Fleet Mortg. Corp. v. Schuster
| Decision Date | 06 May 1991 |
| Docket Number | No. 19273,19273 |
| Citation | 1991 NMSC 46,811 P.2d 81,112 N.M. 48 |
| Parties | FLEET MORTGAGE CORP., Plaintiff-Appellee, v. Pamela C. SCHUSTER, Defendant-Appellant, and Ronald A. Schuster, Defendant. |
| Court | New Mexico Supreme Court |
Fleet Mortgage Corporation (Fleet) filed a complaint for foreclosure on November 14, 1988, based upon a note and mortgage given by defendants Ronald and Pamela Schuster to International State Bank that was subsequently assigned to Fleet. Both Schusters counterclaimed against Fleet, alleging that Fleet had agreed to accept a deed in lieu of foreclosure, that Ronald had delivered said deed, and that the actions of the parties constituted a complete discharge of the defendants from any further liability to Fleet. The Schusters claimed damages arising from the alleged breach of the agreement. Following discovery, Fleet and Ronald entered into a stipulation, subject to VA approval, that Fleet would accept a deed in lieu of foreclosure from Ronald, and, additionally, Ronald would execute a new promissory note to the VA, which was done. Thereafter, the VA approved the transaction, and Fleet and Ron Schuster entered into a stipulation of dismissal filed on December 12, 1982, by which Fleet released both Ronald and Pamela Schuster, and Ronald released Fleet. Pamela appeals from the trial court's order granting summary judgment against her on all of her counterclaims. Pamela now contends that there are material issues of fact in her six specifically identified and enumerated causes of action. The causes of action set out in the counterclaim sound in tort and contract. Additionally, Pamela contends that the pleadings and evidence support a negligent misrepresentation claim. We disagree and affirm.
The Schusters had both signed the promissory note secured by a mortgage on a house in Colfax County. The Schusters defaulted on the note payment due April 1, 1988. The Schusters divorced on September 7, 1988. The court awarded the mortgaged property to Ronald, and he was required to pay the note and to indemnify and hold Pamela harmless thereon. Ronald obtained a quitclaim deed from Pamela as part of the documents requested by Fleet. What legal significance, if any, is attached to the giving of the quitclaim deed by Pamela forms the basis of this appeal.
Summary judgment is appropriate if no genuine issue as to any material fact exists, so that the movant is entitled to judgment as a matter of law. State v. Integon Indem. Corp., 105 N.M. 611, 612, 735 P.2d 528, 529 (1987); SCRA 1986, 1-056(C). Pamela's claims are based upon her either being a party to or a third-party beneficiary of the "agreement" between Fleet and Ronald to take a deed in lieu of foreclosure. We find that Pamela was neither. The "agreement" at issue was an accord. An accord is "an executory agreement to settle a claim." Western Bank v. Biava, 109 N.M. 550, 551, 787 P.2d 830, 831 (1990). Pamela was not a party to the accord. She no longer had an interest in the property that was subject to the accord. The divorce decree entered September 7, 1988, awarded the property to Ronald, and he was required to pay the note and to indemnify and hold Pamela harmless. Pamela contends that while she may not have been a named party to the accord, the agreement did call for her to execute and deliver the quitclaim deed. The issuing of the quitclaim deed was a ministerial act required by the court judgment and decree to carry out the judge's order. A ministerial act is:
One which a person or board performs in a given state of facts in a prescribed manner in obedience to the mandate of legal authority without regard to or the exercise of his or their own judgment upon the propriety of the act being done.
Black's Law Dictionary 889 (5th ed. 1979). Furthermore, there was no need for Pamela to execute a quitclaim deed since the court could have proceeded pursuant to SCRA 1986,1-070, which states in relevant part:
If real or personal property is within the state, the court in lieu of directing a conveyance thereof may enter a judgment divesting the title of any party and vesting it in others and such judgment has the effect of a conveyance executed in due form of law.
Finally, Pamela did in fact execute the quitclaim deed. This act did not make her a party to the accord.
It is a general rule of law that one who is not a party to a contract cannot maintain suit upon it. Staley v. New, 56 N.M. 756, 250 P.2d 893 (1952). Pamela, therefore, contends that...
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State ex rel. Balderas v. Real Estate Law Ctr., P.C., CIV 17-0251 JB\LF
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