{ "id": 715180, "name": "WESTERN BANK, SANTA FE, Plaintiff-Appellee, v. FLUID ASSETS DEVELOPMENT CORPORATION, Defendant, v. PHC INDUSTRIAL SUPPLY CO., INC., Defendant-Appellant", "name_abbreviation": "Western Bank v. Fluid Assets Development Corp.", "decision_date": "1991-02-28", "docket_number": "No. 17767", "first_page": "458", "last_page": "464", "citations": [ { "type": "official", "cite": "111 N.M. 458" }, { "type": "parallel", "cite": "806 P.2d 1048" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "367 N.E.2d 613", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "page": "616" } ], "opinion_index": 0 }, { "cite": "373 Mass. 316", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 324202 ], "year": 1977, "pin_cites": [ { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/mass/373/0316-01" ] }, { "cite": "133 Ariz. 378", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 735431 ], "weight": 4, "pin_cites": [ { "page": "379" }, { "page": "1204" }, { "page": "379" }, { "page": "1204" } ], "opinion_index": 0, "case_paths": [ "/ariz/133/0378-01" ] }, { "cite": "302 S.W.2d 953", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10182407 ], "pin_cites": [ { "page": "956" } ], "opinion_index": 0, "case_paths": [ "/sw2d/302/0953-01" ] }, { "cite": "7 Kan.App.2d 32", "category": "reporters:state", "reporter": "Kan. App. 2d", "case_ids": [ 384666 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "37", "parenthetical": "remedy of strict foreclosure not available when junior encumbrancer was omitted intentionally" }, { "page": "476", "parenthetical": "remedy of strict foreclosure not available when junior encumbrancer was omitted intentionally" } ], "opinion_index": 0, "case_paths": [ "/kan-app-2d/7/0032-01" ] }, { "cite": "33 N.E. 842", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1893, "opinion_index": 0 }, { "cite": "138 N.Y. 133", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 22289 ], "year": 1893, "opinion_index": 0, "case_paths": [ "/ny/138/0133-01" ] }, { "cite": "69 P.2d 23", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 47211, 47126 ], "year": 1937, "pin_cites": [ { "page": "27", "parenthetical": "court not concerned with mere right to bid, but rather right to bid under circumstances that would protect a valid lien" } ], "opinion_index": 0, "case_paths": [ "/kan/146/0127-01", "/kan/146/0171-01" ] }, { "cite": "146 Kan. 127", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 47211 ], "year": 1937, "pin_cites": [ { "page": "131", "parenthetical": "court not concerned with mere right to bid, but rather right to bid under circumstances that would protect a valid lien" } ], "opinion_index": 0, "case_paths": [ "/kan/146/0127-01" ] }, { "cite": "129 So. 690", "category": "reporters:state_regional", "reporter": "So.", "weight": 2, "year": 1930, "pin_cites": [ { "page": "693", "parenthetical": "distinguishing the opportunity to bid as one of several rights which, while not absolute, are nevertheless recognized in the junior lienholder and are necessarily lost when the lienholder is excluded from a foreclosure sale" }, { "page": "693" } ], "opinion_index": 0 }, { "cite": "100 Fla. 413", "category": "reporters:state", "reporter": "Fla.", "case_ids": [ 1298192 ], "year": 1930, "pin_cites": [ { "page": "419", "parenthetical": "distinguishing the opportunity to bid as one of several rights which, while not absolute, are nevertheless recognized in the junior lienholder and are necessarily lost when the lienholder is excluded from a foreclosure sale" } ], "opinion_index": 0, "case_paths": [ "/fla/100/0413-01" ] }, { "cite": "427 F.2d 1171", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2243255 ], "opinion_index": 0, "case_paths": [ "/f2d/427/1171-01" ] }, { "cite": "297 F.Supp. 73", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5406393 ], "pin_cites": [ { "page": "77" } ], "opinion_index": 0, "case_paths": [ "/f-supp/297/0073-01" ] }, { "cite": "107 N.M. 212", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597101 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "213" }, { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0212-01" ] }, { "cite": "92 N.M. 716", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557153 ], "weight": 6, "year": 1979, "pin_cites": [ { "parenthetical": "evidence on disputed issue in form of uncontradicted figures" }, { "parenthetical": "evidence on disputed issue in form of uncontradicted