Mgmt., Inc. v. Grebe, 1981–NMSC–035, ¶ 7, 96 N.M. 22, 627 P.2d 864 (citation omitted). 1. P. 12(b)(1) for lack of standing. And, it’s funded by the Mortgage Settlement that was supposed to help homeowners. To be a partner at Covington & Burling, as Eric Holder and Lanny Breuer were, you have to be legal elite with the sharpest strategies for protecting clients. Significantly New Mexico Supreme Court cites 55 Am.Jur.2d Mortgages, “A mortgage securing the repayment of a promissory note follows the note, and thus, only the rightful owner of the note has the right to enforce the mortgage.”. Shortly thereafter, the Debtor filed a motion to compel joinder of the Chapter 13 trustee. Read more. The grantor argued that he was seeking to protect his property interest in the trust, but the Court pointed out that a judgment against the defendant wouldn’t affect his property interest. 2014) (remanding state law consumer protection claims based on lack of standing); Khan v. Childrenâs Natâl Health Sys., ---- F. Supp. In other words, a defendant can incur the expense of removing a case to federal court and demonstrating that the plaintiff lacks standing, only to have all that work be for naught, with the case ending up back in state court and possibly being responsible for the plaintiffâs attorney fees as well. Read more. Following a hearing, the Court granted the motion to compel joinder. Reg. Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. The U.S. Supreme Court has made clear that the burden of establishing standing rests on the plaintiff. After I lost I kept interrupting the judge while he was ruling, which didn’t gain me any points. See, e.g., Polo v. Innoventions Intâl, LLC, 833 F.3d 1193, 1196 (9th Cir. Given these decisions, what can defense practitioners do to effectively present standing challenges in a way that wonât simply result in a case being remanded to state court and putting your client at risk for attorneysâ fees? In Wells Fargo’s foreclosure action against my home, Wells Fargo failed to comply with the Court’s Scheduling Order deadline for filing its list of witnesses. The NM Supreme Court is not upholding its decision in Deutsche v. Johnston. Capital Mortgage Services, Inc., Exhibit 1, page 2. Since the hearing my health has been in major decline. CERTIFICATE OF SERVICE: I caused a second true copy of the above DEFENDANT KLINE’S MOTION TO DISMISS FOR LACK OF STANDING FORMERLY KNOWN AS DEFENDANT’S MOTION FOR SUMMARY JUDGMENT to be mailed today, April 23, 2015, to: Larry J. Montaño 110 N. Guadalupe, Suite 1 Post Office Box 2208 Santa Fe, New Mexico 87505 TEL: (505) 988-4421 FAX: (505) 983-6043. I did an abysmal job of answering, in part because I have experienced so many lies from Wells Fargo. See Rule 1-056 A NMRA. Your state most likely has a similar case on file. Required fields are marked *. As an Amazon Associate I earn from qualifying purchases. ing, a motion to dismiss is addressed to a pro-cedural or substantive defect in the plaintiff’s case that entitles the defendant to a judgment in its favor. Site Technologies, Inc.), the California corporation, filed certificates with the California and Delaware Secretaries of State (Exhibits 11 & 12) stating that it merged itself and its subsidiary Libertech (a.k.a. The determination must be made as to whether sufficient evidence was provided of how Bank of New York or Wells Fargo became a “holder” by either an indorsement or transfer: Possession is not necessarily sufficient to make one a holder․ The payee is always a holder if the payee has possession. In evaluating a Rule 12(b)(1) motion, a court must first determine whether the movant presents a facial or factual attack. Rather than immediately removing a case to federal court and seeking dismissal for lack of standing, consider whether to remove the case at all. Holder and Breuer had the skill set to prosecute Wall Street executives; but chose not to. This provision requires a nonholder to prove both possession and the transfer of such rights. The Russell case involved claims filed in state court under the Americans with Disabilities