Flagstar Bank v. Licha , 8 N.M. Ct. App. 401 ( 2015 )

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New Mexico Compilation
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'00'04- 13:31:31 2015.09.11
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2015-NMCA-086
Filing Date: June 4, 2015
Docket No. 33,150
FLAGSTAR BANK, FSB,
Plaintiff-Appellee,
v.
JONATHAN K. LICHA, and
PAMELA S. MACKENZIE-LICHA,
husband and wife; et al.,
Defendants-Appellants.
APPEAL FROM THE DISTRICT COURT OF SOCORRO COUNTY
Edmund H. Kase III, District Judge
Sutin, Thayer & Browne, P.C.
Michelle K. Ostrye
Justin R. Sawyer
Albuquerque, NM
for Appellee
Eric Ortiz Law
Eric N. Ortiz
Joseph C. Gonzales
Jean Y. Chu
Albuquerque, NM
for Appellants
OPINION
GARCIA, Judge.
{1} We have now considered and partially grant Defendants’ motion for rehearing. As
a result, we withdraw our opinion filed on February 18, 2015, and substitute the following
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in its place. Defendants Jonathan K. Licha and Pamela S. MacKenzie-Licha (the Lichas),
appeal the district court’s order granting summary judgment for foreclosure in favor of
Plaintiff Flagstar Bank, FSB (Flagstar). The Lichas primarily assert on appeal that issues of
fact concerning Flagstar’s standing to enforce the note and mortgage precluded summary
judgment. We disagree with the Lichas and affirm.
BACKGROUND
A. The Loan and the District Court Proceedings
{2} On March 4, 2009, the Lichas executed a promissory note to Lending Solutions, Inc.
(Lending Solutions) to borrow $181,878. As security for the loan, the Lichas signed a
mortgage contract with Mortgage Electronic Registration Systems, Inc. (MERS), as the
nominee for Lending Solutions. On July 18, 2011, Flagstar filed a foreclosure complaint
against the Lichas, alleging that Flagstar was the current holder of the note and the mortgage
and that the Lichas were in default. The copy of the note that Flagstar attached to its
complaint contained an indorsement signed by Ryan P. Tally, vice president of Lending
Solutions, along with the words, “PAY TO ORDER OF: FLAGSTAR BANK, FSB
WITHOUT RECOURSE.” Flagstar also attached to its complaint a copy of the mortgage
with MERS and a copy of a mortgage assignment from MERS to Flagstar dated April 29,
2011.
{3} The Lichas filed a pro se motion asking the district court to dismiss the complaint on
the basis that the complaint had failed to state a claim upon which relief could be granted.
The district court summarily denied the motion. Flagstar filed a motion for summary
judgment, which it later withdrew to give the Lichas opportunity to answer the complaint.
The Lichas then retained counsel, who filed an answer to the complaint on their behalf. The
answer asserted, among other things, that Flagstar lacked standing to bring the complaint
because it was not “the holder in due course” and because it was “not the contractual party
with respect to the transaction.”
{4} Flagstar renewed its summary judgment motion, asserting that it was “entitled to
enforce the [n]ote and [m]ortgage” because the note and mortgage were “transferred and
assigned to [Flagstar].” In support of this assertion, Flagstar referred to a copy of the MERS
assignment that it had attached to its complaint and it attached an affidavit of Lisa Jones, an
employee of Flagstar. In her affidavit, Ms. Jones stated that “[t]he original [n]ote is
maintained in a vault at Flagstar[,]” that “Flagstar’s vault document management system”
indicates “that Flagstar held possession of the original [n]ote when it commenced the instant
foreclosure action,” that Flagstar continues to “hold[] possession of the original [n]ote[,]”
and that she “reviewed the copy of the [n]ote . . . and ha[s] confirmed that it is a true and
correct copy of the original [n]ote that is maintained at Flagstar.” Attached to this affidavit
were copies of the note containing the indorsement to Flagstar, the mortgage, and the MERS
assignment, which appear to be identical to the documents that Flagstar attached to its
complaint.