figures" }, { "page": "720" }, { "page": "1176" }, { "page": "720" }, { "page": "1176" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0716-01" ] }, { "cite": "85 N.M. 776", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2772616 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/nm/85/0776-01" ] }, { "cite": "88 N.M. 299", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2838553 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0299-01" ] }, { "cite": "80 N.M. 206", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5357094 ], "weight": 8, "year": 1969, "pin_cites": [ { "page": "208" }, { "page": "378" }, { "page": "208" }, { "page": "378" }, { "page": "210" }, { "page": "380" }, { "page": "208" }, { "page": "378", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nm/80/0206-01" ] }, { "cite": "106 N.M. 637", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 708410 ], "weight": 5, "year": 1987, "pin_cites": [ { "page": "640-41" }, { "page": "13-14" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/106/0637-01" ] }, { "cite": "75 N.M. 290", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5371791 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "294", "parenthetical": "\"Failure to find specifically upon a material point in issue must be regarded as finding such material fact against the party having the burden of proof.\"" }, { "page": "124", "parenthetical": "\"Failure to find specifically upon a material point in issue must be regarded as finding such material fact against the party having the burden of proof.\"" } ], "opinion_index": 1, "case_paths": [ "/nm/75/0290-01" ] }, { "cite": "79 N.M. 549", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2747988 ], "weight": 4, "year": 1968, "pin_cites": [ { "page": "551", "parenthetical": "refusal to make a requested finding on a material issue is a finding against the party having the burden of proof" }, { "page": "972", "parenthetical": "refusal to make a requested finding on a material issue is a finding against the party having the burden of proof" } ], "opinion_index": 1, "case_paths": [ "/nm/79/0549-01" ] }, { "cite": "107 N.M. 773", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597149 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "775", "parenthetical": "citing Gallegos v. Wilkerson, 79 N.M. 549, 445 P.2d 970 (1968)" }, { "page": "191", "parenthetical": "citing Gallegos v. Wilkerson, 79 N.M. 549, 445 P.2d 970 (1968)" } ], "opinion_index": 1, "case_paths": [ "/nm/107/0773-01" ] } ], "analysis": { "cardinality": 1017, "char_count": 23053, "ocr_confidence": 0.78, "pagerank": { "raw": 1.026178429414655e-07, "percentile": 0.5467772445420563 }, "sha256": "80ecf992d4da9c1d29513112dbb1d417ec6f337cc53297c908c48d6cda710e49", "simhash": "1:9bf2452872d5816c", "word_count": 3798 }, "last_updated": "2023-07-14T16:56:01.816679+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SOSA, C.J., and MONTGOMERY and FRANCHINI, JJ., concur.", "RANSOM, J., dissents and files opinion." ], "parties": [ "WESTERN BANK, SANTA FE, Plaintiff-Appellee, v. FLUID ASSETS DEVELOPMENT CORPORATION, Defendant, v. PHC INDUSTRIAL SUPPLY CO., INC., Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nBACA, Justice.\nOn motion for rehearing, the opinion previously filed is hereby withdrawn and the opinion filed this date is substituted therefor.\nIn this appeal we consider whether a mortgagee first lienholder can use the judicial system to enforce its rights in a foreclosure proceeding after deliberately failing to serve notice upon junior lienholders of record of its intention to hold the foreclosure sale, even though the junior lien-holders were parties to a lawsuit brought by the mortgagee and were entitled to actual notice of the sale. We hold such deliberate abuse of judicial procedure constitutes inequitable behavior and the trial court abused its discretion by granting the first lienholder foreclosure against a secondary lienholder, whom it deliberately denied a chance to participate in the foreclosure sale.\nFACTS AND PROCEDURAL HISTORY\nIn May of 1986, plaintiff-appellee Western Bank, which held a first mortgage on a condominium property of four units owned by the mortgage debtor, Fluid Assets Development Corporation (Fluid Assets), filed a complaint seeking to collect on a promissory note and to foreclose. Western Bank named Fluid Assets and seventeen other parties, including defendant-appellant PHC Industrial Supply Company (PHC), a junior lienholder. On June 6, 1986, PHC appeared generally in the action, answered Western Bank\u2019s complaint and cross-claimed against Fluid Assets.