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Appeals.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-40586

MELISSA VIGIL,

Plaintiff-Appellant,

v.

CENTURY BANK,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

Francis J. Mathew, District Court Judge

Osteen & Harrison, PLC

Lincoln Combs

Phoenix, AZ

Cohen & Malad, LLP

Lynn A. Toops

Lisa M. La Fornara 

Arend J. Abel

Indianapolis, IN

Branstetter, Stranch & Jennings, PLLC

J. Gerard Stranch, IV 

Martin F. Schubert

Nashville, TN

Johnson Firm

Christopher D. Jennings 

Little Rock, AR

for Appellant

Jennings Haug Keleher McLeod LLP

Gary J. Van Luchene

Albuquerque, NM
Holland & Knight LLP

Andrew J. Soven

Philadelphia, PA

for Appellee

MEMORANDUM OPINION

WRAY, Judge.

{1} Plaintiff Melissa Vigil appeals the dismissal of an amended class action petition 

(the amended complaint) brought against Defendant Century Bank (the Bank), which 

alleged multiple claims relating to the assessment of overdraft and return item fees 

charged against Plaintiff’s deposit account for debit card and certain electronic 

payments. Attached to the amended complaint were four agreements between the Bank 

and the account holder, Plaintiff, to which we refer collectively as the Agreements and 

individually as the 2016 Account Agreement, the 2019 Account Agreement, the 2014 

Bounce Protection Disclosure, and the 2019 Bounce Protection Disclosure. The district 

court dismissed Plaintiff’s amended complaint after finding that (1) the Agreements 

unambiguously permitted the Bank to charge the challenged fees in the manner that the 

fees were charged; (2) Plaintiff’s claims were precluded because Plaintiff did not report 

errors or problems within the time specified in the Agreements; and (3) Plaintiff pleaded 

no misrepresentations or a causal connection to support a violation of the New Mexico 

Unfair Practices Act (the UPA), NMSA 1978, §§ 57-12-1 to -26 (1967, as amended 

through 2019). We affirm in part and reverse in part. 

DISCUSSION 

{2} Because this is a memorandum opinion prepared solely for the benefit of the 

parties, we set forth only those facts necessary to our analysis as they become relevant. 

Plaintiff argues that dismissal under Rule 1-012(C) NMRA was inappropriate, because 

the pleadings alleged that the Bank’s actions breached the Agreements and additionally 

violated the UPA. Rulings on Rule 1-012(C) motions for judgment on the pleadings are 

reviewed de novo, and we apply the general motion to dismiss standard. Vill. of Angel 

Fire v. Bd. of Cnty. Comm’rs of Colfax Cnty., 2010-NMCA-038, ¶ 5, 148 N.M. 804, 242 

P.3d 371. In that vein, we “test[] the legal sufficiency of the complaint, not the facts that 

support it,” see Quarrie v. N.M. Inst. of Mining & Tech., 2021-NMCA-044, ¶ 5, 495 P.3d 

645, and accepting “all well-pleaded factual allegations in the complaint as true,” 

dismissal is appropriate “only if the plaintiff is not entitled to recover under any theory of 

the facts alleged in [the] complaint,” see Hovey-Jaramillo v. Liberty Mut. Ins., 2023-

NMCA-068, ¶ 8, 535 P.3d 747 (internal quotation marks and citations omitted), cert. 

denied (S-1-SC-40020, Sept. 12, 2023). We consider first the contract claim and then 

turn to the UPA claim.

I. Plaintiff’s Complaint States a Claim for Breach of Contract
{3} The district court concluded that the Agreements unambiguously permitted the 

Bank to charge the contested fees. Whether a contract is ambiguous is a legal question, 

and we review a trial’s court conclusion of law de novo. Mark V, Inc. v. Mellekas, 1993-

NMSC-001, ¶ 14, 114 N.M. 778, 845 P.2d 1232. A contract is ambiguous “[i]f the court 

determines that [it] is reasonably and fairly susceptible of different constructions.” Id. ¶ 

12. Importantly,

[t]he mere fact that the parties are in disagreement on construction to be 

given to the contract does not necessarily establish an ambiguity. In 

making its determination, the court must consider the agreement as a 

whole. Moreover, where the terms of an agreement are plainly stated, the 

intention of the parties must be ascertained from the language used. 

