Nationstar Mortg. v. Tapia

Decision Date08 May 2023
Docket NumberA-1-CA-39012
PartiesNATIONSTAR MORTGAGE LLC, Plaintiff, v. CHRISTOPHER B. TAPIA, ERICA TAPIA, and 21ST MORTGAGE CORPORATION, Defendants, and TAL REALTY, INC., Petitioner-Appellee, v. ASHOK KAUSHAL, Petitioner-Appellant.
CourtCourt of Appeals of New Mexico

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NATIONSTAR MORTGAGE LLC, Plaintiff,
v.
CHRISTOPHER B. TAPIA, ERICA TAPIA, and 21ST MORTGAGE CORPORATION, Defendants,

and

TAL REALTY, INC., Petitioner-Appellee,
v.
ASHOK KAUSHAL, Petitioner-Appellant.

No. A-1-CA-39012

Court of Appeals of New Mexico

May 8, 2023


Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY Francis J. Mathew, District Court Judge

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Marrs Griebel Law, Ltd.

Clinton W. Marrs

David S. Ketai

Albuquerque, NM

for Appellee

Ferrance Law, P.C.

David A. Ferrance

Albuquerque, NM

for Appellant

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OPINION

MICHAEL D. BUSTAMANTE, JUDGE, RETIRED, SITTING BY DESIGNATION.

{¶1} Appellant Ashok Kaushal appeals the district court's determination by summary judgment that Appellee TAL Realty, LLC (TAL Realty) validly redeemed a property in Santa Fe, and the dismissal of Kaushal's petition for redemption. Kaushal argues that (1) genuine issues of material fact exist as to whether his assignor had an ownership interest in the property; (2) someone who signs a mortgage is a "former defendant owner," pursuant to NMSA 1978, Section 39-5-18(A) (2007); and (3) the Recording Act, NMSA 1978, §§ 14-9-1 to -9 (1851-52, as amended through 1991) protects his purchase of the right of redemption of the property. We affirm.

BACKGROUND

{¶2} In December 2016, Christopher Tapia (Chris) executed a promissory note secured by a mortgage (the mortgage) on real property in Santa Fe (the property). The mortgage was signed by Chris and his then-spouse Erica Tapia (Erica). Erica did not sign the promissory note. The day the mortgage was signed, Chris apparently signed a quitclaim deed in favor of himself and Erica.[1] The mortgage and the quitclaim deed were recorded on January 2017 in Santa Fe County.

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{¶3} In May 2018, a court in California entered a judgment dissolving the marriage of Chris and Erica (the divorce decree). The judgment adopted a marital settlement agreement stipulated by the parties that divided their assets, including the property. The marital settlement agreement stated, "Parties agree [the property] is separate property purchased before the marriage by [Chris]." The California judgment was not recorded in Santa Fe County.

{¶4} In November 2018, Nationstar Mortgage LLC (the Bank) filed a complaint for foreclosure against Chris, Erica, and a junior lienholder. After none of the defendants answered the complaint, the Bank obtained a default judgment. The property was sold at auction in August 2019 to Breckenridge Properties 2016, LLC (Breckenridge). The district court approved the sale in October 2019, noting that the sale was "subject only to the one[-]month right of redemption of . . . Defendants," Chris, Erica, and a junior lienholder. Before the district court approved the sale, Chris and Erica made three relevant assignments of their rights of redemption. Chris assigned his right of redemption to TAL Realty in September 2019 and it was recorded with the Santa Fe County Clerk a few days later. Erica assigned her right of redemption to Breckenridge in September 2019 and the assignment was recorded on September 9, 2019. Erica also assigned her right of redemption to Kaushal on September 20, 2019.

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{¶5} TAL Realty initially filed a petition for redemption of the property in September 2019, naming Breckenridge as the respondent; however, it did not deposit any funds concurrent with its petition. TAL Realty timely, nonjudicially exercised its redemption right by paying Breckenridge the redemption amount in mid-October 2019. The nonjudicial redemption deed was acknowledged before a notary public in December 2019. In late October 2019, Kaushal filed a timely petition to redeem, and the next day the district court entered an order allowing Kaushal to deposit the redemption amount into the district court registry, which he did. In November 2019, TAL Realty filed a "Restated Petition for Redemption of Real Estate" and deposited the required redemption amount in the district court's registry.

{¶6} After the competing petitions for redemption were filed, TAL Realty moved for summary judgment arguing its redemption should be confirmed and Kaushal's petition should be denied. TAL Realty argued that the marital settlement agreement divested Erica of any right of redemption, any assignment from Erica to Kaushal was invalid, and Chris's redemption right was the only valid right. After briefing and a telephonic hearing on the matter, the district court granted TAL Realty's motion for summary judgment and declared that TAL Realty validly redeemed the property from Breckenridge.

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DISCUSSION

I. Standard of Review

{¶7} "Summary judgment is reviewed on appeal de novo." Juneau v. Intel Corp., 2006-NMSC-002, ¶ 8, 139 N.M. 12, 127 P.3d 548. We review the evidence "in the light most favorable to the party opposing summary judgment." City of Albuquerque v. BPLWArchitects &Eng'rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M. 717, 213 P.3d 1146. "In New...

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