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

2 Opinion Number: ___________

3 Filing Date: February 18, 2015 

4 NO. 33,150

5 FLAGSTAR BANK, FSB,

6 Plaintiff-Appellee,

7 v.

8 JONATHAN K. LICHA, and

9 PAMELA S. MACKENZIE-LICHA,

10 husband and wife; et al.,

11 Defendants-Appellants.

12 APPEAL FROM THE DISTRICT COURT OF SOCORRO COUNTY

13 Edmund H. Kase III, District Judge

14 Sutin, Thayer & Browne, P.C.

15 Michelle K. Ostrye

16 Justin R. Sawyer

17 Albuquerque, NM

18 for Appellee

19 Eric Ortiz Law

20 Eric N. Ortiz

21 Joseph C. Gonzales

22 Jean Y. Chu

23 Albuquerque, NM

24 for Appellants
1 OPINION

2 GARCIA, Judge.

3 {1} Defendants Jonathan K. Licha and Pamela S. MacKenzie-Licha (the Lichas),

4 appeal the district court’s order granting summary judgment for foreclosure in favor

5 of Plaintiff Flagstar Bank, FSB (Flagstar). The Lichas primarily assert on appeal that

6 issues of fact concerning Flagstar’s standing to enforce the note and mortgage

7 precluded summary judgment. We disagree with the Lichas and affirm.

8 BACKGROUND

9 A. The Loan and the District Court Proceedings

10 {2} On March 4, 2009, the Lichas executed a promissory note to Lending

11 Solutions, Inc. (Lending Solutions) to borrow $181,878. As security for the loan, the

12 Lichas signed a mortgage contract with Mortgage Electronic Registration Systems,

13 Inc. (MERS), as the nominee for Lending Solutions. On July 18, 2011, Flagstar filed

14 a foreclosure complaint against the Lichas, alleging that Flagstar was the current

15 holder of the note and the mortgage and that the Lichas were in default. The copy of

16 the note that Flagstar attached to its complaint contained an indorsement signed by

17 Ryan P. Tally, vice president of Lending Solutions, along with the words, “PAY TO

18 ORDER OF: FLAGSTAR BANK, FSB WITHOUT RECOURSE.” Flagstar also

19 attached to its complaint a copy of the mortgage with MERS and a copy of a
2

1 mortgage assignment from MERS to Flagstar dated April 29, 2011.

2 {3} The Lichas filed a pro se motion asking the district court to dismiss the

3 complaint on the basis that the complaint had failed to state a claim upon which relief

4 could be granted. The district court summarily denied the motion. Flagstar filed a

5 motion for summary judgment, which it later withdrew to give the Lichas opportunity

6 to answer the complaint. The Lichas then retained counsel, who filed an answerto the

7 complaint on their behalf. The answer asserted, among other things, that Flagstar

8 lacked standing to bring the complaint because it was not “the holder in due course”

9 and because it was “not the contractual party with respect to the transaction.”

10 {4} Flagstar renewed its summary judgment motion, asserting that it was “entitled

11 to enforce the [n]ote and [m]ortgage” because the note and mortgage were

12 “transferred and assigned to [Flagstar].” In support of this assertion, Flagstar referred

13 to a copy of the MERS assignment that it had attached to its complaint and it attached

14 an affidavit of Lisa Jones, an employee of Flagstar. In her affidavit, Ms. Jones stated

15 that “[t]he original [n]ote is maintained in a vault at Flagstar[,]” that “Flagstar’s vault

16 document management system” indicates “that Flagstar held possession of the

17 original [n]ote when it commenced the instant foreclosure action,” that Flagstar

18 continues to “hold[] possession of the original [n]ote[,]” and that she “reviewed the

19 copy of the [n]ote . . . and ha[s] confirmed that it is a true and correct copy of the
3

1 original [n]ote that is maintained at Flagstar.” Attached to this affidavit were copies

2 of the note containing the indorsement to Flagstar, the mortgage, and the MERS

3 assignment, which appear to be identical to the documents that Flagstar attached to

4 its complaint.

