1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 Opinion Number: ___________

3 Filing Date: February 6, 2018

4

5 No. A-1-CA-35518

6 NATIONSTAR MORTGAGE LLC, d/b/a

7 CHAMPION MORTGAGE COMPANY,

8 Plaintiff-Appellant,

9 v.

10 SHEILA J. O’MALLEY,

11 Defendant-Appellee,

12 and

13 TIMOTHY W. O’MALLEY, IF LIVING;

14 IF DECEASED THE UNKNOWN HEIRS

15 OF TIMOTHY W. O’MALLEY, DECEASED;

16 UNITED STATES OF AMERICA BY AND THROUGH

17 THE SECRETARY OF HOUSING

18 AND URBAN DEVELOPMENT; OCCUPANTS

19 OF THE PROPERTY,

20 Defendants. 

21 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY

22 Sarah C. Backus, District Judge

23 McCarthy & Holthus, LLP

24 Joshua T. Chappell

25 Karen H. Weaver
1 Albuquerque, NM 

2 Murr Siler & Accomazzo, P.C. 

3 James P. Eckels

4 Jamie G. Siler

5 Denver, CO

6 Jared Daniel Albert Najjar

7 Santa Fe, NM

8 for Appellant

9 Dixon C Scholl C Carillo C P.A.

10 Orlando C. Martinez

11 Albuquerque, NM

12 for Appellee
1 OPINION

2 BOHNHOFF, Judge.

3 {1} Plaintiff Nationstar Mortgage, LLC, d/b/a Champion Mortgage Co.

4 (Nationstar), appeals the district court’s order granting summary judgment in favor

5 of Defendant Sheila J. O’Malley. The district court ruled that, pursuant to NMSA

6 1978, Section 40-3-13 (1993), a mortgage of residential property that Mrs.

7 O’Malley’s husband executed in favor of Nationstar was void because Mrs. O’Malley

8 did not execute it as well. We hold that the mortgage was valid, because Mrs.

9 O’Malley earlier had entered into a sole and separate property agreement that

10 transmuted the couple’s community property to her husband’sseparate property. We

11 therefore reverse the summary judgment. 

12 BACKGROUND

13 A. Factual History

14 {2} The salient facts are undisputed. In September 2010, Timothy (Husband) and

15 Sheila (Wife) O’Malley acquired residential property in Taos, New Mexico (the

16 Property); the deed conveyed title to them as joint tenants with right of survivorship.

17 According to Wife’s affidavit supporting her motion for summary judgment, Husband

18 was an attorney and handled the couple’s assets and finances. In early 2012, the

19 O’Malleys were interested in purchasing an adjoining lot. “At that time, my husband
19 With a reverse mortgage loan transaction, the debtor does not

1

20 make any monthly payments of principal and interest, and instead the

21 interest accumulates. Upon a specified event, e.g., the death of the debtor(s), the

22 debt becomes due. United States Fed. Trade Comm’n, “Reverse Mortgages,”available

2

1 had me sign some documents in order to purchase the adjacent lot and combine it

2 with the Property.” One of those papers apparently was a “SOLE AND SEPARATE

3 PROPERTY AGREEMENT AND CONVEYANCE” (SSPAC), which Husband and

4 Wife executed in the presence of a notary on March 7, 2012. The SSPAC provides

5 as follows:

6 Pursuant to [NMSA 1978, Section 40-3-8(A)(5) (1990)], Timothy W.

7 O’Malley and Sheila J. O’Malley, husband and wife, agree that the

8 property described as [Property’s legal description] is hereby designated

9 as the separate property of Timothy W. O’Malley. Sheila J. O’Malley

10 hereby expressly grants and conveys the above property to Timothy W.

11 O’Malley with special warranty covenants. Sheila J. O’Malley further,

12 expressly waives, relinquishes and releases any and all right, title, claim

13 or interest in and to the above described property heretofore or hereafter

14 acquired.

15 {3} The contemplated purchase of the adjoining lot did not occur. Instead, on April

16 16, 2012, Husband executed in favor of MetLife Home Loans, a division of MetLife

17 Bank, N.A. (MetLife), an “Adjustable Rate Note (Home Equity Conversion)” and an

18 “Adjustable Rate Deed of Trust (Home Equity Conversion).” The deed of trust states

19 that, “THIS DEED OF TRUST SECURES A REVERSE MORTGAGE LOAN,” and

20 the parties otherwise characterize the transaction as a reverse mortgage loan

21 transaction. Both the SSPAC and the deed of trust (Reverse Mortgage) were 1
19 at http://www.consumer.ftc.gov/articles/0192-reverse-mortgages. 

