* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 10 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BENJAMIN J. ROSCOE; GERALDINE M. ROSCOE, Plaintiffs-Appellants,

v. No. 99-2234 FEDERAL HOME LOAN MORTGAGE ASSOCIATION; BANK UNITED OF TEXAS FSB, Defendants-Appellees. (D.C. No. CIV-98-1500-BB/LFG) (D.N.M.)

ORDER AND JUDGMENT *

Before ANDERSON, KELLY and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Pro se plaintiffs Benjamin J. Roscoe and Geraldine M. Roscoe (“the2

Roscoes”) sued the defendants, Federal Home Mortgag e Association (“Freddie Mac”) and Bank United of Texas, FSB (“Bank United”) , in New Mexico state court. The crux of the Roscoes’ complaint was thatthe defendants unlawfully “extracted” a financial premium when the Roscoes pr epaid a loan. After the defendants removed the case to federal court, the d istrict court denied the Roscoes’ motion for a default judgment and granted the defendants’ motion for judgment as a matter of law. We affirm.
I. This litigation stems from a “Loan Agreement” (“Agr eement”) signed by the Roscoes and Bank United on June 28, 1994. Thro ugh the Agreement, the Roscoes obtained a 20-year loan from Bank United inthe amount of $2,325,000. The purpose of the loan was to refinance apartment property owned by the Roscoes in Albuquerque, New Mexico (“apartment prop erty”). The apartment complex on this property contains more than 100 uni ts. The Agreement contained the following provision: WHEREAS, [the Roscoes] shall of even date herewith execute and deliver to [Bank United] certain loan documents inc luding, without limitation, a Multifamily Note with attachments . . . and a Multifamily Mortgage, Assignment of Rents and Secur ity Agreement with attachments . . . (the Note, the Mortgage, and all other documents evidencing, securing, and relating to the Note are collectively referred to herein as the “Loan Docume nts”) . . . . Record on Appeal (“ROA”), Doc. 23, Exh. 4, at 1. T he parties acknowledged in1 On June 2, 1994, Bank United sent a letter agreeme nt to the Roscoes.

The letter agreement included a copy of Freddie Mac ’s May 31, 1994 “commitment letter” and stipulated (among other thi ngs) that (1) Bank United would sell the loan to Freddie Mac and (2) the Rosc oes could prepay the note in accordance with Freddie Mac’s requirements “togethe r with the payment of a prepayment premium calculated pursuant to [Freddie Mac’s] form yield maintenance formula with a yield maintenance periodof ten (10) years.” The Roscoes signed the letter agreement on June 7, 1994 . ROA, Doc. 23, Exh. 3, at 1-2, 6. 3 the Agreement that Freddie Mac would “purchase the [l]oan and take an assignment of the Loan Documents in accordance withthe Freddie Mac Multifamily Guide and the terms of Freddie Mac’s co mmitment letter dated May 31, 1994 . . . .” Id. 1 In compliance with the terms of the Agreement, the Roscoes executed a Multifamily Note (“Note”). The Note incorporated b y reference a “Rider to Multifamily Note (Prepayment Premium\Yield Maintenance)” (“Rider”). Id. , Exh. 6, at 2. This Rider explained that a “prepayment p remium” would be calculated and assessed if the Roscoes prepaid the loan. The Roscoes signed the Rider and agreed to waive “any right to prepay the [l]oan in whole or in part prior to the maturity date of the Note, except as expressly provided” in the Rider. Id. , Exh. 7, at 1-3. The Roscoes also acknowledged in the Riderthat “in the event of any such prepayment,” Bank United shall be entitled to damages for the detriment caus ed thereby, but . . . it is extremely difficult and impractical to ascert ain the extent of such damages. Borrower [i.e., the Roscoes] therefo re acknowledges4

and agrees that the prepayment premiums set forth i n this Rider represent reasonable estimates of such damages to [ Bank United], which sum Borrower agrees to pay upon demand. Borr ower acknowledges that the prepayment premium provisions of this Rider are a material part of the consideration for the [l ]oan. Id. at 3. In 1996, the Roscoes decided to refinance the apart ment property again. To obtain another loan from a different lender, the Ro scoes made a business decision to prepay the Bank United loan. Id. , Exh. 1, at 87-89. Before they made the prepayment, the Roscoes received a “payoff quote” f rom Bank United indicating that the premium (or “prepayment penalty”) would be $394,684.39. Id. , Exh. 9. The Roscoes paid the premium but still received ove r $1,000,000 in cash from the new loan proceeds after payment of the Bank United loan. Id. , Exh. 1, at 119-20; Exh. 10. The Roscoes filed suit against Bank United and Fred die Mac in 1998. Seeking a refund of the prepayment premium plus int erest and damages, the Roscoes attempted to assert eight claims. The Rosc oes alleged in their state court complaint that (1) the Rider was an impermissible and unenforceable “amendment” to the Agreement; (2) Freddie Mac was u njustly enriched by its receipt of the prepayment premium; (3) their promis e to pay the prepayment premium lacked consideration; (4) the terms of the Rider were vague, ambiguous, and contrary to state law; (5) the Rider was an “il legal promise” because “[t]he2Section 1452(f) provides that “all civil actions” to which the Federal

