Bank of N.Y. Mellon v. Lopes

• Citation: 336 P.3d 443
• Decision Date: 22 July 2014
• Docket Number: 32,310.
• Parties: The BANK OF NEW YORK MELLON f/k/a The Bank of New York, Not in its Individual Capacity But Solely as Trustee for the Benefit of the Certificate Holders of the CWABS Inc., Asset–Backed Certificates, Series 2006–16, Plaintiff–Appellee, v. Suzanne LOPES, Defendant–Appellant, and Mortgage Electronic Registration Systems, Inc. (Solely as Nominee for Lender and Lender's Successor and Assigns) and Oscar D. Freites, Defendants.
• Court: Court of Appeals of New Mexico

336 P.3d 443

The BANK OF NEW YORK MELLON f/k/a The Bank of New York, Not in its Individual Capacity But Solely as Trustee for the Benefit of the Certificate Holders of the CWABS Inc., Asset–Backed Certificates, Series 2006–16, Plaintiff–Appellee
v.
Suzanne LOPES, Defendant–Appellant
and
Mortgage Electronic Registration Systems, Inc. (Solely as Nominee for Lender and Lender's Successor and Assigns) and Oscar D. Freites, Defendants.

32,310.

Court of Appeals of New Mexico.

July 22, 2014.

336 P.3d 443

The Castle Law Group, LLC, Peggy A. Whitmore, Elizabeth Mason, Albuquerque, NM, for Appellee.

Suzanne Lopes, Albuquerque, NM, pro se Appellant.

OPINION

VIGIL, Judge.

{1} Defendant, Suzanne Lopes (Homeowner), appeals from the district court order

336 P.3d 444

granting summary judgment in favor of Plaintiff, The Bank of New York Mellon (the Bank). Homeowner contends, among other things, that the Bank failed to show that it had standing to bring its foreclosure claim. We agree with Homeowner and reverse.

I. BACKGROUND

{2} Homeowner executed a promissory note to Countrywide Home Loans, Inc. (Countrywide), in the amount of $140,000 for the purchase of a home. Homeowner also signed a mortgage contract with Mortgage Electronic Registration Systems (MERS), as nominee for Countrywide, as security for the loan. On July 6, 2011, MERS assigned Homeowner's mortgage to the Bank. On August 4, 2011, the Bank filed a complaint for foreclosure, asserting that the loan was in default. The complaint asserted that “[the Bank] is the owner of the [m]ortgage and the holder in due course of the [n]ote.” The Bank attached to the complaint copies of the mortgage and the mortgage assignment. Representing herself, Homeowner answered, asserting that to bring the action, the Bank was required to own both the mortgage and the promissory note. Because there was no evidence that the Bank owned the note, Homeowner contended that the Bank had no standing.

{3} On September 22, 2011, as an exhibit to the Bank's response to a motion filed by Homeowner to disqualify counsel, the Bank attached a copy of a promissory note from Homeowner to Countrywide. The note was indorsed in blank by Michelle Sjolander, Executive Vice President of Countrywide. The indorsement was undated and appears to be signed by stamp rather than by hand. No evidence was presented to show when or how the Bank came into possession of the note. In any case, the Bank asserted that the assignment of the mortgage by MERS “effectively assign[ed] the [n]ote as well because ... the [n]ote is secured by the [m]ortgage.” The Bank then filed a motion for summary judgment, which the district court granted, and it filed a decree of foreclosure on the home in favor of the Bank.

{4} Homeowner appeals, arguing that the Bank has no right to foreclose, which we construe to mean it has no standing to bring the action. In its amended answer brief, the Bank asserts that a copy of the mortgage and assignment of mortgage were attached to the original complaint and that substantial evidence supports the finding by the district court that it was a holder under the New Mexico Uniform Commercial Code (UCC) of Homeowner's note.

II. DISCUSSION

{5} On appeal, Homeowner raises several issues in addition to standing. Because our disposition of the standing issue is dispositive, we do not reach the merits of the other issues.

A. Standard of Review

{6} “Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Self v. United Parcel Serv., Inc., 1998–NMSC–046, ¶ 6, 126 N.M. 396, 970 P.2d 582. We review issues of law de novo. Id. “The movant need only make a prima facie showing that he is entitled to summary judgment. Upon the movant making a prima facie showing, the burden shifts to the party opposing the motion to demonstrate the existence of specific evidentiary facts which would require trial on the merits.” Roth v. Thompson, 1992–NMSC–011, ¶ 17, 113 N.M. 331, 825 P.2d 1241. Because we hold that there are material issues of fact and matters of law that preclude summary judgment, we reverse the order granting summary judgment to the Bank.

B. The Bank Lacks Standing

{7} Our Supreme Court “clarified that standing is a jurisdictional prerequisite[.]” Deutsche Bank Nat'l Trust Co. v. Beneficial N.M. Inc., 2014–NMCA–090, 335 P.3d 217, ¶ 8, 2014 WL 1819300 (No. 31,503, May 1, 2014); see also Bank of N.Y. v. Romero, 2014–NMSC–007, ¶ 15, 320 P.3d 1 (“[L]ack of standing is a potential...