5 {5} In response to Flagstar’s renewed summary judgment motion, the Lichas made

6 four arguments relevant to this appeal. Their first argument concerned Flagstar’s

7 standing to foreclose. They argued that there were factual disputes about whether

8 Lending Solutions authorized MERS to assign the mortgage to Flagstar, whether

9 Flagstar gave any consideration for the assignment of the note and mortgage, and

10 whether Flagstar was the current owner of the mortgage. In support of their assertion

11 that Flagstar was not the owner of the mortgage, the Lichas submitted an affidavit of

12 Vanessa DeNiro, an attorney who performed a “loan audit” for the Lichas. Ms.

13 DeNiro stated in her affidavit that, based on her research, Ginnie Mae was the owner

14 of the mortgage loan. Her affidavit also contained numerous legal arguments and

15 conclusions of law.

16 {6} Second, the Lichas argued that they should have been afforded an opportunity

17 to conduct additional discovery on the issue of whether Flagstar had standing to

18 foreclose. Third, they argued that the district court should sanction Flagstar for “bad

19 faith discovery tactics” because it stated in its responses to the Lichas’ interrogatories
4

1 that the “subject loan” was “owned by Flagstar” when the “true owner is [Ginnie

2 Mae].” Fourth, they argued that “there was a potential violation of [the] Home Loan

3 Protection Act.”

4 {7} In its reply, Flagstar moved to strike the DeNiro affidavit because, among other

5 reasons, the affidavit contained statements that were “inadmissible hearsay, violate

6 the best evidence rule[,] or are inadmissible legal conclusions.” Flagstar argued that

7 the Lichas did not have standing to challenge the consideration paid for the

8 assignment of the mortgage to Flagstar. Flagstar also attached an affidavit and an

9 exhibit to its reply showing an undated endorsement in blank by Flagstar on the back

10 of the note.

11 {8} Without holding a hearing, the district court entered an order granting summary

12 judgment in favor of Flagstar, in which it concluded that Flagstar was entitled to

13 enforce the note and mortgage. In the same order, it struck the DeNiro affidavit and

14 denied the Lichas’ request for additional discovery, but it did not discuss the reasons

15 for these decisions. It later denied the Lichas’ motion to reconsider.

16 B. Arguments on Appeal

17 {9} All but one of the arguments set forth in the Lichas’ brief in chief were

18 preserved in the district court. The unpreserved argument asserts that the Jones

19 affidavit attached to Flagstar’s summary judgment motion did not show that Ms.
5

1 Jones had “personal knowledge” concerning her statement that Flagstar possessed the

2 original note on the date it filed for foreclosure because she relied on Flagstar’s

3 computer system for this information. Flagstar correctly counters that the Lichas did

4 not raise this argument in the district court. Thus, we do not address this issue

5 because the Lichas do not argue, and we do not find, that we should apply the public

6 interest exception to the rule that appellate courts do not address unpreserved

7 arguments. See Rule 12-216 NMRA; O’Neel v.USAA Ins. Co., 2002-NMCA-028,

8 ¶ 32, 131 N.M. 630, 41 P.3d 356 (declining to consider unpreserved arguments on

9 appeal where there was no basis to apply the general public interest exception).

10 {10} The five preserved arguments that the Lichas renew in their brief in chief are

11 whether: (1) There were disputed issues of material fact regarding whether Flagstar

12 was the holder of the note and the mortgage; (2) The Lichas have standing to

13 challenge the validity of the assignment of the note and mortgage; (3) The DeNiro

14 affidavit should not have been stricken; (4) The district court should have allowed the

15 Lichas more time to conduct additional discovery; and (5) The district court should

16 have held a hearing before it decided to strike the DeNiro affidavit, deny the Lichas’

17 request for bad faith discovery sanctions against Flagstar, and grant summary

18 judgment in favor of Flagstar.
6

1 {11} The Lichas did not renew various other issues in their brief in chief that they

2 raised in the district court. However, because Flagstar raises two of these additional

3 issues in its answer brief and the Lichas address them in their reply brief, we shall

4 discuss them in this opinion. See Brashear v. Packers, 1994-NMSC-108, ¶ 7, 118

5 N.M. 581, 883 P.2d 1278 (“[I]f an appellee raises an argument not addressed by the

6 appellant in its opening brief, the appellant may reply.” (alteration, internal quotation

7 marks, and citation omitted)). These two additional issues are whether MERS was

8 authorized to assign the mortgage to Flagstar and whether the Lichas’ contention that

9 the original lender “may have” violated the Home Loan Protection Act precludes

10 summary judgment in favor of Flagstar.

