Appeal 2019

The Exhibits were removed by the Appeals Court clerk. They are not allowed on Appeals.

 

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

WELLS FARGO BANK, NA.,
Plaintiff,
and,
Breckenridge Properties Fund 2016, LLC
Appellees,

No. A-1-CA-38058
Santa Fe County
D-101-CV-2008-00942

KAREN M. KLINE,
Defendant-Appellant,
and,
PUEBLO DE RODEO ROAD OWNERS
ASSOCIATION, INC. and MANHATTAN
CONDOMINIUM ASSOCIATION,
Defendants.

­­­This is an Informal Docketing Statement for a CIVIL APPEAL to the New Mexico Court of Appeals.  You must type or word process all the information required on this form.  If you need to use extra pages, you must type or word process them.  Attach a Case Information Sheet as the first page or pages of the docketing statement.   File the original of this Docketing Statement with the Court of Appeals.

DOCKETING STATEMENT (CIVIL)

1. Order of the trial court being appealed:

Order Resulting from March 4, 2019 Hearing

At first glance the law of the case doctrine seems to militate against Kline’s second appeal. However, in Kline’s previous appeal the Appeals Court wrongly held that “Plaintiff proved standing by establishing its entitlement to enforce a lost security instrument by way of evidence at trial,” page 5 Memorandum Opinion, when what the facts actually showed was that Kline’s Promissory Note was lost between 2002 when G.E. Capital Mortgage Services (hereinafter “GE CMS”) was the holder of the note and February 2, 2004, when the original Note was not found in the FNMA file. Kline’s mortgage was not assigned to Wells Fargo until 2005, three years after the last recorded time Kline’s Note was seen. Further, given that the Note was indorsed in blank, there is a problem with the Trial Court’s adoption on page 19, ¶ 17, in its In Rem Judgment for Decree of Foreclosure and Order of Sale, (hereinafter “In Rem Judgment”), Exhibit 1, of Wells Fargo’s proposed conclusion, ¶ P, Exhibit 2, that because Wells Fargo had the note in its possession (on May 16, 2002, or September 1 or September 21, Exhibit 1, Findings ¶ 29, ¶ 30 and Footnote 2) Wells Fargo was the holder of the Note under UCC definition, Section 55-1-201(b)(21)(A). The problem or error, is that under that definition the actual person in possession and therefore entitled to enforce the Note on May 16, 2002, or possibly September 21, 2002, (or thereafter if the Note was lost) would have been the WFHM/GE CMS employee, identified as “TPX”, who had the note in his or her possession as a result of having received the original Note on May 16, 2002, Supra., and possibly had possessed it on September 21, 2002, prior to sending it out, Supra.; or, the Note could have been possessed by the other employee who was unnamed in the footnote, Supra. The controlling finding of fact supported by the evidence, however, is that the note was lost in that it was not in the FNMA file on February 2, 2004, Exhibit 1, Findings Footnote 2. There is no evidence that the Note arrived at the Document Custodian, or FNMA. The only evidence that exists is conflicting in that it says that the original documents were sent or returned on September 1, and/or September 21, 2002. Exhibit 1, Findings ¶ 29, ¶ 30 and Footnote 2. Without evidence that the Note arrived at the Document Custodian it cannot factually be found that the Note was lost while in the possession of the Document Custodian. Whether Wells Fargo acquired the Document Custodian, or not, in some later year, there is no Finding which evidences the fact the Document Custodian possessed the Note at any time after September 1, or September 21, 2002. Supra.  See Section 4, below.

The current appeal is based on the facts and on the law of the land, to include N.M. Supreme Court and U.S. Supreme Court case law. Basically, a foreclosure plaintiff is required to own the note and the mortgage in a foreclosure. “The Bank of New York had the burden of establishing timely ownership of the note and the mortgage to support its entitlement to pursue a foreclosure action,” Bank of New York v. Romero, 320 P.3d 1 (2014).

Warth v. Seldin, 422 U.S. 490 (1975) held:

Whether the rules of standing are considered as aspects of the constitutional requirement that a plaintiff must make out a “case or controversy” within the meaning of Art. III, or, apart from such requirement, as prudential limitations on the courts’ role in resolving disputes involving “generalized grievances” or third parties’ legal rights or interests, none of the petitioners has met the threshold requirement of such rules that to have standing a complainant must clearly allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court’s remedial powers. Pp. 422 U. S. 498-518. (emphasis added)

Particularly apropos to the present case, Warth v. Seldin says,

For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party. E. g., Jenkins v. McKeithen, 395 U.S. 411, 421 -422 (1969). At the same time, it is within the trial court’s power to allow or to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff’s standing. If, after this opportunity, [422 U.S. 490, 502]   the plaintiff’s standing does not adequately appear from all materials of record, the complaint must be dismissed.

