Deutsche Bank v. Riordan ( 2017 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 DEUTSCHE BANK NATIONAL TRUST
3 COMPANY, AS TRUSTEE
4 FOR SOUNDVIEW HOME LOAN TRUST 2006
5 EQ ASSET-BACKED CERTIFICATES,
6 SERIES 2006-EQ2,
7
8 Plaintiff-Appellee,
9 v. No. A-1-CA-36260
10 REBECCA M. RIORDAN,
11 Defendant-Appellant,
12 and
13 DISCOVER BANK,
14 Defendant.
15 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
16 David K. Thomson, District Judge
17 Johnson Law Firm
18 Thomas Johnson
19 Albuquerque, NM
20 for Appellee
21 Gleason Law Firm, LLC
1 Deirdre Gleason
2 Heath, MA
3 for Appellant
4 MEMORANDUM OPINION
5 GARCIA, Judge.
6 {1} Defendant-Appellant Rebecca Riordan (Defendant) appeals from the district
7 court’s order denying her motion for summary judgment premised on lack of standing
8 and granting Plaintiff-Appellee Deutsche Bank National Trust’s (the Bank) motion for
9 summary judgment. We previously issued a notice of proposed summary disposition
10 in which we proposed to affirm. Defendant has filed a memorandum in opposition.
11 After due consideration, we remain unpersuaded. We therefore affirm.
12 {2} The pertinent background information was set forth in the notice of proposed
13 summary disposition. We will avoid undue repetition here, and focus instead on the
14 content of the memorandum in opposition.
15 {3} In the memorandum in opposition, Defendant argues that the Bank failed to
16 prove it had standing to foreclose because it provided no evidence that the
17 indorsement on the promissory note was a blank indorsement as opposed to an
18 anomalous indorsement. [MIO 7-13] See NMSA 1978, Section 55-3-205(b) (1992)
19 (“If an indorsement is made by the holder of an instrument and it is not a special
20 indorsement, it is a ‘blank indorsement.’ ”) (emphasis added); Section 55-3-205(d) (“
2
1 ‘Anomalous indorsement’ means an indorsement made by a person who is not the
2 holder of the instrument.”) (emphasis added). Defendant asserts that the Bank was
3 required to provide some evidence that the original lender had not lost its status as
4 “holder” of the promissory note at the time the undated indorsement was made. [MIO
5 9-10] See NMSA 1978, Section 55-1-201(b)(21)(A) (2005) (“ ‘[H]older’ means . . .
6 the person in possession of a negotiable instrument that is payable either to bearer or
7 to an identified person that is the person in possession[.]”). We are unpersuaded.
8 {4} For the original lender to have lost its status as holder prior to the making of the
9 indorsement here at issue, it would have had to have first negotiated the promissory
10 note to another party. See NMSA 1978, Section 55-3-201(a) (1992) (“ ‘Negotiation’
11 means a transfer of possession, whether voluntary or involuntary, of an instrument by
12 a person other than the issuer to a person who thereby becomes its holder.”). Under
13 the Uniform Commercial Code, “if an instrument is payable to an identified [party],
14 negotiation requires transfer of possession of the instrument and its indorsement by
15 the holder.” Section 55-3-201(b) (emphasis added). The promissory note produced by
16 the Bank was payable to an identified party—the original lender. [RP 9] Further, the
17 promissory note contained a single indorsement by the original lender. [RP 15] It
18 follows that the original lender was the holder of the note at the time the challenged
19 indorsement was made, because there was no evidence of prior negotiation in the form
3
1 of another indorsement. See § 55-3-201(b). Therefore, we hold that the Bank
2 established a prima facie case that the indorsement was in fact a blank indorsement
3 giving it standing to foreclose Defendant’s mortgage, which Defendant failed to defeat
4 at summary judgment. To the extent Defendant asserts that she was not obligated to
5 pay the note because it may have been lost or stolen, we reject this argument because
6 Defendant presented no evidence to that effect below. [MIO 12-13] See NMSA 1978,
7 Section 55-3-305(c) (2009) (“An obligor is not obliged to pay the instrument if the
8 person seeking enforcement of the instrument does not have rights of a holder in due
9 course and the obligor proves that the instrument is a lost or stolen instrument.”
10 (Emphasis added.))
11 {5} The remainder of the memorandum in opposition reiterates arguments which
12 we addressed in our notice of proposed summary disposition. For the reasons stated
13 therein, we remain unpersuaded.
14 {6} Accordingly, for the reasons stated above and in the notice of proposed
15 summary disposition, we affirm.
16 {7} IT IS SO ORDERED.
17 ________________________________
18 TIMOTHY L. GARCIA, Judge
19 WE CONCUR:
20 _______________________________
4
1 LINDA M. VANZI, Chief Judge
2 _______________________________
3 J. MILES HANISEE, Judge
5