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{5} In response to Flagstar’s renewed summary judgment motion, the Lichas made four
arguments relevant to this appeal. Their first argument concerned Flagstar’s standing to
foreclose. They argued that there were factual disputes about whether Lending Solutions
authorized MERS to assign the mortgage to Flagstar, whether Flagstar gave any
consideration for the assignment of the note and mortgage, and whether Flagstar was the
current owner of the mortgage. In support of their assertion that Flagstar was not the owner
of the mortgage, the Lichas submitted an affidavit of Vanessa DeNiro, an attorney who
performed a “loan audit” for the Lichas. Ms. DeNiro stated in her affidavit that, based on her
research, Ginnie Mae was the owner of the mortgage loan. Her affidavit also contained
numerous legal arguments and conclusions of law.
{6} Second, the Lichas argued that they should have been afforded an opportunity to
conduct additional discovery on the issue of whether Flagstar had standing to foreclose.
Third, they argued that the district court should sanction Flagstar for “bad faith discovery
tactics” because it stated in its responses to the Lichas’ interrogatories that the “subject loan”
was “owned by Flagstar” when the “true owner is [Ginnie Mae].” Fourth, they argued that
“there was a potential violation of [the] Home Loan Protection Act.”
{7} In its reply, Flagstar moved to strike the DeNiro affidavit because, among other
reasons, the affidavit contained statements that were “inadmissible hearsay, violate the best
evidence rule[,] or are inadmissible legal conclusions.” Flagstar argued that the Lichas did
not have standing to challenge the consideration paid for the assignment of the mortgage to
Flagstar. Flagstar also attached an affidavit and an exhibit to its reply showing an undated
endorsement in blank by Flagstar on the back of the note.
{8} Without holding a hearing, the district court entered an order granting summary
judgment in favor of Flagstar, in which it concluded that Flagstar was entitled to enforce the
note and mortgage. In the same order, it struck the DeNiro affidavit and denied the Lichas’
request for additional discovery, but it did not discuss the reasons for these decisions. It later
denied the Lichas’ motion to reconsider.
B. Arguments on Appeal
{9} All but one of the arguments set forth in the Lichas’ brief in chief were preserved in
the district court. The unpreserved argument asserts that the Jones affidavit attached to
Flagstar’s summary judgment motion did not show that Ms. Jones had “personal knowledge”
concerning her statement that Flagstar possessed the original note on the date it filed for
foreclosure because she relied on Flagstar’s computer system for this information. Flagstar
correctly counters that the Lichas did not raise this argument in the district court. Thus, we
do not address this issue because the Lichas do not argue, and we do not find, that we should
apply the public interest exception to the rule that appellate courts do not address
unpreserved arguments. See Rule 12-216 NMRA; O’Neel v.USAA Ins. Co., 2002-NMCA-
028, ¶ 32, 131 N.M. 630, 41 P.3d 356 (declining to consider unpreserved arguments on
appeal where there was no basis to apply the general public interest exception).
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{10} The five preserved arguments that the Lichas renew in their brief in chief are
whether: (1) There were disputed issues of material fact regarding whether Flagstar was the
holder of the note and the mortgage; (2) The Lichas have standing to challenge the validity
of the assignment of the note and mortgage; (3) The DeNiro affidavit should not have been
stricken; (4) The district court should have allowed the Lichas more time to conduct
additional discovery; and (5) The district court should have held a hearing before it decided
to strike the DeNiro affidavit, deny the Lichas’ request for bad faith discovery sanctions
against Flagstar, and grant summary judgment in favor of Flagstar.