Thus, in the instant case the trial court was within its power to allow Wells Fargo to file its Amended Complaint and proceed to trial. It would not appear to be within the trial court’s power to allow Wells Fargo’s false affidavits in support of its standing. See Section 4, below. Once materials of record supplied at trial showed that GE CMS was holder of Kline’s Promissory Note in 2002, or possibly its employee was the holder, Supra., the last recorded time the Note was seen, and there is no evidence of the Note having arrived at the Document Custodian so that Wells Fargo’s eventual acquisition of the Document Custodian could be said to make Wells Fargo the holder at the time the Note was lost, plaintiff Wells Fargo’s standing no longer appeared adequate given that Kline’s mortgage was not assigned to Wells Fargo until 2005, and at which time the assignor apparently no longer had the Note. Further, under Warth v. Seldin, “If, after this opportunity, [422 U.S. 490, 502] the plaintiff’s standing does not adequately appear from all materials of record, the complaint must be dismissed.”

In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. This inquiry involves both constitutional limitations on federal-court jurisdiction and prudential limitations … In both dimensions it is founded in concern about the proper – and properly limited – role of the courts in a democratic society. Warth v. Seldin (citations omitted)

The law of the land requires that if, after plaintiff has been given the opportunity to prove standing, standing does not adequately appear from all materials of record, the complaint must be dismissed, Warth v. Seldin.

Farmers State Bank of Texhoma v. Clayton Nat Bank, Supreme Court of New Mexico Apr 12, 1926, 31 N.M. 344, 245 P. 543, deals with the law of the land in relation to the doctrine of the law of the case, “[W]e feel that we are not endangering the orderly and expeditious administration of the law by refusing here to apply the doctrine of the law of the case … [W]e feel that it is better and more just to apply in this case what we find to be the law of the land. As affects the parties concerned, the evil effects of so doing are trivial as compared to the unfortunate consequences of perpetuating the error.”

In the instant case, the error is that the affirmed decision of the trial court, that Wells Fargo had standing to foreclose, runs contrary to the fact Kline’s Original Promissory Note was lost between May 16, September 1, or September 21, 2002, at which time GE CMS was the holder of the note, and February 2, 2004, when the original Note was not found in the FNMA file, Supra. Additionally, there is no evidence that the Note was ever in the possession of the Document Custodian after September 1 or September 21, 2002, Supra. The whole of the time period, 2002 – February 2, 2004, is before Kline’s mortgage was assigned to Wells Fargo in 2005. And, by 2005 GE no longer possessed the Note.

The facts show that there was no time at which Wells Fargo was the holder Kline’s Original Promissory Note. Without being the holder of Kline’s Original Promissory Note at any time, Wells Fargo is not entitled to enforce Kline’s Note under the UCC, N.M. Statutes 55-3-301 and 55-3-309. Under the facts of this case and the law of the land it is an error to say that Wells Fargo had standing to file its Complaint for Foreclosure in 2008. Thus, “It is better and more just to apply in this case … the law of the land,” Farmers.

Significantly, Farmers says the law of the case, “has never been applied in this state in a case where, admittedly, the former holding was wrong.”

Under Bank of New York, the former holding in the instant case was wrong; Wells Fargo did not establish timely ownership of the note and mortgage to support its entitlement to pursue a foreclosure action. “The Bank of New York had the burden of establishing timely ownership of the note and the mortgage to support its entitlement to pursue a foreclosure action,” Bank of New York v. Romero, 320 P.3d 1 (2014).

State King v. UU Bar Ranch Limited Partnership, No. 30,722. Decided: March 05, 2009 by the New Mexico Supreme Court, “We have more recently noted that the law-of-the-case doctrine is ‘discretionary and flexible,’ Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶ 31, 125 N.M. 721, 965 P.2d 305, and is not a doctrine ‘of inflexible law,’ Reese v. State, 106 N.M. 505, 506, 745 P.2d 1153, 1154 (1987) (quoting 5 Am.Jur.2d Appeal and Error §750 at 194 (1962)).