Home Loan Mortgage Corporation (“Corporation”) is aparty “shall be deemed to arise under the laws of the United States, and the district courts of the United States shall have original jurisdiction of all such actions, without regard to amount or value . . . .” The statute further provi des that: any civil or other action, case or controversy in acourt of a State, or in any court other than a district court of the Uni ted States, to which the Corporation is a party may at any time before the trial thereof be removed by the Corporation, without the giving of any bond or security, to the district court of the United State s for the district and division embracing the place where the same is pend ing . . . by following any procedure for removal of causes in ef fect at the time of such removal. 5 formula for determining the prepayment premium” rev olved around “outcomes of events which depend on chance;” (6) the amount of the prepayment premium was unconscionable and in violation of the implied cove nant of good faith and fair dealing; (7) Bank United’s use of the Rider constituted “consumer fraud” and a “deceptive business practice” under New Mexico’s Un fair Practices Act; and (8) Freddie Mac tortiously interfered with the Roscoes’ Agreement by inducing Bank United to breach the contract. Id. , Doc. 1, Exh. A, at 1-9. Freddie Mac removed the case to federal court pursu ant to 12 U.S.C. § 1452(f). 2 Id. , Doc. 1, at 1-2. Shortly thereafter, the Roscoes filed a motion for default judgment. The Roscoes asserted in the moti on that Bank United and Freddie Mac were served with process on November 12 , 1998, but failed to respond to the complaint within 30 days. Id. , Doc. 6, at 1. The district court3 Rule 1-004(E) states in relevant part:

A summons and complaint may be served upon a defend ant . . . by mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two (2) copies of a notice and acknowledgment conformin g with the form set out below and a return envelope, postage p repaid, addressed to the sender. If no acknowledgment of service und er this subdivision of this rule is received by the sender within twenty (20) days after the date of mailing, service of such sum mons and complaint shall be made by a person . . . . Unless good cause is shown for not doing so, the court shall order the p ayment of the costs of personal service by the person served if s uch person does not complete and return within twenty (20) days aft er mailing the notice and acknowledgment of receipt of summons. .

. . 6 denied the motion, holding that (1) the 30-day time period did not begin on November 12, 1998 because the Roscoes did not recei ve an “acknowledgment of service” from the defendants as required by New Mex ico Rule of Civil Procedure 1-004(E); 3 and (2) the defendants answered the complaint eventhough the service effected by the Roscoes was inadequate, thus rendering the answers timely. Id. , Doc. 30, at 1-2. The Roscoes then moved for recons ideration or permission to file an interlocutory appeal. Id. , Docs. 41-42. The Roscoes later withdrew this motion, stating that upon reflection they believed the order denying their request for a default judgment “[wa]s well within the Court ’s discretion and [wa]s correct and just.” Id. , Doc. 43, at 1. In the meantime, Bank United filed a motion for summary judgment. Id. , Docs. 22-23. Freddie Mac adopted Bank United’s motion in toto , adding a single7

undisputed fact: Before the Roscoes obtained the B ank United loan, they prepaid a prior loan on the apartment property and, as a co nsequence, paid a separate prepayment premium to Freddie Mac. Id. , Docs. 36, 40; Doc. 44, at 2. The district court granted the defendants’ motions, con cluding that (1) the Agreement, including the attached Rider, was a valid contract, id. , Doc. 49, at 5-6; (2) the Rider was incorporated by reference and therefore w as not an “amendment” to the contract, id. at 7; (3) the prepayment provision of the Agreement was enforceable under New Mexico law, id. at 7-8; and (4) the amount of the prepayment premi um was not unconscionable, tantamount to “unjust enric hment,” or otherwise illegal. Id. at 9-10. Even though the defendants did not speci fically address the Unfair Practices Act in their motions, the district court entered summary judgment sua sponte on that claim because the Roscoes failed to identi fy any false, deceptive, or misleading statements. Id. at 10-11.
II. The Roscoes present four arguments on appeal. Theycontend that the district court (1) lacked jurisdiction over the case and should have remanded the dispute to state court; (2) improperly denied theirmotion for a default judgment; (3) improperly granted the defendants’ motions for summary judgment; and (4) should have granted summary judgment in the Roscoes ’ favor on all claims “conceded” by the defendants.8