Act (ADA). RESPONDENTS' MOTION TO DISMISS FOR LACK OF STANDING On September 1, 2005, the State of Nevada ("Nevada") filed with this Court a petition for review of a decision by the Nuclear Regulatory Commission ("NRC"), published at 70 Fed. See Cadle Co. v. Wallach Concrete, Inc., 1995–NMSC–039, ¶ 14, 120 N.M. 56, 897 P.2d 1104 (“[A] special indorser has the right to direct the payment and to require the indorsement of his indorsee as evidence of the satisfaction of own obligation. MOTION TO DISMISS This Response and Brief is filed by undersigned counsel on behalf of all Plaintiffs in Response to Defendants’ Motion to Dismiss under Federal Rules of Procedure 8(a), 12(b)(1), 12(b)(2), and 12(b)(6). “{30} Under this second category, the Bank of New York relies on the testimony of Kevin Flannigan, an employee of Litton Loan Servicing who maintained that his review of loan servicing records indicated that the Bank of New York was the transferee of the note. Prop. Robert J. Herrington is a shareholder with Greenberg Traurig in Los Angeles, California. See § 55–3–301 (defining “[p]erson entitled to enforce” a negotiable instrument). Wells Fargo has provided no evidence that it had possession and ownership of the note at the time it filed this foreclosure. District Court Grants Motion to Dismiss for Lack of Standing Where Plaintiff Did Not Provide Evidence That It Owned the Patent at the Time of Filing the Complaint by Stan Gibson Juno Lighting, LLC (“Juno”) filed a complaint against Nora Lighting, Inc. (“Nora”) on February 11, 2013. A successful challenge to statutory standing results in dismissal with prejudice, rather than remand or dismissal without prejudice. Several other courts have reached the same conclusion as Mocek, remanding class actions asserting federal claims based on a lack of Article III standing. The defendant removed based on federal question jurisdiction and moved to dismiss for lack of standing. UCC, NMSA 55-3-301 provides that the party seeking to enforce the note has the burden of establishing timely ownership of the note and the mortgage to support its entitlement to pursue a foreclosure action. Site/Technologies/Inc.) See First Nat’l Bank of Belen v. Luce, 1974–NMSC–098, ¶ 8, 87 N.M. 94, 529 P.2d 760 (holding that because the assignment of a mortgage to a bank did not convey an interest in the loan contract, the bank was not entitled to foreclose on the mortgage); Simson v. Bilderbeck, Inc., 1966–NMSC–170, ¶¶ 13–14, 76 N.M. 667, 417 P.2d 803 (explaining that “[t]he right of the assignee to enforce the mortgage is dependent upon his right to enforce the note” and noting that “[b]oth the note and mortgage were assigned to plaintiff. Wells Fargo’s Lost Note affidavit sought to cure the problem, however: “Plaintiff’s Affidavit of Lost Original Note shows a copy of the note. Read More. 70). May 19, 2016) (remanding state law claims in data breach class action after finding lack of standing). It was not endorsed to Wells Fargo. Thus, even if Wells Fargo possessed the unendorsed note made payable to a G.E. See NMSA 1978, § 55–3–109 cmt. Billions of dollars in assets transferred from individuals to large entities. "A motion to dismiss for want of standing is . Deciding whether a motion to dismiss based on lack of standing is considered under Rule 12(b)(6) or 12(b)(1) has implications and has divided some courts. Motion to Dismiss: “shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process”. 48329 (August 17, 2005) (attached). The reasons in support of Defendants’ Motion are set forth in … Wells Fargo most likely is counting on how its lawyers will annihilate me with my brain injury at trial. Does a Lack of Article III Standing Require Remand? Defendants filed a motion to dismiss the adversary proceeding under Fed. Grant such other and further relief as to the Court seems proper. These separate contractual functions—where the note is the loan and the mortgage is a pledged security for that loan—cannot be ignored simply by the advent of modern technology and the MERS electronic mortgage registry system. Wells Fargo’s copy of the