January 28, 2020- Wells Fargo Bank N.A. v. Johana Moore, No. A-1-CA-36335

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
WELLS FARGO BANK N.A.,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-36335	4
JOHANA MOORE,	5
Defendant-Appellant,	6
and	7
TRES PLACITA DEL RIO	8
CONDOMINIUM OWNERS	9
ASSOCIATION and DEPARTMENT	10
OF TREASURY -- INTERNAL	11
REVENUE SERVICE,	12
Defendants.	13
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY	14
Sarah M. Singleton, District Judge	15
Snell & Wilmer L.L.P.	16
Sandra A. Brown	17
Albuquerque, NM	18
for Appellee	19
Law Office of Mark W. Allen, LLC	20
Mark W. Allen	21
Albuquerque, NM	22
Court of Appeals of New Mexico
Filed 1/28/2020 9:10 AM

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for Appellant	1
Walcott, Henry & Winston, P.C.	2
Charles V. Henry	3
Santa Fe, NM	4
for Defendant Tres Placitas Del Rio Condominium	5
Owners Association, Inc.	6
MEMORANDUM OPINION	7
VARGAS, Judge.	8
{1} 	Defendant Johana Moore appeals the district court’s grant of summary	9
judgment in favor of Plaintiff Wells Fargo Bank in this mortgage foreclosure case,	10
arguing that Plaintiff failed to produce admissible evidence to establish it was	11
successor by merger to World Savings Bank (WSB), the original lender and that a	12
genuine issue of material fact exists as to whether Plaintiff was in possession of the	13
note at the time Wells Fargo filed its complaint. Finding no error on the part of the	14
district court, we affirm.	15
BACKGROUND	16
{2} 	Defendant executed a note secured by a mortgage in favor of WSB in May	17
2006. On January 18, 2013, Plaintiff filed a complaint for foreclosure, alleging that	18
Defendant was in default on the note and a subsequent loan modification agreement.	19
Plaintiff’s complaint sought a judgment awarding it the balance due on the note and	20
ordering the foreclosure of the mortgage and sale of the property securing the loan.	21
The parties filed cross motions for summary judgment. Without explanation,	22

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Plaintiff’s motion attached, among other things, three documents addressed to the	1
merger of WSB and Plaintiff. First, Plaintiff attached a letter from the Office of	2
Thrift Supervision, (OTS letter) notifying John A. Stoker, vice president and	3
assistant general counsel of Wachovia Corporation that WSB had met the regulatory	4
requirements to amend its charter and bylaws to change its name to Wachovia	5
Mortgage, FSB. The second document appears to be a letter from Kristi Garcia,	6
assistant general counsel of Wachovia Corporation (internal memo) to retained	7
counsel of its subsidiary, Wachovia Mortgage, FSB, advising that WSB’s parent	8
company had merged with Wachovia Corporation and that WSB had been renamed	9
Wachovia Mortgage, FSB. Plaintiff also attached a letter from the Comptroller of	10
Currency (CC letter) certifying the “conversion of Wachovia Mortgage[,] FSB . . .	11
to 	a 	national 	bank 	with 	the 	name 	Wells 	Fargo 	Bank 	Southwest, 	National	12
Association” as well as the merger of “Wells Fargo Bank Southwest, National	13
Association with and into Wells Fargo Bank, National Association[.]” The letter	14
from the Comptroller of Currency bears a seal on the bottom right-hand corner of	15
the document; however, the seal is unreadable on the copy filed with the district	16
court.	17
{3} 	In support of her motion for summary judgment, Defendant attached, among	18
other things, Plaintiff’s responses to Defendant’s first set of interrogatories in which	19
Wells Fargo stated “that it is successor by merger with [WSB] and is the holder of	20

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the [a]djustable [r]ate [m]ortgage [n]ote . . . and [m]ortgage” and “refers . . .	1
Defendant to the [m]erger [d]ocuments” which were not attached, but we presume	2
are the same three documents attached to Plaintiff’s motion for summary judgment.	3
Plaintiff’s discovery responses further state that “[t]he subject loan was never	4
transferred into a securitized trust.”	5
{4} 	In its reply to Defendant’s response to Plaintiff’s motion for summary	6
judgment, Plaintiff states that “[the] parent company of [WSB] merged with	7
Wachovia Corporation . . . [and WSB] changed its name and became known as	8
Wachovia Mortgage, FSB” and “[u]pon review of its records, Plaintiff has no[]	9
record or indication that the subject loan was transferred out of [WSB] prior to its	10
merger and name change[.]” To support these claims, Plaintiff again refers to certain	11
merger documents from WSB to Wachovia Mortgage, FSB, which it claims are	12
attached to an affidavit of merger and possession of note, purportedly attached to	13
Plaintiff’s reply as Exhibit B. We note that there is no affidavit of merger and	14
possession of the note attached to Plaintiff’s reply, and we were not able to locate it	15
anywhere else in the record. We assume, however, that the merger documents from	16
WSB to Wachovia Mortgage, FSB to which Plaintiff refers, are the three letters	17
attached to its motion for summary judgment and described above. Plaintiff again	18
refers to the merger documents in its response to Defendant’s motion for summary	19
judgment, this time attaching them and pointing out that it had “specifically stated”	20

