August 1, 2014

The Court of Appeals of New Mexico, in reversing a summary judgment in favor of The Bank of New York as the claimed “trustee” of a Countrywide securitization trust, has reaffirmed existing New Mexico case law that MERS cannot assign promissory notes, and that production of a Note with an “endorsement in blank” after the filing of the Complaint does not satisfy the standing requirement even if the foreclosing party is in possession of the Note. The decision in The Bank of New York Mellon, etc. v. Lopes, Docket No. 32,310 was issued on July 22, 2014.

BNY argued that the MERS assignment of mortgage entitled BNY to enforce the Note. The Court rejected that argument citing the New Mexico Supreme Court’s opinion in Bank of N.Y. v. Romero, 320 P.3d 1 (NM 2014), which held that MERS is merely a nominee for the lender and as such lacked any authority to assign the Note.

BNY then attempted to introduce the Note with a claimed “blank endorsement” at the summary judgment hearing, which had not been attached to the Complaint as of the time that suit was filed. BNY also claimed that it was the “holder” by mere possession of the Note. The Court also rejected that argument, stating that “possession is not necessarily sufficient to make one a holder”, again citing the NM Supreme Court’s Bank of N.Y. v. Romero decision.Summary judgment was reversed because BNY did not establish that it had standing at the time that the Complaint was filed.

Significantly, the Court noted that the Note was not payable to BNY, and that the “endorsement” was stamped by Michelle Sjolander, who we all know to be an admitted robo-signer who has testified under oath in a deposition that she never signed endorsements to notes.

We thank one of our dedicated followers for bringing this decision to our attention.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com