Los Alamos Credit Union v. Bowling
| Decision Date | 24 January 1989 |
| Docket Number | No. 17613,17613 |
| Citation | 1989 NMSC 2,767 P.2d 352,108 N.M. 113 |
| Parties | , 8 UCC Rep.Serv.2d 73 LOS ALAMOS CREDIT UNION, Plaintiff-Appellee, v. Stuart BOWLING, et ux., Defendants-Appellants. |
| Court | New Mexico Supreme Court |
Defendants-appellants, Stuart and Patricia Bowling (Bowlings), appeal the order of summary judgment in favor of plaintiff-appellee, the Los Alamos Credit Union (Credit Union) reinstating a $65,000 residential mortgage and note. We affirm.
Affidavits and supporting documents filed with Credit Union's motion for summary judgment alleged the following facts which were not disputed by the Bowlings in their response to the motion. Uncontroverted facts must be taken as true in support of a motion for summary judgment. State ex rel. Bardacke v. New Mexico Fed. Sav. & Loan Ass'n, 102 N.M. 673, 699 P.2d 604 (1985). The Bowlings borrowed $65,000 cash from Los Alamos Credit Union on September 9, 1985, and executed a promissory note and residential first mortgage as security. Payments on the note were to be made pursuant to preauthorized automatic deductions from the Bowlings' account at the Credit Union. Through clerical error involving the transfer of the payment record to another account at the Credit Union at the Bowlings' request, on September 13, 1985, an employee marked the original note and mortgage "Paid." On April 23, 1986, the assistant treasurer, acting under the mistaken belief that the Bowlings had paid the note, executed a release of mortgage and forwarded the original note, mortgage and release documents to the Bowlings. The Bowlings promptly recorded the release a week later. Credit Union discovered its error the following month when the Bowlings failed to make the May 1986 payment. Credit Union then contacted the Bowlings, advised them of the error, and requested that the note be reaffirmed and the mortgage reinstated. However, the Bowlings refused and made no further payments toward the outstanding balance of approximately $64,511.
Credit Union re-recorded the original mortgage on June 5, 1986 and a foreclosure suit followed. In their response to Credit Union's motion for summary judgment the Bowlings attached a copy of the release of mortgage and averred that a lending institution cannot avoid a release properly executed and unambiguous on its face. Upon these facts there was no error in granting Credit Union's motion for summary judgment.
Section 55-3-605 of the New Mexico Commercial code provides that a "holder of an instrument may even without consideration discharge any part...
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