Levenson v. Mobley, 1987-NMSC-102, ¶ 7, 106 N.M. 399, 744 P.2d 174 (citations 

omitted). If there is no ambiguity, “provisions of a contract need only be applied, rather 

than construed or interpreted.” Id.

{4} On appeal, Plaintiff contends that (1) the Agreements do not “unambiguously 

allow[]” the Bank to charge overdraft fees on transactions that were authorized on a 

positive balance but later settled when the account balance was negative, referred to as 

the “Authorized Positive/Settle Negative” theory (the APSN theory); (2) because the 

term “item” can reasonably be read to be “the account holder’s instruction for payment,” 

the Agreements do not unambiguously permit the Bank to assess multiple fees 

(overdraft and return item fees) on an “item” that was returned for insufficient funds and 

later reprocessed (the Multiple Fee theory); and (3) because the Bank intentionally 

charged the contested fees, the reporting provision is inapplicable and would not 

preclude Plaintiff from bringing the asserted claims. We conclude first that the amended 

complaint does not state a claim for breach of contract under the APSN theory but does 

state a claim regarding the Multiple Fee theory and second that Plaintiff sufficiently 

alleged that the breach of contract claim is not precluded by the reporting provision.

A. Plaintiff’s APSN Theory Does Not State a Claim for Breach of Contract

{5} Regarding the APSN theory, Plaintiff argues—and the Bank disputes—that the 

Agreements required the Bank to assess overdraft fees at the time a transaction was 

authorized, as opposed to settled based on the way the Agreements (1) explain the 

determination of overdraft and overdraft fees; and (2) place a temporary hold on funds 

at the time debit card transactions are authorized. We examine each of these 

arguments in turn. 

1. Overdraft Determination Under the 2019 Account Agreement and the 2019 

Bounce Protection Disclosure

{6} In the amended complaint, Plaintiff alleges the general circumstances that 

surround a debit card transaction, as follows. When an account holder uses a debit card 

to make a purchase, the merchant contacts the Bank for authorization. If the Bank 
authorizes the transaction, the Bank eventually settles—or pays—the transaction. In 

some circumstances, an account may have sufficient funds at the time the Bank 

authorizes a transaction but insufficient funds at the time of settlement. In those 

instances, the Bank assesses an overdraft fee, even though the account had sufficient 

funds at the time the purchase was authorized. Based on these allegations, Plaintiff 

argues that the imposition of this fee is a breach of the contractual promise “to 

determine overdrafts at authorization” because the “debit card transaction [was] 

authorized on sufficient funds” and the transaction “did not overdraw the available 

balance at authorization,” regardless of whether the funds were available at the time of 

settlement. The Bank maintains that the Agreements provide that overdraft fees are 

assessed at the time of settlement (or payment) and not authorization. To resolve the 

dispute, we turn to the 2019 Account Agreement together with the 2019 Bounce 

Protection Disclosure, both of which Plaintiff cites in support of the APSN theory. See 

McCasland v. Prather, 1978-NMCA-098, ¶ 10, 92 N.M. 192, 585 P.2d 336 (“Our inquiry 

on appeal is essentially limited to the contents of the complaint and the contract which 

was attached to it.”); see also Ruegsegger v. Bd. of Regents of W. N.M. Univ., 2007-

NMCA-030, ¶ 41, 141 N.M. 306, 154 P.3d 681 (explaining that “[i]n a breach of contract 

action, provisions that are integral to the contract may be attached to pleadings without 

converting the motion into one for summary judgment”). 

{7} The 2019 Account Agreement unambiguously states that overdraft is determined 

at the time of payment or settlement and not authorization. Under this agreement, the 

account holder agrees that the Bank “may charge fees for overdrafts” and “[a]n 

overdrawn account will typically result in you being charged an overdraft fee or [a 

nonsufficient funds] fee.” More specifically, this agreement states that “an overdraft 

occurs when there is not enough money in your account to pay for a transaction, but we 

pay (or cover) the transaction anyway.” The agreement also warns that the “order in 

which items are paid is important if there is not enough money in your account to pay all 

of the items that are presented” because “[t]he payment order can affect the number of 

items overdrawn or returned unpaid and the amount of the fees you may have to pay.” 

