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

2 Opinion Number: ___________

3 Filing Date: April 26, 2016

4 NO. 33,394

5 PNC MORTGAGE, a division of PNC BANK

6 National Association, SUCCESSOR BY

7 MERGER TO NATIONAL CITY MORTGAGE,

8 a division of NATIONAL CITY BANK f/k/a

9 NATIONAL CITY BANK OF INDIANA,

10 Plaintiff-Appellee,

11 v.

12 DANA ROMERO and EUGENE ROMERO,

13 Defendants-Appellants.

14 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

15 Sarah M. Singleton, District Judge

16 Brownstein Hyatt Farber Schreck, LLP

17 Eric R. Burris

18 Nury H. Yoo

19 Albuquerque, NM

20 for Appellee

21 Law Offices of Brian A. Thomas, P.C.

22 Brian A. Thomas

23 Albuquerque, NM

24 for Appellants
17 As will be discussed in this Opinion, infra ¶¶ 3, 7, 8, there also existed an 1

18 entity named “National City Mortgage Co.”Although PNC Mortgage argues that there

19 is a difference between National City Mortgage, a division, and National City

20 Mortgage, a subsidiary, neither party explains the relevance, materiality, or

21 consequences of the distinction.

1 OPINION

2 SUTIN, Judge.

3 {1} Defendants-Appellants Dana and Eugene Romero (collectively, the Romeros)

4 appeal from an award of summary judgment in favor of Plaintiff-Appellee PNC

5 Mortgage, which orders that the foreclosure action against the Romeros proceed. The

6 Romeros argue on appeal that there are genuine issues of material fact regarding PNC

7 Mortgage’s standing to enforce the Romeros’ promissory note and to foreclose the

8 mortgage that secured the note. Because we agree that there are outstanding genuine

9 issues of material fact regarding PNC Mortgage’s right to enforce the note at the time

10 it filed its complaint and because PNC Mortgage failed to show that it timely

11 possessed the Romero note as a bearer instrument, we reverse the district court’s

12 ruling and remand for further proceedings. 

13 BACKGROUND

14 The Note, the Mortgage, and the District Court Proceedings

15 {2} In May 2006, the Romeros signed a promissory note (the Romero note)

16 evidencing a debt in the principal sum of $240,000 to National City Mortgage, a 1
2

1 division of National City Bank of Indiana. The Romero note was secured by a

2 mortgage on the Romeros’ home (the Romero mortgage). The Romeros made the

3 mortgage payments up to and including January 1, 2010, but thereafter they went into

4 default.

5 {3} In August 2010, Plaintiff PNC Mortgage, a division of PNC Bank, National

6 Association, successor by merger to National City Mortgage (NCM), a division of

7 National City Bank f/k/a National City Bank of Indiana (NCBI), filed a mortgage

8 foreclosure complaint against the Romeros. PNC Mortgage attached to the complaint

9 a copy of the unindorsed Romero note (hereinafter, the unindorsed note) that

10 identified NCM, a division of NCBI, as the lender. PNC Mortgage also attached a

11 copy of the Romero mortgage to the complaint. The complaint alleged that PNC

12 Mortgage was “the holder of the [m]ortgage . . . pursuant to a name change/merger

13 with current holder of record.” Neither the complaint nor the attached documents

14 alleged or showed any details of any successor status or merger. In September 2010,

15 the Romeros filed an answer to the complaint wherein they alleged the affirmative

16 defense of lack of standing to sue.

17 {4} In November 2012, PNC Mortgage filed a motion for summary judgment

18 contending that it was entitled to judgment because it was the holder of and entitled

19 to enforce the note and mortgage asstated in an affidavit of Courtney M. Ely (the Ely
3

1 affidavit). As “a duly authorized agent of . . . Plaintiff[,]” Ely stated that “PNC [Bank]

2 is the legal holder” of the Romero note, “a true and correct copy of which is attached

3 to the complaint” and the note was secured by the mortgage, “a true and correct copy

4 of which is attached to the [c]omplaint[.]” In its motion, PNC Mortgage stated that

5 its counsel was in possession of the original note and that it was the successor to the

6 originator of the note and mortgage.

