This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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 2 f/k/a THE BANK OF NEW YORK AS 3 TRUSTEE FOR THE CERTIFICATE 4 HOLDERS OF THE CWABS, INC., 5 ASSET-BACKED CERTIFICATES, 6 SERIES 2005-9, 7 Plaintiff-Appellee, 8
v. NO. 33,988 9 KENNETH BORREGO AND THE 10 UNKNOWN SPOUSE OF KENNETH 11 BORREGO, IF ANY, 12 Defendants-Appellants. 13
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 14 Raymond Z. Ortiz, District Judge 15 Rose L. Brand & Associates, P.C. 16 Eraina Edwards 17 Albuquerque, NM 18 for Appellee 19 Joshua R. Simms, P.C. 202 Joshua R. Simms 1 Albuquerque, NM 2 for Appellants 3 MEMORANDUM OPINION 4 WECHSLER, Judge. 5 {1} Defendant Kenneth Borrego (Homeowner) appeals from the district court’s 6 entry of “summary judgment, decree of foreclosure, and appointment of special 7 master” [RP 214] in favor of Plaintiff Bank of New York Mellon (the Bank).We 8 issued a notice of proposed disposition proposing to affirm, and Homeowner has 9 responded with a memorandum in opposition. We have carefullyconsidered the 10 arguments raised in that memorandum; howev er, for the reasons stated in the notice 11 of proposed disposition and below, we continue to believe that summary affirmance 12 is appropriate in this case. We theref ore affirm the district court’s decision. 13 {2} Our notice proposed to hold that the Bank established its standing as a holder 14 in due course of the note at issue on the basis that it had possession of the original 15 note, indorsed in blank, at the time of the filing of the complaint. [RP 9, 22, 224-26] 16 Further, we proposed to reject Homeowner’s challenge to the Bank’s standing based 17 on the validity of a mortgage assignment by Mortgage Electronic Registration 18 Systems, Inc. (MERS), base d on our recent decision in Flagstar Bank, FSB v. Licha 19 (Flagstar I) , ___-NMCA-___, ¶ 18, ___ P.3d ___ (No. 33,150, Feb. 18, 2015). We do 203 not reiterate our analysis here; instead, we focus on Homeowner’s arguments in his 1 memorandum in opposition. 2 {3} In response to our notice, Homeowner makes two arguments. First, he claims 3 that the Bank “may be the holder of the note, but has not established it is the owner 4 of the note.” [MIO 2] Second, Homeowner concedes that with respect to the 5 assignment of the mortgage, this issue has been resolved by our case law, but asks this 6 Court to reconsider the issue. [MIO 2-5] We reject Homeowner’s first argument 7 because we perceive no distinction in thiscontext between the words “holder” and 8 “owner.” We acknowledge Homeowner’s citation to Bank of New York v. Romero , 9 2014-NMSC-007, ¶ 17, 320 P.3d 1, [MIO 2] wherein our Supreme Court held that a 10 party attempting to enforce a note has the “the burden of establishing timely 11 ownershipof the note and the mortgage to support its entitlement to pursue a 12 foreclosure action.” (Emphasis added). However, when read in context, it is clear that 13 this statement in Romerowas simply another way of saying that the party must be 14 entitled to enforce the note. See Flagstar Bank, FSB v. Licha (Flagstar II) , ___- 15 NMCA-___, ¶ 13, ___ P.3d ___ (No. 33,150, June 4, 2015) (citing paragraph in 16 Romerocontaining “ownership” language Ho meowner relies on for the proposition 17 that plaintiffs in foreclosure actions “must demonstrate that they had the right to 18 enforce the note” at the time the action is filed). Being a “holder,” as defined by 194 NMSA 1978, Section 55-3-301 (1992), is one way of showing entitlement to enforce 1 a note. Romero , 2014-NMSC-007, ¶¶ 20-21. In other words, being the “owner” is not 2 a different or additional requirement of es tablishing the authority to enforce a note. 3 See Bank of N.Y. Mellon v. Lopes , 2014-NMCA-097, ¶¶ 9-10, 336 P.3d 443 4 (explaining that “‘holder’ is a term of art” and carries with it the authority to enforce 5 a note). 6 {4} As for Homeowner’s second argument, we acknowledge that this Court 7 partially granted a motion for rehearing in Flagstar I and recently issued a different 8 opinion in place of the opinion filed February18, 2015. Nonetheless, the modification 9 of the Flagstar I opinion does not change the outcome of this case. In this Court’s 10 opinion filed on June 4, 2015, we again rejected the homeowner’s argument that the 11 plaintiff lacked standing to enforce the note at issue because MERS lacked the 12 authority to assign the note. Flagstar II, ___-NMCA-___, ¶ 17. As in Flagstar II, 13 Homeowner’s failure to “distinguish[] MER S’ role in this case from MERS’ role in 14 Romero, does not undermine the Bank’s standing in this case. See Flagstar II, ___- 15 NMCA-___, ¶ 17. In short, there are no materi al distinctions to remove this case from 16 the control of our opinion in Flagstar II and we therefore reject Homeowner’s 17 challenge to Plaintiff’s standing based on the validity of a mortgage assignment by 18 MERS. 195 {5} Based on the foregoing as well as the discussion in the notice of proposed 1 disposition, we affirm the district court’s decision in this case. 2 {6} IT IS SO ORDERED. 3

__________ ______________________ 4 JAMES J. WECHSLER, Judge 5
WE CONCUR: 6

________________________________ 7 MICHAEL D. BUSTAMANTE, Judge 8

________________________________ 9 JONATHAN B. SUTIN, Judge 10