\nOn November 6, 1986, Western Bank filed a motion for default judgment against Fluid Assets and six other defendants. Partial default was entered against Fluid Assets and three other defendants on November 24, 1986. On November 25, 1986, the court entered a partial default and final judgment on the complaint, an order of foreclosure, and an order requiring appointment of a special master. Western Bank did not notify PHC of the order of foreclosure before or after its entry.\nWestern Bank published a notice of sale stating that the sale would be held in accordance with its judgment against Fluid Assets and three other defaulted defendants, but the notice said nothing about PHC and the remaining defendants, nor was PHC served with a copy of the notice. The foreclosure sale was held on January 6, 1987, with Western Bank bidding its judgment plus the costs of the sale for a total of $244,283.94. Western Bank was the only bidder and the only party at the sale. The special master\u2019s sale was confirmed by an order entered January 7, 1987, again without any indication that notice was given to PHC of the special master\u2019s report or of Western Bank\u2019s request that it be confirmed.\nOn June 22,1987, Western Bank requested a trial on the merits to foreclose on the remaining defendants. The trial was held on July 24, 1987, and the trial court issued a letter opinion on August 7, 1987. On August 20th, the court entered its findings and conclusions. The court found Western Bank entitled to foreclosure and gave all subsequent lienholders ten months in which to exercise their rights of redemption. Thereafter, on motion of PHC, the trial court set aside its judgment with respect to PHC only and re-entered judgment against PHC on April 13, 1988.\nOn appeal PHC maintains that the trial court\u2019s letter opinion recited findings in PHC\u2019s favor, but that the court granted an incorrect remedy. An extended period for redemption would not compensate PHC for being shut out of the foreclosure sale. Instead, PHC argues Western Bank\u2019s interest as mortgagee should have merged with its interest as owner when it purchased the Fluid Assets property at the foreclosure sale. PHC should now hold a first lien on the property. Western Bank responds first that the court rejected PHC\u2019s requested finding on the issue of notice, and second, that PHC suffered no loss.\nNOTICE\nThis case forces us as a threshold matter to confront a procedural conundrum: whether, in the absence of an express finding of fact by the district court, when it is apparent that the court intended to find a certain fact, and, in fact, the evidence would not allow a contrary finding, this court, in the interest of judicial economy, can adopt the finding of fact. We rule that, under certain circumstances, we can.\nThe trial court did not make an official finding of fact regarding the notice issue. It did, however, in its letter opinion to the parties dated August 7, 1987, indicate that it believed that Western Bank had intentionally failed to give PHC notice. Apparently, the failure to make the requested finding of fact was inadvertent.\nThe rules of civil procedure for the district courts are clear that the trial court\u2019s formal findings represent the court\u2019s official decision. SCRA 1986, 1-052(B)(1)(g); see Ulibarri v. Gee, 106 N.M. 637, 748 P.2d 10 (1987). Those are the findings and conclusions to which our review is to be directed. Springer Corp. v. Kirkeby-Natus, 80 N.M. 206, 208, 453 P.2d 376, 378 (1969). Accordingly, any conflict between the trial court\u2019s letter of August 7, 1987, and its findings, conclusions, and judgment of August 20 must be resolved in favor of the latter. Moreover, it is a well-settled principle of appellate procedure that an appellate court will not reweigh evidence or determine facts anew, Duke City Lumber Co. v. Terrel, 88 N.M. 299, 540 P.2d 229 (1975); Watson Land Co. v. Lucero, 85 N.M. 776, 517 P.2d 1302 (1974), although, under certain circumstances, an appellate court may be in a position to evaluate the weight of the evidence. See Corley v. Corley, 92 N.M. 716, 594 P.2d 1172 (1979) (evidence on disputed issue in form of uncontradicted figures).