A. Jurisdiction and Removal The Roscoes’ challenge to the district court’s juri sdiction is twofold. First, they contend that the state court record was not tr ansmitted to the district court. According to the Roscoes, the absence of these docu ments should have prevented the district court from exercising jurisdiction. S econd, they point to the district court’s language in the order denying their motion for a default judgment that the “attempted service by mail” on Bank United and Fred die Mac was “ineffective.” Id. , Doc. 30, at 2. If this service was ineffective, say the Roscoes, then the defendants were not parties to the case and could n ot have been subject to the district court’s jurisdiction. Because removal is typically an issue of statutory construction, “we review a district court’s determi nation of the propriety of removal de novo.” Huffman v. Saul Holdings Ltd. Partnership , ___ F.3d ____, No. 98-5053, 1999 WL 791587, at *3 (10th Cir. Oct. 5, 1999) (citation omitted). We conclude the Roscoes’ arguments lack merit. Fir st, the documents before the district court were sufficient to permitremoval. To its notice of removal, Freddie Mac attached copies of the summons es served on itself and Bank United, the Roscoes’ complaint, and each docum ent appended to the complaint. No more was required under 28 U.S.C. § 1446. See 28 U.S.C. § 1446(a) (stating that a defendant or defendants “ desiring to remove any civil action” shall file a notice of removal “containing a short and plain statement of4The defendants also note that the Roscoes did not object to Freddie Mac’s

notice of removal in the district court. Given the ir obvious substantive deficiencies, we decline to address whether the Ros coes waived these objections by failing to raise them below. 9 the grounds for removal, together with a copy of al l process, pleadings, and orders served upon such defendant or defendants in such action”). Second, the Roscoes’ “ineffective service” argument also fails. Putting aside the issue of whether the Roscoes could have pursued their complaint in any court if they failed to serve the defendants in accordance with s tate law, the defendants answered the complaint and subjected themselves to the district court’s jurisdiction. ROA, Docs. 2, 5. Moreover, it is clear that Fredd ie Mac’s notice of removal was otherwise proper, since 12 U.S.C. § 145 2 provided the district court with original jurisdiction over the action. 4 B. Default Judgment The Roscoes’ defense of their motion for a default judgment proceeds along the following lines. The Roscoes mailed summonses dated November 6, 1998 to Bank United and Freddie Mac. The defendants receiv ed these summonses on November 12, 1998. The Roscoes maintain that underNew Mexico Rule 1- 004(E), the defendants had 30 days from the date of the summonses (November 6) to respond to the complaint. As a result, because Freddie Mac did not file its notice of removal until December 7, 1998 – and BankUnited did not file a5 The Roscoes further assert that Freddie Mac neglec ted to respond to their

motion for a default judgment. This is plainly fal se. Although the district court inadvertently omitted the response from its minute entries, the record on appeal includes a file-stamped copy of Freddie Mac’s “Resp onse In Opposition To Plaintiffs’ Application For Default Judgment.” ROA , Doc. 54. The Roscoes argue that we should not consider Freddie Mac’s res ponse because Freddie Mac did not bring the omission to the district court’s attention until after the case was on appeal. Whether or not the district court had the authority to correct its own minute entries after the Roscoes filed an appeal, F reddie Mac’s response brief is part of the record and need not be ignored by this court.

6The defendants contend that the Roscoes also waive d any challenge to the district court’s denial of their motion for a defau lt judgment by conceding in their (continued...) 10 responsive pleading until some time after December 7 – the district court should have entered a default judgment in the Roscoes’ favor. 5 “Decisions to enter judgment by default are committed to the district c ourt’s sound discretion, and ourreview is for abuse of discretion.” Dennis Garberg & Associates, Inc. v. PackTech Int’l Corp. , 115 F.3d 767, 771 (10th Cir. 1997). The Roscoes’ attack on the denial of their motion f or judgment by default is unpersuasive. As an initial matter, the Roscoes fa iled to mention in their notice of appeal any issue connected with the district cou rt’s denial of their motion for a default judgment. ROA, Doc. 50. This alone is fat al to the Roscoes’ position, for we have jurisdiction to review “only the judgment o r part of the judgment designated in the notice of appeal.” Averitt v. Southland Motor Inn of Oklahoma , 720 F.2d 1178, 1180 (10th Cir. 1983); accord Foote v. Spiegel , 118 F.3d 1416, 1422 (10th Cir. 1997). 6 Furthermore, even if the Roscoes had identified t his issue6 (...continued)

motion to withdraw that the court’s order was “corr ect and just.” Once again, the balance of our opinion makes it unnecessary for us to address this argument.