The law of the case and stare decisis are each about upholding what has already been decided. Stare decisis in particular lies at the very core of the judicial process. In relation to the instant case, Bank of New York decided that the plaintiff in a foreclosure has, “the burden of establishing timely ownership of the note and the mortgage to support its entitlement to pursue a foreclosure action.”

Trujillo v. City of Albuquerque, says:

Stare decisis is the judicial obligation to follow precedent, and it lies at the very core of the judicial process of interpreting and announcing law. See State ex rel. Callaway v. Axtell,74 N.M. 339, 343, 393 P.2d 451, 454 (1964); Planned Parenthood v. Casey, 505 U.S. 833, 854, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). It promotes very important principles in the maintenance of a sound judicial system: 1) stability of the law, see, e.g., State v. Jones,44 N.M. 623, 634, 107 P.2d 324, 331 (1940) (Bickley, C.J., concurring) (stating that the object of stare decisis is to promote “uniformity, certainty, and stability in the law”); Note, Constitutional Stare Decisis, 103 Harv. L.Rev. 1344, 1347 (1990); 2) fairness in assuring that like cases are treated similarly, see, e.g., City of Las Vegas v. Oman, 110 N.M. 425, 433, 796 P.2d 1121, 1129 (Ct.App.1990); and 3) judicial economy, see, e.g., id. (discussing how stare decisis discourages the relitigation of similar issues).

Trujillo says stare decisis may be overruled, but departure from precedent demands special justification and precedent may be overturned only when particular questions are considered:

*315 {34} However, the principle of stare decisis does not require that we always follow precedent and may never overrule it. Instead, the doctrine states that “in both common law and constitutional cases … `any departure from [precedent] … demands special justification.'” Note, supra at 1346 (quoting Arizona v. Rumsey, 467 U.S. 203, 212, 104 S. Ct. 2305, 81 L. Ed. 2d 164(1984)). Particular questions must be considered before overturning precedent: 1) whether the precedent is so unworkable as to be intolerable; 2) whether parties justifiably relied on the precedent so that reversing it would create an undue hardship; 3) whether the principles of law have developed to such an extent as to leave the old rule “no more than a remnant of abandoned doctrine;” and 4) whether the facts have changed in the interval from the old rule to reconsideration so as to have “robbed the old rule” of justification. Planned Parenthood, 505 U.S. at 855, 112 S. Ct. 2791; see also Patterson v. McLean Credit Union, 491 U.S. 164, 173, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989) (noting that special circumstances to reverse precedent might include “subsequent changes or development in the law” or showing that the precedent has become a “detriment to coherence and consistency in the law”).

In the previous appeal in this case: 1) the precedent set in Bank of New York was not shown to be unworkable or intolerable; 2) Kline justifiably relied on Bank of New York, and was caused unjustifiable hardship when the Appeals Court effectively reversed Bank of New York by allowing that Wells Fargo had standing despite not having established timely ownership of the note and the mortgage to support its entitlement to pursue a foreclosure action; 3) the principles of law were not shown to have developed so as to leave the old rule “a remnant of abandoned doctrine; and 4) it was not shown that the facts changed so as to have “robbed the old rule” of justification.

Discussing the law of the case, in paragraph 40, Trujillo says, “Generally, the law-of-the-case doctrine stands for the proposition that ‘the law applied on the first appeal of a case is binding in the second appeal’ of that case. In paragraph 41, Trujillo says,

{41} The application of the law-of-the-case doctrine, however, is discretionary and flexible; it will not be used to uphold a clearly incorrect decision: [S]ince the doctrine of the law of the case is merely one of practice or court policy, and not of inflexible law, so that appellate courts are not absolutely bound thereby, but may exercise a certain degree of discretion in applying it, there are many holdings in which the courts have retreated from any inflexible rule requiring the doctrine to be applied regardless of error in the former decision, and it has been said that the doctrine should not be utilized to accomplish an obvious injustice, or applied where the former appellate decision was clearly, palpably, or manifestly erroneous or unjust. Reese v. State, 106 N.M. 505, 506, 745 P.2d 1153, 1154 (1987) (quoting, 5 Am.Jur.2d Appeal and Error § 750 at 194 (1962)); see also Killeen v. Community Hosp., 101 Misc. 2d 367, 420 N.Y.S.2d 990, 992 (Sup.Ct.1979) (law-of-the-case is discretionary); Greene v. Rothschild,68 Wash.2d 1, 414 P.2d 1013, 1013-14 (Wash.1966) (if application of the doctrine would work a manifest injustice to one party, the erroneous decision should be disregarded and set aside).