11 DISCUSSION

12 A. Standard of Review

13 {12} We review a district court’s order granting summary judgment de novo.

14 Summers v. Ardent Health Servs., L.L.C., 2011-NMSC-017, ¶ 10, 150 N.M. 123, 257

15 P.3d 943. “Summary judgment is appropriate where there are no genuine issues of

16 material fact and the movant is entitled to judgment as a matter of law.” Montgomery

17 v. Lomos Altos, Inc., 2007-NMSC-002, ¶ 16, 141 N.M. 21, 150 P.3d 971 (internal

18 quotation marks and citation omitted). “On review, we examine the whole record for

19 any evidence that places a genuine issue of material fact in dispute, and we view the
7

1 facts in a light most favorable to the party opposing the motion and draw all

2 reasonable inferences in support of a trial on the merits[.]” Handmaker v. Henney,

3 1999-NMSC-043, ¶ 18, 128 N.M. 328, 992 P.2d 879 (internal quotation marks and

4 citation omitted). The party moving for summary judgment has the burden “to

5 establish that no genuine issue of material fact exists for trial and that the movant is

6 entitled to judgment as a matter of law.” C & H Constr. & Paving Co. v. Citizens

7 Bank, 1979-NMCA-077, ¶ 9, 93 N.M. 150, 597 P.2d 1190. However, “[t]he party

8 opposing a motion for summary judgment cannot defeat the motion . . . by the bare

9 contention that an issue of fact exists, but must show that evidence is available which

10 would justify a trial of the issue.” Spears v. Canon de Carnue Land Grant, 1969-

11 NMSC-163, ¶ 12, 80 N.M. 766, 461 P.2d 415; see Guest v. Berardinelli, 2008-

12 NMCA-144, ¶ 35, 145 N.M. 186, 195 P.3d 353 (“General assertions of the existence

13 of a triable issue are insufficient to overcome summary judgment on appeal.”).

14 B. Standing

15 {13} Standing is a jurisdictional prerequisite that “may not be waived and may be

16 raised at any stage of the proceedings, even sua sponte by the appellate court.” Bank

17 of N.Y. v. Romero, 2014-NMSC-007, ¶ 15, 320 P.3d 1 (internal quotation marks and

18 citation omitted). Plaintiffs who bring foreclosure actions must demonstrate that they

19 had the right to enforce the note and mortgage at the time that they filed the
8

1 foreclosure suit. Id. ¶ 17.

2 1. Right to Enforce the Note

3 {14} To establish the right to enforce a negotiable instrument such as a note, a

4 plaintiff must show that it is: (1) the “holder” of the instrument; (2) a “nonholder”

5 who possesses the instrument and has the rights of a holder; or (3) a person who does

6 not possess the instrument, but is nonetheless entitled to enforce it pursuant to certain

7 provisions of the Uniform Commercial Code (UCC). NMSA 1978, § 55-3-301

8 (1992); see Romero, 2014-NMSC-007, ¶ 20. The UCC defines the “holder” of the

9 instrument, in pertinent part, as “the person in possession of a negotiable instrument

10 that is payable either to bearer or to an identified person that is the person in

11 possession[.]” NMSA 1978, § 55-1-201(b)(21)(A) (2005); see Romero, 2014-NMSC12 007, ¶ 21. A third party who is not the payee of the instrument “must prove both

13 physical possession and the right to enforcement through either a proper indorsement

14 or a transfer by negotiation.” Romero, 2014-NMSC-007, ¶ 21. The UCC recognizes

15 two kinds of indorsements for the purpose of negotiating an instrument: a blank

16 indorsement and a special indorsement. Id. ¶¶ 24-25. “A blank indorsement . . . does

17 not identify a person to whom the instrument is payable[,] but instead makes it

18 payable to anyone who holds it as bearer paper.” Id. ¶ 24 (citing NMSA 1978, § 55-3-

19 205(b) (1992)). “[A] special indorsement ‘identifies a person to whom it makes the
9

1 instrument payable.’” Romero, 2014-NMSC-007, ¶ 25 (quoting Section 55-3-205(a)).

