Kesler v. U.S. Bank

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 PERRY A. KESLER,
3 Plaintiff-Appellant,
4 v. NO. 34,884
5 U.S. BANK, NATIONAL ASSOCIATION,
6 Defendant-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
8 Gerald E. Baca, District Judge
9 Perry A. Kesler
10 Rowe, NM
11 Pro Se Appellant
12 Keleher & McLeod, P.A.
13 Thomas C. Bird
14 Deron Knoner
15 Justin Breen
16 Albuquerque, NM
17 for Appellee
18 MEMORANDUM OPINION
19 WECHSLER, Judge.
1 {1} Plaintiff Perry A. Kesler appeals from an order granting the motion to dismiss
2 of Defendant U.S. Bank, National Association and an order denying Kesler’s motion
3 to file a supplemental pleading. The district court granted the motion to dismiss on the
4 basis that Kesler’s complaint was barred by the doctrine of res judicata. Kesler’s
5 requested supplemental pleading was in further response to U.S. Bank’s motion to
6 dismiss.
7 FACTUAL AND PROCEDURAL BACKGROUND
8 {2} In U.S. Bank, National Ass’n v. Kesler, D-412-CV-2012-00254 (Fourth Judicial
9 District Court), U.S. Bank, as assignee of a promissory note and mortgage executed
10 by Kesler, sought to foreclose on Kesler’s residential property that secured the
11 mortgage (the foreclosure action). Kesler counterclaimed, asserting in part U.S.
12 Bank’s failure to properly post mortgage payments. Kesler subsequently clarified that
13 his claim was based on the New Mexico Home Loan Protection Act (the HLPA). The
14 district court in the foreclosure action (the foreclosure court) granted U.S. Bank
15 summary judgment on U.S. Bank’s claims and Kesler’s counterclaims. Kesler
16 appealed.
17 {3} After filing his notice of appeal in the foreclosure action, Kesler brought this
18 action in district court, seeking relief from U.S. Bank for violating the HLPA by
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1 failing to accept partial payments from him. The district court granted U.S. Bank’s
2 motion to dismiss on res judicata grounds based on the foreclosure action.
3 {4} This Court has decided Kesler’s appeal in the foreclosure action. U.S. Bank v.
4 Kesler, No. 35,165, mem. op. (N.M. Ct. App. July 18, 2017) (non-precedential). We
5 determined in part that the foreclosure court erred in granting summary judgment with
6 respect to Kesler’s HLPA and related Unfair Practices Act claim. Id. ¶¶ 9, 24. We
7 remanded for the foreclosure court to address those claims. Id. ¶¶ 9, 29.
8 {5} In this appeal, Kesler argues that (1) there was a violation of the HLPA, (2) the
9 complaint in the HLPA action did not state the same cause of action as the
10 counterclaim in the foreclosure action for res judicata purposes, (3) the foreclosure
11 court’s rulings were not on the merits and not final, (4) he did not have the full and
12 fair opportunity to litigate the HLPA claims in the foreclosure action, (5) the district
13 court erred in failing to grant his motion for leave to supplement his response to the
14 motion to dismiss, (6) his HLPA claim was not a compulsory counterclaim in the
15 foreclosure action, and (7) the Legislature intended that homeowners have the right
16 to bring a separate civil action for a HLPA violation.
17 {6} Because (1) this appeal is based on the district court’s determination that the
18 summary judgment in the foreclosure action precluded this action on res judicata
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1 grounds, (2) Kesler raises only arguments pertaining to his HLPA claims in this
2 appeal, (3) the merits of Kesler’s HLPA claims have yet to be addressed and would
3 not be addressed in this appeal, and (4) we have remanded the HLPA claims to the
4 foreclosure court to address on remand, there is no longer an actual controversy to be
5 resolved in this appeal that will grant Kesler any actual relief. This appeal is therefore
6 moot. State v. Sergio B., 2002-NMCA-070, ¶ 9, 132 N.M. 375, 48 P.3d 764.
7 {7} We therefore dismiss this appeal.
8 {8} IT IS SO ORDERED.
9 ________________________________
10 JAMES J. WECHSLER, Judge
11 WE CONCUR:
12 ________________________________
13 LINDA M. VANZI, Chief Judge
14 ________________________________
15 JULIE J. VARGAS, Judge
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