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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2   THE BANK OF NEW YORK MELLON f/k/a
 3   THE BANK OF NEW YORK, NOT IN ITS
 4   INDIVIDUAL CAPACITY BUT SOLELY AS
 5   TRUSTEE FOR THE BENEFIT OF THE
 6   CERTIFICATE HOLDERS OF THE CWABS
 7   INC., ASSET-BACKED CERTIFICATES,
 8   SERIES 2006-16,

 9          Plaintiff-Appellee,

10 v.                                                                            No.    34,459

11 SUZANNE LOPES,

12          Defendant-Appellant,

13 and

14   MORTGAGE ELECTRONIC REGISTRATION
15   SYSTEMS, INC. (SOLELY AS NOMINEE FOR
16   LENDER AND LENDER’S SUCCESSORS AND
17   ASSIGNS) and OSCAR D. FREITES,

18          Defendants.


19 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
20 Beatrice Brickhouse, District Judge

21 Keleher & McLeod, P.A.
22 Benjamin F. Feuchter
 1 Albuquerque, NM

 2 for Appellee

 3 Suzanne Lopes
 4 Albuquerque, NM

 5 Pro se Appellant


 6                    MEMORANDUM OPINION
 7
 8 BUSTAMANTE, Judge.

 9   {1}   Defendant Suzanne Lopes appeals from the district court’s amended order of

10 dismissal. By its amended order, the district court set aside its prior judgment and

11 dismissed the action without prejudice. On appeal, Defendant argues that the dismissal

12 should have been with prejudice. Specifically, Defendant contends that the doctrine

13 of res judicata prohibits a second foreclosure lawsuit. Because we conclude that a

14 dismissal for lack of standing is not a ruling on the merits of the foreclosure action,

15 we affirm the district court’s amended order.

16 BACKGROUND

17   {2}   This case is before this Court a second time. The case initially came before us

18 for review of the district court’s summary judgment in favor of Plaintiff, The Bank of

19 New York Mellon f/k/a The Bank Of New York, Not In Its Individual Capacity But

20 Solely As Trustee For The Benefit Of The Certificate Holders Of The CWABS Inc.,

21 Asset-Backed Certificates, Series 2006-16. In the prior case, we held that Plaintiff

                                              2
 1 failed to establish standing to file a suit for foreclosure against Defendant at the time

 2 of the complaint and reversed and remanded to the district court. Bank of N.Y. Mellon

 3 v. Lopes, 2014-NMCA-097, ¶¶ 13-14, 336 P.3d 443.

 4   {3}   On remand, the district court initially dismissed the case with prejudice.

 5 Plaintiff filed a motion to reconsider, which the district court granted, thereby entering

 6 its amended order to dismiss without prejudice. Defendant appeals, raising a purely

 7 legal issue with this Court: Whether the dismissal of Plaintiff’s complaint should have

 8 been with prejudice.

 9 DISCUSSION

10 Res Judicata and Collateral Estoppel

11   {4}   Defendant argues that, because Plaintiff failed to produce evidence of its

12 standing in the present case over four years of litigation, the idea that it could do so

13 now “defies credulity” and it should be barred from doing so by the doctrine of res

14 judicata and the applicable statute of limitations. Whether Plaintiff could produce

15 evidence in a future case that would establish its standing as of the date of filing a

16 complaint in such future case is hypothetical and not presently before this Court. As

17 such, we decline to address it further. See City of Sunland Park v. Harris News, Inc.,

18 2005-NMCA-128, ¶ 50, 138 N.M. 588, 124 P.3d 566 (declining to answer a

19 hypothetical question because it would be tantamount to an advisory opinion).

20 Likewise, whether a cause of action brought in a future case may be barred by the

                                               3
 1 statute of limitations is hypothetical and not presently before this Court. We likewise

 2 decline to address it further. See id. We proceed to consider Defendant’s res judicata

 3 argument.

 4   {5}   Defendant argues that res judicata completely bars re-litigation of Plaintiff’s

 5 foreclosure action because a final decision was made on the standing issue and

 6 because the district court entered an order addressing the remainder of the

 7 merits—even though this Court stated that, “[b]ecause our disposition of the standing

 8 issue is dispositive, we do not reach the merits of the other issues.” See Lopes, 2014-

 9 NMCA-097, ¶ 5. Whether res judicata bars re-litigation of a foreclosure lawsuit that

10 has been dismissed for lack of standing was addressed by this Court recently in Bank

11 of New York as Trustee for Popular Financial Services Mortgage/Pass Through

12 Certificate Series #2006-D v. Romero, 2016-NMCA- ,           P.3d    (No. 34,426, July

13 28, 2016) (Romero II).

