US Bank v. Hernandez

• Court: New Mexico Court of Appeals
• Decided: November 28, 2017
• Docket: A-1-CA-36132
• Status: Unpublished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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 US BANK NATIONAL 3 ASSOCIATION, AS TRUSTEE, 4 SUCCESSOR IN INTEREST TO 5 BANK OF AMERICA, NATIONAL 6 ASSOCIATION, AS TRUSTEE 7 (SUCCESSOR BY MERGER TO 8 LASALLE BANK NATIONAL 9 ASSOCIATION) AS TRUSTEE 10 FOR MORGAN STANLEY 11 MORTGAGE LOAN TRUST 2006- 12 12XS, 13 14 Plaintiff-Appellee,

15 v. No. A-1-CA-36132

16 ANKE HERNANDEZ,

17 Defendant-Appellant,

18 and

19 OCCUPANTS WHOSE TRUE NAMES 20 ARE UNKNOWN, MORTGAGE 21 ELECTRONIC REGISTRATION 22 SYSTEMS, INC. (SOLELY AS 23 NOMINEE FOR LENDER AND 24 LENDER’S SUCCESSORS AND 25 ASSIGNS), 1 Defendant.

2 APPEAL FROM THE DISTRICT COURT OF TORRANCE COUNTY 3 Matthew G. Reynolds, District Judge

4 Rose L. Brand & Associates, P.C. 5 Eraina M. Edwards 6 Albuquerque, NM

7 for Appellee

8 JRSPC, LLC 9 Joshua R. Simms 10 Albuquerque, NM

11 for Appellant

12 MEMORANDUM OPINION

13 GARCIA, Judge.

14 {1} Defendant appeals from the district court’s order denying her motion to vacate

15 the judgment as void. Unpersuaded that the docketing statement demonstrated error,

16 we issued a notice of proposed summary disposition, proposing to affirm. Defendant

17 has responded to our notice with a memorandum in opposition. After due

18 consideration, we remain unpersuaded. We, therefore, affirm.

19 {2} Defendant raises two issues on appeal. She asks whether it was reversible error

20 for the district court to (1) refuse to vacate the foreclosure judgment on the proof that

21 Defendant gave timely notice of rescission, and (2) deny the motion to vacate the

22 foreclosure judgment without explanation. [MIO 3] The second assertion of error was

2 1 not listed in the docketing statement. Therefore, we treat this assertion as a motion to

2 amend the docketing statement and deny it because it is not a viable issue. See State

3 v. Moore, 1989-NMCA-073, ¶¶ 36-51, 109 N.M. 119, 782 P.2d 91 (indicating that this

4 Court will deny motions to amend that raise issues that are not viable, even if they

5 allege fundamental or jurisdictional error), superceded by rule on other grounds as

6 recognized in State v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817 P.2d 730.

7 Defendant does not refer us to, and we are not aware of any, controlling authority that

8 would require the district court to explain its ruling on her Rule 1-060(B) NMRA

9 motion under the circumstances presented here. In fact, Rule 1-052(A) NMRA states

10 in relevant part that “[f]indings of fact and conclusions of law are unnecessary in

11 decisions on motions under Rules 1-012, 1-050, or 1-056 NMRA or any other motion

12 except as provided in Paragraph B of Rule 1-041 NMRA.” (Emphasis added.) We see

13 no viable allegation of reversible error and deny the motion to amend.

14 {3} As for Defendant’s assertion that reversal is appropriate based on her timely

15 notice of rescission, we are not persuaded. Our notice informed Defendant that her

16 docketing statement did not provide this Court with sufficient information or with

17 citation to any authority suggesting that, even if there was an effective rescission of

18 the loan, it would provide a basis for relief under Rule 1-060(B) NMRA. See In re

19 Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (“We have

3 1 long held that to present an issue on appeal for review, an appellant must submit

2 argument and authority as required by rule.”). Defendant’s response to our notice

3 continues to omit any reference to authority suggesting that the foreclosure judgment

4 would be void based on the rescission. We further explained that rescission appeared

5 to be a defense that could be waived and that we could conceive of no reason why it

6 would create a void judgment, where it is not raised as a defense or as a remedy

7 sought in the normal course of proceedings. See, e.g., Branch v. Chamisa Dev. Corp.,

8 Ltd., 2009-NMCA-131, ¶ 21, 147 N.M. 397, 223 P.3d 942 (describing rescission as

9 a defense or equitable remedy that can be forfeited). Defendant has not responded to

10 these concerns at all. Defendant seems to conflate the concept of a delayed pursuit of

11 a rescission defense with our concern that a rescission would not result in a void

12 judgment of foreclosure under Rule 1-060(B)(4)—even if the rescission was

13 demonstrably effective, which it was not in this case. [MIO 3]

14 {4} To the extent Defendant presumes that a rescission under the federal statute

15 would affect Plaintiff’s standing and that lack of standing is a jurisdictional flaw that

16 results in a void judgment, we are not persuaded for the reasons stated in our notice.

17 Specifically, in Deutsche Bank Nat. Trust Co. v. Johnston, 2016-NMSC-013, ¶ 34,

18 369 P.3d 1046, the Supreme Court clarified that standing in a foreclosure action to

19 enforce a promissory note is prudential, not a jurisdictional requirement, and the lack

4 1 of standing does not render a foreclosure judgment voidable under Rule 1-060(B). The

2 Supreme Court indicated that, like a defense to a complaint for failure to state a claim,

3 the requirement of prudential standing to enforce a promissory note must be raised

4 during the pendency of the action on the complaint, including the direct appeal, or it

5 is waived. See id. For these reasons, we are not persuaded that Defendant alleged

6 sufficient facts that would render the judgment void or would otherwise establish

7 grounds for relief under Rule 1-060(B). In the absence of any authority or persuasive

8 argument to support Defendant’s position, Defendant has not demonstrated reversible

9 error.

10 {5} Based on the foregoing, we affirm the district court’s denial of Defendant’s

11 motion to vacate the judgment of foreclosure.

12 {6} IT IS SO ORDERED.

13 ________________________________ 14 TIMOTHY L. GARCIA, Judge

15 WE CONCUR:

16 _______________________________ 17 M. MONICA ZAMORA, Judge

18 _______________________________ 19 J. MILES HANISEE, Judge