\nOur review of the record compels us to hold that the district court erred when it failed to adopt PHC\u2019s requested finding that it had no notice of the foreclosure sale. The documents in the court file and Western Bank\u2019s own testimony at the June 24th hearing amply support the conclusion that the bank intentionally failed to serve notice of the foreclosure action. When asked why the bank failed to give PHC notice, Western Bank\u2019s officer responded that it may have been trying to foreclose hastily because a principal shareholder of Fluid Assets had recently declared bankruptcy, and the bank was concerned that Fluid Assets might also seek similar protection. This appears to be an admission of deliberate behavior. Furthermore, at the hearing the bank presented no evidence of mistake or clerical error. Instead, there is only the evidence that Western Bank formally notified some defendants and not others of the foreclosure hearing. Finally, when Western Bank published notice of the foreclosure sale to fulfill the constructive notice requirements of NMSA 1978, Section 39-5-1, it again evidenced its intention to foreclose only upon selected defendants. In reciting the rights affected, Western made no mention of a number of defendant lienholders, including PHC. The district court erred when it failed to find that Western Bank deliberately failed to serve notice on PHC of an impending foreclosure sale. As in Corley, error is predicated on failure to make a requested \u201cfinding of fact which is abundantly supported by uncontradicted testimony.\u201d 92 N.M. at 720, 594 P.2d at 1176. In the interests of judicial economy, we find on appeal that Western Bank failed to serve PHC with the appropriate notice and that this omission was deliberate.\nRelying on Production Credit Association v. Williamson, 107 N.M. 212, 755 P.2d 56 (1988), Western Bank intimates that even if it failed to serve notice on PHC, the notice by publication satisfies the statutory scheme. In Williamson, this court found a mortgagee\u2019s failure to serve notice on a mortgagor of the date of a foreclosure sale was not improper, although it did violate Supreme Court Rule 1-005 that requires all motions be served on parties to a lawsuit. The court determined there had been correct notice by publication according to NMSA 1978, Section 39-5-1, and the specific statute for notice of a foreclosure sale must prevail over the more general requirements of procedural notice in a lawsuit. Williamson, 107 N.M. at 213, 755 P.2d at 57. In Williamson, however, the mortgagor had approved the trial court\u2019s judgment and decree of foreclosure. In this case, PHC was served notice of neither the actual sale nor the order of foreclosure. While Williamson endorses notice by publication of the actual sale, it does not address the issue here \u2014 a separate and prior violation of Rule 1-005 for failure to serve notice of the judgment and order for foreclosure. The consequences of a failure to abide by Rule 1-005\u2019s requirement that motions be served on all parties to a lawsuit depend upon the nature of the paper involved. 4A C. Wright & A. Miller, Federal Practice and Procedure 2d \u00a7 1143 (1987). Courts have considered whether a failure to serve a particular motion is material in affecting the unnoticed party\u2019s rights. See Securities & Exchange Comm\u2019n v. Arkansas Loan & Thrift Corp., 297 F.Supp. 73, 77 (W.D.Ark.1969), affd on other grounds, 427 F.2d 1171 (8th Cir.1970). Here, Western Bank\u2019s failure to serve PHC its motion for default and foreclosure within a lawsuit to which PHC was a party caused PHC to lose the opportunity to attend or prepare for the foreclosure sale. See Quinn Plumbing Co. v. New Miami Shores Corp., 100 Fla. 413, 419, 129 So. 690, 693 (1930) (distinguishing the opportunity to bid as one of several rights which, while not absolute, are nevertheless recognized in the junior lienholder and are necessarily lost when the lienholder is excluded from a foreclosure sale); see also Motor Equip. Co. v. Winters, 146 Kan. 127, 131, 69 P.2d 23, 27 (1937) (court not concerned with mere right to bid, but rather right to bid under circumstances that would protect a valid lien).\nRIGHTS OF JUNIOR LIENHOLDERS AFTER A DEFECTIVE FORECLOSURE\nIt is a black letter proposition that a foreclosure sale is effective only against those lienholders who are given notice. Springer, 80 N.M. at 208, 453 P.2d at 378. In Springer, the junior lienholder, who held a mortgage on only a part of the total land on which the senior lienholder held a mortgage, wanted to redeem pro tanto, paying only a proportion of the senior lien-holder\u2019s mortgage. This court held that the junior must pay the entire first mortgage, because its rights were neither \u201cenlarged nor dimished by [a] defective foreclosure.