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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 NEW MEXICO BANK & TRUST,
3 Plaintiff/Counterdefendant-Appellee,
4 v. No. A-1-CA-35486
5 DEL REANNE LUCAS,
6 Defendant/Counterclaimant-Appellant,
7 and
8 BERNALILLO COUNTY; 9 ERIK HIGLEY; PRIMROSE POINTE 10 HOMEOWNERS’ ASSOCIATION, INC.; 11 and TRISH THURSTON,
12 Defendants.
13 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 14 Nan G. Nash, District Judge
15 Jurgens & With, P.A. 16 James R. Jurgens 17 Santa Fe, NM
18 Keleher & McLeod, P.A. 19 Thomas C. Bird 20 Albuquerque, NM
21 for Appellee
1 Cravens Law LLC 2 Richard H. Cravens, IV 3 Albuquerque, NM
4 for Appellant
5 MEMORANDUM OPINION
6 VANZI, Judge.
7 {1} This appeal arises from an in rem foreclosure action commenced by Plaintiff
8 New Mexico Bank & Trust, successor-by-merger to Community Bank
9 (collectively, Bank), after Defendant-Appellant Del Reanne Lucas (Borrower)
10 failed to make payments on a home equity line of credit (HELOC). Borrower
11 appeals from the district court’s summary and default judgment, decree for
12 foreclosure and order of sale (Final Order), entered following the district court’s
13 order granting Bank’s summary-judgment motion and denying Borrower’s
14 summary-judgment motion. We affirm, although on grounds different from those
15 stated by the district court.
16 BACKGROUND
17 {2} Borrower represents the facts as undisputed. On January 19, 2010, Borrower
18 executed and delivered the HELOC at issue to Community Bank (a New Mexico-
19 chartered bank) in the original amount of $78,000, secured by a duly recorded
20 mortgage (Mortgage) creating a lien on property located at 8803 Primrose Court,
21 NE in Albuquerque (Property). The Mortgage is a valid lien on the Property. New
1 Mexico Bank & Trust, also a New Mexico-chartered bank, is the successor-by-
2 merger to Community Bank and the owner and holder of the HELOC and
3 Mortgage.
4 Borrower’s Bankruptcy Discharge
5 {3} On May 20, 2014, Borrower filed a voluntary Chapter 7 bankruptcy petition,
6 thereby staying “any act to create, perfect, or enforce against property of the debtor
7 any lien to the extent that such lien secures a claim that arose before the
8 commencement of the case under this title[.]” 11 U.S.C. § 362(a)(5) (2012).
9 Borrower’s Schedule D (Creditors Holding Secured Claims) listed the HELOC
10 debt in the amount of $76,100.
11 {4} On June 10, 2014, Bank’s counsel asked in an email to Borrower’s
12 bankruptcy counsel whether Borrower would “reaffirm the debt to [Bank]” and
13 whether Bank should “continue to send computer generated billing notices for the
14 payments due to the debtor, or [if counsel took] the position that the stay prohibits
15 it.” Borrower did not consent to Bank’s request. Borrower disputes that she herself
16 received the email or notice of the inquiry from her bankruptcy counsel.
17 {5} On August 28, 2014, the bankruptcy court issued an order discharging
18 Borrower’s debts pursuant to 11 U.S.C. § 727 (2012), including Borrower’s
19 personal (in personam) liability for the amount owed on the HELOC. A discharge
20 in bankruptcy “operates as an injunction against the commencement or
1 continuation of an action, the employment of process, or an act, to collect, recover
2 or offset any such debt as a personal liability of the debtor, whether or not
3 discharge of such debt is waived.” 11 U.S.C. § 524(a)(2) (2012). The discharge
4 injunction does not enjoin enforcement of a creditor’s lien against real property.
5 See, e.g., Johnson v. Home State Bank, 501 U.S. 78, 83-84 (1991) (explaining that
6 the bankruptcy discharge “extinguishes only the personal liability of the debtor”;
7 “the [Bankruptcy] Code provides that a creditor’s right to foreclose on the
8 mortgage survives or passes through the bankruptcy”; and “[e]ven after the
9 debtor’s personal obligations have been extinguished, the mortgage holder still
10 retains a right to payment in the form of its right to the proceeds from the sale of
11 the debtor’s property” (internal quotation marks and citation omitted)).
