UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

In re: Daniel Willia m Cook and Yolanda Teresa Cook, Debtors.

___________________ _________________ DANIEL WILLIAM COOK, individually and as Debtor in Possession, Plaintiff-Appellant, and YOLANDA T. COOK, individually and as Debtor in Possession, Plaintiff,

v. EASTERN SAVINGS BANK, FSB, Defendant-Appellee, and KRISTA TRICARICO, Special Master, Defendant. No. 12-2036 (D.C. No. 1:09-CV-00803-JCH-CG) (D. N.M.)

ORDER AND JUDGMENT *

* After examining the briefs and appellate record, this pane l has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding (continued)

FILED United States Court of Appeals Tenth Circuit 

### October 10, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - Before GORSUCH , Circuit Judge, BRORBY , Senior Circuit Judge, and HOLMES , Circuit Judge.
Plaintiff Daniel William Cook appeals 1 from a district court order granting summary judgment for defendant Eastern Savings Bank (ESB) on Mr. Cook’s fraud and related state-law claims relating to the foreclosure sa le of his real property, which was purchased by ESB. This acti on began as an adversary proceeding in bankruptcy court, but after th e trustee abandoned any inte rest in the subject matter the district court withdrew the reference to the bankruptcy court and resolved the action directly. On de novo review, N. Tex. Prod. Credit Ass’n v. McCurtain Cnty. Nat’l Bank , 222 F.3d 800, 806 (10th Cir. 2000), we affirm the grant of summary judgment in all but one limited respect. All of Mr. Cook’s claims are based on th e same conduct: after transferring the subject property to Spica Properties, Inc., ESB continued to repr esent itself as the owner throughout the statut ory redemption period, which it extended by agreement with Mr. Cook. Mr. Cook cl aims this misrepresentation denied him the opportunity to redeem from the true owner, causing him to lose all equity he had in the property,

precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1 Plaintiff Yolanda T. Cook died be fore the proceedings concluded below.- 3 - and unjustly enriched ESB by the amount of the payments he made for its agreement to extend the redemption period. Noting th at redemption may be effected by paying the foreclosure-sale price to the purchaser or its assigns, or to the court registry, see N.M. Stat. § 39-5-18 (2005), 2 and that Mr. Cook did not offer payment to any of these entities during the redempti on period, the district court held that his “loss of the equity in his former property was cause d not by any misrepre sentation regarding legal ownership, but by [his] failure to ev en attempt to tender the redemption price during the redemption period.” R. at 229. We agree. ESB’s misr epresentation as to ownership simply had nothing to do with Mr . Cook’s loss of the property. He can hardly claim detrimental reliance or harm when he did not tender the redemption amount even to the party he was misl ed into believing owned the property. 3

