April 15, 2019- LSF9 Master Participation Trust v. Nancy Wils, No. A-1-CA-37386

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

LSF9 MASTER PARTICIPATION TRUST, Filed 4/15/2019 8:58 AM
Plaintiff-Appellee, Ad. —L- . f
Mark Reynolds
v. No. A-1-CA-37386
NANCY WILS and MORTGAGE

ELECTRONIC REGISTRATION
SYSTEMS INC.,

Defendants,
and

MATT MCDONALD, as Trustee for the
5301 VICKSBURG DR. NW TRUST,

Intervenor-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Victor S. Lopez, District Judge

McCarthy & Holthus, LLP
Joshua T. Chappell
Albuquerque, NM

for Appellee

Patrick Lopez
Albuquerque, NM

for Appellant

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MEMORANDUM OPINION
VANZI, Judge.
{1} — Intervenor appeals Plaintiff's summary judgment in this mortgage foreclosure
suit. [DS 2] This Court issued a notice of proposed summary disposition, proposing
to reverse the district court’s summary judgment based upon that court’s resolution
of a disputed question of fact, contrary to the summary judgment standard outlined
in Rule 1-056 NMRA. [CN 5] See Summers v. Am. Reliable Ins. Co.,
1973-NMSC-060, ¥ 10, 85 N.M. 224, 511 P.2d 550 (holding that the “[r]esolution of
disputed questions of material fact is improper in summary judgment proceedings,
whether by findings of fact or otherwise”). Plaintiff has filed a memorandum in
opposition to that proposed disposition. Having duly considered that memorandum,
we remain unpersuaded and now reverse.
23 The fact question at issue in this appeal involves indorsements of the
promissory note that Plaintiff seeks to enforce in this case. That note bears one blank
indorsement and two special indorsements to entities other than Plaintiff. [RP 10]
Because Plaintiff seeks to enforce that note as the holder of bearer paper, its standing
to do so depends upon the order in which those three indorsements were made.
{3}, In response to this Court’s proposed disposition, Plaintiff asserts that it was

entitled to judgment as a matter of law: first, because the summary judgment standard

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required Intervenor to come forward with evidence raising a reasonable doubt about
the order of the indorsements and; second, because a holder is entitled to a
presumption that indorsements are authentic and authorized. [MIO 11, 17] As our
calendar notice pointed out, however, Intervenor’s response to the summary judgment
motion “raised a factual dispute regarding Plaintiff's entitlement to enforce the note,
relying upon the note, itself, which bears three separate, undated indorsements.” [CN
4] Thus, the evidence relied upon by Intervenor is the note, itself, along with the three
undated indorsements. Neither party has challenged the admissibility of that evidence,
and the presence of the undated indorsements raises a fact question about the order
in which they were made.

{4} Similarly, those indorsements undercut Plaintiff's argument that a presumption
of authenticity and authority is sufficient to grant summary judgment. [MIO 17-18]
New Mexico law does recognize a presumption that signatures on an instrument are
valid, but that presumption may be rebutted by evidence. See NMSA 1978, § 55-3-
308(a) (1992) (establishing presumption); NMSA 1978, § 55-1-206 (2006) (allowing
for rebuttal by evidence). We understand Plaintiff to be asserting that the presumption
should be applied to establish that the indorsements were made in the order it
proposes, since any other order would suggest that at least one of the indorsers acted

without authority. [MIO 17-18] We need not address whether that would be a proper

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application of the presumption of validity, however, because the three undated
indorsements on the note amount to evidence from which a trier of fact could arrive
at a contrary finding. As a result, we hold that Intervenor has properly answered the

presumption, and the fact question regarding the sequence of the indorsements should

be answered by a trier of fact.
{5} Thus, for the reasons stated here and in our notice of proposed summary
disposition, we reverse the judgment of the district court and remand this case to that
court for further proceedings.
{6} IT IS SO ORDERED.
LINDA/M. VANZI, Judge

WE CONCUR:

Lastro Boyles.
KRISTINA BOGARDUS, Judge

ELINE R. MEDINA, Judge