3

1 recorded with the Taos County Clerk on April 20, 2012. The SSPAC’s and Reverse

2 Mortgage’s recording information show filing times of 2:08:25 p.m. and 2:08:27

3 p.m., respectively.

4 {4} On June 1, 2012, Husband deeded the Property to himself and Wife “as joint

5 tenants with right of survivorship,” i.e., the deed returned the Property to its pre6 March 7, 2012, ownership status.

7 {5} On October 22, 2012, MetLife assigned the Reverse Mortgage to Nationstar,

8 which is a business name of Champion Mortgage Company. The assignment was

9 recorded on November 8, 2012.

10 {6} In the interim, Husband died on June 30, 2014. Wife states in her affidavit that

11 she was not aware of the reverse mortgage transaction until sometime after her

12 husband’s passing when she received correspondence from Nationstar.

13 B. Procedural History

14 {7} In December 2014, Nationstar filed its complaint with the district court,

15 seeking a judgment foreclosing on its security interest in the Property pursuant to the

16 Reverse Mortgage and authorization to sell the Property to satisfy the underlying debt

17 that Nationstar alleged totaled approximately $375,000. Nationstar did not claim that

18 Wife was personally liable for the debt. In her answer, Wife generally denied or stated
4

1 her lack of knowledge with respect to the complaint’s allegations, but also asserted

2 without elaboration affirmative defenses of “lack and failure of consideration,”

3 “mistake,” and “fraudulent conduct and bad faith” on the part of Nationstar.

4 {8} In December 2015, Wife filed a motion (the Motion) to dismiss the complaint

5 for failure to state a claim, or in the alternative, for summary judgment. Based solely

6 on her aforementioned affidavit testimony that “my husband had me sign some

7 documents in order to purchase the adjacent lot and combine it with the Property,”

8 Wife asserted in her statement of undisputed material facts that, “Mr. O’Malley had

9 [Mrs.] O’Malley sign a [SSPAC] under the pretense that it was necessary to facilitate

10 the purchase of the adjacent lot and combine it with the Property.” However, in her

11 motion Wife did not otherwise claim, or even suggest, fraudulent or other nefarious

12 conduct on the part of Husband, much less MetLife. On the contrary, her argument

13 was strictly legal: the Property was community property; pursuant to Section 40-3-13

14 and NMSA 1978, Section 47-1-7 (1901), the Reverse Mortgage was void both

15 because Wife did not sign it and because the March 7, 2012, SSPAC was not recorded

16 before the Reverse Mortgage was executed. Similarly, she contended that, because

17 the June 1, 2012, deed re-conveyed the Property to Husband and Wife, the subsequent

18 assignment of the Mortgage from MetLife to Nationstar was void as well because

19 both Husband and Wife failed to sign it. On the same day, Wife moved for a
5

1 protective order excusing her from responding to what she characterized as

2 “voluminous sets of discovery” propounded by Nationstar until after the district court

3 ruled on her Motion.

4 {9} Nationstar timely responded in opposition to the motion for protective order

5 but not the Motion. However, on January 21, 2016, Nationstar moved for leave to file

6 a response to the Motion with a copy of the proposed substantive response attached.

7 Nationstar argued therein that: pursuant to Section 40-3-8(A)(5), the Property was

8 transmuted to Husband’s separate property on March 7, 2012, as a result of Wife’s

9 execution of the SSPAC; the SSPAC was effective as against Wife notwithstanding

10 the fact that it was not immediately recorded; Section 40-3-13 and Section 47-1-7 did

11 not invalidate the Reverse Mortgage because as of April 16, 2012, the Property was

12 no longer community property and, among other reasons, the SSPAC was not a power

13 of attorney; because the Reverse Mortgage was not community property, Section 40-

14 3-13 did not invalidate the October 22, 2012, assignment. Nationstar did not dispute

15 Wife’s statement of undisputed material facts. However, Nationstar requested that,

16 assuming the district court did not deny the Motion on the basis of these legal

17 arguments pursuant to Rule 1-056(F) NMRA, the district court should postpone

18 ruling on the request for summary judgment until after Nationstar had an opportunity

19 to conduct discovery.
6

1 {10} The district court scheduled a motions hearing for February 3, 2016. The

2 morning of the hearing, Nationstar’s counsel filed an affidavit pursuant to Rule 1-

3 056(F), asserting that, in order to respond fully to Wife’s summary judgment request,

4 Nationstar needed answers to the discovery it already had propounded—and which

5 was the subject of Wife’s protective order motion—and might need additional

6 discovery regarding “the facts surrounding . . . Defendant’s acquisition of the

7 property at issue, the execution and recording of the [SSPAC], the execution and

8 recording of the [Reverse] Mortgage, . . . and the reconveyance of the property to

9 [Husband and Wife].”

