This memorandum opinion was not selected for publication in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 VANDERBILT MORTGAGE 3 AND FINANCE, INC.,
4 Plaintiff-Appellee,
5 v. NO. 31,424
6 LUCY ABERCROMBIE 7 AND PAUL ABERCROMBIE,
8 Defendants-Appellants,
9 v.
10 PAULA VALDEZ AND ALL 11 OCCUPANTS OF THE 1997 12 FLEETWOOD MANUFACTURED HOME,
13 Defendants.
14 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY 15 Sheri A. Raphaelson , District Judge
16 Craddock Davis & Krause LLP 17 Michael J. Craddock 18 Dallas, TX
19 Craddock Davis & Krause LLP 20 Susan P. Crawford 21 Santa Fe, NM 1 for Appellee
2 Paul Abercrombie 3 Lucy Abercrombie 4 Velarde, NM
5 for Appellant
6 MEMORANDUM OPINION
7 WECHSLER, Judge.
8 Pro se Appellants Lucy and Paul Abercrombie (Defendants) appeal from
9 proceedings in D-0117-CV-200900594 (Case #1) and D-0117-CV-201100020 (Case
10 #2). [Case #1 RP 70; Case #2 RP 139] Our notice proposed to dismiss in part for lack
11 of a final order (with regard to the outstanding cross-claim by Defendants against co-
12 defendant Paula Valdez in Case #1) and to affirm in part (with regard to all
13 proceedings between Defendants and Appellee Plaintiff Vanderbilt Mortgage in Case
14 #1 and Case #2). Vanderbilt Mortgage filed a response indicating that it concurs with
15 the notice’s proposed disposition. Defendants filed a memorandum in opposition,
16 wherein they (1) agree that there is a lack of a final order with regard to their
17 outstanding cross-claim against co-defendant Paula Valdez in Case #1 [MIO 2] but
18 (2) disagree with the proposed affirmance on the merits for the district court’s refusal
19 to set aside the default judgment in Case #2 and for its dismissal of Defendants’
2 1 counterclaim against Vanderbilt Mortgage in Case #1. [MIO 2-6] Having considered
2 the parties’ respective positions, we dismiss in part for lack of a final order for
3 Defendants’ cross-claim against Paula Valdez in Case #1. We affirm in part for all
4 proceedings in Case #2, as well as those in Case #1 that relate to the dismissal of
5 Defendants’ counterclaim against Vanderbilt Mortgage, as it is effectively moot given
6 the Case #2 proceedings.
7 We address first Defendants’ cross-claim against co-defendant Valdez in Case
8 #1. [Case #1 RP 29] As addressed in our notice, Defendants’ notice of appeal [Case
9 #1 RP 70] was prematurely filed before the district court ruled on their motion to
10 reconsider the dismissal of the cross-claim. [Case #1 RP 29, 49, 51, 58, 60, 66] See
11 Grygorwicz v. Trujillo, 2009-NMSC-009, ¶ 8, 145 N.M. 650, 203 P.3d 865
12 (explaining that, if a party makes a post-judgment motion directed at the final
13 judgment pursuant to Section 39-1-1 the time for filing an appeal does not begin to
14 run until the district court enters an express disposition on that motion). We
15 accordingly dismiss for lack of a final order with regard to Defendants’ cross-claim
16 against co-defendant Paula Valdez in Case #1.
17 We next address the remaining proceedings between Defendants and Plaintiff,
18 in both Case #1 and Case #2. As fully explained in our notice, the post-judgment writ
19 of possession entered in Case #2 [Case #2 RP 112, 126] is a final judgment that
3 1 resolves the dispute between Defendants and Vanderbilt Mortgage regarding the
2 ownership of the disputed property in both Case #1 and Case #2. The post-judgment
3 writ of possession is the consequence of the default judgment against Defendants.
4 [Case #2 RP 68, 126] Defendants continue to argue that the district court erred in
5 denying their motion to set aside the default judgment. [Case #2 RP 70] We review
6 the district court’s denial of Defendant’s motion to set aside the default judgment for
