Bank of New York Mellon v. Singh
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 2 3 4 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO BANK OF NEW YORK MELLON, f/k/a THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWABS 2004-05, 6 Plaintiff-Appellee, 7 v. NO. 34,041 8 HARCHARAN SINGH, 9 Defendant-Appellant, 10 and 11 JANE DOE SINGH, GERARD P. GARCIA, 12 and TAXATION AND REVENUE DEPARTMENT 13 OF THE STATE OF NEW MEXICO, 14 Defendants. 15 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 16 Beatrice J. Brickhouse, District Judge 17 Little, Bradley & Nesbitt, P.A. 18 Sandra A. Brown 19 Albuquerque, NM 20 for Appellee 21 Harcharan Singh 1 Albuquerque, NM 2 Pro Se Appellant 3 MEMORANDUM OPINION 4 VANZI, Judge. 5 {1} Defendant Harcharan Singh (Homeowner), a self-represented litigant, appeals 6 from the district court’s order denying his motion to vacate the sale and to declare the 7 default judgment in a foreclosure action against him void. In our notice of proposed 8 summary disposition, we proposed to affirm. In response to this Court’s notice, 9 Homeowner filed a memorandum in opposition and the Bank of New York Mellon 10 (the Bank) filed a memorandum in support, both of which we have duly considered. 11 For the reasons stated in the notice of proposed disposition and below, we affirm. 12 {2} In our notice, we proposed to hold that Homeowner, by defaulting rather than 13 answering the complaint or amended complaint for foreclosure, admitted the 14 allegations made therein. [CN 2, 4-5] We further proposed to hold that those 15 allegations became the facts of the case and established the Bank’s standing to bring 16 the foreclosure action. [CN 2, 4-5, 7] We also noted that the Bank’s attorney filed an 17 affidavit and stated that her office possessed the indorsed note prior to filing the 18 amended complaint but inadvertently failed to attach a copy of the indorsed note to 3 1 the amended complaint. [CN 5-6] Accordingly, we proposed to hold that because the 2 Bank was in possession of the indorsed note prior to filing its amended complaint, it 3 had standing to foreclose at the time it filed its amended complaint. [CN 6-7] 4 {3} In Homeowner’s memorandum in opposition, he makes broad assertions that 5 our proposed disposition is not supported by New Mexico law [MIO 1, 3], but he fails 6 to clearly point out errors in fact or law. See Hennessy v. Duryea, 1998-NMCA-036, 7 ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary 8 calendar cases, the burden is on the party opposing the proposed disposition to clearly 9 point out errors in fact or law.”). Homeowner maintains that the Bank lacked standing 10 to foreclose and that standing can be raised at any time, including the first time on 11 appeal. [See generally MIO] 12 {4} As we discussed in our notice of proposed disposition, the amended complaint 13 alleged that the Bank was a “holder” of the note—a term of art that carries with it the 14 authority to enforce a note. [CN 2, 4-5] See Bank of N.Y. Mellon v. Lopes, 201415 NMCA-097, ¶ 10, 336 P.3d 443. Furthermore, the Bank alleged that the mortgage was 16 assigned to it well before the date the foreclosure complaint was filed. [CN 2, 7] These 17 admitted allegations, taken together, show that the Bank had the authority to enforce 18 both the note and the mortgage at the time the foreclosure complaint was filed and 19 thus also show that the Bank had standing to bring the foreclosure action. See Bank 4 1 of N.Y. v. Romero, 2014-NMSC-007, ¶ 17, 320 P.3d 1 (holding that for a plaintiff to 2 establish standing to pursue foreclosure of mortgage, the plaintiff must establish it had 3 timely ownership of both the note and the mortgage at the time the complaint was 4 filed). 5 {5} As detailed in our calendar notice, the procedural posture of this case is crucial. 6 [CN 2-3] By defaulting rather than answering the foreclosure complaint, Homeowner 7 admitted the facts necessary to establish the Bank’s standing to pursue the foreclosure 8 action. [CN 4] This puts Homeowner in an entirely different position than, for 9 example, the defendant in Lopes, who objected to the plaintiff bank’s standing during 10 the foreclosure proceedings. 2014-NMCA-097, ¶ 2; see also Romero, 2014-NMSC11 007, ¶ 6 (same). The plaintiff in Lopes had notice of the standing issue and therefore 12 had an opportunity to present any evidence it might have had concerning standing; the 13 Bank in this case was not put on notice of the issue and is entitled to rely on 14 Homeowner’s admission by default of the allegations made in the complaint. To hold 15 otherwise would render meaningless the default judgment that was entered in this 16 case. [RP 113] 17 {6} To the extent that Homeowner opposes this Court’s proposed disposition that 18 the Bank’s attorney possessed the indorsed note prior to filing the amended complaint, 19 and therefore, the Bank had standing to foreclose at the time it filed its amended 20 complaint, Homeowner has failed to meet his burden in opposing summary 5 1 affirmance. [MIO 3] See Hennessy, 1998-NMCA-036, ¶ 24 (stating that “the burden 2 is on the party opposing the proposed disposition to clearly point out errors in fact or 3 law”). 4 {7} Therefore, for the reasons stated here and in our notice of proposed summary 5 disposition, we affirm. 6 {8} IT IS SO ORDERED. 7 8 __________________________________ LINDA M. VANZI, Judge 9 WE CONCUR: 10 _________________________________ 11 JAMES J. WECHSLER, Judge 12 _________________________________ 13 JONATHAN B. SUTIN, Judge 6
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