Wellington v. Mortgage Electronic ( 2012 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 MONICA WELLINGTON,
3 Plaintiff-Appellant,
4 v. No. 31,927
5 MORTGAGE ELECTRONIC
6 REGISTRATION SYSTEMS, INC.,
7 CHASE HOME FINANCE, LLC,
8 Defendants-Appellees,
9 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
10 C. Shannon Bacon, District Judge
11 Monica Wellington
12 Albuquerque, NM
13 Pro Se Appellant
14 Montgomery & Andrews, PA
15 Seth C. McMillan
16 Walter J. Melendres
17 Santa Fe, NM
18 for Appellees
19 MEMORANDUM OPINION
20 VIGIL, Judge.
1 Plaintiff appeals the order granting summary judgment to Defendants. We
2 proposed to affirm in a calendar notice. Plaintiff has responded to our notice with a
3 memorandum in opposition. We have duly considered Plaintiff’s arguments, but find
4 them unpersuasive. We affirm.
5 In our calendar notice, we addressed Plaintiff’s argument that it was error to
6 grant summary judgment to Defendants. As we explained, we review the whole
7 record in the light most favorable to the person opposing summary judgment in order
8 to determine if there is any evidence placing a genuine material fact at issue, but when
9 there are no material issues of fact in dispute, we conduct a de novo review and need
10 not view the record in the light most favorable to the person opposing summary
11 judgment. See City of Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-NMCA-
12 081, ¶ 7, 146 N.M. 717, 213 P.3d 1146. In this case, Defendants were only required
13 to make a prima facie showing that they were entitled to summary judgment, which
14 is accomplished by presenting evidence sufficient in law to raise a presumption of fact
15 or sufficient in law, unless rebutted, to establish the fact in question. See Romero v.
16 Philip Morris, Inc., 2010-NMSC-035, ¶ 10, 148 N.M. 713, 242 P.3d 280. The burden
17 then shifted to Plaintiff to point to specific evidentiary facts requiring a trial on the
18 merits. See Roth v. Thompson, 113 N.M. 331, 334-35, 825 P.2d 1241, 1244-45
19 (1992). In meeting her burden, Plaintiff could not simply argue that evidentiary facts
2
1 exist and could not rely on the allegations in her complaint. Romero, 2010-NMSC-
2 035, ¶ 10.
3 In her memorandum in opposition, Plaintiff repeats the arguments made in her
4 docketing statement. We discussed each of Plaintiff’s claims in our calendar notice.
5 As we pointed out, Defendants presented evidence that Defendant Mortgage
6 Electronic Registration Systems, Inc., (MERS) is a mortgagee and a nominee for
7 “Lender and Lender’s successors and assigns;” [RP 126] that Plaintiff signed the
8 mortgage, listing MERS as a mortgagee and nominee; that the “servicing” of the loan
9 was transferred to Ohio Savings Bank and then transferred to Defendant Chase; that
10 Plaintiff’s mortgage payments were applied to the mortgage on the property, and the
11 property has been in Plaintiff’s possession since the closing of the loan; that Plaintiff
12 has only received requests for loan payments from Defendant Chase; that Plaintiff
13 admitted that she was notified of the change in the servicer of the loan; and that,
14 although Plaintiff claimed that there were different loan numbers in existence, the
15 documentation of the loan payments shows that the payments were made on the loan
16 serviced by Defendant Chase.
17 Plaintiff argues that this Court failed to consider a decision from another state
18 that addressed the question of whether MERS could act as a nominee. [MIO 4] As
19 explained in our notice, in reviewing the district court’s decision to grant summary
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1 judgment, we consider whether there is any evidence placing a genuine material fact
2 at issue. The documents presented by Defendants show that Plaintiff signed the
3 mortgage that listed MERS as a mortgagee and nominee for “Lender and Lender’s
4 successors and assigns.” Therefore, no genuine issue of fact was presented with regard
5 to Plaintiff’s argument. Plaintiff argues that this Court did not address federal law
6 regarding notice requirements for a change in mortgage servicers. However,
7 Defendants demonstrated that Plaintiff admitted that she was notified of the change
8 in the servicer of the loan. Therefore, no genuine issue of material fact was presented
9 with regard to Plaintiff’s argument.
10 To the extent that Plaintiff argues that “Chase” refused to disclose what it had
11 done with her payments, Defendants presented evidence to show that Plaintiff’s loan
12 payments were made on the loan serviced by Defendant Chase. To the extent that
13 Plaintiff claims we ignored her evidence or construed conflicting evidence in
14 Defendants’ favor, we disagree. Defendants presented a number of documents in
15 support of the motion for summary judgment, but Plaintiff, in the document filed in
16 opposition to the motion and in her surreply, referred only to her complaint and to her
17 own argument in support of her arguments. [RP 66, 240] This was not sufficient to
18 meet her burden under the standard for summary judgment. Romero, 2010-NMSC-
19 035, ¶ 10.
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1 For the reasons explained in this opinion and in our calendar notice, we affirm
2 the district court’s decision.
3 IT IS SO ORDERED.
4 _______________________________
5 MICHAEL E. VIGIL, Judge
6 WE CONCUR:
7 _________________________________
8 CELIA FOY CASTILLO, Chief Judge
9 _________________________________
10 JONATHAN B. SUTIN, Judge
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