12 Bank’s Post-Discharge Foreclosure Action
13 {6} Borrower did not make the monthly HELOC payment due August 21, 2014,
14 and failed to make other monthly payments due thereafter. On January 22, 2015,
15 Bank filed a complaint for foreclosure (in rem), seeking to foreclose on the
16 Property. 1 In addition to allegations concerning Borrower’s default and Bank’s
17 right to foreclose, the complaint noted the bankruptcy discharge of Borrower’s in
18 personam liability on the HELOC. The complaint did not allege that Bank
19 provided notice to Borrower under New Mexico’s Home Loan Protection Act
1 The complaint named other defendants in addition to Borrower. We address only the issues pertinent to Bank and Borrower.
1 (HLPA), NMSA 1978, §§ 58-21A-1 to -14 (2003, as amended through 2009),
2 which provides, in pertinent part: “Before an action is filed to foreclose or collect
3 money due pursuant to a home loan or before other action is taken to seize or
4 transfer ownership of property subject to a home loan, the creditor or creditor’s
5 assignee of the loan shall deliver to the borrower a notice of the right to cure the
6 default informing the borrower of” certain information. Section 58-21A-6(A).
7 {7} Borrower’s answer to the complaint asserted several general affirmative
8 defenses, which did not include a defense based on HLPA, and reserved the right
9 to assert additional defenses. After Bank moved to compel discovery responses
10 from her, Borrower filed an “Objection to Written Discovery, Deposition, and
11 Motion for Protective Order,” arguing (among other things) that the HELOC debt
12 had been discharged in bankruptcy; Bank was the junior mortgage holder and had
13 failed to notify the senior mortgage holder of the foreclosure action; and Bank’s
14 discovery “furthers the abuse of process that started with the filing of a Complaint
15 without probable cause.” In a “Reply in Support of Her Objection,” Borrower also
16 asserted that she was not in default.
17 {8} Months later, on November 10, 2015, Borrower moved to vacate the district
18 court’s scheduling order and trial on the grounds that Bank “did not give Notice or
19 a chance to Cure before filing the Complaint”; Bank was “prohibited from filing
20 the Complaint in Foreclosure without giving Notice and the opportunity to Cure”
1 (citing Section 58-21A-6); and “[t]he violations of state law and covenant [of good
2 faith and fair dealing] require [Borrower] to seek leave of the Court to amend her
3 Answer and make Counterclaims.” In opposing Borrower’s motion, Bank stated
4 that Borrower “did not consent to reaffirming the debt or that [Bank] could
5 continue to send computer notices of payments due” and that, in answering the
6 foreclosure complaint, Borrower did not raise a HLPA-based defense or assert any
7 counterclaims. Bank argued that Borrower’s motion was untimely and that
8 amendment would be futile because, while “a post-discharge act to enforce a lien
9 against real property of a debtor (to collect a debt in rem), does not violate the
10 discharge injunction[,]” Bank “could not send an HLPA notice without violating
11 the discharge injunction and exposing itself to being held in contempt of court and
12 to damages[,]” and “[p]ursuant to the Supremacy Clause, [Bank]’s duty to obey
13 federal law overrides any state law duty to send a HLPA notice.” “If [Borrower] is
14 allowed to assert a counterclaim under the HLPA,” Bank argued, “she will be
15 asking th[e district c]ourt [to] hold [Bank] liable for not sending a notice that
16 would have exposed [Bank] to being held in contempt of the Bankruptcy Court.”
17 {9} On January 4, 2016, Bank moved to dismiss the foreclosure action without
18 prejudice, stating, “While [Bank] believes that an HLPA notice was preempted by
19 the discharge injunction, to avoid further unnecessary litigation on the issue [Bank]
20 will consent to dismissal of this case [to allow the Bank to provide the HLPA
1 Notice.]” The record contains no response to the motion from Borrower. On
2 January 5, 2016, Borrower moved to amend her answer and assert counterclaims,
3 arguing the same grounds stated in her earlier motion to vacate. In a January 20,
4 2016 order, the district court ruled that Bank’s motion to dismiss and Borrower’s
5 motion to amend were untimely, but granted Borrower’s motion for leave to amend
6 while denying her motion to vacate.