2 “When specially indorsed, an instrument becomes payable to the identified person

3 and may be negotiated only by the indorsement of that person.” Romero, 2014-

4 NMSC-007, ¶ 25 (internal quotation marks and citation omitted).

5 {15} In this case, because the payee of the note was Lending Solutions, we must

6 determine whether Flagstar provided sufficient evidence of how it became the holder

7 by either an indorsement or transfer. See id. ¶ 21. Because the note that Flagstar

8 attached to its complaint was specially indorsed by Lending Solutions, identifying

9 Flagstar as the person to whom the note was payable, we conclude that Flagstar

10 provided sufficient evidence that it was the holder of the note with the right to enforce

11 it under the UCC. See id.; § 55-3-301; § 55-1-201(b)(21)(A); § 55-3-205(a).

12 {16} During the summary judgment proceedings, Flagstar submitted a copy of the

13 back page of the note showing that Flagstar had indorsed the note in blank. The

14 Lichas argue that Flagstar’s blank indorsement on the back of the note was a

15 “conflicting indorsement[]” that created an issue of fact precluding summary

16 judgment. We disagree. Flagstar’s blank indorsement is consistent with Lending

17 Solution’s special indorsement to Flagstar. Because Flagstar has shown that it is the

18 holder of the note due to Lending Solutions’ special indorsement, the effect of

19 Flagstar’s blank indorsement is to allow Flagstar to negotiate, or transfer, the note to
10

1 another person. See NMSA 1978, § 55-3-201(a) (1992) (defining “[n]egotiation” as

2 “a transfer of possession, whether voluntary or involuntary, of an instrument by a

3 person other than the issuer to a person who thereby becomes its holder”); Casarez

4 v. Garcia, 1983-NMCA-013, ¶ 16, 99 N.M. 508, 660 P.2d 598 (recognizing that when

5 a note is specially indorsed to a transferee, that transferee may “further negotiate[]”

6 the note “only by his indorsement”). The Lichas have not claimed that there is

7 evidence that Flagstar, after indorsing the note in blank, had transferred the note to

8 another person. Without such evidence, Flagstar’s blank indorsement on the note it

9 continues to hold has no effect on the issues we address in this appeal.

10 2. Right to Foreclose the Mortgage

11 {17} Our Supreme Court has recently held that where a plaintiff has not established

12 the right to enforce the note, it cannot foreclose the mortgage, even if evidence shows

13 that the mortgage was assigned to the plaintiff. See Romero, 2014-NMSC-007, ¶¶ 34-

14 35. In doing so, the Supreme Court included quotations from various authorities

15 recognizing that where the foreclosing plaintiff establishes the right to enforce the

16 note, the plaintiff automatically has the right to foreclose the mortgage that secures

17 the note. See id. ¶ 35. Authorities in New Mexico and elsewhere are consistent with

18 this principle. See, e.g., Simson v. Bilderbeck, Inc., 1966-NMSC-170, ¶¶ 13-14, 76

19 N.M. 667, 417 P.2d 803 (recognizing that “[i]t has frequently been held that a
11

1 mortgage is but an incident to the debt, the payment of which it secures, and its

2 ownership follows the assignment of the debt” and concluding that the plaintiff,

3 “[h]aving a right . . . to enforce the note, . . . could foreclose the mortgage” (internal

4 quotation marks and citation omitted)); 55 Am. Jur. 2d Mortgages § 927 (2009)

5 (“Generally, the transfer or assignment of a negotiable promissory note carries with

6 it, as an incident, a deed of trust or mortgage upon real estate or chattels that secure

7 its payment. The mortgage follows the debt, in the sense that the assignment of the

8 note evidencing the debt automatically carries with it the assignment of the

9 mortgage. . . . An assignment of the obligation operates as an assignment of the

10 mortgage as effectively for all purposes as a formal written assignment. There is no

11 necessity for the granting or recording of a separate mortgage assignment.” (footnotes

12 omitted)).

13 {18} Consistent with these authorities, we clarify that in order to demonstrate

14 standing to bring a mortgage foreclosure action, the plaintiff must establish that it had

15 the right to enforce the note at the time it filed suit and that the note was secured by

16 a mortgage—the plaintiff need not additionally establish that the mortgage was

17 formally assigned because the right to enforce themortgage automatically follows the

18 right to enforce the note. See Romero, 2014-NMSC-007, ¶ 35; Simson, 1966-NMSC19 170, ¶¶ 13-14; 55 Am. Jur. 2d Mortgages § 927. Therefore, the Lichas’ challenge to
12

1 the MERS assignment was not a material issue that precluded summary judgment

2 because, when Flagstar established the right to enforce the note, Flagstar

3 automatically established its right to enforce the mortgage. See Romero, 2014-

4 NMSC-007, ¶ 35; see also Romero v. Philip Morris, Inc., 2009-NMCA-022, ¶ 12,

5 145 N.M. 658, 203 P.3d 873 (“An issue of fact is ‘material’ if the existence (or non6 existence) of the fact is of consequence under the substantive rules of law governing

7 the parties’ dispute.”), rev’d on other grounds by 2010-NMSC-035, 148 N.M. 713,

8 242 P.3d 280; Simson, 1966-NMSC-170, ¶¶ 13-14; 55 Am. Jur. 2d Mortgages § 927.

