U.S. Bank National Association v. Moralez

• Court: New Mexico Court of Appeals
• Decided: April 27, 2016
• Docket: 34,946
• Status: Unpublished

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

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

2 U.S. BANK NATIONAL ASSOCIATION,

3 Plaintiff-Appellee,

4 v. NO. 34,946

5 THOMAS R. MORALEZ, and if 6 married, JANE DOE MORALEZ 7 (true name unknown), his spouse,

8 Defendants-Appellants.

9 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 10 C. Shannon Bacon, District Judge

11 Little, Bradley & Nesbitt, P.A. 12 Sandra A. Brown 13 Albuquerque, NM

14 for Appellee

15 JRSPC, LLC 16 Joshua R. Simms 17 Albuquerque, NM

18 for Appellants

19 MEMORANDUM OPINION

20 KENNEDY, Judge. 1 {1} Appellant Thomas Moralez (Appellant) seeks to appeal from an order denying

2 his motion to vacate a foreclosure sale and declare the default judgment against him

3 void for lack of jurisdiction. [DS 2; RP 140] In this Court’s notice of proposed

4 disposition, we proposed to dismiss based on an untimely notice of appeal. [CN 1]

5 Appellant filed a memorandum in opposition, which we have duly considered.

6 Remaining unpersuaded, we dismiss.

7 {2} As we stated in our proposed disposition, the timely filing of a notice of appeal

8 in the district court is a mandatory precondition to our jurisdiction over an appeal. See

9 Govich v. N. Am. Sys., Inc., 1991-NMSC-061, ¶ 12, 112 N.M. 226, 814 P.2d 94

10 (explaining that time and place of filing notice of appeal is a mandatory precondition

11 to appellate jurisdiction). [CN 2] Appellant has not pointed to any facts or law

12 demonstrating his notice of appeal was timely filed. Hennessy v. Duryea,

13 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly

14 held that, in summary calendar cases, the burden is on the party opposing the proposed

15 disposition to clearly point out errors in fact or law.”). Nor has Appellant

16 demonstrated any unusual circumstances beyond his control that would allow this

17 Court to exercise its discretion to consider the appeal. See Trujillo v. Serrano, 1994-

18 NMSC-024, ¶ 15, 117 N.M. 273, 871 P.2d 369 (stating this Court may exercise its

2 1 discretion to consider an untimely appeal in the event of unusual circumstances

2 beyond the control of a party).

3 {3} Appellant instead argues a judgment may be challenged as void at any time.

4 [MIO 2] In support of this assertion, Appellant cites to Heckathorn v. Heckathorn,

5 1967-NMSC-017, ¶ 15, 77 N.M. 369, 423 P.2d 410 (stating “[t]here is no time

6 limitation on asserting that the judgment is void.”), and Phoenix Funding, LLC v.

7 Aurora Loan Services, LLC, 2016-NMCA-010, ¶ 10, 365 P.3d 8 (citing Heckathorn

8 for the same proposition), cert. granted, 2015-NMCERT-001, ___ P.3d ___ (No.

9 35,512, Jan. 19, 2016). We note the propositions to which Appellant cites relate to

10 collateral challenges to judgments in district court, not the exercise of appellate

11 jurisdiction to review a judgment challenged as void. See Heckathorn, 1967-NMSC-

12 017, ¶¶ 4, 15; Phoenix Funding, LLC, 2016-NMCA-010, ¶ 4. Thus, Appellant’s

13 argument is unavailing. Accordingly, we dismiss.

14 {4} IT IS SO ORDERED.

15 _______________________________ 16 RODERICK T. KENNEDY, Judge

17 WE CONCUR:

3 1 ___________________________________ 2 JAMES J. WECHSLER, Judge

3 _________________________________ 4 TIMOTHY L. GARCIA, Judge