note attached to Wells Fargo’s Complaint for Foreclosure, date stamped April 7, 2008, is not indorsed to Wells Fargo. This is done when the defendant believes a claim in the lawsuit is legally invalid, or there are legitimate grounds for throwing the case out of court. But there is a different flavor of standing. Vitamin B12 lozenges help you have healthy nerves and blood. A motion to Capital Mortgage Services, Inc. and (3) there is no indorsement to Wells Fargo. Wells Fargo must prove that the instrument was not lost in a transfer or seizure in order for Wells Fargo to prove its right to enforce the instrument pursuant to 55-3-309(a)(ii) NMSA. It may be better to concede that the allegations of the complaint establish standing and then challenge whether the plaintiff has any actual injury at a later time based on a more developed evidentiary record. Whether other persons qualify as a holder depends upon whether the instrument initially is payable to order or payable to bearer, and whether the instrument has been indorsed.” (footnotes omitted)). A defendant may also argue on a motion to dismiss that the plaintiff lacks standing to sue, or perhaps that a statute of limitations has run, or on some procedural basis. BoA filed a motion to dismiss pursuant to Fed. Similarly, the existence of standing presents “a legal question.” Katz v. Pershing, LLC, 672 F.3d 64, 70 (1st Cir. See NMSA 1978, § 55–3–301 (1992) (defining who is entitled to enforce a negotiable interest such as a note); see also NMSA 1978, § 55–3–104(a), (b), (e) (1992) (identifying a promissory note as a negotiable instrument); ACLU of N.M. v. City of Albuquerque, 2008–NMSC–045, ¶ 9 n. 1, 144 N.M. 471, 188 P.3d 1222 (recognizing standing as a jurisdictional prerequisite for a statutory cause of action); Lujan v. Defenders of Wildlife, 504 U.S. 555, 570–71 n. 5 (1992) ( “[S]tanding is to be determined as of the commencement of suit.”); accord 55 Am.Jur.2d Mortgages § 584 (2009) (“A plaintiff has no foundation in law or fact to foreclose upon a mortgage in which the plaintiff has no legal or equitable interest.”). In 2013, the district court denied Lively’s motion to dismiss, AER at 46, and discovery then proceeded for nearly two and a half years. Because JPMorgan Chase did not subsequently indorse the note, either in blank or to the Bank of New York, the Bank of New York cannot establish itself as the holder of the Romeros’ note simply by possession.” Ibid. Rather than immediately removing a case to federal court and seeking dismissal for lack of standing, consider whether to remove the case at all. DEFENDANTS' MOTION TO DISMISS FOR LACK OF STANDING - Page 4 Subsequently, on December 21, 2000, Deltapoint (a.k.a. Accordingly, Flannigan’s trial testimony cannot establish that the Romeros’ note was transferred to the Bank of New York.” Ibid. In Wells Fargo’s foreclosure action against my home, the note was clearly made payable to the order of G.E. Your email address will not be published. We agree with the Romeros that Flannigan’s testimony was inadmissible and does not establish a proper transfer.” Ibid. Rule 12(b)(1) of the Federal Rules of Civil Procedure requires dismissal of claims for “lack of subject-matter jurisdiction.” See FED. The next step in the foreclosure is a trial, anywhere from two to three days of trial. I have filed a motion asking for the Court to exclude Wells Fargo’s witnesses for failing to comply with the Scheduling Order. In Bank of New York the New Mexico Supreme Court points to Romeros’ note being “clearly made payable to the order of Equity One” which is similar to my note being made payable to the order of G.E. A claimed transferee must establish its right to enforce the note. The court reasoned that “Illinois courts are not required to follow federal law on issues of justiciability and standing.” For one thing I misunderstood what it means to have standing from the time of filing of the case. 1 (1992) (“An instrument that is payable to an identified person cannot be negotiated without the indorsement of the identified person.”). (305) 577-4177 • FAX (305) 373-6036 