BOKF, N.A. v. Gonzalez ( 2017 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 BOKF, N.A., A NATIONAL BANKING
3 ASSOCIATION D/B/A BANK OF OKLAHOMA,
4 AS SUCCESSOR IN INTEREST BY MERGER
5 TO BANK OF ALBUQUERQUE, N.A.,
6 Plaintiff-Appellee,
7 v. No. 35,691
8 HECTOR L. GONZALEZ, JR., A
9 MARRIED MAN AS HIS SOLE AND
10 SEPARATE PROPERTY,
11 Defendant-Appellant,
12 and
13 OCCUPANTS OF THE PROPERTY,
14 Defendants.
15 APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY
16 Emilio J. Chavez, District Judge
17 McCarthy Holthus, LLP
18 Karen Howden Weaver
19 Joshua T. Chappell
20 Albuquerque, NM
21 for Appellee
1 Hector L. Gonzalez, Jr.
2 Raton, NM
3 Pro Se Appellant
4 MEMORANDUM OPINION
5 ZAMORA, Judge.
6 {1} Defendant Hector L. Gonzalez, Jr., appeals, pro se, from a district court
7 foreclosure judgment. We issued a calendar notice proposing to affirm. Defendant has
8 responded with a memorandum in opposition. We affirm the district court judgment.
9 {2} Defendant appeals from a judgment of foreclosure. We have construed his
10 issues as follows. First, Defendant claims that Plaintiff lacked standing. Defendant is
11 correct that under recent cases decided by our Supreme Court and this Court, an entity
12 wishing to foreclose on a mortgage must establish that at the time the foreclosure
13 action is filed the entity had the right to enforce the promissory note underlying the
14 mortgage, as well as ownership of the mortgage lien on the property. See, e.g.,
15 Deutsche Bank Nat’l Trust Co. v. Johnston, 2016-NMSC-013, ¶ 23, 369 P.3d 1046.
16 One way to show the right to enforce the promissory note is to attach a copy of the
17 note bearing appropriate indorsements to the complaint. See id. In this case, Plaintiff
18 attached a note, indorsed in blank, to its complaint. [RP 13] Both the referenced note
19 and the mortgage were attached to the complaint. [RP 13, 16] As such, Plaintiff
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1 established that it had standing. See Bank of N.Y. v. Romero, 2014-NMSC-007, ¶ 26,
2 320 P.3d 1 (“[The] blank indorsement . . . established the [b]ank as a holder because
3 the [b]ank [was] in possession of bearer paper[.]”). Because Plaintiff was in
4 possession of the note at the commencement of the case and the note was indorsed in
5 blank, the district court correctly determined that Plaintiff was the holder of the note
6 and entitled to enforce it. See NMSA 1978, § 55-3-104(a) (1992) (stating that a
7 promissory note can be enforced by the holder of the instrument); NMSA 1978, § 55-
8 1-201(b)(21)(A) (2005) (stating that the holder of the instrument is “the person in
9 possession of a negotiable instrument that is payable either to bearer [(in blank)] or
10 to an identified person that is the person in possession”).
11 {3} Defendant also has argued that Mortgage Electronic Registration Systems, Inc.
12 (MERS) lacked authority to convey title to Plaintiff because it was a robo-signer and
13 a mere nominal possessor of the mortgage. Both our Supreme Court and this Court
14 have already expressly ruled that MERS, as nominee for a lender, can assign the
15 mortgage on behalf of such lender. See Romero, 2014-NMSC-007, ¶ 35, (stating that
16 “[a]s a nominee for [the original lender] on the mortgage contract, MERS could assign
17 the mortgage”); Flagstar Bank, FSB v. Licha, 2015-NMCA-086, ¶ 17, 356 P.3d 110218 (reiterating that “where MERS’ role was that of a nominee for [the l]ender and [the
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1 l]ender’s successors and assigns, MERS could assign the mortgage” (alteration,
2 omissions, internal quotation marks, and citation omitted)), abrogation recognized on
3 other grounds by PNC Mortg. v. Romero, 2016-NMCA-064, 377 P.3d 461.
4 {4} Finally, Defendant has argued that Plaintiff’s conduct leading up to the
5 litigation amounted to a violation of consumer protection laws. Defendant attempted
6 to raise these allegations in a counterclaim. [RP 143] As observed in Plaintiff’s motion
7 to strike the counterclaim [RP 175], the counterclaim was filed late. As such, the
8 district court was within its discretion in striking the counterclaim [RP 239], and
9 therefore the merits of the counterclaim are not properly before us.
10 {5} For the reasons set forth above, we affirm.
11 {6} IT IS SO ORDERED.
12
13 M. MONICA ZAMORA, Judge
14 WE CONCUR:
15
16 LINDA M. VANZI, Chief Judge
17
18 HENRY M. BOHNHOFF, Judge
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