10 {11} During the hearing, the district court stated that, in view of the affidavit and

11 documents attached and referred to in the Motion, it would treat the Motion as one

12 for summary judgment. The court asked Wife’s counsel to address Nationstar’s

13 argument that it would need additional time to conduct discovery. Wife’s counsel

14 stated that he did not believe there was a disputed issue of fact that was necessary to

15 resolve the case, but also argued that the Rule 1-056(F) affidavit was not sufficiently

16 specific and Nationstar had not disputed Wife’s statement of undisputed material

17 facts. The district court characterized Wife’s motion as a legal argument, but then

18 indicated its understanding that Wife’s position was that she signed the SSPAC under

19 false pretenses, that she thought it was executed for purposes of acquiring the
7

1 adjoining lot and it was not given for purposes of the reverse mortgage. Wife’s

2 counsel responded by stating that those facts were not needed to rule on the motion.

3 {12} The district court then ruled that it would grant Wife’s motion. As grounds for

4 its ruling, the court stated that Wife had made a prima facie showing that she was

5 entitled to summary judgment and that Nationstar had not come forward with any

6 facts to rebut that showing and that it would not be able to proffer any facts even if

7 it was permitted additional discovery. In its written order, the district court deemed

8 Wife’s statement of undisputed material facts admitted by Nationstar, and stated that

9 Wife had made a prima facie showing of entitlement to summary judgment based on

10 Section 40-3-13, Nationstar had not rebutted that showing, and additional discovery

11 was not necessary for adjudicating the Motion. Nationstar appeals.

12 DISCUSSION

13 {13} We review the district court order granting summary judgment under a de novo

14 standard of review. Cain v. Champion Window Co., 2007-NMCA-085, ¶ 6, 142 N.M.

15 209, 164 P.3d 90. 

16 A. Relevant Statutes

17 {14} Section 40-3-8(A)(5), part of the Community Property Act of 1973 (the Act),

18 NMSA 1978, Section 40-3-6 to -17 (1973, as amended through 1997), provides in

19 pertinent part as follows:
8

1 A. “Separate property” means:

2 . . . . 

3 (5) property designated as separate property by a written

4 agreement between the spouses, including a deed or other written

5 agreement concerning property held by the spouses as joint tenants or

6 tenants in common in which the property is designated as separate

7 property.

8 B. “community property” means property acquired by either

9 or both spouses during marriage which is not separate property. Property

10 acquired by a husband or wife by an instrument in writing whether as

11 tenants in common or as joint tenants or otherwise shall be presumed to

12 be held as community property unless such property is separate property

13 within the meaning of Subsection A of this section.

14 Section 40-3-8(A)(5), (B). Under Section 40-3-8(B), any property that is acquired by

15 the marital community during marriage is presumptively community property. Section

16 40-3-12(A);English v. Sanchez, 1990-NMSC-064, ¶ 11, 110 N.M. 343, 796 P.2d 236;

17 Arch, Ltd. v. Yu, 1988-NMSC-101, ¶ 7, 108 N.M. 67, 766 P.2d 911. Thus, the

18 contours of community property are defined by the exclusions articulated in Section

19 40-3-8(A), one of which is property that is the subject of a sole and separate property

20 agreement signed by both spouses. See, e.g., Estate of Fletcher v. Jackson, 1980-

21 NMCA-054, ¶ 46, 94 N.M. 572, 613 P.2d 714. 

22 {15} Section 40-3-13 provides in pertinent part as follows:

23 A. Except for purchase-money mortgages and except as

24 otherwise provided in this subsection, the spouses must join in all
9

1 transfers, conveyances or mortgages or contracts to transfer, convey or

2 mortgage any interest in community real property and separate real

3 property owned by the spouses. . . in joint tenancy or tenancy in

4 common[.]

5 Any transfer, conveyance, mortgage. . . or contract to transfer, convey,

6 [or] mortgage . . . any interest in the community real property or in

7 separate real property owned by the spouses as cotenants in joint

8 tenancy or tenancy in common attempted to be made by either spouse

9 alone in violation of the provisions of this section shall be void and of

10 no effect[.]

11 Except as provided in this section, either spouse may transfer, convey,

12 [or] mortgage . . . separate real property without the other’s joinder.

13 B. Nothing in this section shall affect the right of one of the

14 spouses to transfer, convey, [or] mortgage . . . any community real

15 property or separate real property owned by the spouses as cotenants in

16 joint tenancy or tenancy in common without the joinder of the other

17 spouse, pursuant to a validly executed and recorded power of attorney

18 as provided in Section 47-1-7[.] 

