This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version file d by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 BANK OF AMERICA, NATIONAL 2 ASSOCIATION, AS SUCCESSOR BY 3 MERGER TO LASALLE BANK 4 NATIONAL ASSOCIATION, AS 5 TRUSTEE FOR MERRILL LYNCH 6 FIRST FRANKLIN MORTGAGE 7 LOAN TRUST, MORTGAGE LOAN 8 ASSET-BACKED CERTIFICATES, 9 SERIES 2007-2, 10 Plaintiff-Appellee, 11

v. NO. 30,354 12 ERASMO QUINTANA, if living; 13 if deceased, THE ESTATE OF 14 ERASMO QUINTANA, Deceased; 15 MORTGAGE ELECTRONIC 16 REGISTRATION SYSTEMS, INC., 17 AS NOMINEE, 18 Defendants, 19 and 20 GRACE QUINTANA, 21 Defendant-Appellant. 22 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 23 Valerie A. Huling, District Judge 24 Susan C. Little & Associates, P.A. 252 Karen Howden Weaver 1 Albuquerque, NM 2 for Appellees 3 United South Broadway Corp. 4 Erin O. Anderson 5 Albuquerque, NM 6 for Appellant 7 MEMORANDUM OPINION 8 FRY, Judge. 9 When Defendant Grace Quintana was una ble to make her mortgage payments 10 after her husband died, Plaintiff Bank of Am erica (Bank), the successor to the original 11 lending institution, sued to collect on the not e and to foreclose on the mortgage. The 12 district court granted summary judgment to Bank, and Mrs. Quintana appeals. We 13 hold that Mrs. Quintana failed to present evidence that would cr eate an issue of fact 14 warranting a trial. We therefore affirm. 15 BACKGROUND 16 On February 27, 2007, Mrs. Quintana and her husband executed a promissory 17 note payable to lender First Franklin Financial Corp. (Firs t Franklin Financial). The 18 note had an adjustable interest rate ranging from 6.9 percent, in itially, to 12.9 percent, 19 and it provided for a balloon payment on the note’s maturity date, April 1, 2037. The 20 note was secured by a mortgage on the Quintanas’ home. The mortgage provided that 21 First Franklin Financial was the lender and that Mortgage Electronic Registration 223 Systems, Inc. (MERS) was “a separate cor poration that is acting solely as a nominee 1 for [l]ender and [l]ender’s successors and assigns.” MERS was the mortgagee under 2 the mortgage. The loan’s proceeds paid o ff an existing mortgage for the Quintanas 3 and provided them with cash in the amount of $11,773.70. 4 Documents in the record show that on January 29, 2009, MERS, as nominee for 5 First Franklin Financial, a ssigned the mortgage to LaSalle Bank National Association 6 (LaSalle), as trustee for Merrill Lynch First Franklin Mortgage Loan Trust. The 7 assignment expressly states th at the assignment was “effec tive the 5th day of M[arch] 8 2007.” LaSalle merged with Bank, effective October 17, 2008. 9 Approximately one month after the Quintanas signed the note and the mortgage, 10 Mr. Quintana died. Following Mr. Quintana’s death, Mrs. Quintana made the 11 mortgage payments until Oct ober 2008. The last payment she made on the note was 12 on October 8, 2008. On Decem ber 2, 2008, First Franklin Loan Services, which was 13 the loan servicing entity and not the same as First Franklin Financ ial, the initial lender, 14 sent a letter to Mr. and Mrs. Quintana stating that the account was past due and that 15 “[t]his arrearage constitutes a breach of your mortgage note obligation.” The letter 16 went on to state that the Quintanas ha d until January 1, 2009, to bring the account 17 current and that failure to do so would lead to acceleration of the note’s due date and 18 initiation of foreclosure proceedings. 19 Having received no further payments, LaSalle, the mortgage’s assignee, filed 20 a complaint for foreclosure against the Quintanas on January 29, 2009. Before Mrs. 21 Quintana filed an answer, a first ame nded complaint was filed showing Bank, as 224 successor by merger to LaSalle, as Plaintiff. Mrs. Quintana answered and raised the 1 following as defenses: (1) Bank was not the r eal party in interest and (2) the mortgage 2 note violated the Home Loan Protection Act (HLPA). 3 Bank ultimately filed a motion for summary judgment and default in which it 4 sought judgment in the amount of the note’s ne t principal balance, plus interest, costs 5 of collection, attorney fees, and a judgment of foreclosure on the property. Following 6 a hearing, the district court asked the parties for additional briefing. The court then 7 entered summary judgment in favor of Bank and against Mrs. Quintana. This appeal 8 followed. 