In Trujillo the N.M. Supreme Court reversed its earlier decision, “After lengthy reexamination of the parties’ arguments and consideration of law-of-the-case and stare decisis principles, this Court now reverses that decision.”

With stare decisis and law-of-the-case in mind, and after reexamination of the Findings of Fact and the parties’ arguments it would be better and more just for the Appeals Court to apply in this case the law of the land and the precedent set in Bank of New York, and to reverse its previous decision affirming the Trial Court.

2. Date file-stamped on the order: 3/15/2019  

3. Notice of appeal was filed in the district court? Yes.

Notice of Appeal was sent by priority mail to the First Judicial District Court and the Appeals Court at the same time. The Appeals Court date stamped the Notice on March 22, 2019 and sent Kline a copy. When Kline did not receive a date stamped copy of her notice from the First Judicial Court, she filed Motion to Accept Notice of Appeal as Timely Filed in which she showed that her Priority Mail had been delivered by USPS on the same day to the First Judicial District Court and the Appeals Court. Thereafter Kline received a copy of her Notice of Appeal from the First Judicial District Court with the Mar 27, 2019 Endorsed date crossed out and a subsequent date stamp of Mar 22, 2019. Both dates are on Kline’s Notice of Appeal filed at the First Judicial District Court.

4. Please state why the Plaintiff sued the Defendant.

Plaintiff, Wells Fargo Bank, N.A., (hereinafter “Wells Fargo”) sued Defendant, Karen M. Kline, (hereinafter “Kline”) for foreclosure despite the fact that Wells Fargo was not at any time the holder the promissory note. The facts follow:

In 2002, Wells Fargo Home Mortgage was subservicer for GE CMS, pursuant to a Subservicing Agreement dated September 30, 2000. Kline’s loan was one of the loans serviced under the agreement, In Rem Judgment, Exhibit 1, Findings of Fact (hereinafter “Findings”) Findings ¶ 21.

On May 16, 2002, Wells Fargo Home Mortgage, as subservicer for GE CMS, (hereinafter “WFHM/GE CMS”), imaged, the original of Kline’s Promissory Note, with the special indorsement from Bank United of Texas FSB to GE CMS, and the subsequent blank indorsement by GE CMS; (2) the original of the Modification Agreement; and (3) a facsimile from Safeguard Properties, Inc. to GE Capital Mortgage Services. Exhibit 1, Findings ¶ 28.

On September 1, 2002, original documents, which were not individually named, were returned to the Document Custodian, Exhibit 1, Findings ¶ 30. Wells Fargo’s “[Proposed] Findings of Fact and Conclusions of Law”, filed June 15, 2017, (hereinafter “Proposed Findings”), Exhibit 2, say the same thing at ¶ 34, with the exception that the Proposed Findings ¶ 34 begins, “Ms. Bosier testified”.

On September 21, 2002, Kline’s original documents, which were not individually named, were said to have been returned to the Document Custodian, First Union, by the WFHM/GE CMS employee, identified as “TPX”, that had received them on May 16, 2002. Exhibit 1, Findings ¶ 29. However, a servicing note also entered on September 21, 2002 says Kline’s original documents, which yet again were not individually named, were sent to the owner of the Loan, FNMA, on the same date by a different WFHM/GE CMS employee. Exhibit 1, Findings Footnote 2.

Wells Fargo’s Proposed Findings state at ¶ 34, “Ms. Bosier testified there is no evidence that, after the original loan documents were returned to the Document Custodian on September 1, 2002, that those original loan documents were negotiated, conveyed, transferred, or seized,” Exhibit 2, ¶ 34. The date testified to by Ms. Bosier differs from the date in the Servicing Notes, Exhibit 1, Findings ¶ 29 and Findings Footnote 2, which appears to cast doubt on Ms. Bosier’s conclusion that thereafter the original loan documents were not negotiated, conveyed, transferred, or seized. Ms. Bosier’s conclusion is incorporated into the In Rem Judgment, Exhibit 1, Findings ¶ 30.

