January 7, 2019- Sparta GP Holding REO Corp. v. Douglass Sands Russell, No. A-1-CA-36725

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

SPARTA GP HOLDING REO CORP., | Filed 1/7/2019 11:40 AM
Plaintiff-Appellee, . Ad. —L- ot
Mark Reynolds
V. No. A-1-CA-36725

DOUGLASS SANDS RUSSELL and
ORA ABEL-RUSSELL, husband and wife,

Defendants-Appellants,

and

WACHOVIA MORTGAGE CORPORATION;

ABC CORPORATIONS I-X; XYZ PARTNERSHIPS
I-X; JOHN DOES I-X; JANE DOES I-X; and THE
UNKNOWN HEIRS AND DEVISEES OF ANY

OF THE ABOVE, IF DECEASED,

Defendants.

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
Emilio J. Chavez, District Judge

Snell & Wilmer L.L.P.
Gregory J. Marshall
Sandra A. Brown |
Albuquerque, NM

for Appellee
Long, Komer & Associates, P.A.
Jonas M. Nahoum

Santa Fe, NM

for Appellants

1 	MEMORANDUM OPINION
2 V ANZI, Chief Judge.
3 {I} 	Defendants appeal a summary judgment. This Court issued a notice of
4 proposed summary disposition, proposing to reverse the district court's judgment
5 because that court attempted to resolve a dispute of material fact during the course of
6 summary judgment proceedings. [CN 5] 	Plaintiff has filed a memorandum in
7 opposition to that proposed disposition. Having duly considered that memorandum,
8 we remain unpersuaded and now reverse.
9 	{2} 	The question of whether Plaintiff has standing to prosecute this mortgage
10 foreclosure action turns upon which of two indorsements on a promissory note was
11 	made first. The note at issue bears both an undated indorsement in blank and an
12 undated special indorsement. [RP 15] Which of those undated indorsements was first
13 	placed on the document is a question of historical fact. And that fact is material to the
14 question of Plaintiffs standing. If the special indorsement was made first, the note
15 	would be bearer paper, since, under that factual assumption, the note would bear, as
16 Plaintiff suggests: "an indorsement chain terminating in an indorsement to bearer."
17 	[MIO 6] If, on the other hand, the blank indorsement was made first, it would have
18 had no effect on the negotiability of the instrument, and the latter-made special
19 	indorsement would restrict payment to an entity other than Plaintiff. Thus, the legal
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1 question of Plaintiffs ability to enforce the note at issue depends entirely upon the
2 answer to an unresolved question of historical fact.
3 	{3} 	Plaintiff invites this Court, as it did the district court, to employ "a 'common
4 sense' reading of the two indorsements" to conclude that it has standing to enforce
5 the note. [MIO 4, 8] That conclusion, however, could only be made on the basis of
6 a finding regarding the order in which the indorsements were made. It is not the
7 proper role of this Court, however, to make factual findings. And, more to the point,
8 it was also not the proper role of the district court to do so, because "[a] summary
9 judgment motion is not an opportunity to resolve factual issues[.]" Gardner-Zemke
10 	Co. v. State, 1990-NMSC-034, if 11, 109 N.M. 729, 790 P.2d 1010.
11 	{4} 	Instead, fact finding is the role of a trier of fact, who could properly apply
12 "common sense" to assess Plaintiffs outstanding claim that "an indorsement to bearer
13 	would follow a special indorsement[,]" and who could resolve that outstanding
14 material historical fact. [MIO 8] Thus, for the reasons stated here and in our notice
15 	of proposed summary disposition, we reverse the summary judgment entered below.
16 {5}
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IT IS SO ORDERED.
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WE CONCUR:

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sal ~

J. MILES HANISEE, Judge

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