18. A self represented party points to a shell, and sure enough, the pea is underneath. See Motion to Exclude Wells Fargo Bank’s Witnesses for Failure to Comply with Scheduling Order. Exhibit 1, page 2. Private property rights stripped away. 8,539,047 (“the ’047 patent”), purported to assign the ’047 patent to… Inc. v. Russell Enterprises Inc., 2016 WL 7187931, at *1 (D. Ariz. Dec. 12, 2016), the court faced a situation similar to that in Mocek, but declined to remand the federal claim, notwithstanding a lack of standing. Defendant’s Motion to Stay and to Dismiss for Lack of Standing Defendant Ruth Johnson, through her attorneys, Dickinson Wright PLLC, moves for an Order staying further proceedings in this matter and dismissing Plaintiffs’ challenge to Michigan’s statewide redistricting plans … In my view, the best way to do it is by a formal motion to dismiss for lack of standing. 2 (“[An] instrument [unindorsed upon transfer], by its terms, is not payable to the transferee and the transferee must account for possession of the unindorsed instrument by proving the transaction through which the transferee acquired it.”). This section provides a few suggestions. Bank of New York v. Romero doesn’t make that clear. In Bank of New York v. Romero, New Mexico Supreme Court says evidence of the right to foreclose must be “put forth”: “{19} The Bank of New York argues that in order to demonstrate standing, it was required to prove that before it filed suit, it either (1) had physical possession of the Romeros’ note indorsed to it or indorsed in blank or (2) received the note with the right to enforcement, as required by the UCC. Part 1 of the Produce the Note series explained that standing is an aspect of subject matter jurisdiction and that if the foreclosing party lacks standing, the court lacks subject matter jurisdiction. 6/8/2015 ~ I lost the hearing. Vitamin B12 lozenges help you have healthy nerves and blood. The court remanded the case based on 28 U.S.C. If [the entity] was a successor in interest to a party on the [contract], it was incumbent upon it to prove this to the court.” L.R. The decision denied Nevada's "Petition for Rulemaking to Karen Marie Kline, Pueblos de Rodeo Road Owners Association, Inc.; Manhattan Condominium Association, Defendants. 2011) (discussing differences between statutory and Article III standing). 3d ---, 2016 WL 7116590 (Dec. 7, 2016), highlights the risk of challenging standing in a removed class action. Defendant’s Exhibit 1, page 1 of 2 of Wells Fargo’s copy of note, Defendant’s Exhibit 1, page 2 of 2 of Wells Fargo’s copy of note, showing indorsements, Your email address will not be published. In addition, Wells Fargo did not list the name of a person to give testimony at trial to establish proper transfer. 3d ----, 2016 WL 2946165, at *7 (D. Md. Exhibit 1, page 2. Lack of Personal Jurisdiction. 2ND STREET, MIAMI, FLORIDA 33131-2130 •TEL. Learn some warning signs. in 1993 I signed a Note and Mortgage to Bank of Texas on my home at 3255 Calle de Molina, Santa Fe, New Mexico, (2.) Many states have adopted the same (or more stringent) standing requirements as Article III (log-in required), and a defendant may be better off making those arguments in state court rather than removing. Ibid. A third party, like Wells Fargo, must prove both physical possession and the right to enforcement. In Advocates for Individuals with Disabilities Found. Before me are the Defendants’ Motion to Dismiss for Lack of Standing (Doc. 1/24/2019 ~ Standing is not an issue that will save you from foreclosure in New Mexico. 13; filed while this motion to dismiss was still pending) is DENIED. It’s like a shell game. Many states have adopted the same (or more stringent) standing requirements as Article III (log-in required), and a defendant may be better off making those arguments in state court rather than removing. After the Supreme Courtâs decisions in Clapper and Spokeo, a common defense to consumer and privacy class actions is to seek dismissal based on a lack of Article III standing. 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