Subsequent servicing notes state that the original Note was requested from FNMA on January 15, 2004; when FNMA’s file arrived on February 2, 2004, it did not include the original Note. Exhibit 1, Findings Footnote 2. Thus, the first evidence of the original Note being lost was when it was not found in FNMA’s file on February 2, 2004.

There is no record that names the original Note and evidences its existence after May 16, 2002, at which time GE CMS was the holder of the note or possibly its employee was, under the UCC definition, Section 55-1-201(b)(21)(A), Supra.

The Findings appear to indicate that the original Note was lost sometime after a WFHM/GE CMS employee sent it to either the document custodian or FNMA. It stands to reason that if the original Note was lost while in the possession of WFHM/GE CMS the servicing notes would have said that the original note was unable to be located in order to send it to the Document Custodian, or FNMA. Unless, of course, the servicing notes did not what to admit the servicer had lost the original note. In any case, what the servicing notes say is that original documents (without specifically naming the original Note) “were returned” and “were sent”. Thereafter, on February 2, 2004, the original Note appeared to be lost in that it was not found in the FNMA file. On February 2, 2004, GE Mortgage Services, LLC, successor by merger to GE CMS was the holder of the Note, unless in handling the Note its employee was the holder. Exhibit 1, Findings ¶ 34.

On July 1, 2005, GE Mortgage Services LLC assigned Kline’s mortgage to Wells Fargo. Exhibit 1, Findings ¶ 43. However, as shown above, Kline’s Original Promissory Note was lost between May 16, 2002 and February 2, 2004 when it was not found in FNMA’s file.

On April 7, 2008, Wells Fargo filed its Complaint for Foreclosure with a copy of Kline’s Promissory Note attached as if Wells Fargo was the holder of the Promissory Note.

In 2009, Plaintiff failed to produce the Promissory Note after being requested to do so on May 26, 2009, in Discovery. On July 19, 2011, Plaintiff filed an Affidavit of Lost Note, Exhibit 3, which evidence at trial proved to be false. On 4/29/2015, Plaintiff filed a Notice of Lost Note, Exhibit 4, which on its face was false because no servicing notes were attached. It was also false in view of the evidence produced at trial. The Notice acknowledged, “The Scheduling Order required that Wells Fargo file the Original Note, executed by Ms. Kline, no later than April 30, 2015.” Wells Fargo continued,

“The best evidence rule, Rule 11-1002 NMRA, which states, “[a]n original writing, recording, or photograph is required in order to prove its content unless these rules or a stature provides otherwise,” is applicable when a party seeks to prove the contents of a writing. See Guitierrez v. Albertson’s, Inc, 1991-NMCA-135, ¶ 39, 824 P.2d 1058. If the original is not available, a [p]laintiff must rely on secondary evidence to establish the existence and contents of … [a document], but in order to be permitted to introduce such evidence, [p]laintiff must make a threshold showing of (1) the loss or destruction of the original … and (2) the absence of bad faith. Loss or destruction of the original is most commonly shown through circumstantial evidence of a ‘diligent but unsuccessful search and inquiry for the missing document.’” See Servants of the Paraclete, Ind. v. Great Am Ins. Co., 857 F. Supp. 822, 828 (D.N.M) amended on reconsideration in part, 866 F. Supp. 1560 (D.N.M 1994).

“Wells Fargo has diligently searched its records and files concerning the loan in search of the original promissory note. However, as previously indicated, despite extensive efforts by Wells Fargo and its attorneys, Wells Fargo has been unable to locate the original promissory note.” Exhibit 4.

It is unbelievable that Wells Fargo searched its records in good faith without finding that the original Note was lost between May 16, 2002 and February 2, 2004. Further, Wells Fargo falsely continued as if there was “absence of bad faith”,

“Wells Fargo respectfully submits the best available evidence of the mortgage loan, which is a photocopy of the indorsed note, the recorded mortgage and assignments, and Wells Fargo’s servicing records.” Exhibit 4.

The fact and truth is that there were no exhibits attached. See Exhibit 4. Had the servicing records been attached, they would have shown that the note was lost between May 16, 2002 and February 2, 2004.

On May 12, 2015, Kline filed Defendant Kline’s Objection to Wells Fargo Bank’s Notice of Lost Note, Exhibit 5,

“Wells Fargo is not accurate to categorize the Original Note as an “original writing” governed by the rules of evidence. The Original Note is in fact a negotiable instrument and is governed by the Uniform Commercial Code.