\u201d Id. at 210, 453 P.2d at 380.\nWestern Bank cites Springer as authority for its argument that regardless of the notice issue, PHC\u2019s only right as a junior lienholder was redemption. Springer, however, contemplated additional rights: \u201cThus, the failure to join Springer as a junior lien holder, left its rights, including its equity of redemption, unaffected and unimpaired.\u201d Id. at 208, 453 P.2d at 378 (emphasis added). In addition, in Springer the failure to notice the junior lienholder was unintentional \u2014 a result of a third party\u2019s error. Were we to extend Springer\u2019s holding to the circumstance of intentional failure to notify a junior lienholder, then we would endorse Western Bank\u2019s behavior as the norm. Whenever a bank might wish for a speedy foreclosure, it could target some parties for the sale and leave the rest for a later action. Surely the effects of such a holding would be highly prejudicial when the junior lienholders together might hold more equity than the senior, or when the property\u2019s value might be at issue.\nIn Moulton v. Cornish, 138 N.Y. 133, 33 N.E. 842 (1893), a New York court faced with the problem of deliberate exclusion of a junior lienholder first discussed the history of a mortgagee\u2019s right to foreclosure. The right stemmed from contract and was immediate and absolute upon default. To mitigate the harshness of these legal procedures, equity gave the debtor a right to redeem his property by discharging the debt. Since this right to redemption clouded the now-in-possession mortgagee\u2019s right to sell the property, equity would allow an action by the mortgagee to compel the debtor to exercise his right or forever be barred. In Moulton, the court concluded that the first lienholder could not compel redemption in strict foreclosure, but must instead go through a second foreclosure sale.\nOther courts, faced with the problem of an un intentionally excluded second lien-holder, have discussed the problem of intentional exclusion. See McGraw v. Premium Fin. Co. of Missouri, 7 Kan.App.2d 32, 37, 637 P.2d 472, 476 (1981) (remedy of strict foreclosure not available when junior encumbrancer was omitted intentionally); Chandler v. Orgain, 302 S.W.2d 953, 956 (Tex.Civ.App.1957) (when obligor has duty to notify junior lienholder and fails to do so, obligor may become personally liable).\nCourts have also viewed the problem of a request for reforeclosure against an omitted junior lienholder as a request to the court to exercise its equitable discretion to relieve the purchaser at a defective foreclosure. See Deming Nat\u2019l Bank v. Walraven, 133 Ariz. 378, 379, 651 P.2d 1203, 1204 (Ct.App.1982) (court speaks of \u201callowing a subsequent reforeclosure\u201d). Finally, courts have held that the mortgagee, in exercising a power of sale by foreclosure, must act in good faith, not only for the benefit of the mortgagor, but also for the subsequent lienholders. Seppala & Aho Constr. Co. v. Petersen, 373 Mass. 316, 321, 367 N.E.2d 613, 616 (1977).\nTaking these principles together, we first suggest what our approach would be to an unintentional failure to include a junior lienholder, and then we apply these principles to the facts here of an intentional omission. Our reasons for this are twofold: the usual case in this area addresses unintentional omission, and many fact patterns will fall beneath that rubric; and the remedy for unintentional omission establishes the baseline of a junior lienholder\u2019s rights and puts the remedy for an intentional omission in the correct perspective.\nWhen the mortgagee inadvertently fails to notify a junior lienholder, the mortgagee\u2019s equitable rights are not diminished and he or she may reforeclose on the junior. By \u201creforeclose\u201d we mean that, in the trial court\u2019s discretion, the judgment may operate to extinguish the junior lien, with only the right to redeem remaining in the junior lienor, or in a proper case, the senior lienor may be required to conduct a new foreclosure sale at which any junior lienors will be entitled to bid. The omitted junior lien-holder, however, should suffer no burden that did not exist at the time of the foreclosure sale to which he or she was entitled notice. The remedy for an inadvertent mistake is the fixing in time of all parties\u2019 rights. If Western Bank had not given notice through inadvertence or third-party error, the bank would have been entitled to require PHC to redeem or be foreclosed, but the junior lienholder could not be compelled to pay the costs or expenses of the defective foreclosure. The amount to be paid would have been determined by the mortgage debt, Quinn, 129 So. 690, 693, fixed at the time of the foreclosure sale, when the mortgagee would have gained the benefits of occupation. No mortgage or statutory interest could be added to the cost of the redemption from that date.