Discover Bank v. MiMauro

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 DISCOVER BANK, 3 Plaintiff-Appellee, 4 v. NO. 34,589 5 MAURIZIO DIMAURO, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 C. Shannon Bacon, District Judge 9 Guglielmo & Associates 10 Elizabeth V. Friedenstein 11 Albuquerque, NM 12 for Appellee 13 Maurizio DiMauro 14 Albuquerque, NM 15 Pro Se Appellant 16 MEMORANDUM OPINION 17 VIGIL, Chief Judge. 18 {1} Defendant appeals from the district court’s granting of summary judgment in 19 favor of Plaintiff. This Court issued a calendar notice proposing summary affirmance. 1 Defendant has filed a memorandum in opposition to this Court’s notice of proposed 2 disposition, which we have duly considered. Unpersuaded, we affirm. 3 {2} In our calendar notice, we proposed to hold that Plaintiff presented sufficient 4 evidence to make a prima facie showing that Defendant owed Plaintiff money and that 5 the burden then shifted to Defendant to demonstrate the existence of specific 6 evidentiary facts that would require trial on the merits. [CN 5] See Roth v. Thompson, 7 1992-NMSC-011 , ¶ 17, 113 N.M. 331 , 825 P.2d 1241 . Specifically, we noted that 8 Plaintiff’s motion for summary judgment relied on an affidavit asserting that 9 Defendant has “not paid the amounts due and owing to [Plaintiff] on the account[,]” 10 as well as on printouts of Defendant’s credit card billing statements showing 11 Defendant’s name and address, and documentation that Defendant previously made 12 payments on the account, both electronically and by personal check, prior to 13 defaulting. [CN 4] 14 {3} Defendant continues to assert that Plaintiff’s evidence points to “an impossible 15 sequence of events . . . by virtue of the dates borne on those documents[.]” [MIO 1] 16 Defendant’s argument is that the 2011 Cardmember Agreement presented by Plaintiff 17 belies its contention that he was issued a card in 2008. [RP 222] We addressed this 18 argument in detail in our calendar notice [CN 5-6], and we are not convinced that we 19 erred. To the point, we noted that Plaintiff submitted the 2011 Cardmember 20 Agreement as evidence of the agreement in place at the time the account was charged [2] 1 off, not at the time of account creation. [CN 6] Therefore, we remain unconvinced that 2 the documents contradict each other, despite Defendant’s continued argument in favor 3 of such a reading. 4 {4} In our calendar notice, we proposed to conclude that Defendant had not met his 5 burden in demonstrating the existence of a genuine issue of material fact. [CN 5-7] 6 See Schwartzman v. Schwartzman Packing Co., 1983-NMSC-010 , ¶ 22, 99 N.M. 436 , [7] 659 P.2d 888 (“A party opposing a motion for summary judgment must make an 8 affirmative showing by affidavit or other admissible evidence that there is a genuine 9 issue of material fact once a prima facie showing is made by the movant.”). Defendant 10 did not file an affidavit or submit any evidence, aside from the argument that 11 Plaintiff’s evidence was self-contradictory, to otherwise demonstrate a genuine issue 12 of fact. [CN 5] Therefore, given our analysis of Defendant’s “impossibility” argument 13 as laid out above and in our calendar notice, we are not convinced that we erred in 14 determining that Defendant failed to meet his burden. 15 {5} Defendant also continues to argue that Plaintiff’s alleged non-compliance with 16 the federal Truth in Lending Act (TILA), 15 U.S.C. §§ 1601-1693 (2006), bars 17 Plaintiff from recovering in this case. [MIO 4-5] However, we noted in our calendar 18 notice that Defendant had not provided this Court with authority to support a theory 19 that non-compliance with TILA by a creditor bars collection on credit card debt after 20 six years have passed since the alleged violation. [CN 8] In his memorandum of [3] 1 opposition, Defendant relies on general citations to TILA and to cases that do not 2 address this specific point of law. [MIO 3-4] “[C]ases are not authority for 3 propositions not considered.” Fernandez v. Farmers Ins. Co. of Ariz., 1993-NMSC- 4 035, ¶ 15, 115 N.M. 622 , 857 P.2d 22 (internal quotation marks and citation omitted). 