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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 BOKF, N.A., a national banking association d/b/a
3 BANK OF OKLAHOMA, as successor in interest
4 by merger to BANK OF OKLAHOMA, N.A.,
5 Plaintiff-Appellee,
6 v. NO. 34,005
7 LORENZO LOPEZ and ALISON LOPEZ,
8 Defendants-Appellants.
9 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
10 James Lawrence Sanchez, District Judge
11 Richard Leverick
12 Albuquerque, NM
13 for Appellee
14 Ross & Garrett
15 Michael C. Ross
16 Albuquerque, NM
17 Law Offices of Sylvain Segal
18 Sylvain Segal, Jr.
19 Albuquerque, NM
20 for Appellants
1 MEMORANDUM OPINION
2 VANZI, Judge.
3 {1} Defendants appeal the district court’s grant of a writ of assistance, which
4 required Defendants to vacate a house that had been the subject of a foreclosure action
5 filed by Plaintiff. We issued a notice of proposed disposition proposing to affirm, and
6 Defendants have responded with a memorandum in opposition. We have carefully
7 considered the arguments raised in that memorandum; however, for the reasons stated
8 in the notice of proposed disposition and below, we continue to believe summary
9 affirmance is appropriate in this case. We therefore affirm the district court’s decision.
10 {2} In our notice we proposed to find that Defendants, by defaulting rather than
11 answering the complaint for foreclosure that was filed in this case, had admitted the
12 allegations made in the complaint. We further proposed to hold that those allegations,
13 together with the documents attached to the complaint, established Plaintiff’s standing
14 to bring the foreclosure action underlying the writ-of-assistance proceeding. In
15 response, Defendants make two arguments. First, they claim the “complaint does not
16 create a prima facie case for foreclosure of the note and mortgage because it fails to
17 show that the Bank had standing.” [MIO 2] Second, they contend it should not matter
2
1 whether they are raising standing following the entry of a default judgment, because
2 standing may be raised at any point in a case. [MIO 3] Significantly, they do not
3 dispute our proposed holding that, by failing to file an answer to the foreclosure
4 complaint, they admitted the allegations of the complaint as true for purposes of this
5 case.
6 {3} We disagree with Defendants’ first argument because, as we discussed in the
7 notice of proposed disposition, the allegations of the complaint do in fact “create a
8 prima facie case for foreclosure” by establishing Plaintiff’s standing. As we pointed
9 out, the complaint alleged that Plaintiff was both a “holder” and a “holder in due
10 course” of the promissory note, terms of art that carry with them the authority to
11 enforce a note. See Bank of N.Y. Mellon v. Lopes, 2014-NMCA-___ ¶¶ 9-10, ___ P.3d
12 ___, (No. 32,310, July 22, 2014). Furthermore, Plaintiff alleged that the mortgage was
13 assigned to it well before the date the foreclosure complaint was filed. These admitted
14 allegations, taken together, show that Plaintiff had the authority to enforce both the
15 promissory note and the mortgage at the time the foreclosure complaint was filed, and
16 thus also show that Plaintiff had standing to bring the foreclosure action. See Bank of
17 N.Y. v. Romero, 2014-NMSC-007, ¶ 17, 320 P.3d 1 (for plaintiff to establish standing
18 to pursue foreclosure of mortgage, plaintiff must establish it had timely ownership of
19 both the promissory note and the mortgage at the time the complaint was filed).
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1 {4} As for Defendants’ second argument, we disagree because, contrary to
2 Defendants’ argument, the procedural posture of this case is crucial. As discussed
3 above, by defaulting rather than answering the foreclosure complaint, Defendants
4 admitted the facts necessary to establish Plaintiff’s standing to pursue the foreclosure
5 action. This puts Defendants in an entirely different position than, for example, the
6 defendants in Romero, who objected to the plaintiff bank’s standing during the
7 foreclosure proceedings and thus put the plaintiff to its proof on that issue. See id. ¶ 6.
8 The plaintiff in Romero had notice of the standing issue and therefore had an
9 opportunity to present any evidence it might have had concerning that issue; Plaintiff
10 in this case has never been put on notice of the issue and is entitled to rely on
11 Defendants’ admission by default of the allegations made in the complaint. To hold
12 otherwise would render meaningless the default judgment that was entered in this
13 case, as well as the denial of Defendants’ Rule 1-060(B) NMRA motion to reopen the
14 default judgment. We therefore decline to adopt Defendants’ position.
15 {5} Based on the foregoing as well as the discussion in the notice of proposed
16 disposition, we affirm the district court’s decision in this case.
17 {6} IT IS SO ORDERED.
18 __________________________________
19 LINDA M. VANZI, Judge
20 WE CONCUR:
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1 _________________________________
2 MICHAEL D. BUSTAMANTE, Judge
3 _________________________________
4 TIMOTHY L. GARCIA, Judge
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