February 14, 2019- Federal National Mortgage Association v. Steven J. Chavez, No. A-1-CA-37328

OCR transcription for search; preserved printed pages are authoritative

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

FEDERAL NATIONAL MORTGAGE Filed 2/14/2019 10:07 AM

ASSOCIATION, / [> |
Plaintiff-Appellee, Mark Reynolds

v. NO. A-1-CA-37328

STEVEN J. CHAVEZ a/k/a STEVE

CHAVEZ a/k/a STEVEN CHAVEZ,
Defendant-Appellant,
and

NEW MEXICO DEPARTMENT OF
WORKFORCE SOLUTIONS BENEFIT
PAYMENT CONTROL SECTION; DEX ONE
CORPORATION; MESA RIDGE
APARTMENTS LLC d/b/a MESA RIDGE
APARTMENTS; and YELLOW BOOK
SALES & DISTRIBUTION COMPANY, INC.,

Defendants.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Alan M. Malott, District Judge

Rose L. Brand & Associates, P.C.
Eraina M. Edwards

Albuquerque, NM

for Appellee

Rachel O. Woods
Albuquerque, NM

for Appellant

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MEMORANDUM OPINION
VANZI, Judge.
(4). Defendant Steven J. Chavez appeals from the district court’s foreclosure
judgment and order for foreclosure sale. [2 RP 269] In this Court’s notice of proposed
disposition, we proposed to summarily affirm. Appellant filed a memorandum in
opposition, which we have duly considered. Remaining unpersuaded, we affirm.
(23 We initially note that in our calendar notice, we suggested that Appellant’s
issues (a) through (d) were unpreserved. Appellant makes no argument in his
memorandum in opposition regarding issues a and b, so those are deemed abandoned.
See State v. Johnson, 1988-NMCA-029, 4 8, 107 N.M. 356, 758 P.2d 306 (explaining
that when a case is decided on the summary calendar, an issue is deemed abandoned
when a party fails to respond to the proposed disposition of that issue).
{33 | With regard to issues (c) and (d), Appellant argues that they were preserved,
pointing to the record to indicate where such arguments were made. [MIO 1-2]
Appellant also continues to argue issue e, which was addressed in our calendar notice.
Thus, Appellant’s three issues are as follows: (c) the district court erred by finding
that NMSA 1978, Section 47-1-7 (1901) is not applicable to the note indorsement and

assignments of mortgage, as they did not involve a conveyance of real property; (d)

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Plaintiff Fannie Mae improperly sought “enforcement of the [mJortgage, as the
[m]Jortgagee by way of a transfer of the [m]ortgage which ignores” NMSA 1978,
Section 47-1-4 (1865); and (e) Fannie Mae improperly sought “enforcement of the
[m]ortgage, as the [m]Jortgagee by way ofa transfer of the [m]ortgage which ignores”
Section 47-1-7. [DS 3; CN 3-5; see also MIO 2-5] These issues are related and
essentially argue that the note was not properly indorsed and that MERS did not have
the authority to assign the mortgage and/or record the assignment of mortgage and/or
that the assignment of mortgage was ineffective absent some additional authority
granted and recorded. [See DS 3, 6-9; MIO 2-5]

{4 Section 47-1-4 states that “[a]ny person or persons, or body politic, holding,
or who may hold, any right or title to real estate in this state, be it absolute or limited,
in possession, remainder or reversion, may convey the same in the manner and subject
to the restrictions prescribed in this chapter.” Section 47-1-7 states:

All powers of attorney or other writings containing authority to
convey real estate, as agent or attorney of the owner of the same, or to
execute, as agent for another, any conveyance of real estate, or by which
real estate may be affected in law, or equity, shall be acknowledged,
certified, filed and recorded, as other writings conveying or affecting
real estate are required to be acknowledged. No such power of attorney,
or other writing, filed and recorded in the manner prescribed in this
section, shall be considered revoked by any act of the party executing

the same, until the instrument of writing revoking the same, duly
acknowledged and certified to, shall be filed for record and recorded in

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the office of the county clerk where said power of attorney or other
writing is filed and recorded.

In our calendar notice, we suggested that Section 47-1-7 was inapplicable because it
applies to conveyances of real property, not negotiable instruments. [CN 4] Appellant
argues that this is not always true, and we agree and clarify.

5} As the statute states, see High Ridge Hinkle Joint Venture v. City of
Albuquerque, 1998-NMSC-050, § 5, 126 N.M. 413, 970 P.2d 599 (stating that “the
plain language of a statute is the primary indicator of legislative intent” and that we
“give the words used in the statute their ordinary meaning unless the [L]egislature
indicates a different intent” (internal quotation marks and citations omitted)), Section
47-1-7 is intended to apply to powers of attorney or other writings that contain
authority (a) to convey real estate, as agent or attorney of the owner of the same, (b)
to execute, as agent for another, or (c) by which real estate may be affected in law or
equity. Section 47-1-4. In the present case, we do not have any powers of attorney or
conveyances of real estate, but we do have “other writings that contain authority ...
by which real estate may be affected in law or equity[.]” Section 47-1-7. Thus,
Section 47-1-7 requires that such writing must be “acknowledged, certified, filed and
recorded, as other writings conveying or affecting real estate are required to be

acknowledged.”