\nIn this case, however, Western Bank intentionally failed to notify a number of junior lienholders. In this regard we find compelling the Arizona Court of Appeals\u2019 logic in Deming, 133 Ariz. at 379, 651 P.2d at 1204, and hold that Western Bank\u2019s request that PHC\u2019s lien be declared foreclosed by the previously entered judgment was equitable in nature. Here, Western Bank made no showing of excuse or inadvertence; its behavior was inequitable. Western Bank may not, therefore, have the advantage of the court\u2019s equitable powers. We remand to the district court to reinstate PHC\u2019s judgment lien that was unaffected by the defective foreclosure and unaffected by Western Bank\u2019s subsequent attempt to have PHC\u2019s lien declared foreclosed by virtue of the previous foreclosure decree and sale.\nIT IS SO ORDERED.\nSOSA, C.J., and MONTGOMERY and FRANCHINI, JJ., concur.\nRANSOM, J., dissents and files opinion.\n. In Corley, we found that when a finding is requested, the trial court has committed error when it has refused \"to make a finding of fact which is abundantly supported by uncontradicted testimony.\" 92 N.M. at 720, 594 P.2d at 1176.\n. In Ulibarri, 106 N.M. at 640-41, 748 P.2d at 13-14, we faced a similar procedural problem. In that case, the trial court made no express findings of fact on an issue, yet made comments from the bench that demonstrated its views. We stated:\nIn no event * * * may court comments from the bench be substituted for material facts appearing as findings in the decision. It is in this sense that SCRA 1986, 1 \u2014 052(B)(1)(g) provides that findings and conclusions appearing outside the single document decision will be disregarded. Such comments may be utilized only as an aid in understanding a decision of the court which is ambiguous.\nAlthough we recognize that, without reference to the bench remarks of the trial court, the findings of fact and conclusions of law are in conflict, we are persuaded that [the disputed fact as found in the bench remarks] is well within the bounds of testimony * * * * The bench remarks make clear why the court concluded the adjustments were required. We do not believe a remand for correction of the findings would result in a different award. Judicial economy must be considered when we contemplate remand for a merely ministerial or pro forma act.\nId. (citations omitted).", "type": "majority", "author": "BACA, Justice." }, { "text": "RANSOM, Justice\n(dissenting).\nI respectfully dissent. This Court today holds when a senior mortgagee obtains a default judgment of foreclosure against the mortgagor and bids in the property at foreclosure sale for the amount of indebtedness, all without actual notice to a junior lienholder who is a party to the collection and foreclosure action, the mortgagee is not entitled to a subsequent foreclosure of the junior lien if the failure to give actual notice of the foreclosure judgment and sale was deliberate and intentional. By \u201cdeliberate and intentional,\u201d I understand the Court to mean deliberate behavior in bad faith. I likely could affirm such a remedy if fashioned by the trial court in equity based upon the premise of bad faith. In fact, the mortgagee here agrees. However, I do not believe we reach that question. The premise of bad faith has not been established.\nThe majority holds that, \u201cin the absence of an express finding of fact by the district court, when it is apparent that the court intended to find a certain fact, and, in fact, the evidence would not allow a contrary finding, this court, in the interest of judicial economy, can adopt the finding of fact.\u201d Then, \u201cIn the interests of judicial economy, [the majority finds] on appeal that Western Bank failed to serve PHC with the appropriate notice and that this omission was deliberate.