Bank of America v. Benavidez

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 BANK OF AMERICA, N.A.,
3 Successor by Merger to
4 BAC Home Loans Servicing LP, f/k/a
5 Countrywide Home Loans Servicing LP
6 Plaintiff-Appellee,
7 vs. No. 34,834
8 LEE ROSS BENAVIDEZ,
9 and if married,
10 JANE DOE BENAVIDEZ,
11 (true name unknown), his spouse,
12 Defendants-Appellants.
13 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
14 Valerie A. Huling, District Judge
15 Brownstein Hyatt Farber Schreck, LLP
16 Adam E. Lyons
17 Albuquerque, NM
18 for Appellee
19 Joshua R. Simms, PC
20 Joshua R. Simms
21 Albuquerque, NM
1 for Appellant
2 MEMORANDUM OPINION
3 HANISEE, Judge.
4 {1} Homeowner Lee Ross Benavidez appeals from the district court’s order denying
5 his motion to vacate. [RP 390] We issued a notice of proposed disposition proposing
6 to affirm, and Homeowner has responded with a memorandum in opposition. We have
7 considered the arguments raised in that memorandum; however, for the reasons stated
8 in the notice of proposed disposition and below, we continue to believe that summary
9 affirmance is appropriate in this case. We therefore affirm the district court’s decision.
10 {2} In our notice, we proposed to hold that Bank of America (the Bank) established
11 its standing as a holder in due course of the note on the basis that it had possession of
12 the original note, indorsed in blank, at the time of the filing of the complaint and also
13 had a valid mortgage assignment. [RP 1-6, 8-11, 31] See Bank of New York v. Romero,
14 2014-NMSC-007, ¶ 26, 320 P.3d 1 (“[W]e agree . . . that if the . . . note contained only
15 a blank indorsement . . ., that blank indorsement would have established the [plaintiff
16 bank] as a holder because [it] would have been in possession of bearer paper [at the
17 time it filed the complaint.]”); Deutsche Bank Nat’l Trust Co. v. Beneficial New
18 Mexico Inc., 2014-NMCA-090, ¶ 14, 335 P.3d 217 (describing a valid mortgage
19 assignment and noting that an assignment is “separate from the note and does not by
2
1 itself transfer ownership of the note”), cert. granted, 2014-NMCERT-008 (No.
2 34,726, Aug. 29, 2014). Relying on Romero and this Court’s recent opinion in
3 Flagstar Bank FSB v. Licha, 2015-NMCA-086, ¶ 17, 356 P.3d 1102, we also
4 proposed to reject any challenge to standing based on the validity of a mortgage
5 assignment by Mortgage Electronic Registration Systems, Inc. (MERS).
6 {3} In response, Homeowner filed a memorandum in opposition that is completely
7 unresponsive to this Court’s proposed disposition. Rather, he continues to challenge
8 the MERS assignment and MERS’ ability to assign the rights to enforce the mortgage.
9 [MIO 2] He further asserts that “without definitive instruction from a definitive
10 principal as authority, MERS, or a MERS assignee, as agent has no authority to
11 exercise the mortgage.” [MIO 3] Homeowner makes no attempt to explain why the
12 case law set forth in the proposed disposition does not control. See Hennessy v.
13 Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (holding that a party
14 opposing summary disposition has the burden to clearly point out errors in fact or law
15 contained in the notice of proposed disposition). Further, he fails to supply citations
16 to either case law or to the record. See Curry v. Great Nw. Ins. Co., 2014-NMCA-031,
17 ¶ 28, 320 P.3d 482 (“Where a party cites no authority to support an argument, we may
18 assume no such authority exists.”). Under these circumstances, we continue to believe
19 that our proposed disposition was correct.
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1 {4} Accordingly, based on the foregoing discussion and our notice of proposed
2 disposition, we affirm.
3 {5} IT IS SO ORDERED.
4 _____________________________
5 J. MILES HANISEE, Judge
6 WE CONCUR:
7 __________________________________
8 MICHAEL D. BUSTAMANTE, Judge
9 __________________________________
10 TIMOTHY L. GARCIA, Judge
4