Court of Appeals of New Mexico

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BANK OF AMERICA, N.A.,
Successor by Merger to
BAC Home Loans Servicing LP, f/k/a
Countrywide Home Loans Servicing LP
Plaintiff-Appellee,
vs.
LEE ROSS BENAVIDEZ,
and if married,
JANE DOE BENAVIDEZ,
(true name unknown), his spouse,
Defendants-Appellants.

No. 34,834

COURT OF APPEALS OF NEW MEXICO

January 7, 2016

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, Valerie A. Huling, District Judge

COUNSEL

Brownstein Hyatt Farber Schreck, LLP, Adam E. Lyons, Albuquerque, NM, for Appellee

Joshua R. Simms, PC, Joshua R. Simms, Albuquerque, NM, for Appellant

JUDGES

J. MILES HANISEE, Judge. WE CONCUR: MICHAEL D. BUSTAMANTE, Judge, TIMOTHY L. GARCIA, Judge

AUTHOR: J. MILES HANISEE

MEMORANDUM OPINION

HANISEE, Judge.

{1}       Homeowner Lee Ross Benavidez appeals from the district court’s order denying his motion to vacate. [RP 390] We issued a notice of proposed disposition proposing to affirm, and Homeowner has responded with a memorandum in opposition. We have considered the arguments raised in that memorandum; however, for the reasons stated in the notice of proposed disposition and below, we continue to believe that summary affirmance is appropriate in this case. We therefore affirm the district court’s decision.

{2}       In our notice, we proposed to hold that Bank of America (the Bank) established its standing as a holder in due course of the note on the basis that it had possession of the original note, indorsed in blank, at the time of the filing of the complaint and also had a valid mortgage assignment. [RP 1-6, 8-11, 31] See Bank of New York v. Romero, 2014-NMSC-007, ¶ 26, 320 P.3d 1 (“[W]e agree . . . that if the . . . note contained only a blank indorsement . . ., that blank indorsement would have established the [plaintiff bank] as a holder because [it] would have been in possession of bearer paper [at the time it filed the complaint.]”); Deutsche Bank Nat’l Trust Co. v. Beneficial New Mexico Inc., 2014-NMCA-090, ¶ 14, 335 P.3d 217 (describing a valid mortgage assignment and noting that an assignment is “separate from the note and does not by itself transfer ownership of the note”), cert. granted, 2014-NMCERT-008 (No. 34,726, Aug. 29, 2014). Relying on Romero and this Court’s recent opinion in Flagstar Bank FSB v. Licha, 2015-NMCA-086, ¶ 17, 356 P.3d 1102, we also proposed to reject any challenge to standing based on the validity of a mortgage assignment by Mortgage Electronic Registration Systems, Inc. (MERS).

{3}       In response, Homeowner filed a memorandum in opposition that is completely unresponsive to this Court’s proposed disposition. Rather, he continues to challenge the MERS assignment and MERS’ ability to assign the rights to enforce the mortgage. [MIO 2] He further asserts that “without definitive instruction from a definitive principal as authority, MERS, or a MERS assignee, as agent has no authority to exercise the mortgage.” [MIO 3] Homeowner makes no attempt to explain why the case law set forth in the proposed disposition does not control. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (holding that a party opposing summary disposition has the burden to clearly point out errors in fact or law contained in the notice of proposed disposition). Further, he fails to supply citations to either case law or to the record. See Curry v. Great Nw. Ins. Co., 2014-NMCA-031, ¶ 28, 320 P.3d 482 (“Where a party cites no authority to support an argument, we may assume no such authority exists.”). Under these circumstances, we continue to believe that our proposed disposition was correct.

{4}       Accordingly, based on the foregoing discussion and our notice of proposed disposition, we affirm.

{5}       IT IS SO ORDERED.

J. MILES HANISEE, Judge

WE CONCUR:

MICHAEL D. BUSTAMANTE, Judge

TIMOTHY L. GARCIA, Judge