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6} Inthe context of Appellant’s argument, this requires that the indorsements of
note and assignments of mortgage be acknowledged, certified, filed, and recorded.
See id. [See DS 3; MIO 2-5] However, a promissory note, and, indeed, the note at
issue in the present case [see 1 RP 9-13], does not convey or affect real estate in law
or in equity—rather, a note is a negotiable instrument by which one party agrees to
owe another party pursuant to the terms of the instrument. See NMSA 1978, § 55-3-
104 (1992). As such, to the extent Appellant argues that the district court erred in
finding that Section 47-1-7 is inapplicable to the note indorsements [DS 3], we
disagree and affirm the district court.

{7} We thus turn to Appellant’s arguments that the district court erred in finding
that Section 47-1-7 was inapplicable to the assignments of mortgage and that Fannie
Mae improperly sought enforcement of the mortgage by way of a transfer of the
mortgage that ignores Section 47-1-7. [DS 3; MIO 2-5] As indicated above, Section
47-1-7 requires that the mortgage assignments must be “acknowledged, certified,
filed and recorded, as other writings conveying or affecting real estate are required
to be acknowledged.” See § 47-1-7. According to our review of the record, it appears
that the mortgage and each of its assignments was, indeed, acknowledged, certified,
filed, and recorded. [See 1 RP 14-30, 35, 36] In his memorandum in opposition,

Appellant has provided no reference to the record to indicate that this is not true.

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Rather, he simply contends that Plaintiff “cannot show transfer of the [mortgage or
[n]ote compliant with [Section] 47-1-7 and so fails its jurisdictional prerequisite for
a cause of action.” [MIO 5] Accordingly, we affirm the district court’s determination
that the mortgage was properly assigned and/or that Section 47-1-7 did not render
such assignment ineffective. See Romero v. Bd. of Cty. Comm’rs, 201 1-NMCA-066,
4 7, 150 N.M. 59, 257 P.3d 404 (“[W]e can affirm if the district court was correct for
any reason that was before it on the basis of the presentations of the parties.”).

{83} To the extent Appellant is attempting to argue that Plaintiff did not have
standing to pursue this action for some reason other than that it purportedly
“ignore[d] Section 47-1-7” [see DS 3; MIO 5], we decline to address the undeveloped
argument. See Corona v. Corona, 2014-NMCA-071, J 28, 329 P.3d 701 (“This Court
has no duty to review an argument that is not adequately developed.”); see also Elane
Photography, LLC v. Willock, 2013-NMSC-040, 4 70, 309 P.3d 53 (“We will not
review unclear arguments, or guess at what a party’s arguments might be.” (alteration,
internal quotation marks, and citation omitted)).

{9} To the extent Appellant intends to argue that MERS did not have the authority
as nominee to assign the mortgage on behalf of the lender [see DS 7-8], this argument
has been addressed by this Court and our Supreme Court, and we decline to revisit

it. See Flagstar Bank, FSB v. Licha, 2015-NMCA-086, J 17, 356 P.3d 1102,

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abrogated on other grounds recognized by PNC Mortg. v. Romero, 2016-NMCA-
064, J 18, 377 P.3d 461; see also Bank of N.Y. v. Romero, 2014-NMSC-007, § 35,
320 P.3d I (“As a nominee for [the lender] on the mortgage contract, MERS could
assign the mortgage but lacked any authority to assign the [borrowers’] note.”
(emphasis added)). And to the extent Appellant intends to argue that MERS’s
assignment of the mortgage somehow implicates Section 47-1-7 and imposes a
requirement that MERS and the lender on whose behalf MERS acted must both sign,
etc., an otherwise properly recorded assignment of mortgage in order for it to be
effective [see DS 7, 9], we note that Appellant has failed to provide any authority in
support of such a conclusion, and, again, we decline to address the undeveloped
argument. See Curry v. Great Nw. Ins. Co., 2014-NMCA-031, § 28, 320 P.3d 482
(“Where a party cites no authority to support an argument, we may assume no such
authority exists.”); Hennessy v. Duryea, 1998-NMCA-036, § 24, 124 N.M. 754, 955
P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases, the
burden is on the party opposing the proposed disposition to clearly point out errors
in fact or law.”); see also Elane Photography, LLC, 2013-NMSC-040, J 70; Corona,
2014-NMCA-071, § 28.

{10} Accordingly, for the reasons stated in our notice of proposed disposition and

herein, we affirm.

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{11} IT IS SO ORDERED.
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LINDA M. VANZI, Judge
4 |WE CONCUR:
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Julie J. Vargas
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JULIE J. VARGAS, Judge
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Kristina Bogardus.
KRISTINA BOGARDUS, Judge
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