9 3. Consideration

10 {19} We reject the Lichas’ argument that the question of whether Flagstar gave

11 consideration for the note and mortgage was a material issue that precluded summary

12 judgment. The Lichas cite no authority and this Court has found no authority that

13 requires the holder of a note, as the plaintiff in a foreclosure action, to establish that

14 it gave consideration to the original lender for the right to enforce the note and

15 mortgage. Although New Mexico courts have not directly addressed this issue, we

16 agree with the weight of authority that concludes that persons may not raise the

17 defense of lack of consideration where they were not parties to the transfer because

18 such defense is available only to the parties to the transfer. See 59 C.J.S. Mortgages

19 § 412 (2009) (“An assignment of a mortgage must be supported by a good and
13

1 valuable consideration in order to be valid as between the parties. However, the want

2 of consideration is not available as a defense to one who was not a party to the

3 assignment and hence was not thereby injured[.]” (emphasis added) (footnotes

4 omitted)); Reeves v. ReconTrust Co., 846 F. Supp. 2d 1149, 1164 (D. Or. 2012)

5 (concluding that the defense of lack of consideration is not available to third-party

6 debtors to void the mortgage assignment to MERS). Therefore, because the Lichas

7 were not parties to the transfer of the note and mortgage from Lending Solutions to

8 Flagstar, we conclude that the Lichas’ lack-of-consideration argument does not raise

9 an issue of material fact precluding summary judgment.

10 C. Exclusion of the DeNiro Affidavit

11 {20} We review a district court’s decision to strike an affidavit at the summary

12 judgment stage of the proceedings for an abuse of discretion. See Akins v. United

13 Steelworkers of Am., 2009-NMCA-051, ¶ 40, 146 N.M. 237, 208 P.3d 457 (“We

14 review a district court’s decision to admit or exclude evidence for abuse of

15 discretion.”), aff’d 2010-NMSC-031, 148 N.M. 442, 237 P.3d 744; Mitchael v.

16 Intracorp, Inc., 179 F.3d 847, 854-55 (10th Cir. 1999) (“Like other evidentiary

17 rulings, we review a district court’s decision to exclude evidence at the summary

18 judgment stage for abuse of discretion.” (internal quotation marks and citation

19 omitted)). In doing so, we “presume[] that the district court [wa]s correct” and “the
14

1 burden is on the appellant to clearly demonstrate the district court’s error.” Akins,

2 2009-NMCA-051, ¶ 40. Affidavits supporting or opposing a summary judgment

3 motion

4 shall be made on personal knowledge, shall set forth such facts as would

5 be admissible in evidence, and shall show affirmatively that the affiant

6 is competent to testify to the matters stated therein. Sworn or certified

7 copies of all papers or parts thereof referred to in an affidavit shall be

8 attached thereto or served therewith.

9 Rule 1-056(E) NMRA. At the summary judgment stage, a district court “must

10 consider evidence even if the form of the evidence, such as a deposition, would be

11 inadmissible at trial,” but “it cannot consider evidence if the substance of the

12 evidence is inadmissible at trial.” Wilde v. Westland Dev. Co., 2010-NMCA-085,

13 ¶ 28, 148 N.M. 627, 241 P.3d 628 (first emphasis added). For instance, “hearsay . . .

14 is not generally admissible at trial, so affidavits or depositions containing hearsay are

15 not sufficient evidence of a fact.” Id. (internal quotation marks and citation omitted).