9 DISCUSSION 10 Mrs. Quintana makes five arguments insupport of her contention that summary 11 judgment was improper, which we consolidate into four issues: (1) whether there are 12 issues of fact related to Bank’s right to enforce the note and mortgage, (2) whether 13 Bank is a holder in due course of the note, (3) whether the district court improperly 14 failed to consider her defenses based on HLPA and the Unfair Practices Act (UPA), 15 and (4) whether there are genuine issues of fact regarding Mrs. Quintana’s application 16 for relief under the federal Home Afford able Modification Program (HAMP) and 17 regarding Bank’s denial of loan modification. 18 “On appeal from the grant of summary judgment, we ordinarily review the 19 whole record in the light most favorableto the party opposing summary judgment to 20 determine if there is any evidence that pl aces a genuine issue of material fact in 21 dispute.” City of Albuquerque v. BPL W Architects & Eng’rs, Inc. , 2009-NMCA-081, 225 ¶ 7, 146 N.M. 717, 213 P.3d 1146. “However, if no material issues of fact are in 1 dispute and an appeal presents only a que stion of law, we apply de novo review and 2 are not required to view the appeal in th e light most favorable to the party opposing 3 summary judgment.” Id. 4 1. There Are No Issues of Fact Regardi ng Bank’s Right to Enforce the Note 5 and Mortgage 6 Mrs. Quintana claims that (1) Bank faile d to prove its right to enforce the note 7 and (2) there are issues of fact regardi ng Bank’s right to enfo rce the mortgage. We 8 consider each of thes e arguments in turn. 9 a. Bank’s Right to Enforce the Note 10 Mrs. Quintana appears to contend th at Bank proved only that it had possession 11 of the note and that mere possession was not enough to give Bank the right to enforce 12 the note. She also appears to argue that MERS’ allegedly flawed assignment of the 13 mortgagesomehow negatively impacted Bank’s ability to enforce the note

. 14 Therefore, we first consider the nature of the note and its relation to the mortgage. 15 There is no dispute that the note signed by the Quintanas is a negotiable 16 instrument. SeeNMSA 1978, § 55-3-104 (1992) (defining negotiable instrument). 17 In this case, the note as dr afted was payable to the orde r of First Franklin Financial 18 and stated that the borrowers understood th at First Franklin Financial could transfer 19 the note. The note also reflected two endorse ments: one to the order of First Franklin 206 Financial and one from First Franklin Financial without a specific payee identified. 1 This second endorsement meant that the note was payable to the note’s bearer. See 2 NMSA 1978, § 55-3-109(a)(2) (1992) (stating thatan order is payable to bearer if it 3 “does not state a payee”). Because Bank had possession of the note, Bank was the 4 holder of the note. SeeNMSA 1978, § 55-1-201(21)(A) (2005) (defining “holder” as 5 “the person in possession of a negotiable instrument that is payable . . . to bearer”). 6 Thus, Bank was entitled to enforce the note. NMSA 1978, § 55-3-301 (1992) 7 (“‘Person entitled to enforce’ an instrument means (i) the holder of the instrument.”). 8 Mrs. Quintana appears to concede that Bank is the holder of the note. However, 9 she seems to claim that only a holder in due course could enfo rce the note and that 10 Bank is not a holder in due course. Her argument is unavailing because the Uniform 11 Commercial Code clearly states that a hol der may enforce a note. Section 55-3-301. 12 Later in this opinion we consider the que stion of whether Bank is a holder in due 13

course. 14 Bank’s status as the note’s holder meant that Bank could pursue Mrs. Quintana 15 for any amounts owing on the note. The note is separate from th e mortgage, and the 16 mortgage serves as security for payment of the note. The mortgage specifically 17 references the note and states that it “secure s to [First Franklin Financial]: (i) the 18 repayment of the [l]oan.” Therefore, if the assignment of the mortgage to Bank was 197 somehow flawed, as Mrs. Quintana cont ends, it had no effect on Bank’s ability to 1 enforce the note except to th e extent that Bank would have no security from which to 2 seek payment. Absent the mortgage, Bank could still pursue Mrs. Quintana for 3 payment of the note. As a result, we conc lude that Bank, by producing the bearer note 4 in its possession, proved that it had the right to enforce the note. 5 b. There Are No Issues of Fact Regar ding Bank’s Right to Enforce the 6 Mortgage 7 We turn now to Mrs. Quintana’s arguments regarding the validity of the 8 mortgage assignment. The assignment of mo rtgage states that MERS, as nominee for 9 First Franklin Financial, a ssigned to LaSalle (which merged with Bank on October 17, 10 2008) the mortgage of February 27, 2007, executed by the Qu intanas. The assignment 11 then states: “Witness its hand this 29th day of J[anuary] 2009, but effective the 5th 12 day of M[arch] 2007,” and it is signed on behalf of ME RS by Krystal Hall, the 13 assistant secretary for assignments. 