14   {6}   In Romero II, we explained that, while standing is one aspect of a foreclosure

15 claim, a dismissal based on lack of standing is not an adjudication on the merits of the

16 foreclosure claim such that future claims are precluded. Id. ¶ 22. Citing to our

17 Supreme Court’s recent opinion, Deutsche Bank National Trust Co. v. Johnston,

18 2016-NMSC-013, 369 P.3d 1046, as well as other states’ opinions, we concluded that,

19 when a party fails to prove standing, the proper remedy is dismissal without prejudice

20 or allowance of subsequent lawsuits. Romero II, 2016-NMCA- ¶¶ 17-22. The same

                                              4
 1 reasoning and holding applies to the present case. Because Plaintiff’s complaint was

 2 dismissed for lack of standing, a dismissal without prejudice was the appropriate

 3 remedy. See id.; see also Hope Cmty. Ditch Ass’n v. N.M. State Eng’r, 2005-NMCA-

 4 002, ¶ 10, 136 N.M. 761, 105 P.3d 314 (stating that a case that was dismissed for lack

 5 of standing was not dismissed on the merits, “and therefore the denomination ‘with

 6 prejudice’ in the order was incorrect”); Trujillo v. Acequia de Chamisal, 1968-

 7 NMCA-015, ¶¶ 10-13, 79 N.M. 39, 439 P.2d 557 (explaining that a case was not

 8 dismissed on the merits when it was dismissed for lack of standing and stating that a

 9 “dismissal . . . for want of capacity to sue . . . will not operate as a bar to the

10 subsequent suit where no disposition was had on the merits”).

11   {7}   In Romero II, we also noted that the doctrine of collateral estoppel—which

12 would bar the re-litigation of an ultimate fact or issue, such as standing, as opposed

13 to the entire claim, such as foreclosure—likewise does not bar a second foreclosure

14 action by the same plaintiff. See 2016-NMCA- , ¶¶ 23-24. We noted that ruling on

15 collateral estoppel at this point would, in fact, be premature because it is not yet

16 known whether the ultimate fact or issue may be supported by additional facts or legal

17 arguments. Id. ¶ 25. We further noted that other jurisdictions have found that litigation

18 of the issue of standing was not precluded by a negative standing ruling in the prior

19 case. Id. Again, the same reasoning would apply to the present case. To the extent

20 Defendant intended to argue that collateral estoppel bars the re-litigation of the

                                               5
 1 standing issue in a second case, the issue is premature because, as indicated above, the

 2 question of whether Plaintiff could produce evidence in a future case that would

 3 establish its standing as of the date of filing a complaint in such future case is

 4 hypothetical and not presently before this Court. See id.

 5 Judicial Notice

 6   {8}    Defendant asks that this Court to take judicial notice of certain alleged facts

 7 regarding Plaintiff’s actions after certain orders and/or opinions were entered. Such

 8 actions, however, do not impact our legal analysis and are not otherwise relevant to

 9 the present appeal. We therefore decline to take judicial notice of such facts.

10 Standing is Not a Jurisdictional Prerequisite

11   {9}    We finally note that the reasoning in Plaintiff’s answer brief relies on the

12 principle that standing is a jurisdictional prerequisite. Although this appeared to be the

13 law until very recently, in Johnston, our Supreme Court “clarif[ied] that standing is

14 not a jurisdictional prerequisite in mortgage foreclosure cases in New Mexico[.]”

15 2016-NMSC-013, ¶ 9. We note this for the parties’ benefit and information.

16 CONCLUSION

17   {10}   For the foregoing reasons, we affirm the district court’s amended order,

18 dismissing Plaintiff’s complaint without prejudice.

19   {11}   IT IS SO ORDERED.



                                               6
1
2                               MICHAEL D. BUSTAMANTE, Judge

3 WE CONCUR:


4 __________________________________
5 M. MONICA ZAMORA, Judge


6 __________________________________
7 STEPHEN G. FRENCH, Judge




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