August 18, 2020- Embrace Home Loans, Inc. v. Tina L. Serda, No. A-1-CA-38350

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
EMBRACE HOME LOANS, INC.,	2
Plaintiff-Appellee,	3
v. 	NO. A-1-CA-38350	4
TINA L. SERDA a/k/a TINA	5
FOLLO-SERDA, JAYSON M.	6
SERDA a/k/a JAYSON MYRAN SERDA,	7
Defendants-Appellants,	8
and	9
KIRTLAND FEDERAL CREDIT UNION	10
and MIRABELLA HOMEOWNERS	11
ASSOCIATION, INC.,	12
Defendants.	13
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	14
Lisa Chavez Ortega, District Judge	15
Rose L. Brand & Associates, P.C.	16
Eraina M. Edwards	17
Albuquerque, NM	18
for Appellee	19
Jayson M. Serda	20
Tina L. Serda	21
Albuquerque, NM	22
Pro Se Appellants	23
Court of Appeals of New Mexico
Filed 8/18/2020 10:58 AM

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MEMORANDUM OPINION	1
VARGAS, Judge.	2
{1} 	Defendants appealed following the entry of a decree of foreclosure. We issued	3
a notice of proposed summary disposition in which we proposed to affirm. Defendants	4
have filed a memorandum in opposition. After due consideration, we remain	5
unpersuaded by the assertion of error. We therefore affirm.	6
{2} 	We previously set forth the relevant background information. We will avoid	7
undue reiteration here and focus instead on the content of the memorandum in	8
opposition.	9
{3} 	Defendants have argued that a transfer of the mortgage, from the original lender	10
to MERS and then back from MERS to the original lender, during the pendency	11
Defendants’ bankruptcy proceedings, violated the automatic stay and undermined the	12
validity of the subsequent foreclosure action. [DS 4-5; MIO 1-4]	13
{4} 	Initially, Defendants contended that the transfer constituted a prohibited action	14
to “perfect” a lien against their property, within the meaning of 11 U.S.C. § 362(a)(4)	15
(1988). [DS 4] However, as we previously observed, [CN 3] it is the act of filing a	16
mortgage which perfects the lien. See Finch v. Beneficial N.M., 1995-NMSC-068,	17
¶ 13, 120 N.M. 658, 905 P.2d 198 (explaining that a mortgage is a written security	18
agreement, and that the act of filing of a mortgage in the county records perfects that	19
interest). The assignment of a preexisting mortgage does not entail the creation,	20

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perfection, or enforcement of a lien. See id. ¶ 7 (indicating that an assignment is an	1
act which causes a transfer of a right or interest in property; and explaining that an	2
assignment is not tantamount to a mortgage, which establishes a lien on legal title).	3
Defendants’ memorandum in opposition does not respond to this point or authority.	4
As a result, we adhere to our initial assessment of this matter.	5
{5} 	At this juncture, we understand Defendants to alter their position. They now	6
contend that the assignment of the mortgage constituted a prohibited “act to obtain	7
possession” within the meaning of 11 U.S.C. § 362(a)(3). [MIO 2-3] We question	8
whether this argument was preserved. See generally Woolwine v. Furr’s, Inc.,	9
1987-NMCA-133, ¶ 20, 106 N.M. 492, 745 P.2d 717 (“To preserve an issue for	10
review on appeal, it must appear that [the] appellant fairly invoked a ruling of the	11
[district] court on the same grounds argued in the appellate court.”). In any event, we	12
perceive no merit. As previously stated, a mortgage is simply a written security	13
agreement. See Finch, 1995-NMSC-068, ¶ 13. The transfer of such a security interest,	14
in and of itself, does not affect possession; it is the initiation of the process of	15
foreclosure and sale which alters the right of possession. See Mann v. Whitely, 1931-	16
NMSC-060, ¶ 8, 36 N.M. 1, 6 P.2d 468 (explaining that the mortgagor ordinarily	17
remains entitled to possession until foreclosure and sale). We therefore 	remain	18
unpersuaded that the transfer of the mortgage violated the automatic stay associated	19
with Defendants’ bankruptcy proceedings.	20

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{6} 	The memorandum in opposition contains no argument relative to the other	1
issues originally raised in the docketing statement. Further discussion is therefore	2
unnecessary. See Taylor v. Van Winkle’s IGA Farmer’s Mkt., 1996-NMCA-111, ¶ 5,	3
122 N.M. 486, 927 P.2d 41 (observing that if the memorandum in opposition does not	4
contest a proposed summary disposition relative to specific issues, those issues are	5
deemed abandoned).	6
{7} 	Accordingly, for the reasons stated in the notice of proposed summary	7
disposition and above, we affirm.	8
{8} 	IT IS SO ORDERED.	9
__________________________________	10
JULIE J. VARGAS, Judge	11
WE CONCUR:	12
_________________________________	13
JACQUELINE R. MEDINA, Judge	14
_________________________________	15
MEGAN P. DUFFY, Judge	16