14 In questioning the validity of the mortga ge assignment, Mrs. Quintana devotes 15 many pages of her brief in chief to a di scussion of MERS and its role as nominee 16 under the mortgage. However, she ultimatel y states that she is “not challenging 17 MERS[’] authority to act as nominee which is clearly sp elled out in the mortgage.” 18 Instead, Mrs. Quintana challenges “[K]rystalHall’s authority to claim any rights other 198 than a bare transferee or straw man for the beneficial owner which appears to be 1 LaSalle.” 2 Bank produced the unanimous written cons ent of First Franklin Financial’s 3 board of directors granting certain employ ees of Security Connections, Inc. (SCI), 4 including Krystal Hall, “all authority nece ssary to lawfully and properly prepare, 5 execute, witness, attest and de liver assignments . . . and su ch other documents that will 6 enable SCI to effect the transfer . . . of [First Franklin Financial’s] sale of mortgage7 secured loans.” Mrs. Quintana appears to argue that while this corporate resolution 8 may have given Hall the authority to assi gn a mortgage on behalf of First Franklin 9 Financial, it did not give her the authority to do so on be half of MERS, which was the 10 entity conveying the assignment. 11 We are not persuaded. As Mrs. Quintana acknowledges, th e mortgage itself 12 provided that MERS was the nominee for Fi rst Franklin Financial and its successors, 13 and it was the mortgagee. It further stated that MERS, as nominee for First Franklin 14 Financial and its successors, “holds only le gal title to the interests granted by [the 15 Quintanas] . . . , but, if nece ssary to comply with law or custom” it also had the right 16 “to exercise any or all of those interest s, including, but not limited to, the right to 17 foreclose . . . and to take any action require d of [First Franklin Financial].” These 18 provisions gave MERS the right to assign the mortgage on behalf of First Franklin 199 Financial, and the corporate resolution gave Krystal Hall the right to do the same. 1 Mrs. Quintana has not offered any eviden ce suggesting any impropriety in Hall’s 2 acting through MERS to execute the mortgage assignment. See Schwartzman v. 3 Schwartzman Packing Co. , 99 N.M. 436, 441, 659 P.2d 888, 893 (1983) (“A party 4 opposing a motion for summary judgment mu st make an affirmative showing by 5 affidavit or other admissible evidence that there is a genuine i ssue of material fact 6 once a prima facie showing is made by the movant.”). Both Hall and MERS, acting 7 together, had the authority to assign th e mortgage on behalf of First Franklin 8 Financial. 9 Mrs. Quintana also seems to challenge the validity of the retroactive effective 10 date stated in the assignment. In suppor t, Mrs. Quintana relies on a New York case 11 and an Ohio case holding that an entity that is assigned a mortgage after a foreclosure 12 action is filed does not have standing to pursue the foreclosure action. See 13 Countrywide Home Loans v. Gress , 888 N.Y.S.2d 914, 914-15 (N.Y. App. Div. 2009); 14 Wells Fargo Bank, N.A. v. Byrd, 178 Ohio App. 3d 285, 2008-Ohio-4603, 897 N.E.2d 15 722, ¶ 16. 16 Mrs. Quintana’s argument fails because the factual scenario presented in the 17 New York and Ohio cases does not exist inthe present case. The document assigning 18 the mortgage to LaSalle was dated January 29, 2009, with aneffective date of March 1910 5, 2007. LaSalle had merged with Bank on October 17, 2008. Thus, on the date the 1 original complaint was filed, January 29, 2009, Bank (in accordance with its merger 2 with LaSalle) was the mortgagee, even without reference to the retroactive effective 3 date of the assignment. Th e first amended complaint, naming Bank as plaintiff instead 4 of LaSalle, was filed on March 5, 2009, which was also after the mortgage was 5 assigned to LaSalle, and LaSalle had already merged with Bank. 6 2. Whether Bank Is a Holder in Due Course 7 If Bank holds the note as a holder in due course, Mrs. Quintana is statutorily 8 precluded from asserting certain defenses to Bank’s enforcement of the note. See 9 NMSA 1978, § 55-3-302 (1992) (def ining holder in due course); see also NMSA 10 1978, § 55-3-305(b) (2009) (stating that a holde r in due course seeking to enforce an 11 obligation is subject only to defenses e numerated in Subsection 55-3-305(a)(1) and 12 is not subject to other speci fic defenses). Mrs. Quintana argues that Bank is not a 13 holder in due course of the note and, therefor e, that the note is subject to the defenses 14 Mrs. Quintana raised under the HLPA and the UPA. 15 As we have discussed, Bank is the holder of the note. In order to establish that 16 it is a holder in due course, Bank