The agreement does not indicate to the account holder that payment will occur in the 

order that the payments were initially authorized. Instead, the agreement states that 

payment will occur in the order defined by the agreement.1 From these provisions, we 

conclude that the order in which the different types of debits and credits are “processed” 

determines whether there will be “enough money in your account to pay all of the items 

that are presented” or whether the account will be overdrawn and fees assessed. 

 

1The agreement states: “Our policy is to process deposits/credits first, by trancode then smallest items 

first on the day they are processed. We process priority pay items (i.e., wires, ATM/POS transactions, 

cashed checks, loan payments, etc.) second, by trancode then smallest items first on the day they are 

processed. We process electronic debits (i.e., ACH, transfers, etc.) third, by trancode then smallest items 

first on the day they are processed. We process checks fourth, in numerical order (by check number) on 

the day they are processed. We process other debits (i.e., ATM/sweep transfers, closing withdrawals, 

etc.) fifth, by trancode then smallest items first on the day they are processed).”
{8} Plaintiff argues that the language of the 2019 Bounce Protection Disclosure links 

the word “pay” to the authorization step so that overdraft fees are determined at 

authorization and not settlement. Those cited provisions are: 

(1) “Also, if you are a consumer and you have requested us to do so, we 

may authorize and pay ATM transfers or withdrawals and everyday debit 

card purchases using your Bounce Protection limit”;

(2) “Also, if you are a consumer and you have requested us to do so, we 

may authorize and cover ATM transfers or withdrawals and everyday debit 

card purchases”; 

(3) “Also, at your request, we may authorize and pay ATM transfers or 

withdrawals and everyday debit card purchases using your limit.” 

(Emphases added.) Plaintiff’s view of the 2019 Bounce Protection Disclosure language 

does not reasonably account for the provisions in the 2019 Account Agreement that we 

have just explained. We must read the agreements together, and “[w]e will not interpret 

a contract such that our interpretation of a particular clause or provision will annul other 

parts of the document, unless there is no other reasonable interpretation.” Pub. Serv. 

Co. of N.M. v. Diamond D Constr. Co., 2001-NMCA-082, ¶ 19, 131 N.M. 100, 33 P.3d 

651. As we have explained, Plaintiff has described a two-step debit transaction: 

authorization and settlement. The 2019 Bounce Protection Disclosure cannot link “pay” 

to the authorization step, as Plaintiff argues. The 2019 Account Agreement links “pay” to 

“processing” by determining the funds available at the time of payment based on the 

order that payments are processed—which we understand to be the settlement step. 

For both agreements to have meaning, “authorize” must be distinct from “pay” and 

“cover” in the 2019 Bounce Protection Disclosure. Otherwise, the two-step debit 

transaction process collapses into a single step and the 2019 Account Agreement 

provisions for determining whether funds are sufficient are nullified. Instead, the 2019 

Bounce Protection Disclosure provisions that Plaintiff identifies can be reasonably read 

to apply the Bounce Protection “service” in the context of the entire debit transaction—

both the authorization and the settlement steps. See id. ¶ 19 (“Apparently conflicting 

provisions must be reconciled so as to give meaning to both, rather than nullifying any 

contractual provision, if reconciliation can be effected by any reasonable interpretation 

of the entire instrument in light of the surrounding circumstances.” (internal quotation 

marks and citation omitted)). 

{9} Plaintiff also argues that because under the Agreements, an overdraft only 

happens if the Bank approves or authorizes a transaction and the Bank has discretion 

to “honor” a transaction despite insufficient funds, an account becomes overdrawn only 

at the time payments are authorized and overdraft fees must be determined at the 

authorization stage. To establish that overdraft happens at authorization, Plaintiff cites 

the following 2019 Bounce Protection Disclosure provisions: 
(1) “There are several ways your account can become overdrawn, such as 

. . . payments authorized by you (i.e. signature-based point of sale 

transactions)”; 

(2) “Your available balance may be affected by authorizations which could 

create additional overdrafts and associated fees”; 

(3) “Normally, we will not approve an overdraft for you in excess of the 

predetermined amount assigned to your account type.” 