7 {10} The affirmative defenses asserted in Borrower’s amended answer, filed
8 January 22, 2016, include that Bank failed to comply with state and federal law in
9 seeking foreclosure and failed to comply with and violated HLPA, and that HLPA
10 notice and right to cure “is a mandatory condition precedent to commencing suit.”
11 The counterclaim alleged that Bank “was prohibited from filing the Complaint in
12 Foreclosure without giving Notice and the Right to Cure pursuant to [Section] 58-
13 21A-6(A)” and asserted entitlement to recover damages and attorney fees for
14 violations of HLPA, the Unfair Practices Act (UPA), NMSA 1978, §§ 57-12-1 to -
15 26 (1967, as amended through 2009), and the covenant of good faith and fair
16 dealing, and for malicious abuse of process and civil conspiracy.
17 Dispositive Motions
18 {11} On December 4, 2015, (before filing the amended answer and counterclaim)
19 Borrower moved for summary judgment on the foreclosure complaint, arguing that
20 Bank “is prohibited from filing the Complaint in Foreclosure without giving Notice
1 and the opportunity to Cure” (citing Section 58-21A-6); Bank’s failure “to give
2 Notice or a chance to Cure violates the covenant of good faith and fair dealing”;
3 and the filing of the foreclosure action without first providing notice and a cure
4 opportunity constitutes a violation of HLPA and a per se violation of the UPA.
5 Borrower also argued, relying exclusively on Bank of N.Y. v. Romero, 2014-
6 NMSC-007, 320 P.3d 1, that “HLPA is not preempted by federal law.”
7 {12} On December 10, 2015, Bank moved for summary judgment, arguing (as
8 relevant here) that it properly exercised its rights under the HELOC and Mortgage
9 by filing its complaint for “in rem foreclosure of the lien of the Mortgage as
10 against the Property”; and that it also was entitled to judgment as a matter of law
11 on Borrower’s affirmative defenses because (among other things) the Mortgage did
12 not require notice after default and Bank was prohibited from sending a HLPA
13 notice because “it would have violated the bankruptcy discharge injunction and
14 exposed [Bank] to being held in contempt of court and for damages.” Bank also
15 argued that “[p]ursuant to the Supremacy Clause, [Bank]’s duty to obey federal
16 law overrides any state law duty to send a HLPA notice.”
17 {13} In its December 22, 2015 opposition to Borrower’s summary-judgment
18 motion, Bank admitted it did not give Borrower notice of default before filing the
19 foreclosure complaint, but asserted that Borrower “refused to consent to the
20 continuation of payment notices and [Bank] was prohibited from sending a notice
1 to [Borrower] demanding payment by 11 U.S.C. § 542(a)(2) [(2012)].” Bank
2 argued (among other things) that Borrower’s lack-of-notice defense was barred by
3 equitable doctrines, and reiterated its arguments that the Mortgage did not require
4 notice after default and that Bank was prohibited from sending a HLPA notice
5 because, although “the injunction created by § 542(a) does not affect a creditor’s
6 lien against real property[,]” Bank could not comply with HLPA Section 58-21A-6
7 “without violating the discharge injunction and exposing itself to being held in
8 contempt of court and to damages.” Under the heading “Federal Preemption,”
9 Bank argued that it “could not obey the discharge injunction and comply with the
10 HLPA’s notice requirements” and “[t]he Bankruptcy Code preempts the HLPA[,]”
11 citing the Supremacy Clause and stating that “[c]onflict preemption occurs either
12 when compliance with both federal and state law is a physical impossibility or
13 when state law stands as an obstacle to the accomplishment and execution of the
14 full purposes and objectives of Congress.” Bank also argued that Romero, 2014-
15 NMSC-007, relied on by Borrower, did not control this case because Bank is a
16 state-chartered bank and Romero involved a nationally chartered bank and
17 addressed whether HLPA was preempted by federal law not at issue here—the
18 National Bank Act (NBA), the Dodd-Frank Act, and federal regulations governing
19 national banks.