{11} The Lichas did not renew various other issues in their brief in chief that they raised
in the district court. However, because Flagstar raises two of these additional issues in its
answer brief and the Lichas address them in their reply brief, we shall discuss them in this
opinion. See Brashear v. Packers, 1994-NMSC-108, ¶ 7, 118 N.M. 581, 883 P.2d 1278 (“[I]f
an appellee raises an argument not addressed by the appellant in its opening brief, the
appellant may reply.” (alteration, internal quotation marks, and citation omitted)). These two
additional issues are whether MERS was authorized to assign the mortgage to Flagstar and
whether the Lichas’ contention that the original lender “may have” violated the Home Loan
Protection Act precludes summary judgment in favor of Flagstar.
DISCUSSION
A. Standard of Review
{12} We review a district court’s order granting summary judgment de novo. Summers v.
Ardent Health Servs., L.L.C., 2011-NMSC-017, ¶ 10, 150 N.M. 123, 257 P.3d 943.
“Summary judgment is appropriate where there are no genuine issues of material fact and
the movant is entitled to judgment as a matter of law.” Montgomery v. Lomos Altos, Inc.,
2007-NMSC-002, ¶ 16, 141 N.M. 21, 150 P.3d 971 (internal quotation marks and citation
omitted). “On review, we examine the whole record for any evidence that places a genuine
issue of material fact in dispute, and we view the facts in a light most favorable to the party
opposing the motion and draw all reasonable inferences in support of a trial on the merits[.]”
Handmaker v. Henney, 1999-NMSC-043, ¶ 18, 128 N.M. 328, 992 P.2d 879 (internal
quotation marks and citation omitted). The party moving for summary judgment has the
burden “to establish that no genuine issue of material fact exists for trial and that the movant
is entitled to judgment as a matter of law.” C & H Constr. & Paving Co. v. Citizens Bank,
1979-NMCA-077, ¶ 9, 93 N.M. 150, 597 P.2d 1190. However, “[t]he party opposing a
motion for summary judgment cannot defeat the motion . . . by the bare contention that an
issue of fact exists, but must show that evidence is available which would justify a trial of
the issue.” Spears v. Canon de Carnue Land Grant, 1969-NMSC-163, ¶ 12, 80 N.M. 766,
461 P.2d 415; see Guest v. Berardinelli, 2008-NMCA-144, ¶ 35, 145 N.M. 186, 195 P.3d
353 (“General assertions of the existence of a triable issue are insufficient to overcome
summary judgment on appeal.”).
B. Standing
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{13} Standing is a jurisdictional prerequisite that “may not be waived and may be raised
at any stage of the proceedings, even sua sponte by the appellate court.” Bank of N.Y. v.
Romero, 2014-NMSC-007, ¶ 15, 320 P.3d 1 (internal quotation marks and citation omitted).
Plaintiffs who bring foreclosure actions must demonstrate that they had the right to enforce
the note and mortgage at the time that they filed the foreclosure suit. Id. ¶ 17.
1. Right to Enforce the Note
{14} To establish the right to enforce a negotiable instrument such as a note, a plaintiff
must show that it is: (1) the “holder” of the instrument; (2) a “nonholder” who possesses the
instrument and has the rights of a holder; or (3) a person who does not possess the
instrument, but is nonetheless entitled to enforce it pursuant to certain provisions of the
Uniform Commercial Code (UCC). NMSA 1978, § 55-3-301 (1992); see Romero, 2014-
NMSC-007, ¶ 20. The UCC defines the “holder” of the instrument, in pertinent part, as “the
person in possession of a negotiable instrument that is payable either to bearer or to an
identified person that is the person in possession[.]” NMSA 1978, § 55-1-201(b)(21)(A)
(2005); see Romero, 2014-NMSC-007, ¶ 21. A third party who is not the payee of the
instrument “must prove both physical possession and the right to enforcement through either
a proper indorsement or a transfer by negotiation.” Romero, 2014-NMSC-007, ¶ 21. The
UCC recognizes two kinds of indorsements for the purpose of negotiating an instrument: a
blank indorsement and a special indorsement. Id. ¶¶ 24-25. “A blank indorsement . . . does
not identify a person to whom the instrument is payable[,] but instead makes it payable to
anyone who holds it as bearer paper.” Id. ¶ 24 (citing NMSA 1978, § 55-3-205(b) (1992)).