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that it was WSB’s successor by merger “in several responses to Defendant’s	1
discovery and provided evidence of [the merger] via merger documents produced in	2
discovery[,]” directing the district court to Plaintiff’s answers to interrogatories	3
attached to Defendant’s motion for summary judgment.	4
{5} 	Upon completion of briefing by the parties, the district court granted	5
Plaintiff’s motion and denied Defendant’s motion, concluding that “Defendant has	6
not disputed the material facts that the note . . . is in default and the amounts alleged	7
due by Plaintiff are in fact due.” In response to Defendant’s argument that Plaintiff	8
lacked standing to file its complaint, the district court concluded that this case did	9
not implicate issues involving the transfer of “a note from holder to holder by	10
indorsment.” Instead, the district court held, Plaintiff “is a successor to [WSB], the	11
original lender of the note” based on its status as a receiving bank in a merger and,	12
as “a receiving bank in a merger[, Wells Fargo] holds all rights of the merging bank.”	13
The district court granted Wells Fargo a judgment for the balance due on the note	14
and ordered the foreclosure of the mortgage and sale of the property. Defendant	15
appeals.	16
DISCUSSION	17
Standard of Review	18
{6} 	“Summary judgment is appropriate where there are no genuine issues of	19
material fact and the movant is entitled to judgment as a matter of law. . . . We review	20

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issues of law de novo.” Bank of N.Y. Mellon v. Lopes, 2014-NMCA-097, ¶ 6, 336	1
P.3d 443 (internal quotation marks and citation omitted). “The movant need only	2
make a prima facie showing that [it] is entitled to summary judgment” at which time	3
“the burden shifts to the party opposing the motion to demonstrate the existence of	4
specific evidentiary facts which would require trial on the merits.” Id. (internal	5
quotation marks and citation omitted). “A party may not simply argue that such	6
evidentiary 	facts 	might 	exist, 	nor 	may 	it 	rest 	upon 	the 	allegations 	of 	the	7
complaint. . . . Instead the party opposing the summary judgment motion must	8
adduce evidence to justify a trial on the issues.” Horne v. Los Alamos Nat’l Sec.,	9
LLC, 2013-NMSC-004, ¶ 15, 296 P.3 478 (internal quotation marks and citation	10
omitted).	11
The District Court Properly Granted Summary Judgment When It Concluded	12
Plaintiff Is a Successor to the Original Lender and Holds All the Rights of the	13
Merging Bank	14
{7} 	Defendant’s challenge to the district court’s conclusion that Plaintiff was the	15
successor to WSB and held all the rights of WSB, as the merging bank is limited to	16
her claim that the evidence relied upon by the district court to grant summary	17
judgment was not authenticated. “We review the admission of evidence for an abuse	18
of discretion.” Benz v. Town Ctr. Land, LLC, 2013-NMCA-111, ¶ 11, 314 P.3d 688	19
(internal quotation marks and citation omitted). “When authentication is at issue,	20
there is no abuse of discretion where the evidence is shown by a preponderance of	21

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the evidence to be what it purports to be.” Salehpoor v. N.M. Inst. of Mining & Tech.,	1
2019-NMCA-046, ¶ 27, 447 P.3d 1169 (internal quotation marks and citation	2
omitted). “To satisfy the requirement of authenticating or identifying an item of	3
evidence, the proponent must produce evidence sufficient to support a finding that	4
the item is what the proponent claims it is.” Rule 11-901(A) NMRA. Set out in Rule	5
11-901(B) is a non-exhaustive list of examples of evidence that is sufficient to	6
authenticate a document, including evidence of “[d]istinctive characteristics and the	7
like.” Rule 11-901(B)(4) In considering whether a document is authentic based on	8
its distinctive characteristics, we look to “[t]he appearance, contents, substance,	9
internal patterns, or other distinctive characteristics of the item, taken together with	10
all the circumstances.” Id.	11
{8} 	In this instance, we cannot say that the district court abused its discretion when	12
it considered the OTS letter and the CC letter in making its decision to grant	13
Plaintiff’s motion for summary judgment because various distinct characteristics of	14
those documents, along with other evidence before the district court, provided it with	15
a sufficient basis to conclude by a preponderance of the evidence that the documents	16
were authentic. See Salehpoor, 2019-NMCA-046, ¶ 27. The OTS letter attached to	17
Plaintiff’s motion is printed on letterhead from the Office of Thrift Supervision, the	18
letterhead bears the distinctive logo of the office, and the letter is signed by the	19
assistant regional director of the office. See id. ¶ 28 (holding that a distinctive logo	20