Wells Fargo cannot evade Uniform Commercial Code requirements by filing a Notice of Lost Note and treating the note as evidence rather than a negotiable instrument. The fact is that commercial law principles relating to negotiable instruments govern: 55-3-309 …

New Mexico Supreme Court has clearly stated, “[O]ur state’s UCC governs how a party becomes legally entitled to enforce a negotiable instrument,” paragraph 19, Bank of New York v. Romero, 320 P.3d 1 (2014).

Wells Fargo says it has searched its records and files without finding the Original Note and asks the court to accept a photocopy in lieu of the negotiable instrument.

The Uniform Commercial Code and New Mexico case law, Bank of New York v. Romero, 320 P.3d (2014), agree in relation to who is legally entitled to enforce a negotiable instrument and the holder of a photocopy is not one of those entitled to enforce.” Exhibit 5.

5. Do you think the trial court made any mistakes? Yes _X__

1.) Adopting Wells Fargo’s Findings of Fact, exclusively and verbatim, was a mistake for the reasons shown below.

The appealed Order says,

1. The Court held an extensive, multi-day bench trial in May 2017 and entered its foreclosure judgment (the “Judgment”) in November 2017, based on extremely detailed findings of fact and conclusions of law.

The “extremely detailed findings of fact and conclusions of law” were written by Wells Fargo, Exhibit 2, as was the In Rem Judgment, Exhibit 1. The plethora of detail obfuscates the fact that there is no record/evidence of the original Note being seen and existing after May 16, 2002. On February 2, 2004, it was not found in FNMA’s file, Supra.

In Mora v. Martinez, 80 N.M. 88, 451 P.2d 992 (1969), N.M. Supreme Court wrote,

We agree with the federal cases which, without exception, require adequate findings and insist on the exercise of an independent judgment on the part of the trial judge in making his own findings of fact rather than adopting those of one of the parties… The Supreme Court recently underscored the responsibility of the court with respect to findings, and was critical of any indiscriminate dependence upon counsel in formulating them. (Citing United States v. El Paso Natural Gas Co., et al., 376 U.S. 651, 84 S. Ct. 1044, 12 L. Ed. 2d 12 (1964).)

In the instant case the trial court’s inclusion of all of Wells Fargo’s extremely detailed Findings appears to have been “indiscriminate,” that is, “done without careful judgment,” given that following Findings ¶ 28, ¶ 29, and Footnote 2 there are 64 Findings which ignore the fact that there is no record/evidence of the original Note being seen and existing after May 16, 2002, Supra, and that on February 2, 2004 the original Note was not found in the FNMA file, Supra. “Lost” is a synonym for “not found.”

The most glaring indications of “indiscriminate dependence upon counsel in formulating” the findings begin at Findings ¶ 31, and relate to Wells Fargo being or having been holder of the Note as a result of Wells Fargo’s merger with Wachovia in 2010, 8 years after the last recorded time the Note was seen, in 2002, Supra. There is no evidence of the existence of the original Note after May 16, 2002. There is no evidence that the Note ever arrived at First Union, the Document Custodian, after September 1 or September 21, 2002, when unnamed original documents were sent or were returned so, whether Wells Fargo was the successor to First Union by merger, Exhibit 1, Findings ¶ 31, is immaterial.

In the American Law Reports, 54 A.L.R. 3d 868 (1973), J.S. Bryant, Jr., states that it is not a reversible error to adopt verbatim a party’s proposed findings and conclusions if those findings and conclusions are supported by the evidence.

To adopt verbatim a party’s proposed findings of fact and conclusions of law is not the best practice, even if both sides have submitted proposals, but it is not reversible error where those findings and conclusions essential to the decision reached are sufficient and are supported by the evidence. 54 A.L.R.3d 868 (1973)

For there to be “reversible error” the findings and conclusions essential to the decision must be insufficient and unsupported by evidence, which is the case here. The evidence shows that the original note existed and was seen on May 16, 2002 when GE CMS, not Wells Fargo, was the holder of the note, Supra. On February 2, 2004, the original Note appeared to be lost in that it was not found in the FNMA file, Supra. There is no evidence that the original Note was ever in the possession of the Document Custodian after September 1 or September 21, 2002, when original documents were said to have been sent or returned, Supra. For this reason, adopting Wells Fargo’s Findings of Fact and Conclusions of Law, exclusively and verbatim, was a mistake and reversible error in so far as they contribute to a false view of the case in which the original Note was somehow in Wells Fargo possession after September 1 or September 21, 2002, and that as a result Wells Fargo was the holder, and had standing to file and prosecute this foreclosure.

