The recent New Mexico Court of Appeals decision in the foreclosure action of Fannie Mae v. Trissell serves as a timely reminder that summary judgments – generally regarded as a favored tool of defendants – can be used just as effectively by plaintiffs in relatively early stages of litigation, when the available evidence permits.

More specifically, the Trissell opinion holds that a plaintiff seeking summary judgment need not make evidentiary showings regarding each and every one of an opponent’s affirmative defenses in order meet the summary judgment burdens imposed by NMRA 1-056 – that once a plaintiff has made a summary judgment showing regarding the elements of the plaintiff’s own cause of action, that the burden must shift to the defendant to support its own affirmative defenses. In reaching this decision, the Trissell opinion acknowledged an apparently contrary prior New Mexico Supreme Court ruling in Fidelity National Bank v. Tommy L. Goff, Inc., 1978-NMSC-074 – but also noted that several more recent New Mexico Supreme Court opinions seemed to overrule the rule from Goff without stating so explicitly. 

The Court’s adherence to the rule drawn from these more recent Supreme Court opinions drew a dissent from Judge Jane Yohalem, who noted that she was not persuaded on the merits that the rule from Goff should be overturned. Judge Yohalem drew particular attention to the facts of Trissell as a foreclosure action, writing that “the rule adopted by our Supreme Court in Goff has proved to have special importance in cases brought by large financial institutions against consumers, homeowners, and tenants” – cases where the evidence to support a defendant’s affirmative defense(s) may itself exist solely in the archives of the plaintiff financial institution. 

If the Trissell opinion is appealed and the New Mexico Supreme Court grants cert, it will be interesting to see how Judge Yohalem’s policy argument – and the relatively unique inversion of information superiority and power dynamics in foreclosure actions – factors into the Supreme Court’s analysis of this interesting question.