U.S. Bank v. Branch
| Decision Date | 06 April 2022 |
| Docket Number | A-1-CA-37611 |
| Parties | U.S. BANK NATIONAL ASSOCIATION, as Successor Trustee to BANK OF AMERICA, N.A. (Successor by Merger to Lasalle Bank N.A.), as Trustee on behalf of the Holders of the THORNBURG MORTGAGE SECURITIES TRUST 2006-6 MORTGAGE LOAN PASS-THROUGH CERTIFICATES, SERIES 2006-6, Plaintiff-Appellee, v. DARREN P. BRANCH, Defendant-Appellant, and GUADALUPE CREDIT UNION, THE BANK OF NEW YORK MELLON f/k/a THE BANK OF NEW YORK, as Successor Trustee to JP MORGAN CHASE BANK, N.A., as Trustee on Behalf of the CERTIFICATE HOLDERS OF THE CWHEQ INC., CWHEQ REVOLVING HOME EQUITY LOAN TRUST, SERIES 2005-H; NEW MEXICO DEPARTMENT OF TAXATION AND REVENUE; INTERNAL REVENUE SERVICE; JOHN AND JANE DOES (whose true names are unknown), Tenants, Defendants. |
| Court | Court of Appeals of New Mexico |
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 Gregory Shaffer District Judge
Houser LLP Lindsay K. Griffel Solomon S. Krotzer Albuquerque, NM for Appellee
Durham, Pittard & Spalding, LLP Caren I. Friedman Santa Fe, NM, High Desert Lawyers, LLC Eric N. Ortiz Albuquerque NM for Appellant
{¶1} This appeal is taken from the district court's entry of summary judgment in favor of Plaintiff U.S. Bank National Association in a foreclosure action against Defendant Darren Branch. Defendant maintains that disputes of material fact exist concerning Plaintiff's standing to bring suit against him and with regard to his equitable laches defense, thus rendering the district court's entry of summary judgment erroneous.[1] We affirm.[2]
{¶2} In 2010, Plaintiff filed a complaint for foreclosure against Defendant. The parties stipulated to its dismissal without prejudice in December 2015. Later that month, Plaintiff filed a second complaint for foreclosure against Defendant. Plaintiff alleged that, in 2004, Defendant executed a promissory note (the Note) payable to Thornburg Mortgage Home Loans, Inc. (Thornburg) secured by a mortgage on real property in Santa Fe, New Mexico. According to the complaint, Defendant ceased making payments in late 2009. Plaintiff attached a copy of the Note to the complaint, which showed an indorsement in blank from Thornburg, signed by Deutsche Bank National Trust Company (Deutsche Bank) "as Custodian," and "as Attorney in Fact" of Thornburg.
{¶3} In his answer, Defendant raised lack of standing and laches as affirmative defenses. Defendant's answer also sought declaratory judgment as a counterclaim against Plaintiff premised on lack of standing, alleging that Plaintiff was not a holder of the Note in due course.
{¶4} Plaintiff moved for summary judgment in May 2017, and attached two affidavits to its motion. The first affidavit was that of Plaintiff's loan servicer, Rebecka Mayoh. Ms. Mayoh stated that the Note was in Plaintiff's possession until December 17, 2013, when it was deposited with the district court. Ms. Mayoh further stated that the loan associated with the Note "was securitized and pooled with other loans," and the indorsement in blank signed by Deutsche Bank appeared on the Note at the time Plaintiff received it. The second affidavit was that of Thornburg's Chapter 11 Bankruptcy Trustee, Joel Sher. Mr. Sher stated that Thornburg filed for bankruptcy protection on May 1, 2009. Mr. Sher further "confirm[ed] the indorsement of the Note by Deutsche Bank on [Thornburg's] behalf" but refused to "tak[e] a position on" whether Deutsche Bank possessed authority to indorse the Note on behalf of Thornburg.
{¶5} Defendant responded to Plaintiff's motion for summary judgment, and attached his own affidavit, wherein he claimed that since executing the Note, "numerous entities have represented . . . that they are entitled to enforce the Note . . . but no evidence has ever been provided . . . to establish any transfer by negotiation of the . . . [N]ote or subsequent holders of the [N]ote after Thornburg." Defendant also attached a number of exhibits, including letters indicating that Thornburg, or entities associated with Thornburg, still held the Note through June 10, 2010.