5 Where a party cites no authority to support an argument, we may assume no such 6 authority exists. In re Adoption of Doe, 1984-NMSC-024 , ¶ 2, 100 N.M. 764 , 676 7 P.2d 1329 . Thus, it does not appear that Defendant has satisfied his burden on appeal. 8 See Corona v. Corona, 2014-NMCA-071, ¶ 26 , 329 P.3d 701 (“The appellate court 9 presumes that the district court is correct, and the burden is on the appellant to clearly 10 demonstrate that the district court erred.”). Consequently, we are not convinced that 11 we erred in determining that Defendant’s legally insufficient argument does not defeat 12 summary judgment. [CN 8 (citing Fidelity Nat’l Bank v. Tommy L.Goff, Inc., 1978- 13 NMSC-074, ¶ 8, 92 N.M. 106 , 583 P.2d 470 )] 14 {6} Finally, Defendant continues to argue that he did not have an opportunity to 15 respond to Plaintiff’s summary judgment motion because the district court decided the 16 motion without a hearing. [MIO 5] We stated in our calendar notice that a review of 17 the record proper suggests that Defendant had sufficient opportunity to respond, and 18 indeed, did respond by filing a response to Plaintiff’s summary judgment motion. [CN 19 9] Defendant now states that “[w]hile it is true that [he] was literally allowed to submit [4] 1 written responses, there are three things which indicate that my written responses were 2 ignored[.]” [MIO 5] 3 {7} Defendant first alleges that his written response to Plaintiff’s summary 4 judgment motion was ignored because the district court made a decision that went 5 contrary to his position. [MIO 5] However, Defendant has not provided us with any 6 authority to support his argument that simply because the district court ruled against 7 him he did not have an adequate opportunity to respond or that his response was 8 ignored. Where a party cites no authority to support an argument, we may assume no 9 such authority exists. In re Adoption of Doe, 1984-NMSC-024 , ¶ 2. Secondly, 10 Defendant claims that the fact that the district court cancelled a previously scheduled 11 hearing “suggests lack of professional behavior and . . . lack of proper judgment on 12 the issues of the case[.]” [MIO 5] As we noted in our calendar notice, “[d]isposition 13 of a motion for summary judgment, without oral argument, is appropriate when the 14 opposing party has had an adequate opportunity to respond to movant’s arguments 15 through the briefing process.” Nat’l Excess Ins. Co. v. Bingham, 1987-NMCA-109 , 16 ¶ 9, 106 N.M. 325 , 742 P.2d 537 . [CN 9] Thus, without more, we are not convinced 17 that the district court acted inappropriately. Lastly, Defendant argues that the district 18 court’s “posture and disposition suggested bias for the [P]laintiff[.]” [MIO 5] We note, 19 however, that this argument was not raised in Defendant’s docketing statement, and 20 Defendant did not move to amend the docketing statement to add this issue. See Rule [5] 1 12-208(F) NMRA (permitting the amendment of the docketing statement based upon 2 good cause shown); State v. Rael, 1983-NMCA-081 , ¶¶ 15-16, 100 N.M. 193 , 668 3 P.2d 309 (setting out requirements for a successful motion to amend the docketing 4 statement). To the extent that we might construe the addition of this argument as a 5 motion to amend the docketing statement, Defendant has failed to 6 demonstrate—through his one sentence reference to bias—that he meets the 7 requirements for granting a motion to amend. Therefore, we are not convinced that we 8 were incorrect in determining that the district court did not err by ruling on the 9 summary judgment issue without first conducting a hearing. 10 {8} For these reasons, and those in our calendar notice, we affirm. 11 {9} IT IS SO ORDERED. 12 __________________________________ 13 MICHAEL E. VIGIL, Chief Judge 14 WE CONCUR: 15 _________________________________ 16 MICHAEL D. BUSTAMANTE, Judge 17 _________________________________ 18 M. MONICA ZAMORA, Judge