New Mexico, once a plaintiff-movant has made a prima facie case on its claim alone, a defendant resisting summary judgment with an affirmative defense has the burden of demonstrating a genuine issue of material fact as to the defense." [MIO 3-5]
{¶4} We disagree with Defendants that the business records contradict statements made in the affidavit of the loan adjustment manager. Rather, consistent with the affidavit, the business records, when considered together, show: the existence of a loan agreement between Plaintiff and Defendants [RP 51-67]; a bill and letter from Plaintiff to Defendants indicating that Defendants defaulted on the loan; the loan would not continue to be billed to Defendants monthly; and the full amount of the loan was due [RP 68-71]. Thus, Defendants have not persuaded us that there is conflict between the affidavit and the business records, such that a material fact issue remains.
{¶5} To the extent that Defendants' arguments ask us to reconsider our opinion in Trissell, we decline the invitation to do so and emphasize that our New Mexico Supreme Court denied certiorari review of our opinion. See Trissell, 2022-NMCA-001. We also note that, in their memorandum in opposition, Defendants continue to provide no information to identify any affirmative defenses they raised; Defendants also explain neither how those defenses were properly supported nor how they demonstrated a material fact issue, despite the admonition in our notice that such omissions, alone, constitute adequate grounds for affirmance. [CN 4-5] "A party responding to a summary calendar notice must come forward and specifically point out errors of law and fact," and the repetition of earlier arguments does not fulfill this requirement. State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003, superseded by statute on other grounds as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374. For these reasons, Defendants do not persuade us that they asserted affirmative defenses that would defeat summary judgment.
{¶6} Based on the foregoing analysis and the proposed analysis in our notice, we affirm the district court's order granting summary judgment in favor of Plaintiff.
{¶7} IT IS SO ORDERED.
WE CONCUR: JENNIFER L. ATTREP, Judge MEGAN P. DUFFY, Judge