2 We refer to the version of the statute in effect at th e time of the events here. See Chapel v. Nevitt , 203 P.3d 889, 898 n.1 (N.M. Ct . App. 2009). The statute was amended, with some changes in language bu t not relevant substance, in 2007.
3 Mr. Cook assumes ESB’s transfer of th e property to Spica Properties meant he could no longer redeem by paying ESB, i. e., where the redemption statute provides for payment to the purchaser or its assigns, the “or” must be re ad as an exclusive disjunction leaving the assignee the sole party to whom pa yment may be made after a transfer of the property. ESB assumes the contrary. Neither part y cites any relevant authority. There is some suppor t for Mr. Cook’s view: in First State Bank of Taos v. Wheatcroft , 8 P.2d 1061 (N.M. 1931), the court held that “the redemptioner can redeem from the purchaser at the foreclosure sale . . . so long as he is not divested of legal title .” Id. at 1063 (emphasis added). Whethe r the emphasized proviso applies to the particular transfer be tween ESB and Spica Properties is a question that has not been engaged by the parties. Our dispositio n of this appeal does not require us to resolve the point and we pur sue it no further.- 4 - Mr. Cook also argues in passing that hi s ignorance about the true ownership of the property prevented him from negotiati ng a better price for the redemption from Spica. This argument rests on a misunders tanding of the “narrow right” of statutory redemption, which “affords a debtor . . . on e last opportunity to reclaim his property” after a foreclosure sale, by “comply[ing] stric tly with the terms set forth by statute as a condition to redemption.” Cortez v. Cortez , 203 P.3d 857, 864 (N.M. 2009). One of those terms is payment of “the su m of money required by [the redemption]
statute.” Chapel , 203 P.3d at 892; see N.M. Stat. 39-5-18(A) (setting payment amount). In short, there can be no “nego tiation” of a lower redemption payment. Mr. Cook could of course offer to purchas e the property from Spica and negotiate as to the price, but th at is a matter dis tinct from redemption, see Reger v. Sanchez , 426 P.2d 786, 788 (N.M. 1967) (“ An offer to repurchase is inconsistent with a claim of redemption.”). We note that the district c ourt’s rationale for rejecting the lost-equity aspect of Mr. Cook’s claims does not necessarily addr ess his associated co mplaint that ESB’s misrepresentation of owners hip also induced him to pa y ESB for its agreement to extend the redemption period. But Mr. Cook does not show detrimental reliance or other resultant harm in this respect eith er. As ESB notes in its brief on appeal, see Aplee. Br. at 21, Mr. Cook conceded by stipulation that he in fact “obtained [the promised] extensions of [h is] right to redeem the pr operty under New Mexico law through October 22, 2004,” the agreed up on deadline. R. at 20. Mr. Cook objects- 5 - that ESB should have passed the paym ents on to Spica Industries (an ESB subsidiary), but if that is a matter for complaint at all, it is a matte r to be pursued by Spica Industries, not Mr. Cook. He also objects that the last one-month extension, from September 22 to October 22, was not memorialized in a court order or otherwise reduced to writing, but that is im material. New Mexico courts (like those of many other states) countenance private ex tension agreements and do so even if they are not reduced to writing. See, e.g. , Reger , 426 P.2d at 788; see also 54 A.L.R. 1207, Effect of oral agreement to enla rge time for redemption from sale under mortgage or other lien on real property, Section II (1928) (colle cting cases). In sum, the district court correctly ruled that Mr. Cook failed to show a triable issue of detrimental reliance or harm relating to ESB’s a lleged misrepresentation. This is fatal to his common la w tort claims. But Mr. Cook insists it is not fatal to his claim for violation of the New Mexi co Unfair Practices Act (UPA), see N.M. Stat. § 57-12-10(B), and relevant precedent s upports his case. The UPA provides for alternative forms of damages: actual damages or statut ory damages of $100 (trebled for willful violations), whichever is greater. Id. And New Mexico courts have held that a plaintiff who cannot show detrimental reliance or actual harm may nevertheless recover statutory damages. See Page & Wirtz Constr. Co. v. Solomon , 794 P.2d 349, 354-55 (N.M. 1990); Lohman v. Daimle r-Chrysler Corp. , 166 P.3d 1091, 1099-1100 (N.M. App. 2007); Brooks v. Norwest Corp. , 103 P.3d 39, 53 (N.M. App. 2004); Jones v. Gen. Motors Corp. , 953 P.2d 1104, 1109 (N.M. App. 1998). While there- 6 - may be grounds on which ESB could seek to resist application of the UPA here, it has not done so on this app eal. We therefore reverse th e grant of summary judgment as it relates to Mr. Cook’s UPA claim a nd remand for further proceedings solely on that claim. Finally, we note that Mr. Cook’s briefi ng digresses onto a number of points that have not been adequately preserved and/ or presented, or are simply not material to our disposition of the merits of this a ppeal. While we have reviewed all of his arguments, we have addresse d here only those warranti ng explicit discussion. The judgment of the district court is AFFIRMED in all re spects except insofar as it relates to the cl aim for violation of the UPA. As to that claim, we REVERSE the grant of summary judgment and remand for further proceedings.

Entered for the Court
Wade Brorby Senior Circuit Judge