“[A] special indorsement ‘identifies a person to whom it makes the instrument payable.’”
Romero, 2014-NMSC-007, ¶ 25 (quoting Section 55-3-205(a)). “When specially indorsed,
an instrument becomes payable to the identified person and may be negotiated only by the
indorsement of that person.” Romero, 2014-NMSC-007, ¶ 25 (internal quotation marks and
citation omitted).
{15} In this case, because the payee of the note was Lending Solutions, we must determine
whether Flagstar provided sufficient evidence of how it became the holder by either an
indorsement or transfer. See id. ¶ 21. Because the note that Flagstar attached to its complaint
was specially indorsed by Lending Solutions, identifying Flagstar as the person to whom the
note was payable, we conclude that Flagstar provided sufficient evidence that it was the
holder of the note with the right to enforce it under the UCC. See id.; § 55-3-301; § 55-1-
201(b)(21)(A); § 55-3-205(a).
{16} During the summary judgment proceedings, Flagstar submitted a copy of the back
page of the note showing that Flagstar had indorsed the note in blank. The Lichas argue that
Flagstar’s blank indorsement on the back of the note was a “conflicting indorsement[]” that
created an issue of fact precluding summary judgment. We disagree. Flagstar’s blank
indorsement is consistent with Lending Solution’s special indorsement to Flagstar. Because
Flagstar has shown that it is the holder of the note due to Lending Solutions’ special
indorsement, the effect of Flagstar’s blank indorsement is to allow Flagstar to negotiate, or
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transfer, the note to another person. See NMSA 1978, § 55-3-201(a) (1992) (defining
“[n]egotiation” as “a transfer of possession, whether voluntary or involuntary, of an
instrument by a person other than the issuer to a person who thereby becomes its holder”);
Casarez v. Garcia, 1983-NMCA-013, ¶ 16, 99 N.M. 508, 660 P.2d 598 (recognizing that
when a note is specially indorsed to a transferee, that transferee may “further negotiate[]”
the note “only by his indorsement”). The Lichas have not claimed that there is evidence that
Flagstar, after indorsing the note in blank, had transferred the note to another person.
Without such evidence, Flagstar’s blank indorsement on the note it continues to hold has no
effect on the issues we address in this appeal.
2. Right to Foreclose the Mortgage
{17} Our Supreme Court has recently held that where a plaintiff has not established the
right to enforce the note, it cannot foreclose the mortgage, even if evidence shows that the
mortgage was assigned to the plaintiff. See Romero, 2014-NMSC-007, ¶¶ 34-35. Moreover,
the Court was clear that where MERS’ role was that of a “nominee for Lender and Lender’s
successors and assigns[,] . . . MERS could assign the mortgage but lacked any authority to
assign the . . . note.” Id. at ¶ 35. Here, like Romero, MERS’ role as shown on the mortgage
attached to the complaint was that of “nominee for Lender, as hereinafter defined, and
Lender’s successors and assigns.” The mortgage defined “Lender” as “LENDING
SOLUTIONS, INC.” Therefore, “[a]s a nominee for [Lending Solutions] on the mortgage
contract, MERS could assign the mortgage[,]” id. ¶ 35, which it did by virtue of the recorded
assignment attached to Flagstar’s complaint. Therefore, the Lichas’ bare assertion that
MERS lacked authority to assign the mortgage, without further factual development
distinguishing MERS’ role in this case from MERS’ role in Romero, was not a material issue
that precluded summary judgment. See Romero v. Philip Morris, Inc., 2009-NMCA-022, ¶
12, 145 N.M. 658, 203 P.3d 873 (“An issue of fact is ‘material’ if the existence (or non-
existence) of the fact is of consequence under the substantive rules of law governing the
parties’ dispute.”), rev’d on other grounds by 2010-NMSC-035, 148 N.M. 713, 242 P.3d
280. As a result, we reject the Lichas’ argument that Flagstar was not entitled to summary
judgment to foreclose its interest in the mortgage due to MERS role as a nominee in the
assignment if the mortgage.
