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Ray
Ray, Lawyer
Category: Real Estate Law
Satisfied Customers: 37687
Experience:  Texas Attorney for 30 years dealing in real estate
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What does it mean in the Complaint for Foreclosure -

Customer Question

What does it mean in the Complaint for Foreclosure - Plaintiff "is authorized to bring this action in the State of New Mexico by Section 42-6-1 NMSA 1978"?
JA: What is the status of any foreclosure proceedings?
Customer: So far, my atty answered, then case dismissed for lack of prosecution, then reinstated...now I want to amend my answer, pro se and my question regards ***** ***** allegation in the complaint
JA: Because laws vary based on location, where is the property located?
Customer: in Albuquerque, New Mexico - County of Bernalillo
JA: Anything else you want the lawyer to know before I connect you?
Customer: Yes. can i file an amended answer at this point or do i file "motion for leave to amend the answer?
Submitted: 1 month ago.
Category: Real Estate Law
Expert:  Phillips Esq. replied 1 month ago.

Hello: This is Phillipsesq. Welcome to JustAnswer! I am reviewing your post, and I will post my response very shortly. Thank you for your patience.

Expert:  Phillips Esq. replied 1 month ago.

I am sorry t read about your difficulty.

Your Questions:

What does it mean in the Complaint for Foreclosure - Plaintiff "is authorized to bring this action in the State of New Mexico by Section 42-6-1 NMSA 1978"

Response 1: That is the Statute that gives the lender the authority to proceed with the foreclosure of the property after the default of the borrower.

can i file an amended answer at this point or do i file "motion for leave to amend the answer?

Response 2: You have to file Motion for leave to amend the answer if the other side has responded to your answer. Otherwise, you can go ahead and amend your answer without first seeking leave of the Court to amend.

Goodluck with your case,

Customer: replied 1 month ago.
Is the Plaintiff using this Statute as a way of "bypassing" an issue of "standing" if I were to find out that the Plaintiff "sold" them during the time the case was dismissed and reinstated. (I actually have the that note and mortgage instrument; those were never signed; they were amended. I have the unsigned documents because I refused to return them.)
Expert:  Phillips Esq. replied 1 month ago.

I am not sure what the Plaintiff's intent is. However, if the the Plaintiff does not have the standing--the legal capacity to bring the lawsuit, then the Plaintiff's citing that particular statute would not cure that defect. The Plaintiff's legal capacity--standing to bring the lawsuit must still be challenged.

Customer: replied 1 month ago.
That is my understanding until I read that Statute... I am confused where it states: "may be brought by anyone having or claiming an interest therein, or by the holder of any mortgage...in an action brought to foreclose the said mortgage..." First, I thought that to bring an action of foreclosure, the Plaintiff has to have the original note too, not just the mortgage instrument. Second, how can just "anyone" having a claim or interest bring an action of foreclosure without the note and the mortgage (as it states in that Statute)? And, no, the Plaintiff never responded to the Answer in the case.
Expert:  Phillips Esq. replied 1 month ago.

I have no additional information to provide on the subject. So, I will opt out to give another Attorney the opportunity to further assist you.

Customer: replied 1 month ago.
I apologize for the previous response. I misread a word in the Statute. I get it; the Plaintiff isn't authorized by the Statute to bring the foreclosure action if they do not have the standing to bring the action first. Thank you for clearing this up for me.
Expert:  Ray replied 1 month ago.

Ray here anew expert.Just wanted t make sure you got all your questions answered here.

It is correct that plaintiff has to show that the plaintiff has to show standing to then file foreclosure action.

Thanks again.

If you can positive rate 5 stars when we are done it is always much appreciated.

Expert:  Ray replied 1 month ago.

And the plaintiff here doesn't necessarily respond to your answer.Everything is considered in dispute and the case would move through discovery and toward trial.

Thanks again.

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