Century Bank v. Hymans
| Decision Date | 01 August 1995 |
| Docket Number | No. 16438,16438 |
| Citation | 120 N.M. 684,1995 NMCA 95,905 P.2d 722 |
| Parties | CENTURY BANK, a Federal Savings Bank, Plaintiff-Appellee, v. Stewart HYMANS and Dana Lesnett, Defendants-Appellants. |
| Court | Court of Appeals of New Mexico |
After paying a judgment to avoid a foreclosure sale, Stewart Hymans decided that he had paid more than what was required by the judgment. He sought relief by a motion filed in the same proceeding in which the judgment had been entered. The district court denied the motion and Hymans appeals. His appeal requires us not only to construe the judgment but also to determine whether Hymans followed proper procedure in pursuing relief. We hold that Hymans' motion was authorized by SCRA 1986, 1-060(A) (Repl.1992); the motion was timely; his notice of appeal was timely; and he is entitled to restitution for any overpayment.
Hymans and Dana Lesnett defaulted on a promissory note (the Note) to Century Bank (the Bank). The Note was secured by a mortgage to the Bank. After filing suit on January 25, 1991, the Bank obtained a summary judgment against Hymans and Lesnett and a foreclosure decree. On November 10, 1992, the day before the foreclosure sale was scheduled, Hymans paid the Bank $260,971.13. Two weeks later the Bank filed a satisfaction of judgment.
On December 11, 1992 Hymans wrote the Bank to request an itemization of the principal, legal fees, costs, and interest that he had paid to obtain the satisfaction of judgment. After an exchange of correspondence, the Bank paid Hymans a refund of $142.26 on February 9, 1993. Six days later Hymans filed in district court a pleading entitled "Motion to Modify Summary Judgement." The motion requested the court to (1) determine the amounts owed the Bank under the terms of the Note, (2) find that the Bank waived certain late charges after it obtained the judgment, (3) determine the amount paid to the Bank on November 10, 1992, (4) modify the judgment to take the above matters into account and order the Bank to return to Hymans and Lesnett any excess amounts they had paid, and (5) find that the Bank had violated the New Mexico Bank Installment Loan Act, NMSA 1978, §§ 58-7-1 to -9 (Repl.Pamp.1991), and provide Hymans and Lesnett relief under that act. On March 2, 1993 Hymans amended his motion to add a request for relief under the National Bank Act, 12 U.S.C.A. §§ 21-86 (West 1989), and the New Mexico Residential Home Loan Act, NMSA 1978, §§ 56-8-22 to -30 (Repl.1986). His memorandum in support of his motion also relied on state usury and disclosure laws, NMSA 1978, §§ 56-8-11.1, -11.2, and-11.3 (Repl.1986). After an evidentiary hearing the district court denied Hymans' motion on November 14, 1994, stating that it found "no facts which would justify a modification of the Summary Judgment or a determination that the [Bank] failed to comply with the terms of the judgment in obtaining payment from Defendant Hymans." Hymans filed his notice of appeal on December 14, 1994.
Hymans asserts on appeal that the district court erred in approving the Bank's calculations of attorney's fees and interest and in failing to impose a sanction on the Bank pursuant to state usury and disclosure laws. With respect to attorney's fees, the Bank concedes that it erroneously double billed Hymans $510.19, and Hymans' briefs fail to point to any other error in the calculation of fees, so we need not address that matter further.
We also need not address Hymans' claims under the usury and disclosure laws. He asserts that the Bank violated Sections 56-8-11.1, -11.2, and -11.3 in calculating the amount owed on the judgment and informing him of the amount owed. Those statutory provisions, however, were repealed effective June 14, 1991, more than a year before the conduct of which he complains. Absent a saving clause to the contrary, a statute does not ordinarily govern conduct occurring after the statute's repeal. See Rodgers v. City of Loving, 91 N.M. 306, 308, 573 P.2d 240, 242 (Ct.App.1977). We recognize that a legislative enactment (including an enactment that repeals earlier laws) cannot be applied to a "pending" case, N.M. Const. art. IV, § 34, but a case is no longer "pending" once a final judgment is filed. See Stockard v. Hamilton, 25 N.M. 240, 244-45, 180 P. 294, 295 (1919). Thus, even though the repeal occurred after the Bank's complaint was filed, our Constitution does not require that the repealed provisions govern matters arising after final judgment. See id. (garnishment provisions enacted after final judgment apply to subsequent garnishment proceeding); Church's Fried Chicken No. 1040 v. Hanson, 114 N.M. 730, 732-33, 845 P.2d 824, 826-27 (Ct.App.1992), cert. denied, 114 N.M. 577, 844 P.2d 827 (1993). The repealed provisions could not afford Hymans any relief.