7Courts interpreting the former version of Federal Rule of Civil Procedure 4(c)(2)(C)(ii), which is similar to New Mexico Rule 1-004(E), likewise recognize that service by mail is “ineffective” if the defend ants do not return the acknowledgment form within the allotted time period. See , e.g. , Hajjiri v. First Minnesota Sav. Bank, F.S.B. , 25 F.3d 677, 678 (8th Cir. 1994); Mason v. Genisco Tech. Corp. , 960 F.2d 849, 852 (9th Cir. 1992); see also Tso v. Delaney , 969 F.2d 373, 375 (7th Cir. 1992) (“Service by mail . . . is not complete unless the acknowledgment form is returned by the defendant.”); Carimi v. Royal Carribean Cruise Line, Inc. , 959 F.2d 1344, 1347 (5th Cir. 1992) (“If mail service is attempted and the acknowledgment form is not returned, there is no service.”). 11 in their notice of appeal, the district court prope rly denied their request for judgment by default. New Mexico Rule 1-004(E) prov ides that a plaintiff may serve a defendant by mail with a copy of the summon s, a copy of the complaint, and copies of a notice and acknowledgment form. If , however, the acknowledgment form is not returned to the plaintif f within 20 days, the plaintiff must effect personal service on the defendant. Her e, Bank United and Freddie Mac never returned the acknowledgment forms, and th e Roscoes did not serve the defendants personally. Accordingly, the district c ourt correctly determined that the Roscoes’ attempted service by mail was “ineffective.” ROA, Doc. 30, at 2. 7
Since the defendants chose to file their answers be fore personal service was effected, those answers were timely and the Roscoes ’ motion for a default judgment was unfounded.12

C. Summary Judgment We review a grant of summary judgment de novo. King of the Mountain Sports, Inc. v. Chrysler Corp. , 185 F.3d 1084, 1089 (10th Cir. 1999); Martin v.
Kansas , 190 F.3d 1120, 1128 (10th Cir. 1999). Summary ju dgment is appropriate if “the pleadings, depositions, answers to interrog atories, and admissions on file, together with the affidavits, if any, show that the re is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). When applying this s tandard, we “view the evidence and draw all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.” Martin , 190 F.3d at 1129; accord King of the Mountain Sports , 185 F.3d at 1128. “Only disputes over facts thatmight affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Martin , 190 F.3d at 1129 (quoting Hardy v. S.F. Phosphates Ltd. Co. , 185 F.3d 1076, 1078-80 (10th Cir. 1999)). The Roscoes object to the district court’s grant of summary judgment on several grounds. First, the Roscoes assert that th e Rider was an unauthorized “amendment” to the Agreement. In support of this argument, the Roscoes highlight an integration clause stating that the Lo an Agreement “embodies the entire agreement between the parties, supersedes al l prior agreements and understandings,” and “may be amended only by an ins trument in writing executed8 The Roscoes make several other arguments in passin g. For instance, the

Roscoes assert that “[t]here are more than two plau sible interpretations of the Loan Agreement.” Appellants’ Opening Brief at 20. In support of this argument, however, the Roscoes merely restate their position that the Rider impermissibly “amended” the contract. The Roscoes also claim that there are disputed issues of material fact, but do not support this argument with citations to evidence in the record. Instead, they again restate their position that the Rider “amended” the contract and could not have been incorporated into the Agreement through a nonbinding “whereas” clause. 13 by all of the parties hereto.” ROA, Doc. 23, Exh. 4, at 2. Second, the Roscoes argue that the clause of the Agreement incorporatin g the Rider is only “prefatory” and not binding because it begins with the word “wh ereas.” Third, the Roscoes aver that the Rider was invalid because there was n o consideration for it. Fourth, Mr. Roscoe maintains that the Rider was disclosed “ near the end of the transactions conducted at the closing meeting,” App ellants’ Opening Brief at 11, and that he did not fully understand the import of the Rider. 8 These objections are, to say the least, ill-conceiv ed. The district court properly disposed of the Roscoes’ first argument: The prepayment rider was incorporated by reference into the note itself, attached thereto, and separately agreed upo n by Mr. Roscoe. Mr. Roscoe cannot expect this Court to believe thathe agreed to the terms of the note, including the attached prepaymen t rider, but that such rider is invalid because a prior written agree ment to amend was not executed. The absurdity of such argument need not be further discussed. ROA, Doc. 49, at 7; see also Crow v. Capitol Bankers Life Ins. Co. , 891 P.2d 1206, 1210-11 (N.M. 1995) (“If two or more writings are part of a single9Even if this affidavit had been presented to the d istrict court, it would

