Wells Fargo v. Jones ( 2011 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 WELLS FARGO BANK, NA
8 as Trustee,
9 Plaintiff-Appellee,
10 v. NO. 31,135
11 ROBERT JONES a/k/a
12 ROBERT S. JONES,
13 Defendant-Appellant.
14 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
15 Nan G. Nash, District Judge
16 Little & Dranttel, P.C.
17 Elizabeth Dranttel
18 Cody Lujan
19 Albuquerque, NM
20 for Appellee
21 Aequitas Law, LLC
22 Albert L. Hutchinson, Jr.
23 Albuquerque, NM
24 for Appellant
25 MEMORANDUM OPINION
26 VANZI, Judge.
1 Robert Jones appeals from the foreclosure of his primary residence, raising two
2 issues: (1) the district court erred in determining there was no genuine issue of
3 material fact regarding the assignment of the note to Wells Fargo Bank, and (2) the
4 district court erred in allowing the mortgage foreclosure to be confirmed where Wells
5 Fargo acted inequitably. This Court issued a calendar notice proposing summary
6 affirmance. Jones filed a memorandum in opposition to this Court’s proposed
7 disposition, which we have duly considered. Unpersuaded, we affirm.
8 Jones contends that the district court erred in granting summary judgment
9 where there was a genuine issue of material fact regarding the assignment of the note
10 to Wells Fargo. In this Court’s calendar notice, we proposed to conclude that Wells
11 Fargo had made a prima facie showing that the note had been assigned to it, and that
12 Jones had failed to raise a genuine issue of material fact. Specifically, we pointed out
13 that Argent Mortgage Company had submitted a document assigning the mortgage to
14 Wells Fargo which was signed by an assistant secretary under the statement “Argent
15 Mortgage Company, LLC by Barclays Capital Real Estate Inc., DBA Homeq
16 Servicing Attorney in Fact.” [DS 4; RP 45] That document was notarized, and the
17 signatory swore to have executed the document in her authorized capacity. [RP 45]
18 We proposed to conclude that this documentation was sufficient to establish a prima
19 facie showing by Wells Fargo that the mortgage had been assigned to it by Argent.
2
1 Relying on the burdens established by our summary judgment standard, we suggested
2 that because Jones had not made any affirmative showing that the signatory was not
3 authorized to sign on Argent’s behalf, Jones had not demonstrated a genuine issue of
4 material fact. See Roth v. Thompson, 113 N.M. 331, 334-35, 825 P.2d 1241, 1244-45
5 (1992) (“The movant need only make a prima facie showing that he is entitled to
6 summary judgment. Upon the movant making a prima facie showing, the burden
7 shifts to the party opposing the motion to demonstrate the existence of specific
8 evidentiary facts which would require trial on the merits.” (citation omitted));
9 Schwartzman v. Schwartzman Packing Co., 99 N.M. 436, 441, 659 P.2d 888, 893
10 (1983) ( “A party opposing a motion for summary judgment must make an affirmative
11 showing by affidavit or other admissible evidence that there is a genuine issue of
12 material fact once a prima facie showing is made by the movant.”).
13 Jones has responded by stating that he cannot prove a negative fact and that he
14 is “timely and properly question[ing] [Wells Fargo’s] standing to bring this suit at all.”
15 [MIO 4] Although Jones questions this Court’s proposed holding requiring that he
16 come forward with some evidence to rebut Wells Fargo’s prima facie showing that the
17 assignment was valid, the production of such evidence is necessary to raise a genuine
18 issue of material fact. Speculation, alone, is insufficient to defeat summary judgment
19 before the district court and is insufficient to support reversal on appeal. To the extent
3
1 Jones contends he is challenging Wells Fargo’s standing to bring suit, we understand
2 Jones’s standing argument to raise the same concern—the validity of the assignment.
3 Because we conclude that Wells Fargo presented a prima facie showing of a valid
4 assignment, and because that assignment provides Wells Fargo with standing to bring
5 the present foreclosure action, we conclude that Jones’s standing argument is
6 unavailing. Accordingly, we propose to affirm the district court’s grant of summary
7 judgment in favor of Wells Fargo.
8 To the extent Jones continues to argue that the district court erred in confirming
9 the sale of his property because Wells Fargo did not act equitably, we are
10 unpersuaded. Jones argues that to permit foreclosure where he invested tens of
11 thousands of dollars purchasing the property, and where the mortgage holders have
12 missed out on several opportunities to be paid, would be unjust. [MIO 7-8] Jones
13 relies on several cases for the general proposition that the doctrine of unclean hands
14 can preclude the return of property and that inequitable actions can present a defense
15 to a foreclosure action. [MIO 6-7] Jones specifically asks this Court to consider
16 Martinez v. Martinez, 101 N.M. 88, 92, 678 P.2d 1163, 1167 (1984), in support of his
17 argument that Wells Fargo should be equitably estopped from foreclosing on his
18 property. In Martinez, our Supreme Court stated that it would “not enforce the
19 forfeiture of a real estate contract when to do so would work an unfairness which
4
1 shocks the conscience of the court.” Id. (internal quotation marks and citation
2 omitted). In Martinez, the Court determined that enforcing the contract would be
3 unfair where the buyer had not been given notice of default and a reasonable time for
4 performance on the contract prior to forfeiture of the property. Id.5 In the present case, Jones alleges Wells Fargo acted inequitably in causing
6 delays and in offering him loan modifications he could not attain or that it later
7 withdrew. [RP 134] Jones does not claim, however, that Wells Fargo failed to provide
8 notice of his default or provide an opportunity to cure the default prior to foreclosure
9 proceedings as was denied in Martinez. While such facts might support reversal, their
10 absence compels us to conclude that Jones has not demonstrated a basis for reversal
11 on appeal.
12 For the reasons stated above, we affirm.
13 IT IS SO ORDERED.
14 __________________________________
15 LINDA M. VANZI, Judge
16 WE CONCUR:
17 _________________________________
18 CELIA FOY CASTILLO, Chief Judge
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1 _________________________________
2 MICHAEL E. VIGIL, Judge
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