Deutsche Bank v. Lucero ( 2018 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 DEUTSCHE BANK NATIONAL
3 TRUST COMPANY, AS
4 TRUSTEE OF THE HOME
5 EQUITY MORTGAGE LOAN
6 ASSET-BACKED TRUST
7 SERIES IN ABS 2005-C,
8 HOME EQUITY MORTGAGE
9 LOAN ASSET-BACKED
10 CERTIFICATES, SERIES in
11 ABS 2005-C UNDER THE
12 POOLING AND SERVICING
13 AGREEMENT DATED
14 SEPTEMBER 1, 2005,
15 Plaintiff-Appellee,
16 v. NO. A-1-CA-36753
17 EARNEST M. LUCERO a/k/a
18 ERNEST M. LUCERO and
19 CATHY I. LUCERO,
20 Defendants-Appellants,
21 and
22 THE STATE OF NEW MEXICO
23 DEPARTMENT OF TAXATION
24 & REVENUE,
25 Defendant.
1 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
2 Abigail Aragon, District Judge
3 Rose L. Brand & Associates, P.C.
4 Eraina Marie Edwards
5 Albuquerque, NM
6 for Appellee
7 Ernest M. Lucero and
8 Cathy I. Lucero
9 Las Vegas, NM
10 Pro Se Appellants
11 NM Taxation & Revenue Department
12 Elena Marie Romero Morgan
13 Santa Fe, NM
14 for Defendant
15 MEMORANDUM OPINION
16 HANISEE, Judge.
17 {1} Defendants Ernest M. Lucero and Cathy I. Lucero (the Luceros),
18 self-represented litigants, appeal from the district court’s order granting Plaintiff
19 Deutsche Bank National Trust Company’s (the Bank) motion for summary judgment
20 and order denying Defendants’ motion to dismiss for lack of subject matter
21 jurisdiction (Summary Judgment Order). This Court’s calendar notice proposed
2
1 summary affirmance. [CN 1] The Luceros filed a memorandum in opposition to the
2 proposed disposition. Not persuaded by the Luceros’ arguments, we affirm.
3 {2} The Luceros continue to argue that the Bank lacked standing to bring a
4 foreclosure action because it did not prove physical possession of the note or right to
5 enforce the note through either a proper indorsement or a transfer by negotiation and
6 that the mortgage electronic registration system’s (MERS) assignment of mortgage
7 to the Bank was ineffective to establish the Bank’s right to enforce the note. [MIO 1-6,
8 7-9] This Court proposed to conclude both that the Bank had the right to enforce the
9 note and that it established ownership of the mortgage through proper assignments.
10 See Deutsche Bank Nat’l Tr. Co.v. Beneficial N.M. Inc., 2014-NMCA-090, ¶ 8, 335
11 P.3d 217 (stating that in order “to establish standing to foreclose, a lender must show
12 that, at the time it filed its complaint for foreclosure, it had: (1) a right to enforce the
13 note, which represents the debt, and (2) ownership of the mortgage lien upon the
14 debtor’s property”).
15 {3} Specifically, the calendar notice proposed to conclude that as holder of the note
16 indorsed in blank at the time the complaint for foreclosure was filed, the Bank was
17 entitled to enforce the note. [CN 4] See NMSA 1978, § 55-1-201(b)(21)(A) (2005)
18 (defining “the holder of the instrument” entitled to enforce an instrument as “the
19 person in possession of a negotiable instrument that is payable either to bearer or to
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1 an identified person that is the person in possession”). The Luceros seemingly argue
2 that because negotiation of the note does not occur until the indorsement payable to
3 the bearer is made on the note, there is no indorsement specifically made to, i.e.
4 naming, the Bank, and the Bank never signed the indorsement; absent an indorsement
5 on the note made payable to the bearer, the Bank had no right to enforce the note
6 because it did not account for possession of the unindorsed note by proving the
7 transaction through which it acquired the note; and the Bank therefore failed to prove
8 it acquired rights as holder of the note. [MIO 2, 6, 7] We disagree.
9 {4} At issue here was a blank indorsement, or signature without identifying the
10 bearer. See NMSA 1978, § 55-3-205(b) (1992) (“If an indorsement is made by the
11 holder of an instrument and it is not a special indorsement, it is a ‘blank
12 indorsement.’ ”). “A blank indorsement, as its name suggests, does not identify a
13 person to whom the instrument is payable but instead makes it payable to anyone who
14 holds it as bearer paper.” Bank of N.Y. v. Romero, 2014-NMSC-007, ¶ 24, 320 P.3d 1
15 (emphasis added)). The Bank, as the bearer of the note indorsed in blank, is the holder
16 of the note. See NMSA 1978, § 55-3-104(a)(1), (b), (e) (1992) (defining “negotiable
17 instrument” as including a “note” made “payable to bearer or to order”); NMSA 1978,
18 § 55-3-301 (1992) (defining “[p]erson entitled to enforce” a negotiable instrument);
19 see Romero, 2014-NMSC-007, ¶ 21 (stating that a person is entitled to enforce a note
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1 when they are the holder of the instrument). “When indorsed in blank, an instrument
2 becomes payable to bearer and may be negotiated by transfer of possession alone until
3 specially indorsed.” NMSA 1978, Section 55-3-205(b) (2005) (emphasis added). In
4 Romero, our Supreme Court clarified that the “blank indorsement . . . established the
5 [b]ank as a holder because the [b]ank [was] in possession of bearer paper[.]” Romero,
6 2014-NMSC-007, ¶ 26. Accordingly, in the present case, the Bank established the
7 right to enforce the note through a transfer by negotiation. See NMSA 1978, § 55-3-
8 201(a) (“ ‘Negotiation’ means a transfer of possession . . . of an instrument by a
9 person other than the issuer to a person who thereby becomes its holder.”).