must show that it took the note “(i) for value, (ii) in 17 good faith, (iii) without notice that the instrument is overdue or has been dishonored,” 18 and without notice of other circumstances th at are not applicable here. Section 55-3- 1911 302(a)(2). Mrs. Quintana claims that there is an issue of fact regarding whether Bank 1 knew or should have known that the note was in default when it took possession of 2 the note. 3 Mrs. Quintana assumes that the not e was transferred from First Franklin 4 Financial to Bank at the same time the mo rtgage was assigned to Bank (via LaSalle, 5 which merged with Bank on October 17, 2008)—January 29, 2009. If she is correct, 6 then Bank acquired the note after First Franklin Loan Services sent the demand letter 7 to the Quintanas in December 2008. Bank counters that the note was transferred to 8 it soon after the Quintanas signed it in February 2007, and the effective date stated on 9 the mortgage assignment, March 5, 2007, s eems to support this view. While there is 10 nothing on the note indicating when Bank came into possession, Bank submitted the 11 affidavit of Steven Baranet, the vice presid ent of Bank’s servicing agent, who attested 12 that Bank “took the [n]ote for value in good faith and without any notice that it was 13 overdue or had been dishonored or of any defenses against it.” Thus, this affidavit is 14 prima facie evidence of the elements of holder-in-due-course status. 15 Mrs. Quintana contends that Baranet’s affidavit was inadmissible because it was 16 not based on personal knowledge about the practices of First Franklin Financial. We 17 fail to see how this has any bearing on Bank’s status as a holder in due course. The 18 critical information is what Bank knew about the note when it took possession, not the 1912 practices of First Franklin Financial. Baranet attested that he was employed by 1 Bank’s servicing agent and that his af fidavit was based on his personal knowledge 2 about the records of the regularly conducte d business activity related to the property, 3 note, and mortgage at issue in this cas e. Unless Mrs. Quintana produced some 4 evidence calling these sworn statements into question, and there is no indication that 5 she did, the district court could properl y rely on them in the context of Bank’s 6 summary judgment motion. See Roth v. Thompson , 113 N.M. 331, 334-35, 825 P.2d 7 1241, 1244-45 (1992) (explaining that “[t]he movant need only make a prima facie 8 showing that he is entitled to summary judgm ent” whereupon “the burden shifts to the 9 party opposing the motion to demonstrate the existence of specific evidentiary facts 10 which would require trial on the merits”). 11 Mrs. Quintana also mentions issues of fact regarding a written request for a 12 breakout of fees and costs that she sent in April 2009, apparently to the loan servicer, 13 First Franklin Loan Services. She maintains that Bank disputed having received the 14 letter and that it produced its own printout of transactions on the account. We do not 15 understand how this dispute bears on the issues in this case. Again, if Mrs. Quintana 16 had a basis for disputing the printout Bank produced, then it was her obligation to 17 produce evidence supporting her contentions. See Dow v. Chilili Coop. Ass’n , 105 18 N.M. 52, 54-55, 728 P.2d 462, 464-65 (1986) (explaining that a party opposing 1913 summary judgment may not simply argue that evidentiary facts requiring a trial on the 1 merits may exist). She did not do so. 2 In summary, there are no disputed issues of fact concerning Bank’s status as a 3 holder in due course. Bank produced prima facie eviden ce establishing the elements 4 of that status, and Mrs. Quintana did not produce any evidence creating a dispute. See 5 Schwartzman , 99 N.M. at 441, 659 P.2d at 893 (stating that “[a] party opposing a 6 motion for summary judgment must make an affirmative showing by affidavit or other 7 admissible evidence that there is a genuine issue of material fact once a prima facie 8 showing is made by the movant”). 9 3. The Bank’s Status as a Holder in Due Course Shields it from Defenses 10 under the HLPA and the UPA 11 Mrs. Quintana argues that the district court improperly failed to consider her 12 defenses under the HLPA and the UPA. However, she acknowle dges that holder-in13 due-course status would shield Bank from thes e defenses. We agree. Mrs. Quintana’s 14 contentions relate to the c onduct of the initial lender, Firs t Franklin Financial, and a 15 holder in due course is not s ubject to defenses that can beasserted against the note’s 16 original payee. See§ 55-3-305(a)(2)-(3), (b) (stating th at a holder in due course is not 17 subject to “a defense of the obligor . . . that would be available if the person entitled 18 to enforce the instrument were enforcing a right to payment under a simple contract” 19 or a defense of “a claim in recoupment of th e obligor against the original payee of the 2014 instrument if the claim arose from the transaction that gave rise to the instrument”); 1 see also Cadle Co. v. Wallach Concrete, Inc. , 120 N.M. 56, 59, 897 P.2d 1104, 1107 2 (1995) (stating that “[a] holder in due cour se of a negotiable instrument takes the 3 instrument free from any personal defense or claim that the maker may assert”). 