7 {5} In response to the motion for summary judgment, the Romeros asserted that

8 material issues of fact existed precluding summary judgment. The Romeros denied

9 that PNC Mortgage was the holder of the note and attacked the Ely affidavit because

10 it lacked a statement that it was based on personal knowledge, it stated conclusions,

11 and it was inadmissible hearsay. In addition, the Romeros stated that the note that was

12 attached to the complaint lacked indorsements and was “order paper,” that there was

13 no documentation of an assignment of the mortgage, and that nothing supported PNC

14 Mortgage’s claim to be the successor to the lender through merger, and therefore,

15 PNC Mortgage lacked standing to foreclose. The Romeros also foreshadowed that

16 PNC Mortgage may offer a “new and different” version of the note later in the

17 proceedings and warned that allowing a second version would be unfair and create

18 undue prejudice.
4

1 {6} Attached to their response to PNC Mortgage’s motion was an affidavit by

2 Eugene Romero addressing the Romeros’ attempts to modify their loan and regarding

3 an inquiry into the owner of their promissory note. Attached to the affidavit was a

4 letter the Romeros received from PNC Mortgage to their qualified written request to

5 PNC Mortgage under the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601

6 to 2617 (2012). PNC Mortgage’s letter dated September 27, 2012 (the QWR response

7 letter), stated in relevant part that “[y]our loan is in a pool known as GSAA 2006-14

8 and the Trustee is Bank of America . . .; however, PNC Mortgage is the servicer of

9 your loan and you should continue to contact us for any concerns regarding your

10 mortgage.” The QWR response letter also stated that “PNC Mortgage affirms the

11 validity of the debt and requires repayment per the [n]ote and the [m]ortgage until all

12 debt is paid in full. . . . PNC Mortgage will continue to service the above referenced

13 loan, and any collection and foreclosure efforts will continue.” In addition, Mr.

14 Romero attached a letter dated May 17, 2012, from PNC Mortgage that stated “[w]e

15 service your loan on behalf of an investor or group of investors that has not given us

16 the contractual authority to modify your loan under the Home Affordable

17 Modification Program.”

18 {7} In response to the Romeros’ contention that it lacked standing to enforce the

19 note and to foreclose, PNC Mortgage submitted evidence in the formof certifications
5

1 from the secretary of National City Bank/PNC Bank, National Association, and

2 merger documentation from the Office of the Comptroller of the Currency. The

3 documents showed that, “[e]ffective July 22, 2006, [NCBI] was acquired by [NCB]

4 and National City Mortgage Co. became a wholly owned subsidiary of [NCB].” In

5 2008, “National City Mortgage Company merged into [NCB] and became a division

6 of [NCB].” The certificate also noted that NCB, a wholly owned subsidiary of

7 “National City Corporation,” became a wholly owned subsidiary in 2008 of The PNC

8 Financial Services Group, Inc., when National City Corporation merged with and into

9 The PNC Financial Services Group, Inc. Effective in 2009, NCB was merged into

10 PNC Bank, National Association, which was a wholly owned subsidiary of PNC

11 Bancorp, Inc., a wholly owned subsidiary of The PNC Financial Services Group, Inc.

12 The result of this complicated showing, none of which is contested by the Romeros,

13 is that, through succession bymerger, NCB was merged into PNC Bank in November

14 2009.

15 {8} Also among PNC Mortgage’s responsive summary judgment documents was

16 a copy of the Romero note. But unlike the copy of the note that was attached to the

17 complaint, this copy ofthe note contained two undated indorsements (hereinafter, the

18 indorsed note). One indorsement unambiguously stated “Pay to the Order of National

19 City Mortgage Co[.,] a Subsidiary of National City Bank of Indiana” and was signed
6

1 by a document control specialist on behalf of “National City Mortgage[,] a division

2 of National City Bank of Indiana[.]” The other indorsement, which appears below the

3 foregoing indorsement, stated “Pay to the Order of [________]” and was signed by

4 the aforementioned document control specialist on behalf of “National City Mortgage

5 Co[.,] a Subsidiary of National CityBank of Indiana.” Neither indorsement was dated

6 and neither PNC Mortgage nor the Romeros offered specific evidence regarding the

7 timing of the indorsements.

8 {9} Based on its reading of the merger documentation it submitted to support

9 summary judgment, PNC Mortgage argued that it established a prima facie case that

10 it was in the same position as the original lender, NCM, and it was in possession of

11 the original note and was the holder of the note. PNC Mortgage also argued that it

12 was entitled to enforce the note, as well as the mortgage, because it is “well-settled

13 that the mortgage ‘follows’ the note” as indicated in NMSA 1978, Section 55-9-

14 203(g) (2005) of New Mexico’s Uniform Commercial Code (UCC).