3. Consideration
{18} We reject the Lichas’ argument that the question of whether Flagstar gave
consideration for the note and mortgage was a material issue that precluded summary
judgment. The Lichas cite no authority and this Court has found no authority that requires
the holder of a note, as the plaintiff in a foreclosure action, to establish that it gave
consideration to the original lender for the right to enforce the note and mortgage. Although
New Mexico courts have not directly addressed this issue, we agree with the weight of
authority that concludes that persons may not raise the defense of lack of consideration
where they were not parties to the transfer because such defense is available only to the
parties to the transfer. See 59 C.J.S. Mortgages § 412 (2009) (“An assignment of a mortgage
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must be supported by a good and valuable consideration in order to be valid as between the
parties. However, the want of consideration is not available as a defense to one who was not
a party to the assignment and hence was not thereby injured[.]” (emphasis added) (footnotes
omitted)); Reeves v. ReconTrust Co., 846 F. Supp. 2d 1149, 1164 (D. Or. 2012) (concluding
that the defense of lack of consideration is not available to third-party debtors to void the
mortgage assignment to MERS). Therefore, because the Lichas were not parties to the
transfer of the note and mortgage from Lending Solutions to Flagstar, we conclude that the
Lichas’ lack-of-consideration argument does not raise an issue of material fact precluding
summary judgment.
C. Exclusion of the DeNiro Affidavit
{19} We review a district court’s decision to strike an affidavit at the summary judgment
stage of the proceedings for an abuse of discretion. See Akins v. United Steelworkers of Am.,
2009-NMCA-051, ¶ 40, 146 N.M. 237, 208 P.3d 457 (“We review a district court’s decision
to admit or exclude evidence for abuse of discretion.”), aff’d 2010-NMSC-031, 148 N.M.
442, 237 P.3d 744; Mitchael v. Intracorp, Inc., 179 F.3d 847, 854-55 (10th Cir. 1999) (“Like
other evidentiary rulings, we review a district court’s decision to exclude evidence at the
summary judgment stage for abuse of discretion.” (internal quotation marks and citation
omitted)). In doing so, we “presume[] that the district court [wa]s correct” and “the burden
is on the appellant to clearly demonstrate the district court’s error.” Akins, 2009-NMCA-051,
¶ 40. Affidavits supporting or opposing a summary judgment motion
shall be made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Sworn or certified copies
of all papers or parts thereof referred to in an affidavit shall be attached
thereto or served therewith.
Rule 1-056(E) NMRA. At the summary judgment stage, a district court “must consider
evidence even if the form of the evidence, such as a deposition, would be inadmissible at
trial,” but “it cannot consider evidence if the substance of the evidence is inadmissible at
trial.” Wilde v. Westland Dev. Co., 2010-NMCA-085, ¶ 28, 148 N.M. 627, 241 P.3d 628
(first emphasis added). For instance, “hearsay . . . is not generally admissible at trial, so
affidavits or depositions containing hearsay are not sufficient evidence of a fact.” Id.
(internal quotation marks and citation omitted). Furthermore, opinions of witnesses
concerning questions of law are inadmissible at trial. See Beal v. S. Union Gas Co., 1960-
NMSC-019, ¶¶ 29-30, 66 N.M. 424, 349 P.2d 337.
