Bank of New York v. Jordan
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 6 7 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION AS GRANTOR TRUSTEE OF THE PROTIUM MASTER GRANTOR TRUST, 8 Plaintiff-Appellee, 9 v. NO. 35,710 10 SCOTT ALLAN JORDAN and 11 TRACEY A. JORDAN, 12 13 Defendants-Appellants, 14 and 15 16 17 18 19 20 21 22 23 24 CRYSTAL MELISSA LOVATO, ROSEMARY ANNE JORDAN, NEW MEXICO EDUCATORS FEDERAL CREDIT UNION, THE UNKNOWN SPOUSE OF CRYSTAL MELISSA LOVATO, IF ANY, and THE UNKNOWN SPOUSE OF ROSEMARY ANNE JORDAN, IF ANY, Defendants. 1 APPEAL FROM THE DISTRICT COURT OF TORRANCE COUNTY 2 Matthew G. Reynolds, District Judge 3 Holland & Hart, LLP 4 Larry J. Montano 5 Santa Fe, NM 6 for Appellee 7 Scott Allan Jordan 8 Estancia, NM 9 Pro Se Appellant 10 MEMORANDUM OPINION 11 VANZI, Chief Judge. 12 {1} Defendants, who are self-represented litigants, appeal from the district court’s 13 order denying their motion for reconsideration of the district court’s denial of 14 Defendants’ motion for relief from judgment. Unpersuaded by Defendants’ docketing 15 statement that they demonstrated error, we issued a notice of proposed summary 16 disposition, proposing to affirm. Defendants have filed a memorandum in opposition 17 to our notice. We have duly considered Defendants’ response and remain 18 unpersuaded. We, therefore, affirm. 2 1 {2} Defendants’ docketing statement listed ten issues, which broadly contested the 2 district court’s rulings on various motions and mostly disputed matters involving 3 Plaintiff’s standing. [DS 3-5] In our effort to address all of their concerns, we set forth 4 three principles we considered dispositive of their appeal. Defendants’ lengthy 5 response to our notice largely ignores our analysis, pursues all ten issues, and persists 6 in their challenge of Plaintiff’s standing. This does not persuade the Court that our 7 proposed analysis was incorrect. 8 {3} We briefly reiterate the grounds for affirmance. First, Defendants waived their 9 ability to challenge Plaintiff’s standing on appeal to this Court by the failure to timely 10 appeal from the district court’s previous final order of October 22, 2013, [RP vol. 6 11 1242] which denied Defendants’ timely motion that sought reconsideration of the 12 judgment of foreclosure. See Rule 1-059(E) NMRA (“A motion to alter, amend, or 13 reconsider a final judgment shall be filed not later than thirty (30) days after entry of 14 the judgment.”); Rule 12-201(D)(1) NMRA (explaining that timely motions for 15 reconsideration or a Rule 1-060(B) NMRA motion filed within thirty days of the 16 challenged order extends the time for filing a notice of appeal until an order is entered 17 expressly disposing of the motion). Our review is limited to whether Defendants 18 established grounds for relief from the foreclosure judgment under Rule 1-060(B). 3 1 {4} Second, a judgment is not voidable under Rule 1-060(B)(4) NMRA for lack of 2 standing. See Deutsche Bank Nat’l Trust Co. v. Johnston, 2016-NMSC-013, ¶ 34, 369 3 P.3d 1046 (clarifying that standing in a foreclosure action to enforce a promissory 4 note is prudential, not a jurisdictional requirement, and the lack of standing does not 5 render a foreclosure judgment voidable under Rule 1-060(B)). Because standing 6 cannot be the basis for the collateral attack under Rule 1-060(B), we do not consider 7 Defendants’ continued challenge to Plaintiff’s standing. See Johnston, 2016-NMSC8 013, ¶ 34. 9 {5} Third and lastly, to the extent that Defendants’ issues relate to the authenticity 10 of the loan documents or to the Truth in Lending Act, the Unfair Practices Act or other 11 affirmative claims of wrongdoing, we are not persuaded for the reasons persuasively 12 set forth in Plaintiff’s response of March 21, 2016: these issues are not properly before 13 us in this collateral attack insofar as they relate to standing; these issues are not 14 properly before us insofar as violations of the various statutes should have been raised 15 as counterclaims in the foreclosure proceeding; Defendants’ rescission claim is not 16 properly before us insofar as it is time-barred; and Defendants’ authenticity arguments 17 were unsupported. [RP vol. 8 1780-90] Our notice invited Defendants to clearly state 18 the legal or factual reasons they believe Plaintiff’s response is incorrect and where in 19 the record it shows they preserved these reasons in district court. Defendants’ 20 response has not clearly established any error. 4 1 {6} For the reasons stated in this opinion and in our notice, we affirm the district 2 court. 3 {7} IT IS SO ORDERED. 4 5 __________________________________ LINDA M. VANZI, Chief Judge 6 WE CONCUR: 7 _________________________________ 8 M. MONICA ZAMORA, Judge 9 _________________________________ 10 STEPHEN G. FRENCH, Judge 5
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