In paragraph 17 on page 19 of the In Rem Judgment Wells Fargo is said to be the holder of the note in May, 2002 because the note was endorsed in blank and Wells Fargo had the note in its possession. However, under this theory and the definition at Section 55-1-201(b)(21)(A), the actual person in possession would have been the WFHM/GE CMS employee, identified as “TPX”, that had received the original Note and possibly sent it or returned it, Supra.

2.) It was a mistake for the Court to rely on Findings which were insufficient and unsupported by evidence to reach its conclusions of law stated on pages 14-20, to include that Wells Fargo was entitled to enforce the original note under Sections 55-3-301 and 55-3-309 of its In Rem Judgment. See 1.) above.

3.) Entering Findings ¶¶ 31 – 51, Exhibit 1, in support of Wells Fargo having been the holder of the note as a result of acquiring the Document Custodian, or Kline believing Wells Fargo was the holder, was a mistake because the Findings go against the weight of evidence showing that the last recorded time the original Note was seen and was not lost, was May 16, 2002, Supra. There is no evidence that the original note ever reached the Document Custodian after original documents were sent or returned on either September 1 or September 21, 2002, Supra.

In United States v. United States Gypsum Co. 333 U.S. 364 (1948), the Court stated:

A finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.

In the instant case there is adequate evidence to support the fact that Wells Fargo merged with Wachovia, however using that evidence to support a finding that as a result of Wells Fargo’s merger with Wachovia in 2010 Wells Fargo was the holder of the original Note when it was lost, when in fact the original Note was last seen on May 16, 2002, Supra, must leave a “definite and firm conviction that a mistake has been committed.”

Substantial case law dictates that findings unsupported by evidence are unviable:

It is not the function of the appellate court to weigh the evidence or its credibility, and it will not substitute its judgment for that of the trial court as to the facts established by the evidence, so long as the findings are supported by substantial evidence. Getz v. Equitable Life Assurance Soc’y, 1977-NMSC-018, 90 N.M. 195, 561 P.2d 468, cert. denied, 434 U.S. 834, 98 S. Ct. 121, 54 L. Ed. 2d 95 (1977).

Findings of fact which are supported by substantial evidence will not be disturbed on appeal. If the evidence shows that the decision of the trial court is based on reasonable, substantial and probative evidence, so that it can be said that a reasonable person might have reached the same conclusion, the decision of the trial court should be affirmed. In re Valdez, 1975-NMSC-050, 88 N.M. 338, 540 P.2d 818.

The findings are sufficient if a fair construction of all of them, taken together, justify the trial court’s judgment. H.T. Coker Constr. Co. v. Whitfield Transp., Inc., 1974-NMCA-002, 85 N.M. 802, 518 P.2d 782.

For the purposes of this appeal, Getz v. Equitable Life Assurance Soc’y, 1977-NMSC-018, 90 N.M. 195, 561 P.2d 468, cert. denied, 434 U.S. 834, 98 S. Ct. 121, 54 L. Ed. 2d 95 (1977) says best that a judgment dependent on findings unsupported by substantial evidence must be reversed if properly attacked:

Although it is not proper for the appellate court to disagree with a finding supported by substantial evidence, it can and must determine whether the evidence presented substantially supports a finding which has been properly attacked: findings not supported by substantial evidence, and which have been properly attacked, cannot be sustained on appeal, and a judgment dependent thereon must be reversed. Getz v. Equitable Life Assurance Soc’y, 1977-NMSC-018, 90 N.M. 195, 561 P.2d 468, cert. denied, 434 U.S. 834, 98 S. Ct. 121, 54 L. Ed. 2d 95 (1977).

In the instant case the attack on the In Rem Judgment is proper in that the In Rem Judgment is based on Wells Fargo being the holder of the note under 55-3-301 and 55-3-309, when in fact the note was lost sometime after May 16, 2002. That the Note was lost is confirmed by the fact that on February 2, 2004 the note was not found in the FNMA file. In 2002, GE CMS was the holder of the note.

Where a case is tried to a court and the trial court makes findings of fact and conclusions of law, court of appeals cannot reverse unless convinced that the findings cannot be sustained by evidence or inferences therefrom. Barber’s Super Mkts., Inc. v. Stryker, 1972-NMCA-089, 84 N.M. 181, 500 P.2d 1304, cert. denied, 84 N.M. 180, 500 P.2d 1303.