{20} Ms. DeNiro stated in her affidavit that she had performed a “Mortgage Securitization
Analysis and Legal Chain of Title Report” based on her research and analysis of
“documents[]” and “county records[,]” and her use of “internet tools and commercial and
government websites.” Her affidavit contained four parts: a “securitization analysis”; a
“chain of title report”; a “supplementary legal analysis”; and a conclusion. In her
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securitization analysis, she stated that her research revealed that “[t]he [m]ortgage associated
with [the subject loan] is a mortgage back [sic] security . . . guaranteed by [Ginnie Mae]
(Ginnie Mae II RPB Trust/Pool 2009).” (Emphasis omitted.) She did not identify or include
copies of any of the documents, county records, or website pages that she relied on in
making this determination. She then stated that:
By [Ginnie Mae] purchasing the said [m]ortgage [l]oan and selling
certificates as shares of the [Ginnie Mae] RPB Pool 2009[] to investors based
on the placement of the loan, [Ginnie Mae] was exercising rights of
ownership over the said [m]ortgage [l]oan[, and b]y exercising such rights of
ownership, [Ginnie Mae] made a claim of ownership of the said [m]ortgage
[l]oan.
In the chain of title report, Ms. DeNiro stated that she did not find the assignment of the
mortgage from MERS to Flagstar in the county records. She then concluded that “[t]here is
no legal evidence that Flagstar is the owner of the said [m]ortgage” or “the [n]ote” and that
Flagstar was “at most, a mere servicer of the [m]ortgage.” The remainder of this part of the
affidavit, and the parts identified as supplementary legal analysis and conclusion do not
contain facts, but rather legal arguments and legal conclusions.
{21} The Lichas contend that the district court should not have excluded the DeNiro
affidavit because it established a genuine issue of material fact as to the ownership of the
note and mortgage. We reject this contention.
{22} Most of the statements that Ms. DeNiro made in her affidavit concerned legal
conclusions that would have been inadmissible at trial, and were thus properly excluded. See
Beal, 1960-NMSC-019, ¶¶ 29-30 (concluding that expert testimony was properly stricken
at trial because it is not the function of any witness, expert or non-expert, to state an opinion
on a matter of law); Wilde, 2010-NMCA-085, ¶ 28 (stating that our Supreme Court has made
clear that a court cannot consider evidence at the summary judgment stage “if the substance
of the evidence is inadmissible at trial”). The only statement in her affidavit concerning a
disputed factual issue about Flagstar’s standing was that “[t]he [m]ortgage associated with
[the subject loan] is a mortgage back [sic] security . . . guaranteed by [Ginnie Mae] (Ginnie
Mae II RPB Trust/Pool 2009)[,]” which resulted in Ginnie Mae having “rights of ownership
[over] the said [m]ortgage [l]oan.” (Emphasis omitted.) This statement was properly
excluded for two reasons. First, Ms. DeNiro claimed that she relied on “documents[]” and
“county records[,]” and her use of “internet tools and commercial and government websites”
in making her statements, but none of these sources were identified or attached to the
affidavit, in violation of Rule 1-056(E). See Rule 1-056(E) (“Sworn or certified copies of all
papers or parts thereof referred to in an affidavit shall be attached thereto or served
therewith.”); cf. State v. Lopez, 2009-NMCA-044, ¶¶ 14, 26, 146 N.M. 98, 206 P.3d 1003
(holding that, pursuant to the best evidence rule, trial testimony relying on documents was
inadmissible without submission of such documents or an explanation as to why the
documents were unavailable). Second, Ms. DeNiro’s statements are vague and only appear
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to reference the ownership of the mortgage—not the note. Because we have concluded that
the right to foreclose the mortgage automatically follows the right to enforce the note, and
Flagstar established that it had the right to enforce the note, Ms. DeNiro’s statements about
ownership of the mortgage were not material to the issue of Flagstar’s right to file this
foreclosure action. See Romero, 2009-NMCA-022, ¶ 12. Therefore, we conclude that the
district court did not abuse its discretion in striking the DeNiro affidavit. See Akins, 2009-
NMCA-051, ¶ 40; see also Mitchael, 179 F.3d at 854.
D. The Lichas’ Request for Further Discovery
{23} The Lichas argue that the district court should have granted its request for more time
to conduct discovery before it granted Flagstar’s summary judgment motion. We disagree.
