Bank of America v. Benavidez

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

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.

3 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