U.S. Bank National Association v. Martinez

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 U.S. BANK NATIONAL ASSOCIATION, 3 AS TRUSTEE FOR TBW MORTGAGE-BACKED 4 TRUST SERIES 2007-2, TBW MORTGAGE 5 PASS-THROUGH CERTIFICATES, SERIES 2007-2, 6 Plaintiff-Appellee, 7 v. No. 34,935 8 MARGARET H. MARTINEZ, 9 Defendant-Appellant, 10 and 11 MORTGAGE ELECTRONIC REGISTRATION 12 SYSTEMS, INC. (SOLELY AS NOMINEE FOR 13 LENDER AND LENDER’S SUCCESSORS AND 14 ASSIGNS); OCCUPANTS, WHOSE TRUE NAMES 15 ARE UNKNOWN, IF ANY; AND THE UNKNOWN 16 SPOUSE OF MARGARET H. MARTINEZ, IF ANY, 17 Defendants. 18 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 19 Beatrice J. Brickhouse, District Judge 20 JRSPC, LLC 21 Joshua R. Simms 22 Albuquerque, NM 1 for Appellant 2 Johnson Law Firm LC 3 Thomas L. Johnson 4 Albuquerque, NM 5 for Appellee 6 MEMORANDUM OPINION 7 KENNEDY, Judge. 8 {1} Defendant-Appellant Margaret H. Martinez (Homeowner) appeals from the 9 district court’s order denying her motion to reconsider the order approving the special 10 master’s report and sale, claiming that the underlying foreclosure judgment was void 11 for lack of standing. In our notice of proposed summary disposition, we proposed to 12 affirm. In response to this Court’s notice, Homeowner filed an untimely memorandum 13 in opposition, followed by a motion asking this Court to allow her to file an amended 14 memorandum in opposition to the proposed summary disposition to correct the names 15 of entities and to accept the amended memorandum in opposition as timely, which this 16 Court granted. Plaintiff-Appellee U.S. Bank National Association, as Trustee for 17 TBW Mortgage-Backed Trust Series 2007-2, TBW Mortgage Pass-Through 18 Certificates, Series 2007-2 (U.S. Bank) filed a timely memorandum in support of our 19 proposed summary disposition and a response opposing Homeowner’s motion seeking 20 to file the amended memorandum in opposition. We have duly considered the 2 1 aforementioned pleadings. For the reasons stated in the notice of proposed disposition 2 and below, we affirm. 3 {2} In our calendar notice, we noted that Homeowner had filed successive motions 4 challenging U.S. Bank’s standing to foreclose in this case and we suggested that 5 successive motions challenging the same issue are disfavored. [CN 2-3] We also 6 proposed to hold that U.S. Bank established that it was in possession of the note, 7 indorsed in blank, prior to filing its complaint, and it had standing to foreclose at the 8 time it filed its complaint. [CN 4-7] Accordingly, we proposed to affirm the district 9 court’s order denying Homeowner’s motion to reconsider the order approving the 10 special master’s report and approving the sale. [CN 8] 11 {3} Homeowner’s amended memorandum in opposition does not point to any 12 specific errors in fact or in law in our calendar notice. [See generally Am. MIO] See 13 Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our 14 courts have repeatedly held that, in summary calendar cases, the burden is on the party 15 opposing the proposed disposition to clearly point out errors in fact or law.”). 16 Nevertheless, she maintains that U.S. Bank lacked standing to foreclose. In support 17 of this assertion, she claims that the affidavit submitted by Crystal Kearse, on behalf 18 of U.S. Bank, was deficient because Kearse did not have personal knowledge of all 19 the events alleged in her affidavit and “her allegations [were] hearsay without certified 3 1 copies of the records she necessarily needed to refer to for her allegations to be fact.” 2 [Am. MIO 2-3; see also U.S. Bank’s Response to Motion 2-4] These assertions, 3 however, do not appear to be supported by the record. [See U.S. Bank’s Response to 4 Motion 2-4; 2 RP 528-32] Additionally, without citing any authority to support its 5 argument, Homeowner argues that an indorsement in blank is inferior and seems to 6 suggest that as a bearer instrument, it is unenforceable. [Am. MIO 4-6; see also U.S. 7 Bank’s Response to Motion 4] See Curry v. Great Nw. Ins. Co., 2014-NMCA-031, 8 ¶ 28, 320 P.3d 482 (“Where a party cites no authority to support an argument, we may 9 assume no such authority exists.”). We are not persuaded by Homeowner’s arguments. 10 {4} Therefore, for the reasons stated here and in our notice of proposed summary 11 disposition, we affirm. 12 {5} IT IS SO ORDERED. 13 _______________________________ 14 RODERICK T. KENNEDY, Judge 15 WE CONCUR: 16 ___________________________________ 17 MICHAEL D. BUSTAMANTE, Judge 18 ___________________________________ 19 LINDA M. VANZI, Judge 4