4 Therefore, because we have held that Bank made a prima facie showing of its status 5 as a holder in due course, we need not address Mrs. Quintana’s claims under the 6 HLPA and the UPA. 7 4. There Are No Issues of Fact Regarding the HAMP and Loan Modification 8 Applications 9 Mrs. Quintana contends that there were issues of fact regarding her applications 10 for loan modification that precluded summary judgment. In support of her claims and 11 in opposition to Bank’s motion for summary judgment, Mrs. Quintana offered only 12 one item of evidence in the district court, whic h was her affidavit. In her affidavit, she 13 attested that she “would like to enter into a loan modification agreement based on 14 [her] fixed income” and that she had first contacted the lender about such a 15 modification after her husband’s death in 2007. She “continued paying for as long as 16 [she] could” but she “no longer had any m oney and they told [her] they couldn’t do 17 anything for [her].” She recited her healthproblems and her desire to stay in her 18 home. Mrs. Quintana did not submit any other evidence regarding her applications 19 for a loan modification. 2015 Bank submitted evidence of telephone logs, which are fairly cryptic. However, 1 it appears that Bank and Mrs. Quintana had several telephone di scussions regarding 2 possible loan modifications beginning in February 2008. Bank also submitted two 3 letters from First Franklin Loan Services to Mrs. Quintana. The first one, dated 4 September 25, 2009, notified Mrs. Quintana that she did not meet one or more 5 eligibility requirements for a HAMP modification. Apparently, First Franklin Loan 6 Services was supposed to checkmark whic h eligibility requirement(s) Mrs. Quintana 7 did not meet, but none of the items were ch ecked. The second letter, dated October 8 15, 2009, notified Mrs. Quintana that her request for a loan modification was denied 9 because “[c]urrent income does not support modified mortgage payment.” 10 It appears that Mrs. Quintana raised her desire for a loan modification in an 11 effort to obtain equitable relief from the di strict court. We question whether the 12 desire for equitable relief constitutes a viable defense to Bank’s claims for 13 enforcement of the note and foreclosure. However, even if we assume that an 14 equitable remedy was available to her, Mrs. Quintana did not provide the district court 15 with any evidence on which to base relief. There is nothing in the record to refute 16 Bank’s contention that Mrs. Qu intana does not have sufficient income to pay even a 17 modified loan. Indeed, Mrs. Quintana ’s attorney acknowle dged at the summary 18 judgment hearing that Mrs. Quintana’s only income is Social Security disability 1916 income and that her income is not increasing. As a result, the only evidence in the 1 record makes a prima facie showing that Mrs. Quintana does not qualify for a loan 2 modification. There is no countervailing evidence creating an issue of fact. See Cates 3 v. Regents of N.M. Inst. of Mining & Tech ., 1998-NMSC-002, ¶ 9, 124 N.M. 633, 954 4 P.2d 65 (explaining that summary judgment is proper where there is no evidence 5 raising a reasonable doubt that a genuine issue of material fact exists). 6 In summary, we recognize that hars h lending practices by some financial 7 entities have imposed hardships on cons umers, although we e xpress no opinion about 8 whether the loan made to the Quintanas reflects those harsh practices. We also 9 appreciate the difficulties suffered by Mrs. Quintana as the result of her husband’s 10 apparently unexpected death. Our sympathy for Mrs. Quintana notwithstanding, the 11 fact remains that Bank established a prima facie case that it was entitled to enforce the 12 note and foreclose on the mortgage, and Mrs. Quintana did not counter with evidence 13 giving rise to disputed issues of fact. The district court properly granted Bank 14 summary judgment. 15 CONCLUSION 16 We affirm the district court’s judgment. 17 IT IS SO ORDERED. 1817 1 CYNTHIA A. FRY, Judge 2 WE CONCUR: 3

4 CELIA FOY CASTILLO, Chief Judge 5

6 J. MILES HANISEE, Judge 7