19 Section 40-3-13(A), (B). 

20 {16} Section 40-3-13, while also part of the Act, is derived from predecessor statutes

21 that generally required both spouses to join in the execution of certain real estate

22 transactions. See 1915 N.M. Laws, ch. 84, § 1; 1907 N.M. Laws, ch. 37, § 16. The

23 law was prompted by a perceived need to “protect [a] wife’s interest in community

24 property from her husband’s otherwise almost exclusive control.” English, 1990-

25 NMSC-064, ¶ 14. Wife urges on the basis of case law precedent that the statute

26 should be broadly construed to void mortgages and conveyances executed by married
10

1 individuals where their spouses do not also sign the instrument. She overstates the

2 holdings of the cases. New Mexico courts consistently have ruled that an attempted

3 conveyance of community property not joined in by both spouses is void and a nullity

4 as opposed to only voidable. See, e.g., Jenkins v. Huntsinger, 1942-NMSC-011, ¶ 14,

5 46 N.M. 168, 125 P.2d 327. Indeed, in Hannah v. Tennant, 1979-NMSC-009, ¶ 10,

6 92 N.M. 444, 589 P.2d 1035, our Supreme Court held that a buyer on a real estate

7 purchase agreement could raise, as an affirmative defense to the selling spouses’ suit

8 to enforce the agreement, the fact that one of the selling spouses had not joined in

9 executing the agreement, notwithstanding the fact that both selling spouses later

10 joined as plaintiffs in the specific performance action. In recent years, however, there

11 has been no further expansion of Section 40-3-13 beyond its plain language. In 1995,

12 the Legislature effectively mooted Hannah’s holding by adding the second sentence

13 of Section 40-3-13(B), which permits a non-signing spouse to ratify an otherwise

14 void transfer, conveyance, or mortgage. See N.M. Laws 1993, ch. 165, § 1. In

15 English, our Supreme Court declined “to expand the application of a nullity or

16 wholly-void doctrine beyond its present limits. . . .[A] sales contract, valid at the time

17 of execution, is valid as to after-acquired separate property, once transmuted by

18 written agreement between the spouses.” 1990-NMSC-064, ¶¶ 20, 22. In Huntington

19 Nat’l Bank v. Sproul, 1993-NMSC-051, ¶ 31, 116 N.M. 254, 861 P.2d 935, the Court
11

1 declined to read into Section 40-3-13 “non-existent” language to require joinder of

2 both spouses in creation of community debt that might later be satisfied out of

3 community property when the creditor obtains and records a judgment.

4 {17} Past judicial construction of Section 40-3-13 has simply applied the statute in

5 accordance with its plain language, in particular, that “void and of no effect” means

6 exactly that. Thus, one lesson of these decisions is that it is important to carefully

7 read the language of the statute. In particular, Section 40-3-13 nullifies transfers,

8 conveyances, and mortgages signed by only one spouse only if the subject property

9 is community property. If at the time of the transaction the property is separate

10 property, Section 40-3-13 is simply inapplicable. 

11 {18} English illustrates this point. Donald English entered into a real estate contract

12 to sell a parcel of land to the Sanchezes: upon the Sanchezes’ completion of a series

13 of installment payments over time, Donald would deliver a deed for the parcel. At the

14 time the contract was executed, however, title to the parcel was held by a corporation

15 owned by Donald and his wife, Emma. Donald, as president of that corporation,

16 subsequently deeded legal title to the property to another corporation that he and

17 Emma owned. Some yearslater, the Sanchezes defaulted on their payments under the

18 contract. At that point Donald, as president of the second corporation, conveyed it to

19 himself and then brought suit to enforce the contract against the Sanchezes. The
12

1 Sanchezes moved for summary judgment, claiming that Section 40-3-13 invalidated

2 Donald’s title. At that point, and prior to the district court’s consideration of the

3 summary judgment motion, Donald and Emma entered into an agreement designating

4 the parcel as Donald’s separate property. English, 1990-NMSC-064, ¶ 4. 

5 {19} Our Supreme Court initially noted that, because the doctrine of after-acquired

6 property, see, e.g., Hays v. King, 1989-NMSC-078, ¶ 8, 109 N.M. 202, 784 P.2d 21

7 (adopting the doctrine), permits a person to “enter into a valid contract to sell real

8 estate to which he has no title, provided he is able to carry through with the

9 transaction after the final payment is made or tendered,” the fact that Donald

10 originally did not hold title to the parcel personally did not necessarily bar him from

11 enforcing the real estate contract. English, 1990-NMSC-064, ¶ 7. The Court next

12 determined that Section 40-3-13 did not invalidate the original transaction based on

13 Emma’s failure to sign the real estate contract, because at that time the parcel was not

14 community property but rather corporate property and a corporation can convey

15 corporate real estate “without the restrictions placed upon the sale of community real