{24} “[W]e review a district court’s decision limiting discovery solely on the grounds of
abuse of discretion.” Sanchez v. Church of Scientology, 1993-NMSC-034, ¶ 17, 115 N.M.
660, 857 P.2d 771. Generally, “a court should not grant summary judgment before a party
has completed discovery.” Sun Country Sav. Bank of N.M., F.S.B. v. McDowell, 1989-
NMSC-043, ¶ 27, 108 N.M. 528, 775 P.2d 730. In determining whether summary judgment
was premature based upon discovery issues, we consider the following factors: (1) whether
the nonmovant sought a continuance during the summary judgment motion stage to complete
its discovery; (2) whether, between the time the summary judgment motion was filed and the
grant of summary judgment, the nonmovant had sufficient time to obtain discovery; (3)
whether the nonmovant submitted an affidavit in opposition to the summary judgment
motion “contain[ing] a statement of the time required to complete the discovery, the
particular evidence needed, where the particular evidence was located and the methods used
to obtain the evidence[]”; and (4) whether the party who moved for summary judgment
“gave an appropriate response to a discovery request from the nonmoving party.” Id.
{25} Applying these factors, the record shows that the Lichas propounded interrogatories
and requests for production upon Flagstar on September 7, 2012. Flagstar responded to these
requests on October 31, 2012 and supplemented its responses on March 6, 2013. The record
shows that during the four-month period between the time they received Flagstar’s initial
responses and the time that Flagstar filed its summary judgment motion, the Lichas made no
formal objection to the manner in which Flagstar responded to their requests, nor did they
seek additional discovery from Flagstar. Only after Flagstar moved for summary judgment
did the Lichas contend in their opposition to the motion that “[f]urther discovery is needed
to determine whether MERS had proper authorization to act on behalf of Lending Solutions”
when it assigned the mortgage to Flagstar; that Flagstar “continuously refused to provide
requested original loan documents or consideration or value given in exchange for the
[a]ssignment of [m]ortgage”; that the Lichas needed time to “inspect the . . . loan application
and all disclosures made or not made to them” and the “full mortgage file” so that they could
“determine whether the loan is void or voidable due to fraud or misrepresentation”; and that
Flagstar “has refused to provide true discovery responses” because its statement that “the
loan had never been securitized” was “false.” The Lichas did not submit an affidavit with
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their opposition detailing the time required to complete their discovery or the methods
needed to obtain the evidence they sought.
{26} During the next three-month interval between the time that Flagstar moved for
summary judgment and the district court’s order granting it, the Lichas did not propound any
further discovery requests upon Flagstar, they did not move to compel Flagstar to produce
any documents they claimed that Flagstar improperly withheld, and they did not move for
a stay or continuance of the summary judgment proceedings. Furthermore, the Lichas do not
dispute Flagstar’s claim that it provided them with an “opportunity to inspect the original
note but the Lichas failed to do so.” For these reasons, we conclude that the Lichas did not
act reasonably in pursuing the deficiencies claimed to exist in discovery and the district court
did not abuse its discretion in denying the Lichas more time to pursue discovery. See
Sanchez,1993-NMSC-034, ¶ 17; Sun Country Sav. Bank of N.M., F.S.B., 1989-NMSC-043,
¶ 29 (affirming summary judgment where nonmovant “did not act reasonably in discovering
. . . information” because it did not file a motion to compel, did not seek a continuance of the
summary judgment proceedings, did not attempt to conduct additional discovery while the
summary judgment motion was pending, and did not include an affidavit elaborating on the
time and methods needed to complete discovery).