The Bank’s discretion to honor withdrawal requests that overdraw an account are found 

in this provision in the 2019 Account Agreement:

Overdrafts – You understand that we may, at our discretion, honor 

withdrawal requests that overdraw your account. However, the fact that 

we may honor withdrawal requests that overdraw the account balance 

does not obligate us to do so later. So you can NOT rely on us to pay 

overdrafts on your account regardless of how frequently or under what 

circumstances we have paid overdrafts on your account in the past. We 

can change our practice of paying, or not paying, discretionary overdrafts 

on your account without notice to you. 

We understand Plaintiff’s argument to be that because the Bank decides at the time of 

authorization whether to pay a transaction for which there is insufficient funds, the 

overdraft fee determination must be made at that time as well. These provisions, 

however, do not address timing in relation to determining overdrafts or fees. Rather, the 

purpose of the cited provisions is to provide the Bank with discretion to honor or not 

honor requests that overdraw the account, notwithstanding the Bank’s past decisions or 

practices. The Bank’s decision to honor a debit card transaction request at the time of 

authorization does not mean that it determines at that time whether the account will 

ultimately be overdrawn or whether to impose an overdraft fee. To the contrary, the 

2019 Account Agreement provisions that we have already discussed address the timing 

for determining overdraft and fees: overdraft occurs when there are insufficient funds in 

the account to pay and whether there are sufficient funds depends on the order of 

payment. Thus, the Bank initially decides that it will pay and when it comes time to pay, 

the Bank determines whether the account has sufficient funds or is overdrawn. For 

these reasons, Plaintiff’s complaint does not sufficiently plead a breach of contract claim 

based on the APSN theory that overdraft determinations are made when transactions 

are authorized and not when they are settled.

2. Available Balance and Temporary Debit Card Authorization Holds

{10} Plaintiff argues that overdraft fees are determined at authorization and not 

settlement based on the 2019 Account Agreement’s explanation of an account holder’s 

available balance and a provision titled, “temporary debit authorization hold affects your 
account balance.” Again, we turn to the terms of the 2019 Account Agreement, which 

are as follows:

Determining your account balance - [I]mportantly, your ‘available’ 

balance may not be the same as your account’s ‘ledger’ balance. As the 

name implies, your available balance is the amount of funds in your 

account ‘available’ to make payments. This balance is calculated based 

on your ledger balance plus any unused Bounce Protection or other types 

of overdraft protection; minus any holds and transactions that have been 

authorized but not yet settled.

. . . .

A temporary debit authorization hold affects your account balance -

On debit card purchases, merchants may request a temporary hold on 

your account for a specified sum of money when the merchant does not 

know the exact amount of the purchase at the time the card is authorized. 

The amount of the temporary hold may be more than the actual amount of 

your purchase. Some common transactions where this occurs involve 

purchases of gasoline, hotel rooms, or meals at restaurants. When this 

happens, our processing system cannot determine that the amount of the 

hold exceeds the actual amount of your purchase. This temporary hold, 

and the amount charged to your account, will eventually be adjusted to the 

actual amount of your purchase, but it could be three calendar days, or 

even longer in some cases, before the adjustment is made. Until the 

adjustment is made, the amount of funds in your account available for 

other transactions will be reduced by the amount of the temporary hold.

(Emphases added.) Based on the emphasized language, Plaintiff maintains that the 

held funds should be unavailable for any other purpose after authorization, which would 

necessarily prevent an overdraft at the time of settlement or payment. Nothing in this 

provision, however, requires the Bank to calculate an overdraft at the time the Bank 

authorizes an account holder’s transaction request and places a hold on the account. 

The provisions cited by Plaintiff simply notify the account holder of the difference 

between the available and ledger balances as well as the potential risks involved in 

debit card purchases and explain that a hold authorizes a transaction at a higher 

amount than what will ultimately be due in order to account for an uncertain final 

purchase price. The 2019 Account Agreement does not promise that when a debit 

transaction involves a hold, funds are sequestered and are not available to process 

other payments for other types of transactions according to the order of payment 

provision that we have already discussed.