16 Furthermore, opinions of witnesses concerning questions of law are inadmissible at

17 trial. See Beal v. S. Union Gas Co., 1960-NMSC-019, ¶¶ 29-30, 66 N.M. 424, 349

18 P.2d 337.

19 {21} Ms. DeNiro stated in her affidavit that she had performed a “Mortgage

20 Securitization Analysis and Legal Chain of Title Report” based on her research and

21 analysis of “documents[]” and “county records[,]” and her use of “internet tools and
15

1 commercial and government websites.” Her affidavit contained four parts: a

2 “securitization analysis”; a “chain of title report”; a “supplementary legal analysis”;

3 and a conclusion. In her securitization analysis, she stated that her research revealed

4 that “[t]he [m]ortgage associated with [the subject loan] is a mortgage back [sic]

5 security . . . guaranteed by [Ginnie Mae] (Ginnie Mae II RPB Trust/Pool 2009).”

6 (Emphasis omitted.) She did not identify or include copies of any of the documents,

7 county records, or website pages that she relied on in making this determination. She

8 then stated that:

9 By [Ginnie Mae] purchasing the said [m]ortgage [l]oan and selling

10 certificates as shares of the [Ginnie Mae] RPB Pool 2009[] to investors

11 based on the placement of the loan, [Ginnie Mae] was exercising rights

12 of ownership over the said [m]ortgage [l]oan[, and b]y exercising such

13 rights of ownership,[Ginnie Mae] made a claim of ownership of the said

14 [m]ortgage [l]oan.

15 In the chain of title report, Ms. DeNiro stated that she did not find the assignment of

16 the mortgage from MERS to Flagstar in the county records. She then concluded that

17 “[t]here is no legal evidence that Flagstar is the owner of the said [m]ortgage” or “the

18 [n]ote” and that Flagstar was “at most, a mere servicer of the [m]ortgage.” The

19 remainder of this part of the affidavit, and the parts identified as supplementary legal

20 analysis and conclusion do not contain facts, but rather legal arguments and legal

21 conclusions.

22 {22} The Lichas contend that the district court should not have excluded the DeNiro
16

1 affidavit because it established a genuine issue of material fact as to the ownership

2 of the note and mortgage. We reject this contention.

3 {23} Most of the statements that Ms. DeNiro made in her affidavit concerned legal

4 conclusions that would have been inadmissible at trial, and were thus properly

5 excluded. See Beal, 1960-NMSC-019, ¶¶ 29-30 (concluding that expert testimony

6 was properly stricken at trial because it is not the function of any witness, expert or

7 non-expert, to state an opinion on a matter of law); Wilde, 2010-NMCA-085, ¶ 28

8 (stating that our Supreme Court has made clear that a court cannot consider evidence

9 at the summary judgment stage “if the substance of the evidence is inadmissible at

10 trial”). The only statement in her affidavit concerning a disputed factual issue about

11 Flagstar’s standing was that “[t]he [m]ortgage associated with [the subject loan] is a

12 mortgage back [sic] security . . . guaranteed by [Ginnie Mae] (Ginnie Mae II RPB

13 Trust/Pool 2009)[,]” which resulted in Ginnie Mae having “rights of ownership [over]

14 the said [m]ortgage [l]oan.” (Emphasis omitted.) This statement was properly

15 excluded for two reasons. First, Ms. DeNiro claimed that she relied on “documents[]”

16 and “county records[,]” and her use of “internet tools and commercial and

17 government websites” in making her statements, but none of these sources were

18 identified or attached to the affidavit, in violation of Rule 1-056(E). See Rule 1-

19 056(E) (“Sworn or certified copies of all papers or parts thereof referred to in an
17

1 affidavit shall be attached thereto or served therewith.”); cf. State v. Lopez, 2009-

2 NMCA-044, ¶¶ 14, 26, 146 N.M. 98, 206 P.3d 1003 (holding that, pursuant to the

3 best evidence rule, trial testimony relying on documents was inadmissible without

4 submission of such documents or an explanation as to why the documents were

5 unavailable). Second, Ms. DeNiro’s statements are vague and only appear to

6 reference the ownership of the mortgage—not the note. Because we have concluded

7 that the right to foreclose the mortgage automatically follows the right to enforce the

8 note, and Flagstar established that it had the right to enforce the note, Ms. DeNiro’s

9 statements about ownership of the mortgage were not material to the issue of

10 Flagstar’s right to file this foreclosure action. See Romero, 2009-NMCA-022, ¶ 12.

11 Therefore, we conclude that the district court did not abuse its discretion in striking

12 the DeNiro affidavit. See Akins, 2009-NMCA-051, ¶ 40;see also Mitchael, 179 F.3d

13 at 854.

