This memorandum opinion was not selected for pub lication in the New Mexico Appellate 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 THE BANK OF NEW YORK MELLON f/k/a 2 THE BANK OF NEW YORK, NOT IN ITS 3 INDIVIDUAL CAPACITY BUT SOLELY AS 4 TRUSTEE FOR THE BENEFIT OF THE 5 CERTIFICATE HOLDERS OF THE CWABS 6 INC., ASSET-BACKED CERTIFICATES, 7 SERIES 2006-16, 8 Plaintiff-Appellee, 9 v. No. 34,459 10 SUZANNE LOPES, 11 Defendant-Appellant, 12 and 13 MORTGAGE ELECTRONIC REGISTRATION 14 SYSTEMS, INC. (SOLELY AS NOMINEE FOR 15 LENDER AND LENDER’S SUCCESSORS AND 16 ASSIGNS) and OSCAR D. FREITES, 17 Defendants. 18

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 19 Beatrice Brickhouse, District Judge 20 Keleher & McLeod, P.A. 21 Benjamin F. Feuchter 222 Albuquerque, NM 1 for Appellee 2 Suzanne Lopes 3 Albuquerque, NM 4 Pro se Appellant 5

MEMORANDUM OPINION 6 7 BUSTAMANTE, Judge. 8 {1} Defendant Suzanne Lopes appeals from th e district court’s amended order of 9 dismissal. By its amended order, the district court set aside its prior judgment and 10 dismissed the action without prejudice. On appeal, Defendant argues that the dismissal 11 should have been with prejudice. Specifically, Defendant contends that the doctrine 12 of res judicata prohibits a second foreclos ure lawsuit. Because we conclude that a 13 dismissal for lack of standing is not a ruling on the merits of the foreclosure action, 14 we affirm the district court’s amended order. 15 BACKGROUND 16 {2} This case is before this Court a sec ond time. The case initially came before us 17 for review of the district court’s summary judgment in favor of Plaintiff, The Bank of 18 New York Mellon f/k/a The Bank Of New Yo rk, Not In Its Individual Capacity But 19 Solely As Trustee For The Benefit Of Th e Certificate Holders Of The CWABS Inc., 20 Asset-Backed Certificates, Series 2006-16. In the prior case, we held that Plaintiff 213 failed to establish standing to file a suit fo r foreclosure against Defendant at the time 1 of the complaint and reversed and remanded to the district court. Bank of N.Y. Mellon 2 v. Lopes , 2014-NMCA-097, ¶¶ 13-14, 336 P.3d 443. 3 {3} On remand, the district court initially dismissed the case with prejudice. 4 Plaintiff filed a motion to reconsider, which the district court granted, thereby entering 5 its amended order to dismiss without prej udice. Defendant appeals, raising a purely 6 legal issue with this Court: Whether the di smissal of Plaintiff’s complaint should have 7 been with prejudice. 8 DISCUSSION 9 Res Judicata and Collateral Estoppel 10 {4} Defendant argues that, because Plaintiff failed to produce evidence of its 11 standing in the present case over four year s of litigation, the idea that it could do so 12 now “defies credulity” and it should be barred from doing so by the doctrine of res 13 judicata and the applicable statute of limitations. Whether Plaintiff could produce 14 evidence in a future case that would establis h its standing as of the date of filing a 15 complaint in such future case is hypotheticaland not presently before this Court. As 16 such, we decline to address it further. See City of Sunland Park v. Harris News, Inc. , 17 2005-NMCA-128, ¶ 50, 138 N.M. 588, 124 P.3d 566 (declining to answer a 18 hypothetical question because it would be tantamount to an advisory opinion). 19 Likewise, whether a cause of action brought in a futurecase may be barred by the 204 statute of limitations is hypothetical and not presently before this Court. We likewise 1 decline to address it further. See id. We proceed to consider Defendant’s res judicata 2 argument. 3 {5} Defendant argues that res judicata completely bars re-litigation of Plaintiff’s 4 foreclosure action because a final decision was made on the standing issue and 5 because the district court entered an order addre ssing the remainder of the 6 merits—even though this Court stated that, “[b]ecause our disposition of the standing 7 issue is dispositive, we do not reach the merits of the other issues.” See Lopes , 2014- 8 NMCA-097, ¶ 5. Whether res judicata bars re-litigation of a foreclosure lawsuit that 9 has been dismissed for lack of standing was addressed by this Court recently in Bank 10 of New York as Trustee for Popular Financial Services Mortgage/Pass Through 11 Certificate Series #2006-D v. Romero , 2016-NMCA- , P.3d (No. 34,426, July 12 28, 2016) (Romero II ). 13 {6} In Romero II, we explained that, while standing is one aspect of a foreclosure 14 claim, a dismissal based on lack of standing is not an adjudication on the merits of the 15 foreclosure claim such that future claims are precluded. Id. ¶ 22. Citing to our 16 Supreme Court’s recent opinion, Deutsche Bank National Trust Co. v. Johnston , 17 2016-NMSC-013, 369 P.3d 1046, as well as other states’ opinions, we concluded that, 18 when a party fails to prove standing, the proper remedy is dismissal without prejudice 19 or allowance of subsequent lawsuits. Romero II, 2016-NMCA- ¶¶ 17-22. The same 205 reasoning and holding applies to the present case. Because Plaintiff’s complaint was 1 dismissed for lack of standing, a dismissal without prejudice was the appropriate 2 remedy. See id. ; see also Hope Cmty. Ditch Ass’n v. N.M. State Eng’r , 2005-NMCA3 002, ¶ 10, 136 N.M. 761, 105 P.3d 314 (stating th at a case that was dismissed for lack 4 of standing was not dismissed on the merits, “and therefore the denomination ‘with 5 prejudice’ in the order was incorrect”); Trujillo v. Acequia de Chamisal , 1968- 6 NMCA-015, ¶¶ 10-13, 79 N.M. 39, 439 P.2d 557 (explaining that a case was not 7 dismissed on the merits when it was dismisse d for lack of standing and stating that a 8 “dismissal . . . for want of capacity to sue . . . will not operate as a bar to the 9 subsequent suit where no disposition was had on the merits”). 10 {7} In Romero II, we also noted that the doctrine of collateral estoppel—which 11 would bar the re-litigation of an ultimate f act or issue, such as standing, as opposed 12 to the entire claim, such as foreclosure—likewise does not bar a second foreclosure 13 action by the same plaintiff. See 2016-NMCA- , ¶¶ 23-24. We noted that ruling on 14 collateral estoppel at this point would, infact, be premature because it is not yet 15 known whether the ultimate fact or issue may be supported by additi onal facts or legal 16 arguments. Id. ¶ 25. We further noted that other jurisdictions have found that litigation 17 of the issue of standing was not precluded by a negative standing ruling in the prior 18