7 abuse of discretion. See Ortiz v. Shaw, 2008-NMCA-136, ¶ 12, 145 N.M. 58, 193
8 P.3d 605.
9 Defendants continue to argue that the default judgment against them should be
10 set aside based on Vanderbilt Mortgage’s alleged failure to properly serve the
11 summons and complaint. [MIO 4-5] See generally Ortiz, 2008-NMCA-136, ¶ 17
12 (holding that a default judgment entered in the absence of proper service or waiver of
13 service is invalid and should be set aside). We recognize that the pleadings below
14 reflect discrepancies in Defendants’ listed address. [Case #2 RP 23, 27, 70; MIO 4]
15 Despite these apparent typographical errors, however, our review provides that
16 Defendants were in fact properly served with a copy of the summons and complaint
17 at their correct address. To this end, Vanderbilt Mortgage’s motion for alternate
18 service [Case #2 RP 35] provides that the process server made three attempts of
19 personal service of the complaint at Defendants’ last known residential address, as
4 1 provided in the process server’s attached affidavit of attempted service. [Case #2 RP
2 35, 38] Such affidavit of attempted service specifically recites that the service
3 attempts were made at the correct address as recognized by Defendants. [Case #2 RP
4 38, 70] Moreover, the district court granted Vanderbilt Mortgage’s motion for
5 alternate service [Case #2 RP 42], and the record provides that the alternate service
6 was made, by posting the summons and complaint on Defendants’ front door [Case
7 #2 RP 58] at the correct address as recognized by Defendants. [Case #2 RP 70]
8 Given that the process server’s affidavits provide that service of process was made at
9 Defendant’s correct address [Case #2 RP 38, 58, 70], and for reasons extensively
10 detailed in the notice, we conclude that Defendants were afforded proper service of
11 process.
12 Despite the foregoing, we recognize Defendants’ assertion that there are
13 discrepancies as to the person who signed the affidavits as the process server [MIO
14 5], as support for their view that the process server’s statements were forged or
15 fraudulent. [Case #2 RP 117; DS 3-4; MIO 5] However, it was within the district
16 court’s prerogative to consider the sworn statement of the process server as set forth
17 in her affidavit of attempted service [Case #2 RP 38], as well as the process server’s
18 affidavit for alternate service [Case #2 RP 65-66, 104], and conclude otherwise. See
19 Tanuz v. Carlberg, 1996-NMCA-076, ¶ 7, 122 N.M. 113, 921 P.2d 309 (recognizing
5 1 that the reviewing court neither weighs conflicts in evidence nor determines credibility
2 of witnesses). We further disagree with Defendants’ assertion that Vanderbilt
3 Mortgage, in addition to personal service, was required to serve Defendants by mail.
4 [MIO 5] Rule 1-004(E)(1) NMRA provides “Process shall be served in a manner
5 reasonably calculated, under all the circumstances, to apprise the defendant of the
6 existence and pendency of the action and to afford a reasonable opportunity to appear
7 and defend.” While service by mail is an option, see Rule 1-004(E)(3), it is not
8 required.
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This memorandum opinion was not selected for publication in the New Mexico 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 VANDERBILT MORTGAGE 3 AND FINANCE, INC.,
4 Plaintiff-Appellee,
5 v. NO. 31,424
6 LUCY ABERCROMBIE 7 AND PAUL ABERCROMBIE,
8 Defendants-Appellants,
9 v.
10 PAULA VALDEZ AND ALL 11 OCCUPANTS OF THE 1997 12 FLEETWOOD MANUFACTURED HOME,
13 Defendants.
14 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY 15 Sheri A. Raphaelson , District Judge
16 Craddock Davis & Krause LLP 17 Michael J. Craddock 18 Dallas, TX
19 Craddock Davis & Krause LLP 20 Susan P. Crawford 21 Santa Fe, NM 1 for Appellee
2 Paul Abercrombie 3 Lucy Abercrombie 4 Velarde, NM
5 for Appellant
6 MEMORANDUM OPINION
7 WECHSLER, Judge.
8 Pro se Appellants Lucy and Paul Abercrombie (Defendants) appeal from
9 proceedings in D-0117-CV-200900594 (Case #1) and D-0117-CV-201100020 (Case
10 #2). [Case #1 RP 70; Case #2 RP 139] Our notice proposed to dismiss in part for lack
11 of a final order (with regard to the outstanding cross-claim by Defendants against co-
12 defendant Paula Valdez in Case #1) and to affirm in part (with regard to all
13 proceedings between Defendants and Appellee Plaintiff Vanderbilt Mortgage in Case
14 #1 and Case #2). Vanderbilt Mortgage filed a response indicating that it concurs with
15 the notice’s proposed disposition. Defendants filed a memorandum in opposition,
16 wherein they (1) agree that there is a lack of a final order with regard to their
17 outstanding cross-claim against co-defendant Paula Valdez in Case #1 [MIO 2] but
18 (2) disagree with the proposed affirmance on the merits for the district court’s refusal
19 to set aside the default judgment in Case #2 and for its dismissal of Defendants’
2 1 counterclaim against Vanderbilt Mortgage in Case #1. [MIO 2-6] Having considered
2 the parties’ respective positions, we dismiss in part for lack of a final order for
3 Defendants’ cross-claim against Paula Valdez in Case #1. We affirm in part for all
4 proceedings in Case #2, as well as those in Case #1 that relate to the dismissal of
5 Defendants’ counterclaim against Vanderbilt Mortgage, as it is effectively moot given
6 the Case #2 proceedings.