\u201d\nI do not believe it apparent that the trial court intended to find bad faith. The court commented from the bench, seemingly to correct a statement to the contrary, \u201cthat there was an omission, that is clear and I don\u2019t think on this record we can say that we have plumbed the depths of the intent.\u2019\u2019 What the court actually said in its letter of August 7, 1987, is: \u201cWhether or not failure to give such notice renders the foreclosure \u2018defective\u2019 I do not pass on____ [T]he failure to give such notice denies [junior lienholders] the opportunity to participate in the bidding process____ It is true that deliberate conduct so calculated carries with it certain possible recourse. No malintention is attributed * * * * \u201d\nThe court specifically refused a finding requested by PHC that the failure to give notice \u201cwas deliberately and intentionally done by [the bank].\u201d Clearly, failure of the trial court to find as requested is treated as a finding against the party asserting the affirmative. Landskroner v. McClure, 107 N.M. 773, 775, 765 P.2d 189, 191 (1988) (citing Gallegos v. Wilkerson, 79 N.M. 549, 445 P.2d 970 (1968)). Landskroner is the most recent in a long line of cases on this issue. E.g., Gallegos v. Wilkerson, 79 N.M. 549, 551, 445 P.2d 970, 972 (1968) (refusal to make a requested finding on a material issue is a finding against the party having the burden of proof); J.A. Silversmith, Inc. v. Marchiondo, 75 N.M. 290, 294, 404 P.2d 122, 124 (1965) (\u201cFailure to find specifically upon a material point in issue must be regarded as finding such material fact against the party having the burden of proof.\u201d). The significance of this rule is to satisfy the requirement that the court must make findings on ultimate facts. See NMSA 1986, 1-052(B)(1)(b). Refusal to find the deliberate failure to give notice is simply a finding that PHC, the party asserting the affirmative, did not prove that assertion.\nFinally, I disagree that the evidence would not allow a finding contrary to the fact of bad faith. The bank\u2019s vice-president was the only witness to testify at trial and, when asked why the bank proceeded with the judicial sale without first obtaining a judgment of foreclosure against junior lienholders, the witness responded that the principal individual involved in the mortgagor corporation had recently filed bankruptcy and it was thought the mortgagor might seek bankruptcy, resulting in prolonged foreclosure litigation. PHC\u2019s attomey specifically asked the vice-president if he knew whether notice had been sent, to which the vice-president replied, \u201cTo my best information and belief, that particular issue was handled by our attorneys.\u201d The bank\u2019s attorney informed the court that he did not know whether notice had been sent because his partner who handled the proceedings earlier was out of the country. The attorney did inform the trial court that he had discussed the notice issue with several of the other attorneys involved in the case and that at least some had received notice. The notice of sale in the court file had no certificate of service.\nIn a brief filed by the bank, it agrees that, if it or its attorneys deliberately failed to send notice of the foreclosure sale to PHC, then the bank should not be allowed to foreclose PHC\u2019s lien interests. The bank\u2019s attorneys, including the one handling the earlier proceedings who had been out of the country at the time of trial, as officers of this Court, specifically represent by their signatures to their brief that \u201cthere was no deliberate or intentional failure to give notice of the judicial sale.\u201d\nGiven the above, I would conclude that this Court cannot find, or imply, as the basic premise for its rationale and opinion today, that the bank acted with deliberateness or bad faith.", "type": "dissent", "author": "RANSOM, Justice" } ], "attorneys": [ "Thomas F. McKenna, Albuquerque, for defendant-appellant.", "Sommer, Udall & Hardwick, P.A., Jack N. Hardwick, Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "806 P.2d 1048\nWESTERN BANK, SANTA FE, Plaintiff-Appellee, v. FLUID ASSETS DEVELOPMENT CORPORATION, Defendant, v. PHC INDUSTRIAL SUPPLY CO., INC., Defendant-Appellant.\nNo. 17767.\nSupreme Court of New Mexico.\nFeb. 28, 1991.\nThomas F. McKenna, Albuquerque, for defendant-appellant.\nSommer, Udall & Hardwick, P.A., Jack N. Hardwick, Santa Fe, for plaintiff-appellee." }, "file_name": "0458-01", "first_page_order": 490, "last_page_order": 496 }