16 property.” English, 1990-NMSC-064, ¶ 8. “At that time the contract did not attempt

17 to convey an interest in community real property.” Id. ¶ 20; cf. Dotson v. Grice, 1982-

18 NMSC-072, ¶ 10, 98 N.M. 207, 647 P.2d 409 (holding that upon contribution of

19 property owned by a married couple to general partnership, it no longer has
13

1 community property status and Section 40-3-13 is not applicable; instead, its

2 conveyance is governed by partnership law). The Court then determined that, when

3 Donald took title to the parcel from the corporation, it became community property.

4 At that juncture, “the contract was void as to after-acquired community property[.]”

5 English, 1990-NMSC-064, ¶ 13. However, the transmutation of the parcel into

6 separate property changed the result: 

7 [A] sales contract, valid at the time of execution, is valid as to after8 acquired separate property, once transmuted by written agreement

9 between the spouses. The fact that the property was held for an interim

10 as an asset of the community may have rendered the contract void for

11 purposes of selling community property, but the interim holding of the

12 property by the community need not void the contract for the purpose of

13 selling separate property that is acquired through transmutation. 

14 Id. ¶ 22. 

15 {20} Section 47-1-7, incorporated by reference in Section 40-3-13(B), provides as

16 follows:

17 All powers of attorney or other writings containing authority to convey

18 real estate, as agent or attorney of the owner of the same, or to execute,

19 as agent for another, any conveyance of real estate, or by which real

20 estate may be affected in law, or equity, shall be acknowledged,

21 certified, filed and recorded, as other writings conveying or affecting

22 real estate are required to be acknowledged. No such power of attorney,

23 or other writing, filed and recorded in the manner prescribed in this

24 section, shall be considered revoked by any act of the party executing

25 the same, until the instrument of writing revoking the same, duly

26 acknowledged and certified to, shall be filed for record and recorded in

27 the office of the county clerk where said power of attorney or other

28 writing is filed and recorded.
14

1 D. The SSPAC Was Not Void as a Result of Wife’s Non-Joinder or the Delay

2 in Recording It

3 1. The Property Was Separate Property When the SSPAC Was Executed

4 {21} Relying on Hannah, Wife contends that because she did not join in it and she

5 had not given Husband a power of attorney, pursuant to Section 40-3-13(A) and (B),

6 the Reverse Mortgage was void. Wife’s argument assumes, however, that the

7 Property was community property as of April 16, 2012, when the Reverse Mortgage

8 was executed. As our Supreme Court observed in English, “The chain of title to this

9 property and its relation to the time the [Reverse Mortgage] was executed are

10 important factors in the resolution of the questions raised in this appeal.” 1990-

11 NMSC-064, ¶ 7. The March 7, 2012 SSPAC, which Wife acknowledges she signed,

12 rebuts the presumption that the Property was community property on April 16, 2012.

13 Instead, the SSPAC transmuted the Property into Husband’s separate property and he

14 had authority to unilaterally grant a mortgage.

15 2. Recording Was Not Necessary for the SSPAC To Be Effective Against

16 Wife

17 {22} As noted above, Wife cannot claim that the Reverse Mortgage was void as a

18 result of being recorded before the SSPAC: the SSPAC was recorded first in time.

19 Instead, and to nullify the otherwise obvious effect of the SSPAC, she finds

20 significance in the fact that Husband must have executed and/or delivered the Reverse
15

1 Mortgage to Nationstar at some time prior to the recording of the SSPAC. On that

2 basis, she maintains her position that the Reverse Mortgage was void for lack of her

3 joinder. This argument fails for three reasons. 

4 {23} First, the SSPAC itself does not require that it be recorded to be effective. On

5 the contrary, in the SSPAC Husband and Wife agreed “that . . . [the Property] is

6 hereby designated as the separate property of [Husband].” (Emphasis added.)

7 “Hereby” means “by this means; esp[ecially]: by means of this act or document.”

8 Webster’s Third New Int’l Dictionary 1058-59 (Unabridged ed. 2002).In the context

9 of the SSPAC, the word most reasonably connotes Husband’s and Wife’s

10 understanding that the transmutation of the Property from community property to

11 separate property was effective on the document’s execution as opposed to its

12 recording. Cf. Suchan v. Suchan, 682 P.2d 607, 613 (Idaho 1984) (holding that

13 married couple’s agreement that separate property was “hereby declared to be

14 community property” expressed intention “that the separate property described in the

15 agreement was to be transmuted to community property immediately upon the

16 execution of the agreement.” (emphasis and internal quotation marks omitted)). 