case. Id. Again, the same reasoning would appl y to the present case. To the extent 19 Defendant intended to argue that collateral estoppel bars the re-litigation of the 206 standing issue in a second case, the issue is premature because, as indicated above, the 1 question of whether Plaintiff could produ ce evidence in a future case that would 2 establish its standing as of the date of filing a complaint in such future case is 3 hypothetical and not presently before this Court. See id. 4 Judicial Notice 5 {8} Defendant asks that this Court to take judicial notice of certain alleged facts 6 regarding Plaintiff’s actions after certain orders and/or opinions were entered. Such 7 actions, however, do not impact our legal an alysis and are not otherwise relevant to 8 the present appeal. We therefore decline to take judi cial notice of such facts. 9 Standing is Not a Jurisdictional Prerequisite 10 {9} We finally note that the reasoning in Plaintiff’s answer brief relies on the 11 principle that standing is a jurisdictional prerequisite. Although this appeared to be the 12 law until very recently, in Johnston , our Supreme Court “clari f[ied] that standing is 13 not a jurisdictional prerequisite in mortgage foreclosure cases in New Mexico[.]” 14 2016-NMSC-013, ¶ 9. We note this for th e parties’ benefit and information. 15 CONCLUSION 16 {10} For the foregoing reasons, we affirm the district court’s amended order, 17 dismissing Plaintiff’s complaint without prejudice. 18 {11} IT IS SO ORDERED. 197 1 MICHAEL D. BUSTAMANTE, Judge 2 WE CONCUR: 3

__________________________________ 4 M. MONICA ZAMORA, Judge 5

__________________________________ 6 STEPHEN G. FRENCH, Judge 7