UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

In re: Daniel William 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 panel 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
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Before GORSUCH, Circuit Judge, BRORBY, Senior Circuit Judge, and HOLMES, 

Circuit Judge. 

 

 

 Plaintiff Daniel William Cook appeals1 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 sale of his real property, 

which was purchased by ESB. This action began as an adversary proceeding in 

bankruptcy court, but after the trustee abandoned any interest 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 the same conduct: after transferring the 

subject property to Spica Properties, Inc., ESB continued to represent itself as the 

owner throughout the statutory redemption period, which it extended by agreement 

with Mr. Cook. Mr. Cook claims 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

1

 Plaintiff Yolanda T. Cook died before the proceedings concluded below. 
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and unjustly enriched ESB by the amount of the payments he made for its agreement 

to extend the redemption period. Noting that 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 redemption period, the district court held that his “loss of the 

equity in his former property was caused not by any misrepresentation regarding 

legal ownership, but by [his] failure to even attempt to tender the redemption price 

during the redemption period.” R. at 229. We agree. ESB’s misrepresentation 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 misled into believing owned the property.3

 

 

2

 We refer to the version of the statute in effect at the 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 but not relevant substance, in 2007. 

3

 Mr. Cook assumes ESB’s transfer of the 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 read as an exclusive 

disjunction leaving the assignee the sole party to whom payment may be made after a 

transfer of the property. ESB assumes the contrary. Neither party cites any relevant 

authority. There is some support 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). Whether the emphasized proviso applies 

to the particular transfer between ESB and Spica Properties is a question that has not 

been engaged by the parties. Our disposition of this appeal does not require us to 

resolve the point and we pursue it no further. 
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Mr. Cook also argues in passing that his ignorance about the true ownership of 

the property prevented him from negotiating a better price for the redemption from 

Spica. This argument rests on a misunderstanding of the “narrow right” of statutory 

redemption, which “affords a debtor . . . one last opportunity to reclaim his property” 

after a foreclosure sale, by “comply[ing] strictly 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 sum 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 “negotiation” of a lower redemption payment. 

Mr. Cook could of course offer to purchase the property from Spica and negotiate as 

to the price, but that is a matter distinct 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 court’s rationale for rejecting the lost-equity aspect of 

Mr. Cook’s claims does not necessarily address his associated complaint that ESB’s 

misrepresentation of ownership also induced him to pay ESB for its agreement to 

extend the redemption period. But Mr. Cook does not show detrimental reliance or 

other resultant harm in this respect either. 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 [his] right to redeem the property under New Mexico law 

through October 22, 2004,” the agreed upon deadline. R. at 20. Mr. Cook objects 
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that ESB should have passed the payments on to Spica Industries (an ESB 

subsidiary), but if that is a matter for complaint at all, it is a matter 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 immaterial. New Mexico courts (like those 

of many other states) countenance private extension 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 enlarge time for redemption from sale under 

mortgage or other lien on real property, Section II (1928) (collecting 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 alleged misrepresentation. 

This is fatal to his common law tort claims. But Mr. Cook insists it is not fatal to his 

claim for violation of the New Mexico Unfair Practices Act (UPA), see N.M. Stat. 

§ 57-12-10(B), and relevant precedent supports his case. The UPA provides for 

alternative forms of damages: actual damages or statutory 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. Daimler-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 
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may be grounds on which ESB could seek to resist application of the UPA here, it 

has not done so on this appeal. We therefore reverse the grant of summary judgment 

as it relates to Mr. Cook’s UPA claim and remand for further proceedings solely on 

that claim. 

Finally, we note that Mr. Cook’s briefing 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 appeal. While we have reviewed all of his 

arguments, we have addressed here only those warranting explicit discussion. 

 The judgment of the district court is AFFIRMED in all respects except insofar 

as it relates to the claim 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