15 {10} The district court specifically determined that PNC Mortgage made a prima

16 facie showing that it was the holder of the note and entitled to enforce it based on

17 determinations that PNC Mortgage’s predecessor in interest made the note a bearer

18 instrument and that PNC Mortgage was in possession of the original note. See NMSA

19 1978, § 55-1-201(b)(21)(A) (2005) (stating that “ ‘holder’ means . . . the person in
7

1 possession of a negotiable instrument that is payable either to bearer or to an

2 identified person that is the person in possession”). Thus, the district court agreed that

3 PNC Mortgage had established standing to foreclose and granted summary judgment

4 in favor of PNC Mortgage.

5 {11} After the district court granted summary judgment, and after the Romeros filed

6 their docketing statement with this Court, the Romeros moved for relief under Rule

7 1-060(B) NMRA. In their motion, the Romeros argued that our Supreme Court’s

8 decision in Bank of New York v. Romero, 2014-NMSC-007, 320 P.3d 1, which was

9 decided after the district court granted summary judgment in favor of PNC Mortgage,

10 held that in order to show standing, a plaintiff is required “to demonstrate . . . that it

11 had standing to bring a foreclosure action at the time it filed suit.” Id. ¶ 17. The

12 Romeros also argued that under Romero and Deutsche Bank National Trust Co. v.

13 Beneficial New Mexico Inc. (Deutsche Bank I), 2014-NMCA-090, 335 P.3d 217,

14 affirmed in part sub nom. Deutsche Bank National Trust Co. v. Johnston (Deutsche

15 Bank II), 2016-NMSC-013,___ P.3d ___, PNC Mortgage was required to show timely

16 ownership of both the note and the mortgage. According to the Romeros, because

17 PNC Mortgage had not shown that it held or possessed the original note at the time

18 it filed the complaint and, therefore, lacked standing, summary judgment and the

19 order of foreclosure sale should have been deemed void under Rule 1-060(B)(4). The
8

1 Romeros also argued that the Ely affidavit offered on behalf of PNC Mortgage during

2 the summary judgment proceedings was inadmissible hearsay and inappropriately

3 stated legal conclusions. Finally, the Romeros argued that the existence of the

4 securitized trust, without specific evidence of PNC Mortgage’s acquisition of the

5 Romero note, created a genuine issue of material fact.

6 {12} In response to the Romeros’ motion, PNC Mortgage argued that it was different

7 from the plaintiffs in Romero because PNC Mortgage was both the successor by

8 merger to the original payee and, as shown by the Ely affidavit, the holder of the

9 Romero note. PNC Mortgage asserted that Romero and its progeny were

10 distinguishable because, unlike the Romero plaintiffs, PNC Mortgage had a right to

11 enforce the note by virtue of its merger with NCBI. PNC Mortgage further argued

12 that the Ely affidavit properly asserted Ms. Ely’s opinions and did not constitute

13 hearsay. PNC Mortgage also asserted that ownership of the note was irrelevant to

14 standing.

15 Arguments on Appeal

16 {13} On appeal, the Romeros contend that PNC Mortgage failed to prove it had

17 standing and that, “at a minimum, a trial on the merits rather than summary judgment”

18 is proper. The Romeros first argue that PNC Mortgage did not have standing to bring

19 this foreclosure action because the unindorsed note attached to the complaint
9

1 indicated that it was payable to NCM, a division of NCBI, and PNC Mortgage failed

2 to provide any evidence confirming its right to enforce the Romero note as a

3 successor in interest. The Romeros do not dispute that PNC Mortgage established that

4 it is the corporate successor to NCM, but the Romeros dispute that this fact alone

5 establishes a specific interest in the note or the mortgage required to establish

6 standing. The Romeros specifically highlight the fact that PNC Mortgage failed to

7 produce any documentation that accounted for each time the note and mortgage

8 changed hands, including during each bank merger.

9 {14} The Romeros also argue that the two different copies of the Romero note

10 indicate that PNC Mortgage lacked standing when it filed the foreclosure complaint

11 because the note that came to light during the summary judgment proceedings, the

12 indorsed note, does not indicate that the added indorsements were executed prior to

13 the filing of the complaint or that PNC Mortgage had possession of the indorsed note

14 and was the holder at the time it filed its complaint. Thus, according to the Romeros,

15 providing the indorsed note during the course of litigation was inadequate to show

16 possession of the indorsed note at the time the foreclosure suit was filed.