17 {24} Second, Section 40-3-8(A)(5) does not require that a sole and separate property

18 agreement must be recorded to be effective. Indeed, we can infer fromSection 47-1-7

19 that if the Legislature intends that a real estate instrument be effective only upon
16

1 recording, it explicitly will so provide.

2 {25} Third, and perhaps most fundamentally, Wife was a party to and thus had actual

3 knowledge of the SSPAC. NMSA 1978, Section 14-9-1 (1991), generally requires

4 that deeds, mortgages and “other writings affecting the title to real estate” shall be

5 recorded in the office of the clerk of the county in which the real estate is located. Id.

6 But the failure to record an instrument affecting title to real estate generally does not

7 invalidate it, particularly as against a party to the instrument or other person with

8 actual knowledge of it, and instead only negates any constructive notice of it.

9 “Generally, non-compliance with the recording statutes does not affect the validity

10 of the instrument itself, but makes it ineffectual as constructive notice.” Amethyst

11 Land Co. v. Terhune, 2014-NMSC-015, ¶ 11, 326 P.3d 12. “The general rule is that

12 an unacknowledged deed is binding between the parties thereto, their heirs and

13 representatives, and persons having actual notice of the instrument.” Baker v. Baker,

14 1977-NMSC-006, ¶ 4 n.1, 90 N.M. 38, 559 P.2d 415.

15 3. Section 47-1-7 Does Not Invalidate the SSPAC

16 {26} Wife, however, invokes Section 47-1-7’s recording requirement, because it is

17 incorporated into Section 40-3-13(B). By a fair reading of its terms, Section 47-1-7

18 requires that, to be effective, a power of attorney or other agreement authorizing one

19 party to convey real property owned by another must be recorded. Wife contends that
17

1 the statute applies not only to powers of attorney and “other writings containing

2 authority to convey real estate” but also to “all . . . other writings . . . by which real

3 estate may be affected in law, or equity[.]” She characterizes the SSPAC as falling

4 within both of these descriptions. Based on this legal premise, she insists that,

5 because the Property had not been recorded at the point that the Reverse Mortgage

6 was given, the Property remained as community property and, pursuant to Section 40-

7 3-13, the Reverse Mortgage was void. We are not pursuaded.

8 {27} First, we reject Wife’s broad construction of Section 47-1-7’s first sentence to

9 apply to, and require recording as a predicate to effectiveness of, not only all writings

10 containing authority to convey real estate but also other writings “bywhich real estate

11 may be affected in law, or equity.” Doing so would conflict with the generally

12 accepted rule, discussed above, that real estate instruments are effective as to their

13 signatories and their privies and others with actual notice regardless of recording.

14 Further, the second sentence of Section 47-1-7 indicates that “other writings” as used

15 in the first sentence cannot be understood to refer to more than a power of attorney

16 or other writing that is executed by one party and can be revoked. So limited, a sole

17 and separate property agreement executed by two spouses does not fit within the

18 scope of “other writing.”

19 {28} Second, even assuming for the sake of argument that Section 47-1-7’s
18

1 recording requirement applied to more than just powers of attorney, Section 40-3-

2 13(B) incorporates the statute only as it applies to powers of attorney. The scope of

3 Section 47-1-7 is irrelevant to the construction of Section 40-3-13 except to the extent

4 that Section 40-3-13(B)’s power of attorney exception to the both-spouse joinder

5 requirement mandates that the power of attorney be recorded.

6 {29} Third, we reject Wife’s characterization of the SSPAC as a power of attorney

7 or other agreement containing authority to convey real estate that was subject to

8 Section 47-1-7. Wife herself executed the SSPAC and conveyed the Property to

9 Husband as his separate property. As a result, there simply was no need to authorize

10 Husband to do anything on Wife’s behalf with respect to her former interest in the

11 Property. Consistent with that reality, the SSPAC states that the parties were entering

12 into it pursuant to Section 40-3-8(A)(5), not Section 47-1-7.

13 {30} Fourth, and as stated above, the SSPAC was recorded. Therefore, even

14 assuming Section 47-1-7 as incorporated into Section 40-3-13(B) was somehow

15 applicable to the transaction at issue herein, its requirements were satisfied. “There

16 is no requirement that an instrument be recorded within a particular period of time.”