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on regulations, along with other distinctive characteristics, supported the district	1
court’s conclusion that a document was what it purported to be). Similarly, the CC	2
letter printed on letterhead from the office of the Comptroller of Currency, contains	3
its logo and is signed by its representative. The OTC letter and the CC letter address	4
WBS’s applications for name change and merger and reference the relevant	5
regulations for the requested actions. Furthermore, the information comports with	6
Plaintiff’s testimony that WSB had merged with Plaintiff set out in its discovery	7
responses.	8
{9} 	While we recognize that modern technology allows for the manipulation of	9
letterhead, logos, and even signatures that appear on documents offered in support	10
of a party’s claims, the distinctive characteristics contained on the OTC letter and	11
the CC letter presented to the district court, taken together with all the circumstances,	12
support its conclusion that those letters are what they purport to be and absent an	13
assertion by Defendant that the information contained in the merger documents is	14
untrue or incorrect, or that WSB did not merge with Plaintiff, we find no abuse of	15
discretion by the district court. See Apodaca v. AAA Gas Co., 2003-NMCA-085,	16
¶ 58, 134 N.M. 77, 73 P.3d 215 (affirming the authenticity of documents when,	17
among other things, the opponent does not deny the underlying facts contained	18
therein); see also Alliance Health of Santa Teresa, Inc., v. Nat’l Presto Indus. Inc.,	19
2007-NMCA-157, 	¶ 	16, 	143 	N.M. 	133, 	173 	P.3d 	55 	(concluding 	that,	20

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notwithstanding an authenticity challenge, the district court was “entitled to rely on	1
the documents submitted that were provided as part of discovery, especially” when	2
opponent “did not object to their use in the motion for summary judgment and [did]	3
not argue the factual validity of the documents”).	4
{10} 	In passing, Defendant contends that the OTC letter and the internal memo are	5
hearsay. Defendant, however, fails to develop her argument and we therefore decline	6
to consider it further. Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701	7
(“This Court has no duty to review an argument that is inadequately developed.”).	8
{11} 	The district court had before it evidence that Plaintiff was the successor to	9
WSB and therefore held all the rights of a merging bank in the form of the OTC	10
letter, the CC letter and Plaintiff’s responses to Defendant’s interrogatories in which	11
Plaintiff stated “that it is successor by merger with [WSB] and is the holder of the	12
[a]djustable [r]ate [m]ortgage [n]ote and [m]ortgage” and that “[t]he subject loan	13
was 	never 	transferred 	into 	a 	securitized 	trust.” 	See 	Rule 	1-056(C) 	NMRA	14
(authorizing the district court to consider answers to interrogatories in determining	15
whether summary judgment is proper). Because we conclude that the OTS letter and	16
the CC letter, taken along with Plaintiff’s discovery responses were sufficient to	17
make a prima facie showing that Plaintiff held all the rights of the merging bank, it	18
is 	unnecessary for 	us 	to 	consider 	whether 	the 	internal 	memo 	was 	properly	19
authenticated. The burden then shifted to Defendant to show that a genuine issue of	20

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material fact existed for trial, and she failed to provide any evidence to make such a	1
showing.	2
{12} 	Because the district court properly found that Plaintiff was WSB’s successor	3
by merger and held all WSB’s rights, we need not address Defendant’s argument	4
that a genuine issue of material fact exists as to whether Plaintiff was in possession	5
of the note at the time it filed its complaint.	6
CONCLUSION	7
{13} 	We affirm the district court.	8
{14} 	IT IS SO ORDERED.	9
_____________________________	10
JULIE J. VARGAS, Judge	11
WE CONCUR:	12
______________________________	13
M. MONICA ZAMORA, Judge	14
______________________________	15
JACQUELINE R. MEDINA, Judge	16