1 {14} In its December 28, 2015 opposition to Bank’s summary-judgment motion,
2 Borrower admitted that Bank is a state-chartered bank. In reiterating her argument
3 that the filing of the foreclosure action without first providing notice and a cure
4 opportunity constitutes a violation of HLPA and a per se UPA violation, Borrower
5 asserted (citing no authority) that notice and opportunity to cure under HLPA
6 Section 58-21A-6 “is a statutory condition precedent to a foreclosure action in
7 New Mexico” and that failure to provide such notice and opportunity to cure is “a
8 clear violation of the [HLPA], which is a per se violation of the UPA.”
9 {15} In an order entered February 9, 2016, the district court denied Borrower’s
10 summary judgment motion and granted Bank’s summary judgment motion, ruling
11 that Bank was “entitled to summary judgment for in rem foreclosure of the lien of
12 the Mortgage as against the property” and “entitled to summary judgment on
13 [Borrower]’s affirmative defenses.” In so doing, the court noted that “[Bank]’s
14 failure to comply with HLPA is [Borrower]’s only real challenge to [Bank]’s
15 Complaint” and that Borrower’s challenges to Bank’s facts “failed to meet the
16 standard set forth in Rule 1-056(D)(2) [NMRA].” The court based its order on the
17 bankruptcy discharge injunction and conflict preemption, concluding that “the
18 bankruptcy discharge injunction prohibited [Bank] from sending a HLPA notice”;
19 “[t]he requirements of HLPA, requiring notice to the debtor prior to foreclosure
20 proceedings conflict with the federal bankruptcy discharge injunction” and,
1 therefore, Bank “could not give the required state HLPA notice while also
2 refraining from the facially impermissible actions with regard to the discharge
3 injunction”; and “Section 58-21A-6 is preempted by federal bankruptcy law.” In
4 reaching its conclusions, the district court rejected Borrower’s reliance on our
5 Supreme Court’s decision in Romero, reasoning that Romero was “based on the
6 analysis of the federal law at issue, which addressed national banks . . . not federal
7 bankruptcy law, as in the present matter” and that “[t]he Romero holding cannot
8 logically be understood as precluding a conclusion that unrelated federal laws do
9 not preempt HLPA.” The court did not address the other arguments raised in the
10 parties’ summary judgment motions.
11 Final Order, Notice of Appeal and Property Sale
12 {16} The district court issued its Final Order on March 1, 2016, holding (among
13 other things) that Bank was entitled to summary judgment on Borrower’s
14 affirmative defenses and counterclaim and ordered that Borrower’s affirmative
15 defenses and counterclaim be dismissed with prejudice. As in its earlier order on
16 the summary-judgment motions, the court concluded that “[t]he bankruptcy
17 discharge injunction prohibited [Bank] from sending a HLPA notice”; “[t]he
18 requirements of HLPA, requiring notice to the debtor prior to foreclosure
19 proceedings conflict with the federal bankruptcy discharge injunction” and,
20 therefore, Bank “could not give the required state HLPA notice while also
1 refraining from the facially impermissible actions with regard to the discharge
2 injunction”; and “Section 58-21A-6 [of the HLPA] is preempted by federal
3 bankruptcy law.”
4 {17} The Final Order also held that Bank “was entitled to accelerate all amounts
5 owed on the HELOC and foreclose the Mortgage in rem” and ordered that “[t]he
6 Mortgage is foreclosed and the Property shall be sold to satisfy the indebtedness
7 owed to [Bank] under the HELOC, free and clear of all right, title and interest of
8 all the defendants.” The Final Order included other rulings and orders concerning
9 the amount owed on the HELOC, attorney fees and costs, and matters related to the
10 sale of the Property, and also referenced the need for a subsequent order approving
11 the foreclosure sale.