{11} Other portions of the 2019 Account Agreement warn that different types of 

transactions “use different processing systems and some may take more or less time to 

post” and “keeping track of the checks you write and the timing of the preauthorized 

payments you set up will help you know what other transactions might still post against 
your account.” The 2019 Account Agreement gives the account holder no assurance 

that the account’s available balance at authorization will remain the available balance at 

the time of settlement, despite any hold placed to accommodate debit card transactions. 

To the contrary, as we have explained, the 2019 Account Agreement defines overdraft 

as a transaction that cannot be paid with the funds in the account. For these reasons, 

we must agree with the Bank that “this case is not about whether [the Bank’s] overdraft 

practices are proper or what a purportedly ‘better’ contract might say,” and we conclude 

that Plaintiff’s complaint did not state a claim relating to the APSN theory.

B. Plaintiff’s “Multiple Fee” Theory States a Claim for Breach of Contract for 

Transactions Related to the 2016 Account Agreement

{12} At the outset of the Multiple Fee theory argument, Plaintiff challenges the Bank’s 

actions with respect to transactions entered before October 2019, which were governed 

by the 2016 Account Agreement and all of which were made using the Automated 

Clearing House (ACH) network. Specifically, these transactions may involve 

authorization by an account holder for a third-party vendor to seek payment from the 

Bank. Plaintiff’s Multiple Fee theory is that the Bank had a contractual obligation to 

charge only one fee (returned item fee or overdraft fee) per “item,” but if the Bank 

reprocesses an ACH transaction after an initial rejection for insufficient funds, 

unbeknownst to Plaintiff, each time the transaction is reprocessed, the Bank treats the 

reprocessing as “a new and unique item that is subject to yet another fee.” The district 

court found that the Agreements make clear that “an ‘item’ can result in both an 

overdraft charge and a return fee” and that “[t]he allegation than an item can only be 

charged for one fee, even if it is returned multiple times is inconsistent with both the 

parties’ [c]ontracts and the New Mexico Uniform Commercial Code.” As we explain, 

considering the 2016 Account Agreement as a whole, the term “item” can be reasonably 

be read (1) to require “an account holder’s instruction for payment” each time a vendor 

requests payment; or (2) to permit reprocessing without the account holder’s 

reauthorization if the account has insufficient funds to pay the authorized amount. 

Because the agreement is “reasonably and fairly susceptible of different constructions,” 

it is ambiguous. Mark V, 1993-NMSC-001, ¶ 12.

{13} The district court applied Article 4 of the New Mexico Uniform Commercial Code 

(the UCC), NMSA 1978, §§ 55-4-101 to -504 (1961, as amended through 2009), which 

governs bank deposits and collections and is incorporated into the 2016 Account 

Agreement by reference. The UCC (1) defines an “item” as “an instrument or a promise 

or order to pay money handled by a bank for collection or payment,” Section 55-4-

104(a)(9); (2) allows a bank to “charge against the account of a customer an item that is 

properly payable from that account even though the charge creates an overdraft,” 

Section 55-4-401(a); and (3) provides that an item is “properly payable if it is authorized 

by the customer and is in accordance with any agreement between the customer and 

bank,” id. Based on these provisions, the district court determined that “[e]ach time [the] 

Bank receives a promise or order to pay, it receives an item even if the item was 

previously presented and rejected.” These provisions, however, do not clarify whether 

the resubmission of a previously returned item constitutes the same item or a separate 
item. While the UCC defines “item” in terms of the account holder’s authorization, see § 

55-4-104(a)(9); §55-4-401(a), neither the statute nor the Agreements indicate whether 

authorization must be renewed in order to resubmit a payment request after it has been 

presented and rejected for insufficient funds. 

{14} Plaintiff argues that the term “item” in the 2016 Account Agreement “refers to the 

account holder’s instruction for payment” and “remains the same item when it is 

reprocessed after being returned for insufficient funds.” Based on this premise, Plaintiff 

contends that when the Bank “reprocessed” the request for payment “without her 

request,” the Bank could not charge another fee because a merchant’s resubmission 

does not constitute a new item—for it to be a new “item,” Plaintiff would have to take 

“action to resubmit it” by providing a new authorization. The Bank points to the 2016 