17 Amethyst Land Co., 2014-NMSC-015, ¶ 12.In addition, also as stated above, because

18 Wife had actual notice of and in fact joined in the SSPAC, any failure to record it did

19 not invalidate it as to her. See id. ¶ 11.
19

1 {31} Fifth, we reject the suggestion that the incorporation of Section 47-1-7 into

2 Section 40-3-13(B) somehow changes the meaning of Section 40-3-13(A). Section

3 40-3-13(B) simply articulates an exception to Section 40-3-13(A)’s requirement that

4 both spouses join in a mortgage, conveyance, or other transfer of community

5 property. It does not alter the fact that one spouse remains free to unilaterally convey

6 property that he or she holds as separate property. Compliance with Section 47-1-

7 7—whatever its scope—as incorporated into Section 40-3-13(B) is necessary only if

8 the transaction otherwise would be invalidated pursuant to Section 40-3-13(A). Thus,

9 a spouse’s authorization to convey real property is necessary only if the property is

10 held by the community. Because the Property was Husband’s separate property on

11 April 16, 2012, Section 40-3-13 was wholly inapplicable. 

12 {32} To conclude, Wife assumes that Section 40-3-13(A) requires both spouses join

13 in any mortgage or conveyance of any property acquired during marriage unless the

14 exception articulated in Section 40-3-13(B)—one spouse holds a power of attorney

15 for the other spouse—is applicable. The flaw in Wife’s analysis is that she fails to

16 acknowledge that the scope of Section 40-3-13(A), by its terms, generally is limited

17 to community property or separate property held as joint tenants or tenants in

18 common. Because the SSPAC transmuted the Property from community property to

19 Husband’s separate property on March 7, 2012, Section 40-3-13 was simply
20

1 inapplicable to the April 16, 2012, Reverse Mortgage transaction.

2 E. The October 22, 2012 Assignment of the Reverse Mortgage Was Not Void

3 as a Result of Husband’s and Wife’s Non-Joinder

4 {33} Wife also argues, again on the basis of Section 40-3-13, and because the

5 Property had reacquired its community property status as of June 1, 2012, that

6 MetLife’s October 22, 2012, assignment of the Reverse Mortgage to Nationstar was

7 invalid for lack of her joinder. By Wife’s logic, Husband’s failure to sign the

8 assignment also would operate to void it. While it is unclear whether the district court

9 ruled on this argument in granting summary judgment in favor of Wife, we reject it.

10 {34} We note that the June 1, 2012, reconveyance of the Property to the marital

11 community was not free and clear, and instead was subject to the Reverse Mortgage.

12 “[T]he lien acquired by the mortgage upon the property . . . [cannot] be divested

13 either by the levying of process upon the mortgaged property, or the sale thereof by

14 the mortgagor, or under execution.” Chavez v. McKnight, 1857-NMSC-001, ¶ 11, 1

15 N.M. 147. See Avondale Shipyards, Inc. v. Tank Barge ETS 2303, 754 F.2d 1300,

16 1309 (5 Cir.1985) (It is manifest that, according to settled security principles, the th

17 sale of property encumbered by a mortgage does not itself extinguish the lien of the

18 mortgage.”).

19 {35} The point of Section 40-3-13 is to bar one spouse from conveying or

20 encumbering community property—or separate property held in joint tenancy or
21

1 tenancy in common—without the consent or authorization of the other. Thus, Section

2 40-3-13(A) voids any such conveyance or mortgage “attempted to be made by [one]

3 spouse alone.” The statute does not void transactions such as mortgage assignments

4 that, while they may affect community property, do not require the consent of either

5 spouse. Even assuming arguendo that Husband and Wife otherwise might have

6 standing as mortgagors to object to assignment of the Reverse Mortgage, but cf.

7 Flagstar Bank, FSB v. Licha, 2015-NMCA-086, ¶ 18, 356 P.3d 1102 (stating that

8 mortgagors lacked standing to challenge assignment of mortgage on basis of lack of

9 consideration), abrogated on other grounds by BOKF, N.A. v. Gonzalez, No. A-1-

10 CA-35691, 2017 WL 2099830, ¶ 3, ___-NMCA-___, ___ P.3d ___ (June 28, 2017)

11 (non-precedential) (stating that mortgagors lacked standing to challenge assignment

12 of mortgage on basis of lack of consideration), the terms of the Reverse Mortgage

13 provided for its assignment at MetLife’s option. Thus, the October 22, 2012,

14 assignment was not subject to invalidation for failure to comply with Section 40-3-13.

15 F. Wife’s “Pretense” Theory

16 {36} Wife claims on appeal that “MetLife was complicit in trying to circumvent

17 [Section] 40-3-13” and that the SSPAC was “an unrecorded, fraudulently obtained,

18 consideration-less conveyance of real community property[.]” We decline to address

19 these contentions for two reasons.
22

1 {37} First, to our understanding, the district court did not base its decision on such

2 an argument. It is true that near the end of the hearing on the summary judgment

3 motion the district court stated its understanding of the import of the “under the

4 pretense” phrase in Wife’s statement of undisputed facts: Wife understood that the

5 only purpose of the SSPAC was to facilitate the acquisition of the lot that adjoined

6 her and her husband’s residence. But Wife’s counsel then added that this fact was not