12 {18} On March 10, 2016, after she filed her notice of appeal from the Final Order
13 on March 9, 2016, Borrower moved in the district court to stay the judgment
14 pending appeal, which relief Bank opposed unless Borrower posted a bond. On
15 April 14, 2016, the Special Master appointed to conduct the sale of the Property
16 filed a report describing the sale held April 13, 2016, at which the “[n]o objections
17 were raised by any party or person present to the conduct of the sale” and Bank
18 was the highest bidder. The proposed Special Master’s Deed, submitted with the
19 report for the district court’s approval, purported to convey the property “subject to
20 a first mortgage believed to be in favor of J.P. Morgan Chase and believed to be in
1 the approximate amount of $390,000.” The Special Master requested that “the
2 [district c]ourt approve and ratify his acts,” including the proposed “Special
3 Master’s Deed and costs of sale[.]” The record on appeal does not include an order
4 approving or confirming the sale or any filings challenging the sale.
5 DISCUSSION
6 {19} In ruling against Borrower and in favor of Bank, the district court recognized
7 that “[Bank]’s failure to comply with HLPA is [Borrower]’s only real challenge to
8 [Bank]’s Complaint” and that Borrower’s challenges to Bank’s facts “fail[ed] to
9 meet the standard set forth in Rule 1-056(D)(2).” But the court did not address
10 Borrower’s argument that notice and opportunity to cure under HLPA Section 58-
11 21A-6 “is a statutory condition precedent to a foreclosure action in New
12 Mexico[,]” resting its decision on the conclusions that “the bankruptcy discharge
13 injunction prohibited [Bank] from sending a HLPA notice”; “[t]he requirements of
14 HLPA, requiring notice to the debtor prior to foreclosure proceedings conflict with
15 the federal bankruptcy discharge injunction” and, therefore, Bank “could not give
16 the required state HLPA notice while also refraining from the facially
17 impermissible actions with regard to the discharge injunction”; and “Section 58-
18 21A-6 is preempted by federal bankruptcy law.” Even assuming, arguendo, that
19 the district court erred in these rulings, as Borrower contends, nothing in HLPA’s
20 text bars the filing and prosecution of an in rem foreclosure action.
1 {20} Because we conclude that entry of judgment in favor of Bank and against
2 Borrower is proper even if HLPA is not preempted, we affirm without ruling on
3 the preemption issue. See, e.g., Bd. of Cty. Comm’rs of v. Chavez, 2008-NMCA-
4 028, ¶ 12, 143 N.M. 543, 178 P.3d 828 (explaining that “the reviewing court is not
5 limited to the district court’s reasoning in affirming a grant of summary judgment”
6 and noting the well-established principle that “an appellate court will affirm the
7 district court if it is right for any reason and if affirmance is not unfair to the
8 appellant” (internal quotation marks and citations omitted)). Borrower’s contention
9 that the sale should be set aside is not properly before us, as the district court must
10 enter an order approving and confirming the Property sale and no such order is in
11 the record.
12 A. Standard of Review
13 {21} “Summary judgment is appropriate where there are no genuine issues of
14 material fact and the movant is entitled to judgment as a matter of law.” Self v.
15 United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. We
16 review questions of law de novo, including the question whether a party is entitled
17 to judgment as a matter of law, see id., and questions concerning statutory
18 construction and preemption, see also Baker v. Hedstrom, 2013-NMSC-043, ¶ 10,
19 309 P.3d 1047; Alliance Health of Santa Teresa, Inc. v. Nat’l Presto Indus., Inc.,
20 2005-NMCA-053, ¶ 25, 137 N.M. 537, 113 P.3d 360.
1 B. The District Court Did Not Err In Entering Judgment In Bank’s Favor, 2 Dismissing Borrower’s Affirmative Defenses and Counterclaim, and 3 Denying Borrower’s Summary Judgment Motion
4 1. Section 58-21A-6 Does Not Bar Bank’s Foreclosure Complaint
5 {22} HLPA Section 58-21A-6(A) provides:
6 A. Before an action is filed to foreclose or collect money 7 due pursuant to a home loan . . . the creditor or creditor’s assignee of 8 the loan shall deliver to the borrower a notice of the right to cure the 9 default informing the borrower of:
10 (1) the nature of the default; 11 12 (2) the borrower’s right to cure the default by paying 13 the sum of money required[;]
14 (3) the date by which the borrower may cure the 15 default to avoid a court action, acceleration and initiation of 16 foreclosure or other action to seize the property[;]
17 (4) that if the borrower does not cure the default by the 18 date specified, the creditor or assignee may file an action for money 19 due or take steps to terminate borrower’s ownership in the property by 20 requiring payment in full of the home loan and commencing a 21 foreclosure proceedings or other action to seize the property; and
22 (5) the name and address and telephone number of a 23 person whom the borrower may contact if the borrower disagrees with 24 the assertion that a default has occurred or the correctness of the 25 calculation of the amount required to cure the default.