17 {15} In addition, the Romeros point out that, after the filing of the complaint, PNC

18 Mortgage’s QWR response letter stated the loan was owned by a securitized trust
17 A loan servicer is generally “responsible for processing payments and 2

18 supervising any resulting foreclosure or workout.” Richard H. Martin, Proving

19 Standing to Foreclose a Florida Mortgage, 85 Fla. B.J. 31 (Dec. 2011). However,

20 neither party provided a pooling and servicing agreement or any other documentary

21 evidence that might describe the rights and obligations of PNC Mortgage versus the

22 rights and obligations of the securitized trust. 

10

1 entitled GSAA 2006-14 and that PNC Mortgage was merely the servicer of the note.2

2 The Romeros mention that the effective date of a trust usually appears in the name of

3 the trust, in this case 2006, and that the trust here “would most likely have accepted

4 assets . . . (usually [thirty to ninety] days) after the effective date of the trust.”

5 Inferring that the trust would have closed by early 2007 and that the merger did not

6 close until after 2007, the Romeros conclude that PNC Mortgage could not have been

7 successor to the original lender by merger. From these circumstances, the Romeros

8 argue that “[t]he strong inference here is that the [n]ote and the [m]ortgage were

9 transferred to the GSAA 2006-14 trust during the 2006 window, and then either the

10 [n]ote or the [m]ortgage (or both) wastransferred back to [PNC Mortgage], in its role

11 as servicer for the GSAA 2006-14 trust at some point thereafter.” Thus, according to

12 the Romeros, “[PNC Mortgage] has been unable to make a convincing, logical case

13 as to when and if the rights under the [n]ote were negotiated (in UCC parlance) and

14 the rights under the [m]ortgage were transferred to the GSAA 2006-14 trust as

15 principal (with servicing rights retained by [PNC Mortgage]),” thereby resulting in

16 a failure of PNC Mortgage’s claim of standing. Therefore, according to the Romeros,
11

1 material issues of fact exist as to whether PNC Mortgage owned, or was the holder

2 or in possession of, either the note or mortgage, when PNC Mortgage filed the

3 foreclosure complaint.

4 {16} In addition to the deficiencies regarding the note, the Romeros argue that PNC

5 Mortgage failed to show ownership of the Romero mortgage by virtue of an

6 assignment of mortgage, and thus, PNC Mortgage failed to prove standing.

7 DISCUSSION

8 Standard of Review

9 {17} “The [summary judgment] movant need only make a prima facie showing that

10 he is entitled to summary judgment. Upon the movant making a prima facie showing,

11 the burden shifts to the party opposing the motion to demonstrate the existence of

12 specific evidentiary facts which would require trial on the merits. On review, [the

13 appellate courts] consider the whole record for evidence that puts a material fact at

14 issue. If the facts are not in dispute, and only their legal effects remain to be

15 determined, summary judgment is proper.” Roth v. Thompson, 1992-NMSC-011,

16 ¶ 17, 113 N.M. 331, 825 P.2d 1241 (citations omitted). “An appeal from the grant of

17 a motion for summary judgment presents a question of law and is reviewed de novo.”

18 Montgomery v. Lomos Altos, Inc., 2007-NMSC-002, ¶ 16, 141 N.M. 21, 150 P.3d

19 971. The appellate courts review the facts “in the light most favorable to the party
12

1 opposing summary judgment, drawing all inferences in favor of that party.” Gormley

2 v. Coca-Cola Enters., 2005-NMSC-003, ¶ 8, 137 N.M. 192, 109 P.3d 280 (internal

3 quotation marks and citation omitted).

4 Standing

5 {18} At the time that this case was briefed and argued before this Court, standing in

6 foreclosure cases had been articulated as a jurisdictional prerequisite that “may not

7 be waived and may be raised at any stage of the proceedings, even sua sponte by the

8 appellate court.” Romero, 2014-NMSC-007, ¶ 15 (internal quotation marks and

9 citation omitted); Flagstar Bank, FSB v. Licha, 2015-NMCA-086, ¶ 13, 356 P.3d

10 1102. However, our Supreme Court recently issued its opinion in Deutsche Bank II,

11 2016-NMSC-013, ¶ 9, wherein the Court took the opportunity “to clarify that

12 standing is not a jurisdictional prerequisite in mortgage foreclosure cases in New

13 Mexico[.]” According to our Supreme Court, only prudential rules of standing apply

14 in such cases. Id. ¶¶ 10, 12. The Court recognized that under the prudential rules, a

15 litigant is generally required to demonstrate “injury in fact, causation, and

16 redressability to invoke the [district] court’s authority to decide the merits of a case.”