have been insufficient to forestall summary judgmen t. Over the last 30 years, Mr. Roscoe (who has a Ph.D. from Johns Hopkins Univ ersity in electrical engineering) has purchased 10 to 12 income-producin g properties. ROA, Doc. (continued...) 14 transaction and concern the same subject matter, th en they are a single contract.”). The Roscoes’ second argument fares no better. The Roscoes cite no authority to show that the language in the contract preceded by the word “whereas” should simply be disregarded. In any event, even if the l anguage in the “whereas” clause was not strictly “binding,” it notified the Roscoes that the Note and the Rider – which were signed by all interested parties – were part of the loan transaction. The Roscoes’ third argument similarly ignores the p lain language of the contract. In exchange for their consent to the terms of the A greement, the Roscoes received a loan worth $2,325,000. The Roscoes expressly acknowledged that “the prepayment premium provisions of th[e] Rider are a material part of the consideration for the [l]oan.” ROA, Doc. 23, Exh. 7, at 3. Finally, the Roscoes’ fourth argument lacks evidentiary support. The onl y evidence cited by the Roscoes on this point is an affidavit executed by M r. Roscoe that was not presented to the district court. “In reviewing a g rant of summary judgment, we do not consider materials not before the district court.” Myers v. Oklahoma County Bd. of County Commissioners , 151 F.3d 1313, 1319 (10th Cir. 1998) (citing John Hancock Mut. Life Ins. Co. v. Wiseman , 27 F.3d 500, 506 (10th Cir. 1994)). 99 (...continued)

23, Exh. 1, at 4-5, 8, 68-69. Mr. Roscoe was famil iar with prepayment premiums, having paid such a penalty to another Fre ddie Mac lender before entering into the contract with Bank United. Id. , Doc. 44, Exh. A, at 11, 19-22. The defendants informed Mr. Roscoe several weeks be fore the Agreement was executed that the contract would include a prepayment premium provision. See id. , Doc. 23, Exh. 3, at 1-2, 6. Mr. Roscoe was given an opportunity to review the Rider and other loan documents, read the Rider before signing it, and was capable of understanding the mathematical formula f or calculating the premium. Id. , Exh. 1, at 25, 68-69, 105-06. Given Mr. Roscoe’s background, the circumstances surrounding the execution of the Agre ement, and his obligation to carefully review the contract under New Mexico law, see Smith v. Price’s Creameries , 650 P.2d 825, 829 (N.M. 1982) (“Each party to a c ontract has a duty to read and familiarize himself with its contents b efore he signs and delivers it . . . .”), his proclaimed ignorance of the meaning of the prepayment premium provision is highly suspect. Mr. Roscoe’s own depo sition testimony speaks volumes: “I knew the prepayment penalty before I s igned on with the loan . . . . I thought I would be a good enough investor that mayb e I could overcome this prepayment penalty, [this] high amount, so it was abusiness decision at that point to pay it.” ROA, Doc. 23, Exh. 1, at 87-88. If that were not enough, Mr. Roscoe’s professed ignorance appears to be immateri al to most of the issues raised on appeal. Our cases make clear that “only material factual disputes preclude summary judgment,” and a party cannot avoi d judgment as a matter of law by submitting “conclusory and self-serving” affidavits. Hall v. Bellmon , 935 F.2d 1106, 1111 (10th Cir. 1991); accord Murray v. City of Sapulpa , 45 F.3d 1417, 1422 (10th Cir. 1995). 15 The Roscoes additionally argue that the district co urt improperly granted summary judgment on all claims asserted in the comp laint. According to the Roscoes, the defendants sought judgment as a matterof law only on claims one (“The Rider is Unenforceable”), three (“Express Con sideration For the Prepayment Premium is Absent”), and five (“Rider is Illegal Promise”). See ROA, Doc. 1, Exh. A, at 3, 5, 6; id. , Doc. 23. The Roscoes maintain that by16