26 {23} Borrower contends that “[p]roviding Notice and Right to Cure pursuant to
27 HLPA is a statutory condition precedent, without which suit may not be filed.”
28 Borrower cites no authority for this proposition, other than Section 58-21A-6(A).
29 She simply asserts that Bank “knew, or should have known, that controlling law
1 prohibited the foreclosure action without first giving Notice and the Right to Cure”
2 and that she “believes” that “providing HLPA Notice and the Right to Cure is a
3 statutory condition precedent to filing suit for foreclosure in New Mexico[.]”
4 Borrower has not shown that Bank’s failure to comply with the requirements of
5 Section 58-21A-6(A) barred Bank’s foreclosure action.
6 {24} When a statute contains language which is clear and unambiguous, courts
7 “must give effect to that language and refrain from further statutory
8 interpretation.” United Rentals Nw., Inc. v. Yearout Mech., Inc., 2010-NMSC-030,
9 ¶ 9, 148 N.M. 426 (internal quotation marks and citation omitted). Section 58-21A-
10 6(A) does state that a creditor “shall” inform a borrower of the right to cure before
11 filing its action. Section 58-21A-6(A). But nothing in Section 58-21A-6(A), or
12 elsewhere in the HLPA, provides that a creditor’s failure to comply with Section
13 58-21A-6(A) operates to deprive the creditor of its legal rights or deprive the
14 district court of jurisdiction over an in rem foreclosure action. And courts may not
15 “read into [a] statute language which is not there, [particularly if it] makes sense as
16 written.” Levario v. Ysidro Villareal Labor Agency, 1995-NMCA-133, ¶12, 120
17 N.M. 734 (internal quotation marks and citation omitted).
18 {25} Our Supreme Court has admonished, moreover, that courts must analyze a
19 “statute’s function within a comprehensive legislative scheme” and may not
20 consider subsections “in a vacuum[.]” State v. Rivera, 2004-NMSC-001, ¶ 13, 134
1 N.M. 768, 82 P.3d 939 (internal quotation marks and citation omitted). Subsection
2 E —within Section 58-21A-6 further undermines any argument that the Legislature
3 intended to condition the right to bring a foreclosure action (or jurisdiction over
4 such cases) on compliance with Subsection A’s notice requirement, making clear
5 that alleged violations of HLPA may be asserted as claims or defenses in a
6 foreclosure action. See § 58-21A-6(E) (stating that a creditor “that has the legal
7 right to foreclose shall, in a foreclosure, use the judicial foreclosure procedures
8 provided by law” and that the borrower may assert in such proceeding “the
9 nonexistence of a default and any other claim or defense to acceleration and
10 foreclosure, including any based on a violation of the [HLPA], though no such
11 claim or defense shall be deemed a compulsory counterclaim”).
12 {26} Other statutes contain clear language identifying bars to suit. See, e.g.,
13 NMSA 1978, § 41-4-16(B) (1977) (“No suit or action for which immunity has
14 been waived under the Tort Claims Act shall be maintained and no court shall have
15 jurisdiction to consider any suit or action against the state or any local public body
16 unless notice has been given as required by this section, or unless the governmental
17 entity had actual notice of the occurrence.”). Had the Legislature intended non-
18 compliance with Section 58-21A-6(A) to operate as a bar to the filing of a
19 foreclosure action, it would have said so. See State v. Greenwood, 2012-NMCA-
20 017, ¶ 38, 271 P.3d 753 (“The Legislature knows how to include language in a
1 statute if it so desires.”) (alteration, internal quotation marks, and citation omitted).