E. Home Loan Protection Act
{27} Although the Lichas do not raise an issue in their brief in chief concerning the Home
Loan Protection Act (HLPA), NMSA 1978, §§ 58-21A-1 to -14 (2003, as amended through
2009), Flagstar argues in its answer brief that it is not subject to the HLPA claims that were
made by the Lichas during the summary judgment proceedings. The Lichas counter in their
reply brief that Flagstar is subject to the HLPA, that the Lichas “presented a factual dispute
as to whether [Flagstar] may have violated the HLPA[,]” and that this factual dispute
precluded summary judgment. However, the Lichas do not identify or discuss the nature of
the factual dispute they claim exists. Instead, they merely state that more discovery is
required to determine whether there was an HLPA violation. Because the Lichas do not
identify an actual factual issue with regard to the HLPA in their appellate briefs, and because
we have concluded that they did not act reasonably in pursuing discovery prior to the
summary judgment ruling, we need not further address the legal question of whether Flagstar
violated the HLPA. See Montgomery, 2007-NMSC-002, ¶ 16. (“Summary judgment is
appropriate where there are no genuine issues of material fact and the movant is entitled to
judgment as a matter of law.” (internal quotation marks and citation omitted)); Spears, 1969-
NMSC-163, ¶ 12 (“The party opposing a motion for summary judgment cannot defeat the
motion . . . by the bare contention that an issue of fact exists, but must show that evidence
is available[.]”); Guest, 2008-NMCA-144, ¶ 35 (“General assertions of the existence of a
triable issue are insufficient to overcome summary judgment on appeal.”).
F. Hearing
{28} Finally, the Lichas claim that the district court erred when it decided the summary
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judgment motion without a hearing. We reject this contention because we are aware of no
authority, and the Lichas have cited none, that requires a district court to hold a hearing on
a summary judgment motion. See Curry v. Great Nw. Ins. Co., 2014-NMCA-031, ¶ 28, 320
P.3d 482 (“Where a party cites no authority to support an argument, we may assume no such
authority exists.”), cert. denied, 2014-NMCERT-003, 324 P.3d 375. We have previously
recognized that “[i]n considering a motion for summary judgment, the [district] court . . . is
not required to[] hold an oral hearing. . . . when the opposing party has had an adequate
opportunity to respond to [the] movant’s arguments through the briefing process.” Nat’l
Excess Ins. Co. v. Bingham, 1987-NMCA-109, ¶ 9, 106 N.M. 325, 742 P.2d 537. The Lichas
filed a written response in opposition to Flagstar’s summary judgment motion and have not
claimed that they did not have an opportunity to respond to Flagstar’s arguments during the
briefing process. Therefore, we conclude that the district court did not err when it granted
summary judgment without a hearing.
{29} The Lichas also argue that the district court should have held a hearing on their
request for discovery sanctions against Flagstar because: statements in the DeNiro affidavit
contradicted some of Flagstar’s responses to the Lichas’ discovery requests; a hearing would
have allowed the district court to determine whether Ms. DeNiro’s statements were correct
and Flagstar’s statements were false; and if Flagstar’s statements were false, the district court
could have granted the Lichas’ request for bad faith discovery sanctions. We reject this
argument for three reasons. First, we have already concluded that the statements in the
DeNiro affidavit were inadmissible and the district court properly struck them. Second, even
if the district court had considered the DeNiro affidavit, the statements in the affidavit that
contradict Flagstar’s right to foreclose the mortgage fail as a matter of law because Flagstar
established it had the right to enforce the note. Third, the Lichas cite no authority, and we
have found none, that requires a district court to hold a hearing on an unresolved request for
discovery sanctions for the separate purpose of weighing the credibility of individuals who
have made conflicting statements during the discovery process. See Curry, 2014-NMCA-
031, ¶ 28.
CONCLUSION
{30} For the reasons set forth herein, we affirm the district court’s order granting summary
judgment in favor of Flagstar.
{31} IT IS SO ORDERED.
____________________________________
TIMOTHY L. GARCIA, Judge
WE CONCUR:
____________________________________
MICHAEL E. VIGIL, Chief Judge
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____________________________________
M. MONICA ZAMORA, Judge
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