failing to challenge them in their motion for summa ry judgment, the defendants “conceded” their claims for unjust enrichment, reli ef under a state statute prohibiting “prepayment premiums on loans secured b y residential property,” unconscionability and breach of the implied covenant of good faith and fair dealing, consumer fraud and deceptive business prac tices, and tortious interference with contract. The Roscoes’ assertion that a defendant “concedes” liability by choosing not to file a motion for summary judgment is obviou sly incorrect, but their argument that the district court should not have di smissed the complaint in its entirety requires more analysis. In its motion forsummary judgment, Bank United repeatedly emphasized that it was seeking ju dgment as a matter of law “on all claims asserted against it in Plaintiffs’ Complaint.” ROA, Doc. 23, at 1, 3, 19. However, as the Roscoes accurately note, Bank Unite d did not analyze the complaint on a claim-by-claim basis. Instead, BankUnited argued that certain uncontested facts “establish[ed] that the Prepayment Rider was an integral part of the loan transaction . . . which was freely and kno wledgeably entered into and of reciprocal benefit to both Bank United and the Plaintiffs.” Id. at 8. Citing cases from New Mexico and other jurisdictions, Bank Unite d then argued that (1) “where . . . the terms of a contract are freely and knowledgeably agreed upon by the parties, the duty of the courts is to enforce the contract,” id. ; and (2)17

prepayment premiums are “fully enforceable” when “aborrower voluntarily prepays a note prior to maturity.” Id. at 11. In connection with these arguments, Bank United also discussed principles of fraud, mis take, illegality, unreasonableness, and unconscionability. Id. at 9, 16-18; see also id. , Doc. 44, at 2-3 (indicating that Freddie Mac also discussed pri nciples of illegality and unconscionability in its supplement to Bank United’ s summary judgment motion). Even though Bank United did not dedicate a specific section in its summary judgment motion to each of the Roscoes’ claims, we conclude that the district court properly dismissed the complaint in its entir ety. As one commentator has explained in an analogous context, [t]he major concern in cases in which the court wants to enter summary judgment without a Rule 56 motion by eitherparty is not really one of power. . . . Rather, the question rai sed by the court’s action is whether the party against whom the judgme nt will be entered was given sufficient advance notice and an adequate opportunity to demonstrate why summary judgment sho uld not be granted. If no opportunity is provided, then obvio usly summary judgment should not be entered. If the court provi des this opportunity, however, there seems to be no reason f or preventing the court from acting on its own. To conclude otherwis e would result in unnecessary trials and would be inconsistent with the objective of Rule 56 of expediting the disposition of cases. 10A Charles Alan Wright et al., Federal Practice and Procedure § 2720, at 339-45 (3d ed. 1998) (footnotes omitted); see also Howell Petroleum Corp. v. Leben Oil Corp. , 976 F.2d 614, 620 (10th Cir. 1992) (“[A] districtcourt in appropriate circumstances may grant summary judgment on a groun d not formally raised in a10 The Roscoes asserted below and reiterate on appeal that they did not

have an opportunity to conduct discovery before the district court granted the defendants’ motions for summary judgment. However, the “facts” the Roscoes claim they had no opportunity to discover are large ly (if not wholly) irrelevant to the issues resolved by the district court. See Appellants’ Opening Brief at 19-20. Moreover, if the Roscoes believed they needed addit ional discovery, their proper recourse was to file a motion accompanied by an aff idavit pursuant to Federal Rule of Civil Procedure 56(f). As we observed in International Surplus Lines Ins. Co. v. Wyoming Coal Refining Sys., Inc. , 52 F.3d 901 (10th Cir. 1995): “Although the Supreme Court has held that, under Fe d. R. Civ. P. 56(f), summary judgment [should] be refused where the nonmoving (continued...) 18 summary judgment motion.”); Durtsche v. American Colloid Co. , 958 F.2d 1007, 1009 n.1 (10th Cir. 1992) (“[D]istrict courts are w idely acknowledged to possess the power to enter summary judgment sua sponte.”) (quoting Celotex Corp. v.
Catrett , 477 U.S. 317, 326 (1986)). Applying these criter ia to the case at hand, it is evident that the Roscoes were given sufficient a dvance notice and an adequate opportunity to demonstrate why summary judgment sho uld not have been granted on all of their claims. Bank United clearly stated that it was seeking judgment as a matter of law on each of the Roscoes’ claims. Th e evidence submitted by Bank United demonstrated that several facts relevant to all of the Roscoes’ claims were incontestable. The Roscoes were given an opportuni ty to submit a response to Bank United’s motion, which they did. In short, th e Roscoes’ claim that they could not have anticipated that the district court was poised to dismiss the complaint cannot be squared with the record. 1010 (...continued)