2 And it would not have stated in Section 58-21A-6(E) that alleged violations of
3 HLPA may be asserted as claims or defenses in a foreclosure action. See also
4 NMSA 1978, § 12-2A-19 (1997) (“The text of a statute or rule is the primary,
5 essential source of its meaning.”); N.M. Bd. of Veterinary Med. v. Riegger, 2007-
6 NMSC-044, ¶ 11, 142 N.M. 248, 164 P.3d 947 (“We will construe the entire
7 statute as a whole so that all the provisions will be considered in relation to one
8 another.” (internal quotation marks and citations omitted)).
9 {27} Based on the foregoing analysis, we conclude that Borrower’s “only real
10 challenge to [Bank]’s Complaint[,]” as the district court described it, fails as a
11 matter of law based on the text of Section 58-21A-6, upon which Borrower relies.
12 Because Borrower’s erroneous contention that compliance with Section 58-21A-6
13 is a “statutory condition precedent” to a foreclosure suit forms the basis for all
14 Borrower’s claims against Bank (e.g., UPA violation, breach of the covenant of
15 good faith and fair dealing, malicious abuse of process, conspiracy) those claims
16 too fail as a matter of law.
17 2. Borrower Has Not Challenged Any Material Facts Upon Which the 18 District Court Based its Rulings
19 {28} Summary judgment “shall be rendered forthwith if the pleadings,
20 depositions, answers to interrogatories and admissions on file, together with the
21 affidavits, if any, show that there is no genuine issue as to any material fact and
1 that the moving party is entitled to a judgment as a matter of law.” Rule 1-056(C).
2 The district court stated that Borrower’s challenges to Bank’s facts “failed to meet
3 the standard set forth in Rule 1-056(D)(2).” See id. (requiring party opposing
4 summary judgment to submit “a concise statement of the material facts as to which
5 the party contends a genuine issue does exist” and “shall refer with particularity to
6 those portions of the record upon which the opposing party relies”; providing that
7 “[a]ll material facts set forth in the statement of the moving party shall be deemed
8 admitted unless specifically controverted”); Rule 1-056(E) NMRA (“When a
9 motion for summary judgment is made and supported as provided in this rule, an
10 adverse party may not rest upon the mere allegations or denials of his pleading, but
11 his response, by affidavits or as otherwise provided in this rule, must set forth
12 specific facts showing that there is a genuine issue for trial. If he does not so
13 respond, summary judgment, if appropriate, shall be entered against him.”).
14 {29} On appeal, Borrower does not challenge any material facts upon which the
15 district court based its rulings. To the contrary, Borrower represents the facts as
16 undisputed. Accordingly, Borrower has not shown any error in the district court’s
17 entry of summary judgment in favor of Bank based upon the existence of a genuine
18 dispute of material fact requiring trial.
19 3. Borrower Has Not Shown Harm From Non-Compliance With Section 20 58- 21A-6(A)
1 {30} The HLPA provision authorizing civil actions gives standing to borrowers
2 “harmed by a violation of the [HLPA].” Section 58-21A-9. Although Borrower
3 asserts entitlement to recover damages and other relief for violations of HLPA, she
4 has not shown that she was “harmed” by Bank’s failure to comply with Section 58-
5 21A-6(A). See Horne v. Los Alamos Nat’l Sec., L.L.C., 2013-NMSC-004, ¶ 15,
6 296 P.3d 478 (explaining that “the party opposing summary judgment has the
7 burden to demonstrate the existence of specific evidentiary facts which would
8 require trial on the merits” and “may not simply argue that such evidentiary facts
9 might exist” or “rest upon the allegations of the complaint”) (alteration, internal
10 quotation marks, and citations omitted).