14 D. The Lichas’ Request for Further Discovery

15 {24} The Lichas argue that the district court should have granted its request for more

16 time to conduct discovery before it granted Flagstar’s summary judgment motion. We

17 disagree.

18 {25} “[W]e review a district court’s decision limiting discovery solely on the

19 grounds of abuse of discretion.” Sanchez v. Church of Scientology, 1993-NMSC-034,
18

1 ¶ 17, 115 N.M. 660, 857 P.2d 771. Generally, “a court should not grant summary

2 judgment before a party has completed discovery.” Sun Country Sav. Bank of N.M.,

3 F.S.B. v. McDowell, 1989-NMSC-043, ¶ 27, 108 N.M. 528, 775 P.2d 730. In

4 determining whether summary judgment was premature based upon discovery issues,

5 we consider the following factors: (1) whether the nonmovant sought a continuance

6 during the summary judgment motion stage to complete its discovery; (2) whether,

7 between the time the summary judgment motion was filed and the grant of summary

8 judgment, the nonmovant had sufficient time to obtain discovery; (3) whether the

9 nonmovant submitted an affidavit in opposition to the summary judgment motion

10 “contain[ing] a statement of the time required to complete the discovery, the

11 particular evidence needed, where the particular evidence was located and the

12 methods used to obtain the evidence[]”; and (4) whether the party who moved for

13 summary judgment “gave an appropriate response to a discovery request from the

14 nonmoving party.” Id.

15 {26} Applying these factors, the record shows that the Lichas propounded

16 interrogatories and requests for production upon Flagstar on September 7, 2012.

17 Flagstar responded to these requests on October 31, 2012 and supplemented its

18 responses on March 6, 2013. The record shows that during the four-month period

19 between the time they received Flagstar’s initial responses and the time that Flagstar
19

1 filed its summary judgment motion, the Lichas made no formal objection to the

2 manner in which Flagstar responded to their requests, nor did they seek additional

3 discovery from Flagstar. Only after Flagstar moved for summary judgment did the

4 Lichas contend in their opposition to the motion that “[f]urther discovery is needed

5 to determine whether MERS had proper authorization to act on behalf of Lending

6 Solutions” when it assigned the mortgage to Flagstar; that Flagstar “continuously

7 refused to provide requested original loan documents or consideration or value given

8 in exchange for the [a]ssignment of [m]ortgage”; that the Lichas needed time to

9 “inspect the . . . loan application and all disclosures made or not made to them” and

10 the “full mortgage file” so that they could “determine whether the loan is void or

11 voidable due to fraud or misrepresentation”; and that Flagstar “has refused to provide

12 true discovery responses” because its statement that “the loan had never been

13 securitized” was “false.” The Lichas did not submit an affidavit with their opposition

14 detailing the time required to complete their discovery or the methods needed to

15 obtain the evidence they sought.

16 {27} During the next three-month interval between the time that Flagstar moved for

17 summary judgment and the district court’s order granting it, the Lichas did not

18 propound any further discovery requests upon Flagstar, they did not move to compel

19 Flagstar to produce any documents they claimed that Flagstar improperly withheld,
20

1 and they did not move for a stay or continuance of the summary judgment

2 proceedings. Furthermore, the Lichas do not dispute Flagstar’s claim that it provided

3 them with an “opportunity to inspect the original note but the Lichas failed to do so.”

4 For these reasons, we conclude that the Lichas did not act reasonably in pursuing the

5 deficiencies claimed to exist in discovery and the district court did not abuse its

6 discretion in denying the Lichas more time to pursue discovery. See Sanchez,1993-

7 NMSC-034, ¶ 17; Sun Country Sav. Bank of N.M., F.S.B., 1989-NMSC-043, ¶ 29

8 (affirming summary judgment where nonmovant “did not act reasonably in

9 discovering . . . information” because it did not file a motion to compel, did not seek

10 a continuance of the summary judgment proceedings, did not attempt to conduct

11 additional discovery while the summary judgment motion was pending, and did not

12 include an affidavit elaborating on the time and methods needed to complete

13 discovery).