10 {5} The calendar notice further proposed to conclude that the Bank was the owner
11 of the mortgage through proper assignment, as established by the assignments of
12 mortgage attached to the complaint. [CN 6-7] The Luceros now argue that the
13 assignments of mortgage were void due to errors and inaccuracies in those documents.
14 [MIO 7] First, the Luceros assert that the 2008 assignment of mortgage identifies a
15 foreign loan number of 1005916946, when in fact the correct loan number is
16 121468055, as identified on both the note and the mortgage; and that this material fact
17 demonstrates an improper transfer and renders the assignment legally void. [MIO 8]
18 Second, the Luceros assert that both the 2008 and 2013 assignments of mortgage
5
1 incorrectly identify the mortgage loan as recorded on July 6, 2007, and July 6, 2005,
2 respectively, when it was in fact recorded on July 8, 2005. [MIO 8-9]
3 {6} The Luceros rely on an exhibit attached to their memorandum in opposition that
4 appears to be a copy of the mortgage. [MIO PDF 15] While it appears to be a
5 substantially true copy of the mortgage, the actual mortgage document filed in the
6 record proper and considered by the district court is slightly different; it has slightly
7 larger print and contains redactions not present in the attached exhibit. [Compare MIO
8 PDF 15, with 1 RP 12] Similarly, the note and 2008 assignment of mortgage attached
9 to the memorandum in opposition are also slightly different than what appears in the
10 record proper. [Compare MIO PDF 14, with 1 RP 6; Compare MIO PDF 13, with 1
11 RP 32] “Reference to exhibits not in the record proper and not presented to the district
12 court for consideration is improper and a violation of the Rules of Appellate
13 Procedure.” Durham v. Guest, 2009-NMSC-007, ¶ 9, 145 N.M. 694, 204 P.3d 19.
14 Nevertheless, the Luceros have not provided any authority, and we are aware of none,
15 to support the contention that these assignments of mortgage, with proper
16 identification of parties, are rendered void based on a reference to a recordation date
17 that may be inaccurate. See Curry v. Great Nw. Ins. Co., 2014-NMCA-031, ¶ 28, 320
18 P.3d 482 (“Where a party cites no authority to support an argument, we may assume
19 no such authority exists.”).
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1 {7} Third, the Luceros contend that the 2009 assignment of mortgage is legally void
2 because “IndyMac Federal Bank, FSB” is a separate, unknown entity from “IndyMac
3 Bank, FSB” and “IndyMac Federal Bank, FSB” is not identified in the previous
4 mortgage assignment nor on the original note or mortgage, and identifies an incorrect
5 date of July 6, 2007, as the date the mortgage was recorded. [MIO 8-9] While there
6 is a typographical error in the date, the document identifies the correct document
7 number 200500939. [RP 33] In addition, the assignment of mortgage expressly states
8 “IndyMac Federal Bank, FSB fka IndyMac Bank, F.S.B. ” [RP 33], indicating the
9 name the Bank was formerly known as in the previous 2008 assignment of mortgage.
10 [RP 32] Consequently, we similarly conclude that the asserted errors do not render the
11 assignments of mortgage void. See Curry, 2014-NMCA-031, ¶ 28.
12 {8} Lastly, in response to this Court’s proposal to conclude that the Luceros failed
13 to meet their burden to defeat summary judgment, they argue that they had previously
14 filed a motion to dismiss but were never afforded a hearing at which to present
15 evidence of the specific evidentiary facts at issue. [MIO 10-11] Regardless, as the
16 party opposing summary judgment, the Luceros had the burden of “mak[ing] an
17 affirmative showing by affidavit or other admissible evidence that there is a genuine
18 issue of material fact once a prima facie showing is made by the movant.” Associated
19 Home & RV Sales, Inc. v. Bank of Belen, 2013-NMCA-018, ¶ 29, 294 P.3d 1276
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1 (internal quotation marks and citation omitted). Their prior motion to dismiss, for
2 which no evidentiary hearing was held, does not absolve them of that burden. To the
3 extent they argue that they were never afforded a hearing to present evidence on the
4 motion for summary judgment, “[i]n considering a motion for summary judgment, the
5 court may, but is not required to, hold an oral hearing.” Nat’l Excess Ins. Co. v.
6 Bingham, 1987-NMCA-109, ¶ 9, 106 N.M. 325, 742 P.2d 537. The Luceros had the
7 opportunity to respond in writing to the motion for summary judgment and to submit
8 documentary evidence in support thereof. Absent an indication in the record that the
9 party opposing summary judgment did not have an adequate opportunity to respond
10 to the movant’s arguments through the briefing process, the disposition of a summary
11 judgment motion without oral argument is proper. See id.
12 {9} For all of these reasons, and those stated in the calendar notice, we affirm the
13 district court’s Summary Judgment Order.
14 {10} IT IS SO ORDERED.
15 _______________________________
16 J. MILES HANISEE, Judge
17 WE CONCUR:
18 ___________________________
19 MICHAEL E. VIGIL, Judge
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1 ___________________________
2 EMIL J. KIEHNE, Judge
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