17 Id. ¶ 13 (internal quotation marks and citation omitted). To effectively show a direct

18 and concrete injury, the Court stated that a party seeking to enforce a promissory note

19 must establish that it has the right to enforce the note under the UCC. Id. ¶ 14; see
13

1 also NMSA 1978, § 55-3-301 (1992). Finally, the Court stated that “[a]rguments

2 based on a lack of prudential standing are analogous to asserting that a litigant has

3 failed to state a legal cause of action[,]” and “issues of prudential standing [cannot be

4 waived] prior to the completion of a trial on the merits.” Deutsche Bank II, 2016-

5 NMSC-013, ¶ 16;see also Rule 1-012(H)(2) NMRA (“A defense of failure

6 to state a claim upon which relief can be granted

7 . . . may be made in any pleading permitted or

8 ordered . . . or by motion for judgment on the

9 pleadings, or at the trial on the merits.”).

10 {19} After changing the test from a jurisdictional one to a prudential one, the Court

11 in Deutsche Bank II firmly stood with Romero’s determination that a party seeking

12 to foreclose is “required to demonstrate under [the UCC] that it had standing to bring

13 a foreclosure action at the time it filed suit.” Romero, 2014-NMSC-007, ¶ 17; see

14 Deutsche Bank II, 2016-NMSC-013, ¶¶ 20-23. Thus, to demonstrate standing on a

15 prudential basis, the foreclosing party “must demonstrate that [it] had the right to

16 enforce the note and the right to foreclose the mortgage at the time the foreclosure

17 suit was filed.” Phoenix Funding, LLC v. Aurora Loan Servs., LLC, 2016-NMCA18 010, ¶ 15, 365 P.3d 8, cert. granted, 2016-NMCERT-001, 365 P.3d 8; Deutsche Bank
19 Romero states that a party seeking to foreclose must establish “timely

3

20 ownership” of the note and mortgage, 2014-NMSC-007, ¶ 17, however, reading the

12 Romero opinion as a whole, we believe the Supreme Court’s mention of ownership

13 was not intended to legally distinguish that concept from status as a holder of a

14 negotiable instrument under the UCC. The proper inquiry is therefore whether said

15 party is the holder, not the owner. See § 55-3-301 (“A person may be a person entitled

16 to enforce the instrument even though the person is not the owner of the

17 instrument[.]”); NMSA 1978, § 55-3-110(c)(2) cmt. 3 (1992) (“This provision merely

18 determines who can deal with an instrument as a holder. It does not determine

19 ownership of the instrument or its proceeds.”); Application of the Uniform

20 Commercial Code to Selected Issues Relating to Mortgage Notes, at 8 (Am. Law Inst.

21 & Unif. Law Comm’n Nov. 14, 2011) (“The rules that determine whether a person

22 is entitled to enforce a note do not require that person to be the owner of the note, and

23 a change in ownership of a note does not necessarily bring about a concomitant

24 change in the identity of the person entitled to enforce the note. . . . The rules

25 concerning transfer of ownership and other interests in a note . . . primarily relate to

26 who, among competing claimants, is entitled to the economic value of the note.”

27 (footnote omitted)).

14

1 I, 2014-NMCA-090, ¶ 8. It remains clear that a party seeking to prove standing must 3

2 show that it had the right to enforce the note at the time it filed its complaint.

3 Deutsche Bank II, 2016-NMSC-013, ¶¶ 20-27. Because we reverse on the issue of the

4 right to enforce the note, we need not address the Romeros’ argument regarding the

5 right to foreclose the mortgage. 

6 PNC Mortgage’s Right to Enforce the Note

7 {20} According to New Mexico law, a promissory note is a negotiable instrument,

8 NMSA 1978, § 55-3-104(a), (b), (e) (1992), that can be enforced by “(i) the holder

9 of the instrument, (ii) a nonholder in possession of the instrument who has the rights

10 of a holder, or (iii) a person not in possession of the instrument who is entitled to
15

1 enforce the instrument pursuant to [certain provisions of the UCC].” Section 55-3-

2 301; Phoenix Funding, 2016-NMCA-010, ¶ 16. The holder of the note is “the person

3 in possession of a negotiable instrument that is payable either to bearer or to an

4 identified person that is the person in possession[.]” Section 55-1-201(b)(21)(A). The

5 bearer is “a person in possession of a negotiable instrument . . . that is payable to

6 bearer or indorsed in blank[.]” Section 55-1-201(b)(5). 

