US BANK NATIONAL ASSOCIATION, AS TRUSTEE, SUCCESSOR IN INTEREST TO BANK OF AMERICA, NATIONAL ASSOCIATION, AS TRUSTEE (SUCCESSOR BY MERGER TO LASALLE BANK NATIONAL ASSOCIATION) AS TRUSTEE FOR MORGAN STANLEY MORTGAGE LOAN TRUST 2006-12XS, Plaintiff-Appellee,
ANKE HERNANDEZ, Defendant-Appellant, and OCCUPANTS WHOSE TRUE NAMES ARE UNKNOWN, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (SOLELY AS NOMINEE FOR LENDER AND LENDER'S SUCCESSORS AND ASSIGNS), Defendant.
FROM THE DISTRICT COURT OF TORRANCE COUNTY Matthew G.
Reynolds, District Judge
L. Brand & Associates, P.C. Eraina M. Edwards
Albuquerque, NM for Appellee .
LLC Joshua R. Simms Albuquerque, NM for Appellant
TIMOTHY L. GARCIA, JUDGE
Defendant appeals from the district court's order denying
her motion to vacate the judgment as void. Unpersuaded that
the docketing statement demonstrated error, we issued a
notice of proposed summary disposition, proposing to affirm.
Defendant has responded to our notice with a memorandum in
opposition. After due consideration, we remain unpersuaded.
We, therefore, affirm.
Defendant raises two issues on appeal. She asks whether it
was reversible error for the district court to (1) refuse to
vacate the foreclosure judgment on the proof that Defendant
gave timely notice of rescission, and (2) deny the motion to
vacate the foreclosure judgment without explanation. [MIO 3]
The second assertion of error was not listed in the docketing
statement. Therefore, we treat this assertion as a motion to
amend the docketing statement and deny it because it is not a
viable issue. See State v. Moore, 1989-NMCA-073,
¶¶ 36-51, 109 N.M. 119, 782 P.2d 91 (indicating
that this Court will deny motions to amend that raise issues
that are not viable, even if they allege fundamental or
jurisdictional error), superceded by rule on other
grounds as recognized in State v. Salgado,
1991-NMCA-044, 112 N.M. 537, 817 P.2d 730. Defendant does not
refer us to, and we are not aware of any, controlling
authority that would require the district court to explain
its ruling on her Rule 1-060(B) NMRA motion under the
circumstances presented here. In fact, Rule 1-052(A) NMRA
states in relevant part that "[f]indings of fact and
conclusions of law are unnecessary in decisions on motions
under Rules 1-012, 1-050, or 1-056 NMRA or any other
motion except as provided in Paragraph B of Rule 1-041
NMRA." (Emphasis added.) We see no viable allegation of
reversible error and deny the motion to amend.
As for Defendant's assertion that reversal is appropriate
based on her timely notice of rescission, we are not
persuaded. Our notice informed Defendant that her docketing
statement did not provide this Court with sufficient
information or with citation to any authority suggesting
that, even if there was an effective rescission of the loan,
it would provide a basis for relief under Rule 1-060(B) NMRA.
See In re Adoption of Doe, 1984-NMSC-024, ¶ 2,
100 N.M. 764, 676 P.2d 1329 ("We have long held that to
present an issue on appeal for review, an appellant must
submit argument and authority as required by rule.").
Defendant's response to our notice continues to omit any
reference to authority suggesting that the foreclosure
judgment would be void based on the rescission. We further
explained that rescission appeared to be a defense that could
be waived and that we could conceive of no reason why it
would create a void judgment, where it is not raised as a
defense or as a remedy sought in the normal course of
proceedings. See, e.g., Branch v. Chamisa Dev.
Corp., Ltd., 2009-NMCA-131, ¶ 21, 147 N.M. 397, 223
P.3d 942 (describing rescission as a defense or equitable
remedy that can be forfeited). Defendant has not responded to
these concerns at all. Defendant seems to conflate the
concept of a delayed pursuit of a rescission defense with our
concern that a rescission would not result in a void judgment
of foreclosure under Rule 1-060(B)(4)-even if the rescission
was demonstrably effective, which it was not in this case.
To the extent Defendant presumes that a rescission under the
federal statute would affect Plaintiff's standing and
that lack of standing is a jurisdictional flaw that results
in a void judgment, we are not persuaded for the reasons
stated in our notice. Specifically, in Deutsche Bank Nat.
Trust Co. v. Johnston, 2016-NMSC-013, ¶ 34, 369
P.3d 1046, the Supreme Court clarified that standing in a
foreclosure action to enforce a promissory note is
prudential, not a jurisdictional requirement, and the lack of
standing does not render a foreclosure judgment voidable
under Rule 1-060(B). The Supreme Court indicated that, like a
defense to a complaint for failure to state a claim, the
requirement of prudential standing to enforce a promissory
note must be raised during the pendency of the action on the
complaint, including the direct appeal, or it is waived.
See id. For these reasons, we are not persuaded that
Defendant alleged sufficient facts that would render the
judgment void or would otherwise establish grounds for relief
under Rule 1-060(B). In the absence of any authority or
persuasive argument to support Defendant's position,
Defendant has not demonstrated reversible error.
Based on the foregoing, we affirm the district court's
denial of Defendant's motion to vacate the judgment of