THE STATE OF NEW MEXICO

COUNTY OF BERNALILLO
SECOND JUDICIAL DISTRICT

BANK OF AMERICA, N.A.,

Case No. D-202-CV-2016-04035

MARGARET L. MACNAB,
Defendant.

DEFENDANTS MOTION TO DISMISS

INTRODUCTION

Plaintiff, under 42-6-1 NMSA 1978, contends that it is entitled to foreclose against
Defendant. Plaintiff alleges to be in possession of an alleged Note. Plaintiff alleges to have been
assigned the Mortgage from unnamed party. Plaintiff alleges Defendant has defaulted on Note.
Plaintiff does not claim that they are owner, holder in due course or holder of the Note.
Plaintiff has a demonstrated history of fraud upon the Honorable Court. See Bank of America,
N.A. v. Margaret L. Macnab, No. D-CV-202-2012-11411.
Plaintiffs failure to allege any supporting facts, materials, or essential elements of a valid
claim to establish standing and failure to demonstrate the right to enforce the alleged mortgage
warrants a dismissal of the Complaint under Rule 1-012(B)(6) NMRA.

II.

STANDARD OF REVIEW

Pursuant to Rule 1-012(B)(6) of the New Mexico Rules of Civil Procedure, a motion to
dismiss may be based on Plaintiffs failure to state a claim upon which relief can be granted. A
motion to dismiss filed under Rule 1-012(B)(6) tests the legal sufficiency of the complaint which
includes exhibits offered. Mendoza v. Tamaya Enterprises, Inc. 238 P .3d 903. 905 (N.M. App
2010). Although well pleaded facts are accepted as true, courts are not required to accept as true
legal conclusions couched as factual allegations. See Romero v. U.S. Life Ins. Co. of Dallas, 719
P.2d818, 819 (N.M. App. 1986). In order to survive a Motion to Dismiss, Plaintiff must allege
facts sufficient to place a Defendant on notice of their claims. Richey v. Hammond Conservancy
Dist., 346 P.3d 1183, 1189 (N.M. App. 2015).
Dismissals for failure to state a claim are proper when the claim asserted is legally
deficient, such as where the pleader is not entitled to recover under the governing substantive law
based upon the facts alleged or considered by the court. Delifno v. Griffo, 257 P.3d 917, 922
(N.M. App 2011). Thus, the Plaintiff must set forth well-pleaded factual allegations in support
of each essential element of the claim. Id.; C7H Const. & Paving, Inc. v. Foundation Reserve
Ins. Co., 512, P.2d 947, 949 (N.M. 1973); Delfino, 257 P3d at 922-023 (N.M. 2011).
III.

JUDICIAL NOTICE

Pursuant to NMRA 1978 Article 2 11-201(D) Court shall take judicial notice of the
relevant statutes and case law:
1.
2.
3.
4.
5.
6.
7.
8.

Section 46-6-1
NMSA 55-9-203(B) (1)(2)(3)(G)
Carpenter v. Longren
Bank of New York v. Romero, 3014-NMSC-007 320 P.3d 1
Deutsche Bank v. Johnston NMSC No. S-1-SC-34726 (March 3, 2016)
New Mexico Constitution
Bank of America, N.A. v. Margaret L. Macnab, No. D-CV-202-2012-11411
State of New Mexico, ex rel. Gary King, Attorney General v. Advantageous Community

Services, LLC. Submittal of false documents warrants dismissal with prejudice.

IV.

ARGUMENT AND AUTHORITIES

Under Rule 12(B)(6), the Court may dismiss the Complaint for failure to state a claim
upon which relief can be granted. Dismissal on Rule 12(B)(6) grounds is appropriate only if
Plaintiffs are not entitled to recover under any theory of facts alleged in their complaint.
Kirkpatrick v. Introspect Healthcare Corp., 114 N.M. 706, 709, 845 P2 d 800,803 (1992).
Plaintiffs only assertion in the complaint to support its standing to foreclose pursuant to
NMSA 42-6-1 is the alleged possession of an alleged Note and the alleged Assignment of
Mortgage to the Plaintiff. Given the facts of Plaintiffs history, see Defendants Exhibit A,
these allegations do not meet the requisite elements to survive a motion to dismiss. Factually,
Assignment of Mortgage is void ab initio, notary swore to an unsigned signature line, a felony
under California Civil Code. Assignment of Mortgage is a fraudulent document and the
Plaintiffs Exhibit A is void as described below.
All of Plaintiffs exhibits fail under New Mexico Rules Annotated 1-005.2 (I) 1. If an
original paper document is filed by electronic transmission, the electronic version shall conform
to the original paper document. Emphasis Defendants. Plaintiffs exhibits also fail under
New Mexico Annotated Rules of Evidence Article 10, 11-1001 (D) Duplicate. A duplicate is a
counterpart produced by the same impression as the original, or from the same matrix, or by
means of photography, including enlargements and miniatures, or by mechanical or electrical
rerecording, or by chemical reproduction, or by any other equivalent technique which accurately
reproduces the original. Emphasis Defendants. No rule, law or regulation makes exceptions to
this rule to accommodate foreclosure complaints.
Plaintiffs redactions, and thus the altering of the Note, are not allowed under The
Inspection of Public Records Act NMSA 1978, Chapter 14, Article 2. The Law at,14-2-1 (8) B.,
states Protected personal identifier information contained in public records may be redacted by
a public body before inspection or copying of a record. Emphasis Defendants. Plaintiff nor
Plaintiffs counsel are public bodies, Chapter V, (F) The Inspection of Public Records Act.
Deutsche Bank v. Johnston NMSC No. S-1-SC-34726. Even though it is a requirement
(or requisite) to show (or prove) injury when Plaintiff has filed a complaint for foreclosure, it is
acknowledged that discovering or showing injury for a mortgage foreclosure by plaintiff is