7 {21} We turn to PNC Mortgage’s argument that either the indorsed note provided

8 during summary judgment proceedings or the unindorsed note attached to the

9 complaint provided standing.

10 A. The Indorsed Note

11 {22} PNC Mortgage argues that the indorsed note provides a basis for standing

12 because PNC Mortgage was in possession of a bearer instrument and thus had the

13 right to enforce the note. This argument was accepted by the district court and served

14 as the basis for granting summary judgment to PNC Mortgage. According to the

15 district court, PNC Mortgage’s predecessor in interest made the note a bearer

16 instrument by indorsing it in blank, and PNC Mortgage was in possession of that

17 original note. The district court therefore held that PNC Mortgage thereby established

18 a prima facie case of its right to enforce the note and had established standing.
16

1 {23} “A blank indorsement . . . does not identify a person to whom the instrument

2 is payable but instead makes it payable to anyone who holds it as bearer paper.”

3 Romero, 2014-NMSC-007, ¶ 24. In general, a person or entity in possession of a

4 bearer instrument is considered a holder, and a holder of a bearer instrument is

5 entitled to enforce itsterms. Section 55-1-201(b)(21)(A) (defining “holder” under the

6 UCC); § 55-3-301 (“ ‘Person entitled to enforce’ an instrument means (i) the holder

7 of the instrument [or] (ii) a nonholder in possession of the instrument who has the

8 rights of a holder . . . . A person may be a person entitled to enforce the instrument

9 even though the person is not the owner of the instrument[.]”).

10 {24} Here, the indorsed note contained two indorsements—a special indorsement

11 and an indorsement in blank. Although neither indorsement is dated, the parties

12 appear to agree that had PNC Mortgage been able to prove timely possession of the

13 indorsed note, it would defeat the Romeros’ standing claim. However, the Romeros

14 argue that production of the document is insufficient to prove PNC Mortgage’s right

15 to enforce at the time the complaint was filed, as required by Romero. We agree. 

16 {25} PNC Mortgage failed to establish that it had a right to enforce the indorsed

17 note. The note came to light years after PNC Mortgage filed its complaint. There

18 exists no evidence that at the time it filed its complaint, PNC Mortgage possessed the

19 original of the indorsed note. Moreover, there exists no evidence as to the date of the
17

1 indorsements on the indorsed note. As indicated in Phoenix Funding, “where an

2 indorsed note is not produced until after the plaintiff has filed for foreclosure and the

3 indorsement is undated, the indorsement is insufficient to show that the plaintiff was

4 the holder of that note at the time the foreclosure complaint was filed.” 2016-NMCA5 010, ¶ 20; see also Deutsche Bank II, 2016-NMSC-013, ¶¶ 24-25 (holding that

6 although an undated indorsement does not impact the validity of the note, presenting

7 an undated indorsed note after the complaint is filed does not prove that a party

8 seeking to foreclose possessed the blank note when it filed suit).

9 {26} Although we hold that PNC Mortgage failed to prove its prima facie case based

10 on the indorsed note, we believe that it is important to mention that Romero did not

11 exist at the time the district court issued its order granting summary judgment and

12 thus the timeliness requirement enumerated in Romero was not before the district

13 court in this case. The test for establishing standing in foreclosure actions evolved

14 dramatically during the pendency of this appeal. Our Supreme Court issued Romero

15 two months after the filing of the docketing statement in this case. Romero

16 definitively stated that a party seeking to foreclose must, as a matter of standing,

17 establish its right to foreclose at the time the complaint is filed. This was not a clearly

18 articulated standard at the time the district court ruled on PNC Mortgage’s motion for

19 summary judgment. The Romeros alerted the district court to Romero in a motion for
18

1 post-judgment relief. However, the motion was filed after the case had been appealed

2 to this Court and after the parties had notified this Court of Romero in memoranda in

3 the calendaring process. The record on appeal does not contain the district court’s

4 order on the motion for post-judgment relief and neither party made a transcript or

5 disc of the hearing available to this Court on appeal. Due to the fact that the appeal

6 continued, we assume that the motion was denied. On appeal, PNC Mortgage does

7 not argue that Romero is not applicable. Therefore, in view of Romero, the district

8 court’s analysis was deficient. 