The practice of adopting findings and conclusions entirely as submitted by one of the parties is not reversible error so long as the findings adopted are supported by the record. United Nuclear Corp. v. General Atomic Co., 1979-NMSC-036, 93 N.M. 105, 597 P.2d 290, cert. denied, 444 U.S. 911, 100 S. Ct. 222, 62 L. Ed. 2d 145 (1979).

A judgment cannot be sustained on appeal unless the conclusion upon which it rests finds support in one or more findings of fact. Thompson v. H.B. Zachry Co., 1966-NMSC-017, 75 N.M. 715, 410 P.2d 740.

In this case, the judgment does not rest and find support on findings of fact showing that the Note was ever in the possession of First Union, the Document Custodian, after September 1, or September 21, 2002.

4.) It was a mistake for the Court to rely in its judgment’s conclusions of law, pages 14-20 of the In Rem Judgment, on Findings ¶¶ 31 – 51, Exhibit 1, re Wells Fargo having been the holder of the note as a result of acquiring the Document Custodian, or Kline believing Wells Fargo was the holder, because the Findings go against the weight of the evidence which shows that the last recorded time the original Note was seen and was not lost, was May 16, 2002, Supra. There is no evidence that the original note ever reached the Document Custodian after original documents were sent or returned on either September 1 or September 21, 2002, Supra. See 3.) above.

5.) Treating the July 1, 2005, assignment of Kline’s mortgage to Wells Fargo by GE Capital Mortgage Services LLC as if it in some way made Wells Fargo the holder of the Note, or entitled Wells Fargo to enforce the Note was a mistake given that there is no evidence of the existence of the Note after May 16, 2002.

Bogle Farms, Inc. v. Baca, 925 P.2d 1184 (N.M. 1996) makes a salient point for the instant appeal when it cites Richard R. Powell, Powell on Real Property ¶ 938.21[5], at 84D-31 (stating that assignees may not take more than what assignor possessed). See 1.), 2.), 3.) and 4.) above.

6.) Ignoring the precedent contained in Bank of New York, “The Bank of New York had the burden of establishing timely ownership of the note and the mortgage to support its entitlement to pursue a foreclosure action,” Supra, was a mistake. See the discussion of the law-of-the-case doctrine and stare decisis under “1. Order of the trial court being appealed,” above. Also see 1.) – 5.) above.

7.) It was a mistake for the In Rem Judgment, Exhibit 1, to say in its final paragraph that personal property remaining in the property after an Order Approving Sale would be deemed abandoned. Kline objected to the Sale but there was no hearing and the Order Approving Sale was signed by the Court after it was sent to the Court by Wells Fargo attorneys without any hearing. That was one of the things Kline was objecting to at the March 4, 2019 Hearing from which the appealed Order emanated. It is a mistake for the Trial Court to dispose of Kline’s personal property prior to the conclusion of all available appeals. New Mexico Statutes seem to indicate that a judgment lien on personal property would necessitate separate court action from the foreclosure. §§ 39-1-1 through 39-1-20.

6. For each mistake listed in Question 5, using the same numerical order, please describe how you told the trial court it made a mistake. If you did not alert the trial court to a mistake you think it made, please tell us why.

            1.) – 7.) The Order I am appealing disallowed me from filing anything else in the case in the First Judicial Court, which may be the reason my Notice of Appeal was held and not filed until I submitted evidence that my Notice had been delivered to the First Judicial Court and the Appeals Court. See 3. above.

7. Do you know of any case law, statutes, rules, constitutional provisions, or other legal authority that would support your claim that the trial court made mistakes? Yes _X__

I listed those authorities and gave explanations in the discussion of each of the mistakes.

8. In addition to the mistakes you listed above, are there any other reasons why you are appealing? No _X__

9. What action do you want the Court of Appeals to take?

I want the Court of Appeals to reverse its previous decision to Affirm and I want the Court of Appeals to remand this matter to the district court with instructions to vacate its judgment of foreclosure.

10. Were all of the proceedings in the trial court tape recorded? Yes _X_

11. Have you filed any other appeals related to this case? Yes _X_

Kline filed Appeal No. No. A-1-CA- 36946.

12. Do you know if anyone else involved in this case has filed an appeal related to this case? No_X_

Sign your name:

 

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