Nat'l City Bank v. Morrow

• Court: New Mexico Court of Appeals
• Decided: December 2, 2009
• Docket: 29,658
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.

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

7 NATIONAL CITY BANK,

8 Plaintiff-Appellee,

9 v. NO. 29,658

10 BOB MORROW, 11 MARLENE MORROW,

12 Defendants-Appellants.

13 APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY 14 Sam B. Sanchez, District Judge

15 Susan C. Little & Associates, P.A. 16 Karen Howden Weaver 17 Albuquerque, NM

18 for Appellee

19 Carol A. Neelley, P.C. 20 Carol A. Neelley 21 Taos, NM

22 for Appellants

23 MEMORANDUM OPINION 1 WECHSLER, Judge.

2 Defendants appeal the denial of their motion to set aside the default judgment

3 entered in this foreclosure action. We issued a calendar notice proposing to affirm the

4 district court’s decision. In response, Defendants have filed a memorandum in

5 opposition. After careful consideration of Defendants’ arguments, we affirm the

6 decision of the district court.

7 Defendants continue to claim that they were not provided with proper notice of

8 the foreclosure action, and therefore the district court erred in entering default

9 judgment in favor of Plaintiff. As discussed in our calendar notice, the evidence

10 presented to the district court shows that Plaintiff made great efforts to provide notice

11 to Defendants. Those efforts included research on the internet, searches of motor

12 vehicle and court records, credit report searches, inquiries with the post office, visits

13 to the property, visits to an apartment complex where one Defendant was believed to

14 reside, visits to the other Defendant’s place of employment, telephone calls, notice by

15 mail to the property, interviews with neighbors, posting notice at the property, and

16 publication in “a newspaper of general circulation in the county in which the action

17 was pending.” [MIO 4, fn 1] See NMSA 1978, § 39-5-1 (1895) (describing notice

18 requirements for foreclosure sales, including providing notice in county where

2 1 property “is situate”).

2 Attached to Plaintiff’s response to Defendants’ petition are a number of

3 documents, including requests for information, internal memoranda, and affidavits,

4 that refer to efforts made to provide notice to Defendants. Defendants challenge the

5 validity of these documents, claiming that the affidavits contain hearsay and the

6 documents were not authenticated. Defendants claim that the evidence was not

7 introduced at the hearing on their petition to set aside the default judgment, and they

8 had no opportunity to refute the information contained in the documents. Although

9 Defendants’ claim they had no opportunity to challenge the documents attached to

10 Plaintiff’s response, the response was filed over three weeks prior to the hearing on

11 the petition to set aside the default judgment. Nothing in the tape log shows that

12 Defendants objected to or moved to strike the attachments to the response or

13 attempted to present evidence to refute the information contained in the attachments.

14 We hold that this claim was not properly preserved for purposes of appeal. See

15 Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 56, 146

16 N.M. 853, 215 P.3d 791 (stating that a timely and specific objection must be made to

17 apprise the district court of the nature of the claimed error, provide an opportunity for

18 the opposing party to respond, allow the district court to make an intelligent ruling on

3 1 the claim, and create a record for appeal).

2 Defendants claim that they had a meritorious defense because they had “a right

3 to reinstate and a right of redemption.” [MIO 6] Defendants cite to no authority to

4 support their claim that the right to reinstate or the right to redeem qualifies as a

5 meritorious defense to foreclosure. In fact, a right to redemption arises after a decree

6 of foreclosure on property is entered and provides a debtor one last opportunity to

7 reclaim the property. See NMSA 1978, § 39-5-18(A) (2007). Based on the statute,

8 a right to redemption is not a defense to the foreclosure itself, but only arises after the

9 foreclosure is completed. We will not consider propositions that are unsupported by

10 citation to authority. See ITT Educ. Servs., Inc. v. Taxation & Revenue Dep’t, 1998-

11 NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d 969. Therefore, we will not consider this

12 argument.

13 Defendants claim that they did not need to set forth a meritorious defense

14 because, where proper notice of the foreclosure action was not provided to them, the

15 default judgment was “constitutionally infirm.” [MIO 6] In support of their

16 argument, Defendants cite to Capco Acquisub, Inc. v. Greka Energy Corp., 2008-

17 NMCA-153, 145 N.M. 328, 198 P.3d 354, which cites to a United States Supreme

18 Court case that originated in Texas. We note that the discussion in Capco concerned

4 1 a rule governing amendment of pleadings, id. ¶ 41, and not a foreclosure action, and

2 the Supreme Court case applied Texas law. See Peralta v. Heights Med. Ctr., Inc.,

3 485 U.S. 80, 86 (1988). Those cases do not support Defendants’ claim that they were

4 not required to set forth a meritorious defense in this case. Our case law requires that,

5 for relief under Rule 1-060(B) NMRA, a party petitioning to set aside a default

6 judgment must show grounds for vacating the judgment and a meritorious defense.

7 Resolution Trust Corp. v. Ferri, 120 N.M. 320, 323, 901 P.2d 738, 741 (1995).

8 Moreover, as discussed above and contrary to Defendants’ claim that there had been

9 no service of process, Plaintiff made every effort to provide notice to Defendants even

10 though, as the district court stated, Defendants avoided contact with Plaintiff. [RP

11 154] We reject Defendants’ argument that notice of the foreclosure action was not

12 sufficient.

13 For the reasons discussed herein and in our calendar notice, we hold that the

14 district court did not abuse its discretion in denying Defendants’ petition to set aside

15 the default judgment in this case.

16 IT IS SO ORDERED.

17 _______________________________ 18 JAMES J. WECHSLER, Judge

5 1 WE CONCUR:

2 ____________________________ 3 JONATHAN B. SUTIN, Judge

4 _____________________________ 5 ROBERT E. ROBLES, Judge