9 B. The Unindorsed Note

10 {27} PNC Mortgage also argues that it has standing to enforce the Romero note

11 because the unindorsed note, a copy of which was attached to the complaint, was

12 payable to PNC Mortgage’s predecessor in interest. PNC Mortgage argues that it is

13 thus entitled to enforce the note because, as a successor in interest and a holder of the

14 note, it had all of the rights of its predecessor in interest.

15 {28} As indicated earlier, a holder of a note and a nonholder in possession of a note

16 with the rights of a holder have the right to enforce the note. See § 55-3-301. Our

17 Supreme Court clarified in Romero, however, that in order to enforce a note made

18 payable to a third party, a successor must prove that it has both physical possession

19 of the note as well as the right to enforce it through a proper indorsement or transfer
19

1 via negotiation. 2014-NMSC-007, ¶ 21 (holding that “a third party must prove both

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

3 or a transfer by negotiation” and referencing the definition of “negotiation” contained

4 in Section 55-3-201(a)). Mere possession of a note payable to a third party is

5 therefore insufficient. See Romero, 2014-NMSC-007, ¶ 23 (“Possession of an

6 unindorsed note made payable to a third party does not establish the right of

7 enforcement, just as finding a lost check made payable to a particular party does not

8 allow the finder to cash it.”); see also Deutsche Bank II, 2016-NMSC-013, ¶ 32

9 (same). Romero therefore requires that a successor in interest seeking to establish its

10 right to foreclose provide some evidence of a proper indorsement or transfer via

11 negotiation as part of its prima facie case. According to our Supreme Court, “the

12 minor up-front compliance costs that foreclosure plaintiffs will incur by confirming

13 that they have the proper documentation before filing suit are a small price to pay for

14 protecting the rights of New Mexico homeowners and the integrity of the State’s title

15 system by requiring strict and timely compliance with long-standing property law

16 requirements.” Deutsche Bank II, 2016-NMSC-013, ¶ 22.

17 {29} In support of its claim that it was a holder of the unindorsed note, PNC

18 Mortgage offered the Ely affidavit stating that “PNC is the legal holder of a

19 Promissory Note (‘Note’) dated May 02, 2006, and executed by Dana Romero and

20 Eugene Romero, in the original principal sum of $240,000.00[.]” The Romeros argue
20

1 that the Ely affidavit failed to accomplish its apparent purpose to establish as an

2 undisputed fact that PNC Mortgage had standing.

3 {30} We give little weight to the Romeros’ appellate attack because the Romeros do

4 not point out where in the district court proceedings they sought to strike the Ely

5 affidavit. See Chavez v. Ronquillo, 1980-NMCA-069, ¶¶ 19-20, 94 N.M. 442, 612

6 P.2d 234 (“A party must move to strike an affidavit that violates Rule [1-056(E)

7 NMRA].”). However, we do note that the statement that PNC Mortgage is the

8 “holder” of the note is undoubtedly a legal conclusion. An affidavit submitted in

9 support of a motion for summary judgment “shall set forth such facts as would be

10 admissible in evidence[.]” Rule 1-056(E). Testimony by a lay witness “that seeks to

11 state a legal conclusion is inadmissible.” State v. Clifford, 1994-NMSC-048, ¶ 20,

12 117 N.M. 508, 873 P.2d 254; State v. Elliott, 2001-NMCA-108, ¶ 22, 131 N.M. 390,

13 37 P.3d 107. We also note that the Ely affidavit is of questionable value given the

14 lack of evidence in support of the statement that PNC Mortgage was and is a

15 “holder.” We hold that the affidavit has no impact as to this Court’s decision

16 regarding standing.

17 {31} PNC Mortgage also argues that because it is a successor in interest, as a matter

18 of law, it had NCBI’s right to enforce the unindorsed note. PNC Mortgage bases its

19 argument on the listing of the mergers set out in certifications from the secretary of

20 National City Bank and PNC Bank and in merger documentation from the Office of
21

1 the Comptroller of the Currency presented to the district court. PNC Mortgage also

2 relies on a provision in the National Bank Act that provides:

3 All rights, franchises, and interests of the individual merging banks or

4 banking associations in and to every type of property (real, personal, and

5 mixed) and choses in action shall be transferred to and vested in the

6 receiving association by virtue of such merger without any deed or other

7 transfer. The receiving association, upon the merger and without any

8 order or other action on the part of any court or otherwise, shall hold and

9 enjoy all rights of property, franchises, and interests[.]