11 {31} For example, Borrower has not adduced evidence showing that she could or
12 would have cured the default had she been given notice and an opportunity to do
13 so, or that Bank’s foreclosure action deprived her of her right to cure. See § 58-
14 21A-6(B) (“[T]he borrower . . . may, at any time prior to the time the title is
15 transferred by means of foreclosure, by judicial proceeding and sale or otherwise,
16 cure the default and reinstate the home loan. Cure of the default shall reinstate the
17 borrower to the same position as if the default had not occurred and shall nullify,
18 as of the date of the cure, an acceleration of any obligation under the home loan
19 arising from the default.”); Plaza Nat. Bank. v. Valdez, 1987-NMSC-105, ¶ 12, 745
20 P.2d 372 (title transfers upon entry of order approving special master’s sale).
1 {32} Absent such evidence, Borrower’s counterclaim fails as a matter of law. To
2 the extent a showing of harm is required to establish standing to sue under HLPA,
3 the counterclaim fails for lack of jurisdiction. AFSCME v. Bd. of Cty. Comm’rs,
4 2016-NMSC-017, ¶ 14, 373 P.3d 989 (“If a statute creates a right and provides that
5 only a specific class of persons may petition for judicial review of an alleged
6 violation, then the courts lack the jurisdiction to adjudicate that alleged violation
7 when the petition is brought by a person outside of that class.”); Deutsche Bank
8 Nat’l Trust Co. v. Johnston, 2016-NMSC-013, ¶ 11, 369 P.3d 1046 (where “a
9 statute creates a cause of action and designates who may sue,” standing is “a
10 jurisdictional prerequisite to an action”); Disabled Am. Veterans v. Lakeside
11 Veterans Club, Inc., 2011-NMCA-099, ¶ 7, 150 N.M. 569, 263 P.3d 911 (“Our
12 [c]ourts have long recognized that when the issue of standing is considered
13 jurisdictional, it may not be waived and may be raised at any stage of the
14 proceedings, even sua sponte by the appellate court.”) (internal quotation marks
15 and citations omitted).
16 3. Borrower Has Not Properly Supported or Adequately Developed Any 17 Other Argument Requiring Reversal
18 {33} Borrower cites no facts or legal authority supporting any other claim
19 asserted in the counterclaim (e.g., UPA violation, breach of the covenant of good
20 faith and fair dealing, malicious abuse of process, conspiracy) and we decline to
21 consider them. See Santa Fe Exploration Co. v. Oil Conservation Comm’n, 1992-
1 NMSC-044, ¶ 11, 114 N.M. 103, 835 P.2d 819 (an appellate court will not review
2 issues raised in appellate briefs and unsupported by cited authority); Muse v. Muse,
3 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not search the
4 record for facts, arguments, and rulings in order to support generalized
5 arguments.”).
6 C. Remaining Issues
7 {34} It is understandable that the parties devote significant argument to the
8 district court’s conclusions that “the bankruptcy discharge injunction prohibited
9 [Bank] from sending a HLPA notice”; “[t]he requirements of HLPA, requiring
10 notice to the debtor prior to foreclosure proceedings conflict with the federal
11 bankruptcy discharge injunction” and, therefore, Bank “could not give the required
12 state HLPA notice while also refraining from the facially impermissible actions
13 with regard to the discharge injunction”; and “Section 58-21A-6 is preempted by
14 federal bankruptcy law.” As noted, however, even assuming that the district court
15 erred in reaching these conclusions, entry of judgment in favor of Bank and against
16 Borrower is nonetheless correct. Accordingly, we may affirm without reaching the
17 issues of the discharge injunction and preemption. See Bd. of Cty. Comm’rs, 2008-
18 NMCA-028, ¶ 12.
19 {35} Finally, because the district court must enter an order approving and
20 confirming the Property sale and no such order is in the record, Borrower’s
1 contention that the sale should be set aside is not properly before us. See Speckner
2 v. Riebold, 1974-NMSC-029, ¶ 9, 86 N.M. 275, 523 P.2d 10 (“That part of the
3 decree of foreclosure that directs the manner and terms of the sale of the
4 mortgaged property does not become a final judgment until the judicial
5 confirmation of the sale, whereupon it becomes final.”); see also Kelly Inn No.
6 102, Inc. v. Kapnison, 1992-NMSC-005, ¶ 17, 113 N.M. 231, 824 P.2d 1033.
7 CONCLUSION
8 {36} We affirm the district court’s judgment.
9 {37} IT IS SO ORDERED.
10 11 LINDA M. VANZI, Judge
12 WE CONCUR:
13 14 JULIE J. VARGAS, Judge
15 16 JACQUELINE R. MEDINA, Judge