BAC Home Loans Servicing LP v. Cruz

• Court: New Mexico Court of Appeals
• Decided: April 18, 2018
• Docket: A-1-CA-35495
• Status: Unpublished

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 BAC HOME LOANS SERVICING, LP, 3 f/k/a COUNTRYWIDE HOME LOAN 4 SERVICING LP,

5 Plaintiff-Appellant,

6 v. NO. A-1-CA-35495

7 MARGO E. CRUZ and MONICA C. CRUZ,

8 Defendants-Appellees.

9 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 10 John F. Davis, District Judge

11 Little, Bradley & Nesbitt, P.A. 12 Lucinda R. Silva 13 Albuquerque, NM

14 for Appellant

15 Eric Ortiz & Associates 16 Eric N. Ortiz 17 Albuquerque, NM

18 for Appellees

19 MEMORANDUM OPINION

20 VANZI, Chief Judge. 1 {1} This interlocutory appeal arises from the district court’s order dismissing for

2 lack of standing a foreclosure complaint filed years before our Supreme Court held

3 in Bank of New York v. Romero, 2014-NMSC-007, ¶¶ 19-38, 320 P.3d 1, that the bank

4 did not establish standing to foreclose when it could not prove that it had the right to

5 enforce the promissory note on the mortgage (note) at the time it filed suit. Romero

6 was the law when Defendants in the instant case moved to dismiss the foreclosure

7 complaint for lack of standing, and was the explicit basis for the motion’s contention

8 that standing to foreclose is a jurisdictional prerequisite that “must be established at

9 the time the complaint is filed.” In response to the motion, Plaintiff BAC Home Loans

10 Servicing, LP (BAC) submitted documents it contended established that it had

11 standing at the time it filed suit. The district court treated Romero as controlling and

12 cited the decision in ruling that the complaint should be dismissed without prejudice.

13 {2} Following the district court’s oral ruling on the motion (although before entry

14 of the written order), our Supreme Court issued a decision clarifying that “standing

15 is not a jurisdictional prerequisite in mortgage foreclosure cases in New Mexico,”

16 Deutsche Bank Nat’l Tr. Co. v. Johnston, 2016-NMSC-013, ¶ 9, 369 P.3d 1046, and

17 that, while the plaintiff must prove that it held the note at the time it filed suit (i.e.,

18 standing), the proof is not required at the pleading stage but rather at the time standing

19 is challenged by the defendant or raised by the court. Id. ¶¶ 26-27. Rulings in civil

20 cases generally apply retroactively, unless the court limits the holding to prospective

2 1 application, by express language or consideration of certain factors. Whelan v. State

2 Farm Mut. Auto. Ins. Co., 2014-NMSC-021, ¶ 22, 329 P.3d 646; Marckstadt v.

3 Lockheed Martin Corp., 2010-NMSC-001, ¶ 31, 147 N.M. 678, 228 P.3d 462.

4 Nothing in Johnston indicates that any part of that decision is limited to prospective

5 application.

6 {3} Because Johnston allows a foreclosure plaintiff to establish that it had the right

7 to foreclose when it filed suit after the issue is raised by the defendant, as BAC

8 attempted to do in this case, and the district court dismissed the complaint without

9 considering and ruling on the adequacy of BAC’s proffered proof, we reverse and

10 remand to the district court for further proceedings in accordance with Johnston.

11 {4} IT IS SO ORDERED.

12 __________________________________ 13 LINDA M. VANZI, Chief Judge

14 WE CONCUR:

15 _________________________________ 16 STEPHEN G. FRENCH, Judge

17 _________________________________ 18 JENNIFER L. ATTREP, Judge