Account Agreement and the 2014 Bounce Protection Disclosure to contend that “an 

item is something that is presented for payment, every time it is presented for payment” 

by a merchant. As a result, according to the Bank, each time a vendor presents a 

request for payment, including resubmissions after rejection for insufficient funds, a new 

item is created that is authorized by the account holder’s initial approval and the Bank 

can either pay the vendor, which results in an overdraft, or return the item to the vendor, 

which results in a returned item fee. Because the Agreements do not address the term 

“item” in the context of resubmissions after returned or rejected requests for payment, 

and both Plaintiff’s and the Bank’s interpretations are reasonable, we conclude that the 

meaning of the term “item” is ambiguous under these circumstances. See Mark V, 

1993-NMSC-001, ¶ 13 (“In order to determine the meaning of the ambiguous terms, the 

fact[-]finder may consider extrinsic evidence of the language and conduct of the parties 

and the circumstances surrounding the agreement, as well as oral evidence of the 

parties’ intent.”). Accordingly, Plaintiff’s complaint states a breach of contract claim 

under the Multiple Fee theory, and we reverse the district court on this point. 

C. Plaintiff Adequately Pleaded Compliance With the Reporting Provision 

{15} The district court concluded that Plaintiff’s claims were precluded because 

Plaintiff did not timely report errors or problems with the manner in which the Bank 

handled the account as required by the 2016 and 2019 Account Agreements. On 

appeal, both parties analyze only the reporting provision found in the 2019 Account 

Agreement, and so we, too, turn again to that agreement. See Ruegsegger, 2007-

NMCA-030, ¶ 41. The 2019 Account Agreement states in relevant part as follows: 

Your duty to report other errors or problems - In addition to the 

Commercial Code and other state law, you agree there is a common law 

duty to promptly review your statement for errors in addition to 

unauthorized signatures, alterations or forgeries. Promptly reviewing your 

statement is valuable to both you and us because it can help identify, 

correct and prevent future mistakes.

In addition to your duty to review your statements for unauthorized 

signatures, alterations and forgeries, you agree to examine your statement 
with reasonable promptness for any other error or problem - such as an 

encoding error or an unexpected deposit amount. Also, if you receive or 

we make available either your items or images of your items, you must 

examine them for any unauthorized or missing indorsements or any other 

problems. You agree that the time you have to examine your statement 

and items and report to us will depend on the circumstances. However, 

this time period shall not exceed 60 days. Failure to examine your 

statement and items and report any errors to us within 60 days of when 

we first send or make the statement available precludes you from 

asserting a claim against us for any errors on items identified in that 

statement and as between you and us the loss will be entirely yours. If a 

good reason (such as a long trip or a hospital stay) kept you from telling 

us, we will extend the 60 day time period to report other errors.

(Emphases added.) On appeal, Plaintiff asserts that the 2019 Account Agreement is 

ambiguous and specifically contends that (1) the reporting provision does not apply to 

Plaintiff’s claims; and (2) other courts have declined to grant motions to dismiss based 

on similar reporting provisions. Having reviewed the out-of-jurisdiction cases Plaintiff 

cites, we decline to rely on those analyses and instead review the contractual provision 

in the case at hand. 

{16} In our analysis, we agree with Plaintiff that the 2019 Account Agreement is 

“reasonably and fairly susceptible” to different constructions and that the fact-finder 

must determine whether Plaintiff complied with the reporting provision. See Mark V, 

1993-NMSC-001, ¶ 13 (explaining that if the contract is ambiguous, “the meaning to be 

assigned the unclear terms is a question of fact”). Plaintiff argues that the reporting 

requirement applies only to unintentional inaccuracies in the processing and posting of 

transactions as reflected on the account statements and not to the Bank’s intentional 

practices in interpreting the agreement. The district court rejected this argument and 

reasoned that Plaintiff “could not have known at the time of the charged fees and receipt 

of [the] statements reflecting the charged fees whether they were errors or intentional 

acts [and a]t best . . . Plaintiff could only understand the charges to be errors under the 

[c]ontract or problems in need of correction.” The Bank maintains that the reporting 

provision imposes a duty to review statements “for any other error or problem” and 

contends that “repeatedly charging overdraft fees which a customer believes cannot be 

charged is . . . a ‘problem’ in any ordinary sense of that word.”