7 necessary to rule on the motion. Further, in its oral explanation of its ruling, the court

8 stated that Nationstar would not be able to rebut Wife’s case for summary judgment

9 even assuming it was permitted its requested additional discovery which included,

10 among other subjects, the facts surrounding Husband’s and Wife’s signing of the

11 SSPAC. For that reason, the district court denied Nationstar’s request that the court

12 postpone ruling on the motion until after it could conduct discovery. We understand

13 from these statements that the district court did not rely on any consideration of

14 possible mistake or fraud in reaching its decision, and instead ruled solely on the

15 basis of Wife’s legal arguments regarding the meaning of Sections 40-3-13 and 47-1-

16 7.

17 {38} Second, while as a general matter this Court will affirm the district court if its

18 decision is right for any reason, even one that it did not consider, see Hawkins v.

19 McDonald’s, 2014-NMCA-048, ¶ 23, 323 P.3d 932, we will not consider bare
18

“[P]resentation of what is deceptive or hypocritical” is only one of several 2

19 definitions of “pretense.” Webster’s Third Int’l Dictionary 1797 (Unabridged ed.

20 2002).

23

1 assertions that are not developed and supported by legal authority and analysis. See,

2 e.g., Curry v. Great Nw. Ins. Co., 2014-NMCA-031, ¶28, 320 P.3d 482 (declining to

3 address argument where appellee provided no authority); State ex rel. Office of State

4 Eng’r v. Lewis, 2007-NMCA-008, ¶ 74, 141 N.M. 1, 150 P.3d 375 (declining to

5 address the issue where appellant provided no supporting “evidence, discussion, or

6 authority”); Los Alamos Nat’l Bank v. Martinez Surveying Servs., LLC, 2006-NMCA7 081, ¶ 25, 140 N.M. 41, 139 P.3d 201 (declining to address argument where appellee

8 provided no authority, overruled on other grounds by Miller v . THI of N.M., No. A9 1-CA-29459, 2009 WL 6575071, ___-NMCA-___, ¶ 1, ___ P.3d ___ (Aug. 28,

10 2009) (non-precedential). Wife never developed her “pretense” suggestion below. In

11 her answer to Nationstar’s complaint, Wife asserted without elaboration affirmative

12 defenses of “lack and failure of consideration,” “mistake,” and “fraudulent conduct

13 and bad faith” on the part of Nationstar. However, other than perhaps the possible

2

14 connotation implicit in the word “pretense,” she did not discuss or even assert any of

15 these or other claims of improper conduct on the part of Husband much less MetLife

16 as a basis for voiding the SSPAC and thus summary judgment. Wife also has not

17 developed those theories on appeal. In particular, she does not provide any legal
17 Similarly, because Wife has not raised any claims of breach of fiduciary duty

3

18 or constructive fraud, it also is unnecessary to consider the discussion regarding

19 adequacy of consideration and independent legal advice found in our recent opinion

20 in Gabriele v. Gabriele, ___-NMCA-___, ___ P.3d ___ (No. A-1-CA-34523, Jan. 31,

21 2018).

24

1 authority or otherwise address any fraud- or mistake-based theory for voiding the

2 SSPAC. Instead, she relies solely on her legal arguments about the scope and legal

3 consequences of Section 40-3-13 and Section 47-1-7.

4 {39} Under these circumstances, we decline to address, as a possible basis for

5 affirming, the unsupported possibility of wrongful conduct on the part of Nationstar

6 or its predecessor-in-interest, MetLife, particularly where neither Wife’s affidavit nor

7 even her statement of undisputed material facts implicates MetLife in Husband’s

8 “pretense.” There are simply too many unanswered questions based on the current 3

9 state of the record.

10 CONCLUSION

11 {40} On the basis of the summary judgment record before the district court, in

12 particular, the SSPAC executed by Husband and Wife, Nationstar had rebutted the

13 presumption that the Property was community property on April 16, 2012, when

14 Husband executed the Reverse Mortgage. As a result, the Reverse Mortgage was not

15 void pursuant to Section 40-3-13. Section 40-3-13 also did not operate to void the

16 October 22, 2012, assignment of the Reverse Mortgage. For these reasons, the district
25

1 court erred in granting summary judgment in favor of Wife. We therefore reverse the

2 district court’s grant of summary judgment and dismissal of Nationstar’s complaint,

3 and remand for further proceedings consistent with this opinion.

4 {41} IT IS SO ORDERED. 

5 ________________________________

6 HENRY M. BOHNHOFF, Judge

7 WE CONCUR:

8 __________________________

9 MICHAEL E. VIGIL, Judge

10 __________________________

11 M. MONICA ZAMORA, Judge