virtually impossible. The court will not depart from the traditional standing analysis that
requires a showing of injury in fact, causation, and redressability. American Civil Liberties
Union of New Mexico v. City of Albuquerque, 2008-NMSC-405, 144 N.M.471, 188 P.3d 1222.
New Mexico has always required allegations of direct injury to the complainant to confer
standing. See e.g. Hubbard Broadcasting, Inc. v. City of Albuquerque, 477, P .2d 602 (N.M.
1970), State ex. Rel. Overton v. State Tax Commissioners, 80 N.M. 780, 461 P.2d 913 (1969);
Kuhn v. Burroughs, 66 N.M. 61, 342 P .2d 1086 (1959).
The New Mexico Supreme Court has taken judicial notice that given the current policies
and procedures utilized by modern-day loan financing, not even foreclosing Plaintiffs can truly
be sure if they actually own the notes they seek to enforce, so it may be impossible for a Plaintiff
to know, let alone show, injury in fact, causation, and redressability through their documentation
on hand.
The controlling case laws on foreclosure in New Mexico are provided by the Bank of
New York v. Romero, 2014 NMSC, 007, 320. P. 3d 1, and others listed below. The New Mexico
Supreme Court in Paragraph 17 of the Romero decision states: One who holds a note secured by
a mortgage has two separate and independent remedies, which may be pursued successively or
concurrently; one is on the note against the person and the property of the debtor, and the other is
by foreclosure to enforce the mortgage lien upon the real estate (citation omitted). The New
Mexico Supreme Court in the Romero decision also made it clear that only the owner of the debt
has the equitable right to enforce the terms of the mortgage contract. Quoting 55 Am. Jur. 2d
Mortgages section 584 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. Bank
of New York v. Romero 2014 NMSC, 007, 320 P.3d 1 At [35].
Plaintiff claims standing to maintain this action pursuant to 42-6-1 NMSA 1978. As set
forth above, in order to state a claim upon which relief can be granted, Plaintiff must allege facts
that Plaintiff has sustained an injury in fact that is a result of the alleged breach of the mortgage
contract. Plaintiff has failed to allege such facts nor provides any valid documentary evidence
that proves it has sustained any such injury. Plaintiff, even if they could enter a legal, lawful
assignment of mortgage, without injury in fact, causation and redressability, has failed to allege
facts which state a cause of action. who has standing ACLU of N.M., 2008-NMSC-045,
144 N.M. 471, 188 P.3d 122. (1).

Thus, at least as a matter of judicial policy, if not of jurisdictional necessity, our courts
have generally required that a litigant demonstrate (l) injury in fact, (2) causation, and (3)
redressability to invoke the court's authority to decide the merits of a case. Deutsche Bank v.
Johnston NMSC No. S-I-SC-34726 (March 3, 2016) Pg. 9 1ine 18 and Pg.10 line 01-03.
In reviewing the Memorandum Opinion and Order by Judge Denise BarelaShepherd, filed March 26, 2015, it is clear that Plaintiff has submitted a spurious, duplicate and
meritless case that deserves the same outcome as the Defendants previous case, a dismissal. See
Defendants Exhibit A.
CONCLUSION
The Complaint must be dismissed for failure to state a claim because Complaint does not
allege facts that are essential to the relief sought by the Plaintiff under 42-6-1 NMSA 1978.
Plaintiff facts are not well pleaded. Plaintiff Complaint is legally deficient for the above stated
case law, facts, rules, laws and regulations, and should be dismissed for failing to state a claim
for which relief can be granted.
WHEREFORE Defendant, Margaret L. Macnab, respectfully requests and prays that this
court enter an order dismissing Plaintiffs Complaint pursuant to Rule 12(B)(6) of the New
Mexico Rules of Civil Procedure for District Courts.
Respectfully submitted,
____________________________
Margaret L Macnab
4736 Via Verde Ct.
Santa Fe, New Mexico 87507
(505) 819-0810

CERTIFICATE OF SERVICE

I hereby certify that on this ____ day of October 2016, the foregoing was mailed first class to
opposing counsel:
Attorneys for Plaintiff
Stephen Kowal
Karen Weaver
McCarthy Holthus LLP
6501 Eagle Rock NE, Suite A-3
Albuquerque, NM 87113
(505) 219-4900

____________________________
Margaret L Macnab
4736 Via Verde Ct.
Santa Fe, New Mexico 87507
(505) 819-0810

EXHIBIT A