10 12 U.S.C. § 215a(e) (2012).

11 {32} The Romeros argue that, while the National Bank Act offers “a plausible

12 scenario” showing how the note “could be enforceable under applicable statutes and

13 case law[,]” that “scenario . . . must yield when the actual facts contradict that story.”

14 TheRomeros point to the “timeline of events” relating to the note, the QWR response

15 letter, the existence of the securitized trust, the mergers, the foreclosure complaint,

16 and the later-indorsed note appearing in summary judgment proceedings, all showing

17 that PNC Mortgage was likely not the holder of the unindorsed note when it filed its

18 complaint. The Romeros also argue that while the merger history may have shown

19 PNC Mortgage as successor to the corporate entity originating the loan, “it does not

20 show how or whether that succession included any interest in the subject [n]ote or

21 [m]ortgage.” And the Romeros argue that a reasonable inference can be drawn that

22 the note and mortgage were transferred to the trust before the merger.
22

1 {33} The Romeros contend that, altogether, genuine issues of material facts exist as

2 to whether PNC Mortgage possessed and was holder of the unindorsed note at the

3 time the complaint was filed. The Romeros emphasize that because the securitized

4 trust includes “2006” in its name, because the effective date of the trust is usually in

5 the name of the trust, and because trusts typically close thirty to ninety days after the

6 effective date, it is likely that the trust accepted the Romero note in 2006 or early

7 2007. Because PNC Mortgage did not merge with the Romeros’ lender until 2008, the

8 Romeros argue that there is a strong inference that PNC Mortgage was not the

9 successor to the original lender. According to theRomeros, in failing to document the

10 critical chain of events of transfer of the note to PNC Mortgage or to the trust, PNC

11 Mortgage left a “muddled story of chain of title,” which created sufficient doubt and

12 confusion with irregularities and material facts in dispute to preclude summary

13 judgment in PNC Mortgage’s favor.

14 {34} We agree that the lack of information regarding the transfer of the unindorsed

15 note creates genuine issues of material fact as to whether PNC Mortgage was the

16 holder of the unindorsed note at the time of filing of the complaint. There is nothing

17 in the record to show that PNC Mortgage offered evidence to confirm that the

18 Romero note was included in the merger. In fact, there is a noticeable lack of

19 documents actually showing that PNC Mortgage received the unindorsed note and

20 had it in hand at the time PNC Mortgage filed the complaint.Before the indorsed note
23

1 appeared, the records contained only a copy of the unindorsed note attached to the

2 complaint and a copy of letters from PNC Mortgage stating that the loan was owned

3 by a securitized trust. With the limited available information, it is possible that the

4 unindorsed note came to PNC with the merger documentation. However, it is also

5 possible that the securitized trust was the holder of(or otherwise in possession of) the

6 unindorsed note at the time the complaint was filed. Although we do not believe that

7 the QWR response letter, which states that the securitized trust “owned” the loan,

8 wholly negates PNC Mortgage’s claim of timely possession, it does raise genuine

9 issues of material fact regarding what rights and responsibilities were retained by

10 PNC Mortgage or its predecessor in interest during the sale or transfer of the loan and

11 whether the timing of any sale or transfer interfered with PNC Mortgage’s interest.

12 {35} We note that the existence of a securitized trust does not automatically prohibit

13 a party other than the trust from having a right to enforce a note. It is important to

14 differentiate between the owner of a securitized loan, which is the investor having the

15 right to the economic benefits of the note such as the proceeds from foreclosure, and

16 the entity with the right to enforce the note against the borrower. See supra, n.3. PNC

17 Mortgage may have been able to establish a right to enforce the unindorsed note had

18 it shown documentation confirming what entity had possession of it through

19 negotiation or transfer at the time of filing the complaint.

20 CONCLUSION
24

1 {36} PNC Mortgage failed to prove standing as to the indorsed note. Genuine issues

2 of material fact exist regarding PNC Mortgage’s right to enforce the unindorsed note

3 at the time it filed the complaint. For the reasons set forth in this Opinion, we reverse

4 the district court’s order granting summary judgment and remand the case for further

5 proceedings. 

6 {37} IT IS SO ORDERED.

7 __________________________________

8 JONATHAN B. SUTIN, Judge

9 WE CONCUR:

10 _______________________________

11 MICHAEL E. VIGIL, Chief Judge

12 _______________________________

13 RODERICK T. KENNEDY, Judge