That leaves for our consideration only the calculation of interest. Before we can resolve that matter, however, we must confront procedural issues raised by the Bank. The Bank contends that Hymans' district court motion was untimely and so was his notice of appeal.
Hymans' plea is that he overpaid the Bank to stop the foreclosure sale and now he is entitled to refund of the excess. He states a proper claim for restitution. See Restatement of Restitution § 20 (1936); Reynolds v. Slaughter, 541 F.2d 254 (10th Cir.1976); Best v. Best, 470 N.E.2d 84, 88 (Ind.Ct.App.1984). Hymans might have sought identical relief by filing an independent action, but instead he proceeded by motion in the same proceeding in which the judgment against him had been entered.
Although the parties have not cited, and we have not found, any reported case in which a plaintiff has sought restitution predicated on overpayment of a valid judgment, we have found authority for obtaining restitution by motion in similar circumstances. When a party pays a judgment and the judgment is then reversed or modified on appeal or by post-judgment order, the payor can obtain restitution without bringing a new action; it may move the trial or appellate court for relief, or the court may grant relief on its own initiative. See Caldwell v. Puget Sound Elec. Apprenticeship & Training Trust, 824 F.2d 765, 767 (9th Cir.1987); Restatement of Restitution § 74 cmt. a (1936). We infer from this authority that if a court has jurisdiction to determine that a party has overpaid a judgment, the court has ancillary jurisdiction to order restitutionary relief. Thus, the question becomes whether Hymans filed a proper, timely motion requesting the district court to determine that he had overpaid the judgment debt.
The Bank contends that Hymans' motion was untimely and, even if the motion was timely, his notice of appeal was untimely. It asserts that Hymans' post-payment motion was governed by NMSA 1978, Section 39-1-1 (Repl.Pamp.1991). Under that section, motions directed against a judgment must be filed within 30 days after entry of the judgment; also, if the district court fails to rule upon the motion within 30 days of its filing, the failure to rule is deemed a denial of the motion. See id. The Bank concludes that the very latest a motion pursuant to Section 39-1-1 could have been filed was 30 days after the filing of the satisfaction of judgment on November 14, 1992. If the Bank is correct on this point, then Hymans' motion in February 1993 was untimely. In addition, the Bank contends that even if the motion was timely, it was deemed denied 30 days after it was filed because the district court had not by that time acted on the motion. Hymans' notice of appeal should then have been filed within 30 days after the motion was deemed denied. This date would have been in April 1993, 20 months before the notice of appeal was actually filed. We disagree with the Bank's analysis.
Regardless of the time limitations imposed by Section 39-1-1, Hymans' motion was timely. For reasons we will set forth shortly, we can consider the motion, or at least the portions of the motion pertinent to the calculation of interest, as having been brought pursuant to Rule 1-060. If the motion was of a type authorized by both Section 39-1-1 () and Rule 1-060, the district court could consider the motion if it was timely under Rule 1-060 even if it was not timely under Section 39-1-1. See Archuleta v. New Mexico State Police, 108 N.M. 543, 547, 775 P.2d 745, 749 (Ct.App.), cert. denied, 108 N.M. 384, 772 P.2d 1307 (1989).1 The movant need not cite the provision authorizing the motion; the substance of the motion, not its title, controls. See Phelps Dodge Corp. v. Guerra, 92 N.M. 47, 50, 582 P.2d 819, 822 (1978) (). In particular, it was not necessary that Hymans' motion cite Rule 1-060, although we observe that on March 2, 1993, approximately two weeks after Hymans filed his motion, he filed a motion to amend which stated that relief was being sought in part pursuant to " 'Paragraph B of Rule 1-060.' "
To begin the analysis of whether, and to what extent, Hymans' motion was governed by Rule 1-060, we summarize the portions of his motion relating to the computation of interest on the judgment. The judgment states that interest will "continu[e] to accrue in the amount of $56.08 per day from March 15, 1991, until paid or adjusted under the terms of the Note." Hymans appears to raise two challenges to the computation. His first contention is that the daily accrual rate of $56.08 is incorrect, because it is based on an annual interest rate of 10.35%, rather than the 10.25% rate set forth in the court's judgment. His second contention is that the Bank's computation did not include the required adjustment "under the terms of the Note."
Rule 1-060, which is substantially identical to Federal Rule of Civil Procedure 60 ...
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