14 E. Home Loan Protection Act

15 {28} Although the Lichas do not raise an issue in their brief in chief concerning the

16 Home Loan Protection Act (HLPA), NMSA 1978, §§ 58-21A-1 to -14 (2003, as

17 amended through 2009), Flagstar argues in its answer brief that it is not subject to the

18 HLPA claims that were made by the Lichas during the summary judgment

19 proceedings. The Lichas counter in their reply brief that Flagstar is subject to the
21

1 HLPA, that the Lichas “presented a factual dispute as to whether [Flagstar] may have

2 violated the HLPA[,]” and that this factual dispute precluded summary judgment.

3 However, the Lichas do not identify or discuss the nature of the factual dispute they

4 claim exists. Instead, they merely state that more discovery is required to determine

5 whether there was an HLPA violation. Because the Lichas do not identify an actual

6 factual issue with regard to the HLPA in their appellate briefs, and because we have

7 concluded that they did not act reasonably in pursuing discovery prior to the summary

8 judgment ruling, we need not further address the legal question of whether Flagstar

9 violated the HLPA. See Montgomery, 2007-NMSC-002, ¶ 16. (“Summary judgment

10 is appropriate where there are no genuine issues of material fact and the movant is

11 entitled to judgment as a matter of law.” (internal quotation marks and citation

12 omitted)); Spears, 1969-NMSC-163, ¶ 12 (“The party opposing a motion for

13 summary judgment cannot defeat the motion . . . by the bare contention that an issue

14 of fact exists, but must show that evidence is available[.]”); Guest, 2008-NMCA-144,

15 ¶ 35 (“General assertions of the existence of a triable issue are insufficient to

16 overcome summary judgment on appeal.”).

17 F. Hearing

18 {29} Finally, the Lichas claim that the district court erred when it decided the

19 summary judgment motion without a hearing. We reject this contention because we
22

1 are aware of no authority, and the Lichas have cited none, that requires a district court

2 to hold a hearing on a summary judgment motion. See Curry v. Great Nw. Ins. Co.,

3 2014-NMCA-031, ¶ 28, 320 P.3d 482 (“Where a party cites no authority to support

4 an argument, we may assume no such authority exists.”), cert. denied, 2014-

5 NMCERT-003, 324 P.3d 375. We have previously recognized that “[i]n considering

6 a motion for summary judgment, the [district] court . . . is not required to[] hold an

7 oral hearing. . . . when the opposing party has had an adequate opportunity to respond

8 to [the] movant’s arguments through the briefing process.” Nat’l Excess Ins. Co. v.

9 Bingham, 1987-NMCA-109, ¶ 9, 106 N.M. 325, 742 P.2d 537. The Lichas filed a

10 written response in opposition to Flagstar’s summary judgment motion and have not

11 claimed that they did not have an opportunity to respond to Flagstar’s arguments

12 during the briefing process. Therefore, we conclude that the district court did not err

13 when it granted summary judgment without a hearing.

14 {30} The Lichas also argue that the district court should have held a hearing on their

15 request for discovery sanctions against Flagstar because: statements in the DeNiro

16 affidavit contradicted some of Flagstar’s responses to the Lichas’ discovery requests;

17 a hearing would have allowed the district court to determine whether Ms. DeNiro’s

18 statements were correct and Flagstar’s statements were false; and if Flagstar’s

19 statements were false, the district court could have granted the Lichas’ request for bad
23

1 faith discovery sanctions. We reject this argument for three reasons. First, we have

2 already concluded that the statements in the DeNiro affidavit were inadmissible and

3 the district court properly struck them. Second, even if the district court had

4 considered the DeNiro affidavit, the statements in the affidavit that contradict

5 Flagstar’s right to foreclose the mortgage fail as a matter of law because Flagstar

6 established it had the right to enforce the note.Third, the Lichas cite no authority, and

7 we have found none, that requires a district court to hold a hearing on an unresolved

8 request for discovery sanctions for the separate purpose of weighing the credibility

9 of individuals who have made conflicting statements during the discovery process.

10 See Curry, 2014-NMCA-031, ¶ 28.

11 CONCLUSION

12 {31} For the reasons set forth herein, we affirm the district court’s order granting

13 summary judgment in favor of Flagstar.

14 {32} IT IS SO ORDERED.

15 __________________________________

16 TIMOTHY L. GARCIA, Judge
24

1 WE CONCUR:

2 ___________________________________

3 MICHAEL E. VIGIL, Chief Judge

4 ___________________________________

5 M. MONICA ZAMORA, Judge