{¶6} The district court did not hold a hearing on Plaintiff's motion for summary judgment and entered an order granting it on September 13, 2017. The district court found an absence of disputed material facts, particularly because "Defendant [did] not show[] . . . that Deutsche Bank was not entitled to indorse [the Note] on behalf of Thornburg." The district court also concluded that Plaintiff built "a prima facie case against Defendant's affirmative defense[] of laches," which Defendant failed to rebut because he "presented no facts to establish a dispute of material facts and did not present any legal arguments to sustain his affirmative defense[]."
{¶7} Plaintiff moved for reconsideration of the district court's grant of summary judgment on November 20, 2017. Following a hearing, the district court denied the motion, concluding that summary judgment in favor of Plaintiff was not erroneously granted and that Defendant's equitable laches defense failed "as a matter of law" given the record was devoid of facts that would allow him to proceed with such a defense. This appeal followed.
{¶8} Defendant challenges Plaintiff's standing to enforce the Note, arguing that (1) Plaintiff was not entitled to a presumption that Deutsche Bank's signature on the Note is valid; and (2) summary judgment was granted in error because genuine issues of material fact remain regarding Plaintiff's standing and Defendant's equitable laches defense. After initially addressing the standard of review we consider each in turn.
{¶9} We review the district court's grant of summary judgment de novo. Romero v. Philip Morris, Inc., 2010-NMSC-035, ¶ 7, 148 N.M. 713, 242 P.3d 280. Rule 1-056(C) NMRA provides that summary judgment is proper when "there is no genuine issue of material act and . . . the moving party if entitled to judgment as a matter of law." The moving party must make a prima facie case for summary judgment. Romero, 2010-NMSC-035, ¶ 10. A prima facie case is one with ample evidence "to raise a presumption of fact or establish the fact in question unless rebutted." Id. (internal quotation marks and citation omitted).
{¶10} If the moving party successfully makes a prima facie case for summary judgment, the resisting party must come forward with particularized facts in dispute, which must be tried on their merits. Id. Surface presentations or speculation regarding the existence of such facts does not suffice; rather, the resisting party "must adduce evidence to justify a trial on the issues." Horne v. Los Alamos Nat'l Sec., L.L.C., 2013-NMSC-004, ¶ 15, 296 P.3d 478 (internal quotation marks and citation omitted). "[S]ummary judgment . . . shall be entered against" a resisting party who fails to adequately rebut the moving party's prima facie case. Rule 1-056(E).
{¶11} Defendant first argues that the district court erroneously employed the presumption of validity to Deutsche Bank's signature on the blank indorsement, as set forth in NMSA 1978, Section 55-3-308(a) (1992):
In an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings. If the validity of a signature is denied in the pleadings, the burden of establishing validity is on the person claiming validity, but the signature is presumed to be authentic and authorized.
Plaintiff argues that the presumption was properly employed because Defendant failed to produce evidence to the contrary. We agree with Plaintiff.
{¶12} The presumption created by Section 55-3-308(a) "remains intact unless evidence supporting the signature's invalidity is introduced." Bank of N.Y. Mellon v. Luu, 2019-NMCA-053, ¶ 21, 448 P.3d 625; see also § 55-3-308 cmt. 1 ( that the statute's presumption "means that until some evidence is introduced which would support a finding that the signature is forged or unauthorized, the plaintiff is not required to prove that it is valid"). A "presumed" fact must be found to exist by the trier of fact "unless and until evidence is introduced that supports a finding of its nonexistence." NMSA 1978, § 55-1-206 (2005).
{¶13} Here, the indorsement at issue is blank, from Thornburg, and signed by Deutsche Bank "as Custodian," and "as Attorney in Fact" of Thornburg. Our review of the record indicates that Defendant presented no evidence that the signature on the Note's blank indorsement was invalid or that Deutsche Bank lacked authority to sign the indorsement. Plaintiff directs us to his counterclaim wherein he stated that "Deutsche Bank . . . was never custodian or attorney-in-fact for Thornburg." However, this is nothing more than an assertion; it is not evidence. See Muse v. Muse, 2009-NMCA-003, ¶ 51, 145 N.M. 451, 200 P.3d 104 (). Defendant further directs us to his discovery request "for attorney- in-fact documents . . . that would have established Deutsche Bank's authority to stamp the [N]ote" and argues that because he did not receive them, it is probable that no such documents exist. Again, this argument is not evidence. See id. Rather, it is a presentation of "speculation and inferences," which cannot be used to defeat the indorsement's...
To continue reading
Request your trial