{17} The agreement, however, is also “reasonably and fairly susceptible” to a different 

construction. See id. ¶ 12. Though the duty to report extends to “errors or problems,” 

the 2019 Account Agreement specifically precludes claims against the Bank only for 

failure to report “any errors on items identified in that statement.” (Emphasis added.) 

This limited preclusion corresponds to the purpose statement of the duty provision, 

which explains that “promptly reviewing your statement is valuable to both you and us 

because it can help identify, correct and prevent future mistakes.” Thus, the agreement 

can be read such that the Bank reserved an opportunity to cure errors before an 

account holder could bring an error-related claim but did not prevent an account holder 
from pursuing a claim for other problems identified on the statement. Taking as true 

Plaintiff’s allegation that “[t]he improper fees charged by [the Bank] were not ‘errors’ but 

rather were intentional charges made by [the Bank] as part of its standard processing of 

transactions” and “part of the systematic and intentional assessment of fees according 

to [the Bank’s] standard practices,” Plaintiff has appropriately pleaded compliance with 

the reporting provision. It remains for the fact-finder to construe the meaning of “error” 

and decide whether Plaintiff’s or the Bank’s construction is reasonable. See id.

II. Plaintiff Adequately Pleaded a Claim Under the UPA Related to the Multiple 

Fee Theory

{18} Plaintiff’s UPA claim, as pleaded in the amended complaint, is based entirely on 

the same factual assertions as the breach of contract claims. The Bank argues that the 

UPA claim fails because the contract claims fail and that Plaintiff did not prove damages 

caused by the alleged misrepresentations. To state a claim under the UPA, a complaint 

must allege that

(1) the defendant made an oral or written statement, a visual description 

or a representation of any kind that was either false or misleading; 

(2) the false or misleading representation was knowingly made in 

connection with the sale, lease, rental, or loan of goods or services in the 

regular course of the defendant’s business; and 

(3) the representation was of the type that may, tends to, or does deceive 

or mislead any person.

Lohman v. Daimler-Chrysler Corp., 2007-NMCA-100, ¶ 5, 142 N.M. 437, 166 P.3d 

1091; see also § 57-12-2(D) (defining “unfair or deceptive trade practice”). As the Bank 

acknowledges, it is well established that a UPA claimant need not demonstrate that they 

relied on a particular unfair or deceptive practice but instead only “a causal connection 

between the deceptive practice and the claimant’s damages.” See Smoot v. Physicians 

Life Ins. Co., 2004-NMCA-027, ¶ 20, 135 N.M. 265, 87 P.3d 545. Causation, this Court 

has explained, requires a nexus only “between a defendant’s conduct and a plaintiff’s 

loss.” Id. (internal quotation marks and citation omitted). We conclude that Plaintiff did 

not adequately plead a UPA claim related to the APSN theory and debit card 

transactions for the same reason that the breach of contract claim was appropriately 

dismissed—because the Agreements unambiguously permit the Bank to assess fees in 

the manner alleged, Plaintiff cannot establish the knowing misrepresentation element of 

a UPA claim.

{19} The Multiple Fee theory allegations, however, support the UPA claim and the 

claim is otherwise adequately pleaded. The Multiple Fee theory alleges that through the 

Agreements with account holders, the Bank knowingly misrepresents the way overdraft 

fees will be charged and that because of that deceptive practice and contrary to the 

understanding of a reasonable consumer, Plaintiff and others similarly situated have 
“incurred more fees than they should have and have suffered monetary damages for 

which [the Bank] is liable.” Plaintiff additionally pleaded examples of the fees that 

allegedly should not have been assessed thereby demonstrating how damages could 

be calculated. See Chavarria v. Fleetwood Retail Corp., 2006-NMSC-046, ¶ 22, 140 

N.M. 478, 143 P.3d 717 (explaining that the New Mexico Rules of Civil Procedure 

require only “a short and plain statement of a party’s claim and a demand for relief”).

CONCLUSION

{20} We affirm in part and reverse in part the district court and remand for further 

proceedings consistent with this opinion.

{21} IT IS SO ORDERED.

KATHERINE A. WRAY, Judge

WE CONCUR:

J. MILES HANISEE, Judge

JANE B. YOHALEM, Judge