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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 CITIMORTGAGE, INC.,
3 Plaintiff-Appellee,
4 v. No. 34,748
5 AMADOR VARELA,
6 Defendant-Appellant,
7 and
8 TAXATION and REVENUE DEPARTMENT
9 of the STATE OF NEW MEXICO, and
10 PORTFOLIO RECOVERY ASSOCIATES, LLC,
11 Defendants.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Valerie Mackie Huling, District Judge
14 Aldridge Pite, LLP
15 Denise A. Snyder
16 Albuquerque, NM
17 Eddie R. Jimenez
18 San Diego,CA
19 for Appellee
1 JRSPC, LLC
2 Joshua R. Simms
3 Albuquerque, NM
4 for Appellant
5 MEMORANDUM OPINION
6 KENNEDY, Judge.
7 {1} Defendant Amador Varela (Varela) appeals from the district court’s order
8 denying Varela’s motion to vacate sale and declare judgment void for lack of
9 jurisdiction. [RP 171, 174] In this Court’s notice of proposed disposition, we proposed
10 to conclude that the district court did not lack jurisdiction to adjudicate the case or to
11 enter default judgment against Varela and that, as such, the district court did not err
12 in denying Varela’s motion to vacate sale and declare the default judgment void for
13 lack of jurisdiction. Plaintiff filed a memorandum in support (MIS), and Varela filed
14 a timely memorandum in opposition (MIO) to the notice of proposed disposition. We
15 have given due consideration to the memoranda, and, remaining unpersuaded by
16 Varela’s arguments in opposition to our proposed disposition, we affirm the district
17 court.
18 {2} In his memorandum in opposition, Varela agrees with, concedes, or simply does
19 not dispute much of what this Court proposed in its notice of proposed disposition.
20 [Compare MIO 2–5, with CN 1–14] Instead, Varela essentially argues that MERS did
2
1 not have the authority to assign the mortgage because MERS does not have an interest
2 in the note and that, even if MERS did have such authority, MERS’ assignee is an
3 agent without a principal, so Plaintiff cannot enforce the mortgage. [MIO 3–5] This
4 is a variation on Varela’s prior argument that the district court lacked jurisdiction to
5 adjudicate the case. [See DS 3]
6 {3} Varela contends that, because MERS does not have an interest in the note itself,
7 it lacks authority to assign rights to enforce the mortgage. [MIO 3–4] However, both
8 our Supreme Court and this Court have already expressly ruled that MERS, as
9 nominee for a lender, can assign the mortgage on behalf of such lender. See Bank of
10 N.Y. v. Romero, 2014-NMSC-007, ¶ 35, 320 P.3d 1 (stating that “[a]s a nominee for
11 [the original lender] on the mortgage contract, MERS could assign the mortgage”);
12 Flagstar Bank, FSB v. Licha, 2015-NMCA-086, ¶ 17, 356 P.3d 1102 (reiterating that
13 “where MERS’ role was that of a nominee for [the l]ender and [the l]ender’s
14 successors and assigns, MERS could assign the mortgage” (alterations, internal
15 quotation marks, and citation omitted)). Thus, MERS need not have an “interest in the
16 note” in order to act as nominee for the original lender and have the authority to assign
17 the mortgage. See Romero, 2014-NMSC-007, ¶ 35 (stating that, although MERS had
18 the authority to assign the mortgage, it did not follow that MERS could transfer the
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1 note); Licha, 2015-NMCA-086, ¶ 17 (same). As discussed more fully in our notice of
2 proposed disposition, in the present case, the mortgage was assigned by the original
3 lender [see RP 12–13], by and through its attorney-in-fact, to MERS, nominee for
4 Plaintiff. [RP 32] The mortgage was then assigned by MERS, nominee for Plaintiff,
5 to Plaintiff. [RP 33] As MERS was nominee for Plaintiff, these assignments of
6 mortgage are permissible. See Romero, 2014-NMSC-007, ¶ 35; Licha, 2015-NMCA-
7 086, ¶ 17.
8 {4} Varela nevertheless argues that, because MERS is an agent to its principal, the
9 holder of the debt, then any assignment from MERS would only assign agency
10 authority to the assignee. [See MIO 4–5] First, this is a misstatement of the law
11 asserted in Romero and Licha. Neither our Supreme Court nor this Court concluded
12 that an assignment of mortgage by MERS as nominee for a lender only assigns
13 authority to the assignee as an agent or even nominee of a lender. See Romero, 2014-
14 NMSC-007, ¶ 35; Licha, 2015-NMCA-086, ¶ 17.
15 {5} Second, this is a misstatement of the facts in the present case. MERS is not
16 identified in any loan documents as agent for anyone or even as nominee for a to-be-
17 named lender. [See RP 32–33] Rather, MERS is identified specifically as nominee
18 “for CitiMortgage[(,)] Inc.” [Id. (emphasis added)] Indeed, MERS is not identified
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1 as the nominee for whoever happens to be the bearer of the note at any given time, but
2 specifically for Plaintiff. Thus, the question is whether MERS, as nominee for
3 Plaintiff, was authorized to assume and assign the mortgage on behalf of Plaintiff,
4 which, we have already explained, it is. See Romero, 2014-NMSC-007, ¶ 35; Licha,
5 2015-NMCA-086, ¶ 17.
6 {6} To the extent Varela maintains that MERS has the status of agent of an
7 unnamed lender simply because the note has become a bearer instrument by being
8 indorsed in blank [MIO 4–5], we are unpersuaded. Varela has cited no authority that
9 indicates that MERS’ status as nominee for a lender is altered to that of agent of the
10 bearer of a note indorsed in blank upon such indorsement, so we assume no such
11 authority exists. See Curry v. Great Nw. Ins. Co., 2014-NMCA-031, ¶ 28, 320 P.3d
12 482 (“Where a party cites no authority to support an argument, we may assume no
13 such authority exists.”).
14 {7} Accordingly, for the reasons set forth in our notice of proposed disposition and
15 herein, we affirm.
16 {8} IT IS SO ORDERED.
17 _______________________________
18 RODERICK T. KENNEDY, Judge
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1 WE CONCUR:
2 ___________________________________
3 JAMES J. WECHSLER, Judge
4 ___________________________________
5 M. MONICA ZAMORA, Judge
6