party has not had the opportunity to discover information that is essential to his opposition, this protection arises only if the nonmoving party files an affidavit explaining why h e or she cannot present facts to oppose the motion.” The party mus t state with specificity why extra time is needed and how the ad ditional time and material will rebut the summary judgment motion. “ [M]ere assertion that discovery is incomplete or that specific facts necessary to oppose summary judgment are unavailable” is insuffi cient to invoke Rule 56(f). Id. at 905 (first set of quotation marks added, citati ons omitted). 19 With one exception ( see infra at 23-25), our rejection of the Roscoes’ “lack of notice” argument resolves all of the issues rais ed in this appeal. In their appellate brief, the Roscoes do not cite any authority to rebut the district court’s conclusion that their claims for unjust enrichment, tortious interference, unconscionability, and breach of the implied covena nt of good faith fail as a matter of law. Nor do the Roscoes highlight any ev idence in the record to support these claims; they simply repeat the allegations in their complaint. Compare ROA, Doc. 1, Exh. A, at 4-6, 7-9 (plaintiffs’ complaint) with Appellants’ Opening Brief at 12-14, 22-26. Federal Rule of App ellate Procedure 28(a)(9)(A) provides that the appellant’s initial brief must co ntain “appellant’s contentions and the reasons for them, with citations to the aut horities and parts of the record on which the appellant relies . . . .” In the same vein, “[a] litigant who mentions a point in passing but fails to press it ‘by supporti ng it with pertinent authority . . .11 We recognize that pro se pleadings must be “construed liberally.” Hall

v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). In the con text of a motion to dismiss, “this rule means that if the court can rea sonably read the pleadings to state a valid claim on which the plaintiff could pr evail, it should do so despite the plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction , or his unfamiliarity with pleading requirements.” Id. Even so, it is not the proper function of a courtto “assume the role of advocate for the pro se litigant.” Id. ; see also United States v. Pinkey , 548 F.2d 305, 311 (10th Cir. 1977) (“He who proce eds pro se with full knowledge and understanding of the risks does so wi th no greater rights than a litigant represented by a lawyer, and the trial cou rt is under no obligation to become an ‘advocate’ for or to assist and guide the pro se layman through the trial thicket.”). That maxim is particularly appli cable here. Although the Roscoes are proceeding pro se, they are not wholly exempt from the Federal Rules of Appellate Procedure or the requirements of Federal Rule of Civil Procedure 56. 20 forfeits the point.’” United States v. Callwood , 66 F.3d 1110, 1115 n.6 (10th Cir. 1995) (quoting Pelfresne v. Village of Williams Bay , 917 F.2d 1017, 1023 (7th Cir. 1990)); accord Phillips v. Calhoun , 956 F.2d 949, 953-54 (10th Cir. 1992);

see also Primas v. City of Oklahoma City , 958 F.2d 1506, 1511 (10th Cir. 1992) (stating that a litigant “has a duty to provide aut hority for any argument that he raises”). 11 Even if we ignore the Roscoes’ failure to comply wi th these precedents and the Federal Rules of Appellate Procedure, we cannotconclude that the district court committed reversible error. The Roscoes’ “un conscionability” claim is illustrative. While a contract “may be held to be substantively unconscionable” under New Mexico law, “the threshold for such a holding is very high.” Monette21

v. Tinsley , 975 P.2d 361, 365 (N.M. Ct. App. 1999). To be un conscionable a contract must be “such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair manwould accept on the other.” State ex rel. State Highway and Transp. Dep’t v. Garley , 806 P.2d 32, 39 (N.M. 1991) (citations and internal quotation marks omitt ed). “The doctrine of unconscionability was intended to prevent oppressio n and unfair surprise, not to relieve a party of a bad bargain.” Id. (citation omitted); see also Smith v. Price’s Creameries , 650 P.2d 825, 829 (N.M. 1982) (“[T]he fact that s ome of the terms of the agreement resulted in a hard bargain or subject ed a party to exposure of substantial risk, does not render a contract uncons cionable where it was negotiated at arm’s length, and absent an affirmati ve showing of mistake, fraud or illegality.”). Nothing in the record (or in the la nguage of the Rider) even comes close to suggesting that the Roscoes were victims o f oppression. To the contrary, uncontested evidence indicates that the Roscoes kno wingly entered into an agreement they now believe was a “bad bargain.” The Roscoes’ claims for unjust enrichment, tortious interference, and relief under the Unfair Practices Act are similarly flawed . The Roscoes’ unjust enrichment claim in many ways parallels their “unco nscionability” claim, and fails for the same reasons. New Mexico recognizes that “[a] person receiving a benefit has been unjustly enriched if retention of the benefit would be unjust.”22

