Sparta v. Russell

• Court: New Mexico Court of Appeals
• Decided: January 7, 2019
• Docket: A-1-CA-36725
• Status: Unpublished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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 SPARTA GP HOLDING REO CORP.,

3 Plaintiff-Appellee,

4 v. No. A-1-CA-36725

5 DOUGLASS SANDS RUSSELL and 6 ORA ABEL-RUSSELL, husband and wife,

7 Defendants-Appellants,

8 and

9 WACHOVIA MORTGAGE CORPORATION; 10 ABC CORPORATIONS I-X; XYZ PARTNERSHIPS 11 I-X; JOHN DOES I-X; JANE DOES I-X; and THE 12 UNKNOWN HEIRS AND DEVISEES OF ANY 13 OF THE ABOVE, IF DECEASED,

14 Defendants.

15 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY 16 Emilio J. Chavez, District Judge

17 Snell & Wilmer, L.L.P. 18 Gregory J. Marshall 19 Sandra A. Brown 20 Albuquerque, NM

21 for Appellee 1 Long, Komer & Associates, P.A. 2 Jonas M. Nahoum 3 Santa Fe, NM

4 for Appelants

5 MEMORANDUM OPINION

6 VANZI, Chief Judge.

7 {1} Defendants appeal a summary judgment. This Court issued a notice of proposed

8 summary disposition, proposing to reverse the district court’s judgment because that

9 court attempted to resolve a dispute of material fact during the course of summary

10 judgment proceedings. [CN 5] Plaintiff has filed a memorandum in opposition to that

11 proposed disposition. Having duly considered that memorandum, we remain

12 unpersuaded and now reverse.

13 {2} The question of whether Plaintiff has standing to prosecute this mortgage

14 foreclosure action turns upon which of two indorsements on a promissory note was

15 made first. The note at issue bears both an undated indorsement in blank and an

16 undated special indorsement. [RP 15] Which of those undated indorsements was first

17 placed on the document is a question of historical fact. And that fact is material to the

18 question of Plaintiff’s standing. If the special indorsement was made first, the note

19 would be bearer paper, since, under that factual assumption, the note would bear, as

20 Plaintiff suggests: “an indorsement chain terminating in an indorsement to bearer.”

2 1 [MIO 6] If, on the other hand, the blank indorsement was made first, it would have

2 had no effect on the negotiability of the instrument, and the latter-made special

3 indorsement would restrict payment to an entity other than Plaintiff. Thus, the legal

4 question of Plaintiff’s ability to enforce the note at issue depends entirely upon the

5 answer to an unresolved question of historical fact.

6 {3} Plaintiff invites this Court, as it did the district court, to employ “a ‘common

7 sense’ reading of the two indorsements” to conclude that it has standing to enforce the

8 note. [MIO 4, 8] That conclusion, however, could only be made on the basis of a

9 finding regarding the order in which the indorsements were made. It is not the proper

10 role of this Court, however, to make factual findings. And, more to the point, it was

11 also not the proper role of the district court to do so, because “[a] summary judgment

12 motion is not an opportunity to resolve factual issues[.]” Gardner-Zemke Co. v. State,

13 1990-NMSC-034, ¶ 11, 109 N.M. 729, 790 P.2d 1010.

14 {4} Instead, fact finding is the role of a trier of fact, who could properly apply

15 “common sense” to assess Plaintiff’s outstanding claim that “an indorsement to bearer

16 would follow a special indorsement[,]” and who could resolve that outstanding

17 material historical fact. [MIO 8] Thus, for the reasons stated here and in our notice of

18 proposed summary disposition, we reverse the summary judgment entered below.

19 {5} IT IS SO ORDERED.

3 1 2 LINDA M. VANZI, Chief Judge

3 WE CONCUR:

4 5 J. MILES HANISEE, Judge

6 7 JULIE J. VARGAS, Judge