BOKF, N.A. v. Gonzalez
35,691
N.M. Ct. App.Jun 28, 2017Background
- Plaintiff BOKF, N.A. (successor to Bank of Albuquerque) sued to foreclose a mortgage on property owned by Hector L. Gonzalez, Jr.; Gonzalez appealed pro se from the district court foreclosure judgment.
- Plaintiff attached the promissory note (indorsed in blank) and the mortgage to its complaint.
- District court found Plaintiff in possession of the note at commencement and thus the holder entitled to enforce it.
- Gonzalez contended Plaintiff lacked standing, argued MERS could not lawfully assign the mortgage, and asserted consumer-protection violations.
- Gonzalez’s counterclaim alleging consumer-protection violations was struck as untimely by the district court.
- This Court issued a calendar notice proposing affirmation; after Gonzalez’s response, the Court affirmed the foreclosure judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to foreclose | Possession of the promissory note indorsed in blank makes Plaintiff the holder and entitled to enforce the note | Plaintiff lacked standing to foreclose because it did not have the right to enforce the note/mortgage at filing | Affirmed — Plaintiff held the note (blank indorsement + possession) and had standing |
| Authority of MERS to assign mortgage | MERS, as nominee for the original lender, can validly assign the mortgage to Plaintiff | MERS was a robo-signer/nominal holder and lacked authority to convey title | Affirmed — MERS can assign the mortgage as nominee for the lender |
| Timeliness and consideration of counterclaim | Plaintiff moved to strike counterclaim as untimely | Gonzalez raised consumer-protection claims in his late counterclaim | Affirmed — district court did not abuse discretion in striking the late counterclaim; merits not considered |
Key Cases Cited
- Deutsche Bank Nat’l Trust Co. v. Johnston, 369 P.3d 1046 (N.M. 2016) (to foreclose, plaintiff must show right to enforce note and ownership of mortgage lien)
- Bank of N.Y. v. Romero, 320 P.3d 1 (N.M. 2014) (blank indorsement + possession establishes holder status)
- Flagstar Bank, FSB v. Licha, 356 P.3d 1102 (N.M. Ct. App. 2015) (MERS acting as nominee may assign the mortgage)
- PNC Mortg. v. Romero, 377 P.3d 461 (N.M. Ct. App. 2016) (recognizes limits/abrogation on other grounds; discussed in context of MERS assignments)