Sunwest Bank of Albuquerque, N.A. v. Colucci , 872 P.2d 346, 349 (N.M. 1994);

see also id. (“Where a plaintiff has paid money in the mistaken belief that an enforceable contract exists, the plaintiff is entit led to recover the money paid, as restitution.”) (citation omitted). Uncontested evi dence submitted by the defendants demonstrates that the Roscoes knew or sh ould have known that the Rider imposed a penalty for prepaying the loan. Ba nk United and Freddie Mac received the benefits of the bargain they negotiate d with the Roscoes, and no more. The gravamen of the Roscoes’ tortious interf erence claim is that Freddie Mac induced Bank United to breach the Agreement. See ROA, Doc. 1, Exh. A, at 8-9. There is no evidence to support the underlyin g premise of this claim, i.e., that Bank United breached the Agreement. In any ca se, to pursue a claim for tortious interference with existing or prospective contractual relations, a plaintiff must establish that the defendant “interfered with an improper motive or by improper means, or acted without justification or privilege.” Quintana v. First Interstate Bank of Albuquerque , 737 P.2d 896, 898 (N.M. Ct. App. 1987). Uncontroverted evidence demonstrates that Freddie M ac’s actions in this case were proper and supported by legitimate business expectations. Essential elements of the Roscoes’ Unfair Practices Act claimlikewise lack evidentiary support. To invoke the Unfair Practices Act, a pla intiff must show that (1) the defendant made a “false or misleading” representati on; (2) the misrepresentation23

was knowingly made “in connection with the sale, le ase, rental or loan of goods or services in the extension of credit or . . . col lection of debts;” (3) the misrepresentation occurred in the regular course of trade or commerce; and (4) the representation was of the type that “may, tends to or does, deceive or mislead any person.” Stevenson v. Louis Dreyfus Corp. , 811 P.2d 1308, 1311 (N.M. 1991) (citations omitted). No evidence indicates t hat the defendants knowingly made any false or misleading representations to the Roscoes in connection with the Agreement. In contrast to their other claims, the Roscoes do c ite relevant legal authority in their appellate brief to support their claim that the Rider was prohibited by state law. The Roscoes contend that the prepaymentprovision was precluded by § 56-8-30 of the New Mexico Residential Home Loan Act(“Act”). That section of the Act provides: “No provision in a home loan, th e evidence of indebtedness of a home loan, a real estate contract or an obligatio n secured by a real estate mortgage requiring a penalty or premium for prepaym ent of the balance of the indebtedness is enforceable.” N.M. Stat. Ann. § 56 -8-30 (Michie 1998). The Roscoes argue that § 56-8-30 applies in this instan ce because “[b]y statute Freddie Mac acts to make capital available for home financing,” and because the apartment property “is zoned residential by the City of Albuquerque.” Appellants’ Opening Brief at 24-25.12 The district court did not discuss § 56-8-24 in it s order dismissing the (continued...) 24 This claim is deficient as a matter of law as well. Section 56-8-30 does not apply to multi-unit apartment complexes like the on e refinanced by the Roscoes. That much is evident from the statutory definitions of Act’s operative terms:

A. “residence” means a dwelling and the underlying re al property designed for occupancy by one to four families , and includes mobile homes and condominiums; B. “home loan” means: (1) a loan made to a person, all or a substantial p ortion of the proceeds of which will be used to purchase, construct, improve, rehabilitate, sell a residence or refinance a loan on a residence and which loan will be secured in whole or in partby a security interest in the residence evidenced by a real estate mortgage;

(2) the principal amount secured by a real estate mortgage on a residence when that real estate mortgage was executed by the mortgagor in connection with his purchase of the property, and the obligation secured represents part of the deferred purchase price; or (3) the deferred balance due under a real estate co ntract made for the purchase or sale of a residence

. . . E. “real estate contract” means a contractual docu ment creating rights and obligations between a seller an d buyer of a residence under which the seller agrees to transfer legal ti tle to the residence to the buyer after payment over time of all or part of the purchase price of the residence ; F. “real estate mortgage” means any document creat ing a security interest in a residence owned by a person to secure the payment of a home loan . . . . N.M. Stat. Ann. § 56-8-24 (Michie 1998) (emphasis added). In short, “the Act contemplates protecting purchasers of dwellings int ended to house four families or less.” Naumburg v. Pattison , 711 P.2d 1387, 1390 (N.M. 1985). 1212 (...continued)

Roscoes’ claim. Nevertheless, “we may affirm the j udgment of the district court on any grounds for which there is a record sufficie nt to permit conclusions of law, even grounds not relied upon by the district court.” V-1 Oil Co. v. Means , 94 F.3d 1420, 1423 (10th Cir. 1996). 25 The judgment of the district court is AFFIRMED. Entered for the Court Mary Beck Briscoe Circuit Judge