7 We address first Defendants’ cross-claim against co-defendant Valdez in Case
8 #1. [Case #1 RP 29] As addressed in our notice, Defendants’ notice of appeal [Case
9 #1 RP 70] was prematurely filed before the district court ruled on their motion to
10 reconsider the dismissal of the cross-claim. [Case #1 RP 29, 49, 51, 58, 60, 66] See
11 Grygorwicz v. Trujillo, 2009-NMSC-009, ¶ 8, 145 N.M. 650, 203 P.3d 865
12 (explaining that, if a party makes a post-judgment motion directed at the final
13 judgment pursuant to Section 39-1-1 the time for filing an appeal does not begin to
14 run until the district court enters an express disposition on that motion). We
15 accordingly dismiss for lack of a final order with regard to Defendants’ cross-claim
16 against co-defendant Paula Valdez in Case #1.
17 We next address the remaining proceedings between Defendants and Plaintiff,
18 in both Case #1 and Case #2. As fully explained in our notice, the post-judgment writ
19 of possession entered in Case #2 [Case #2 RP 112, 126] is a final judgment that
3 1 resolves the dispute between Defendants and Vanderbilt Mortgage regarding the
2 ownership of the disputed property in both Case #1 and Case #2. The post-judgment
3 writ of possession is the consequence of the default judgment against Defendants.
4 [Case #2 RP 68, 126] Defendants continue to argue that the district court erred in
5 denying their motion to set aside the default judgment. [Case #2 RP 70] We review
6 the district court’s denial of Defendant’s motion to set aside the default judgment for
7 abuse of discretion. See Ortiz v. Shaw, 2008-NMCA-136, ¶ 12, 145 N.M. 58, 193
8 P.3d 605.
9 Defendants continue to argue that the default judgment against them should be
10 set aside based on Vanderbilt Mortgage’s alleged failure to properly serve the
11 summons and complaint. [MIO 4-5] See generally Ortiz, 2008-NMCA-136, ¶ 17
12 (holding that a default judgment entered in the absence of proper service or waiver of
13 service is invalid and should be set aside). We recognize that the pleadings below
14 reflect discrepancies in Defendants’ listed address. [Case #2 RP 23, 27, 70; MIO 4]
15 Despite these apparent typographical errors, however, our review provides that
16 Defendants were in fact properly served with a copy of the summons and complaint
17 at their correct address. To this end, Vanderbilt Mortgage’s motion for alternate
18 service [Case #2 RP 35] provides that the process server made three attempts of
19 personal service of the complaint at Defendants’ last known residential address, as
4 1 provided in the process server’s attached affidavit of attempted service. [Case #2 RP
2 35, 38] Such affidavit of attempted service specifically recites that the service
3 attempts were made at the correct address as recognized by Defendants. [Case #2 RP
4 38, 70] Moreover, the district court granted Vanderbilt Mortgage’s motion for
5 alternate service [Case #2 RP 42], and the record provides that the alternate service
6 was made, by posting the summons and complaint on Defendants’ front door [Case
7 #2 RP 58] at the correct address as recognized by Defendants. [Case #2 RP 70]
8 Given that the process server’s affidavits provide that service of process was made at
9 Defendant’s correct address [Case #2 RP 38, 58, 70], and for reasons extensively
10 detailed in the notice, we conclude that Defendants were afforded proper service of
11 process.
12 Despite the foregoing, we recognize Defendants’ assertion that there are
13 discrepancies as to the person who signed the affidavits as the process server [MIO
14 5], as support for their view that the process server’s statements were forged or
15 fraudulent. [Case #2 RP 117; DS 3-4; MIO 5] However, it was within the district
16 court’s prerogative to consider the sworn statement of the process server as set forth
17 in her affidavit of attempted service [Case #2 RP 38], as well as the process server’s
18 affidavit for alternate service [Case #2 RP 65-66, 104], and conclude otherwise. See
19 Tanuz v. Carlberg, 1996-NMCA-076, ¶ 7, 122 N.M. 113, 921 P.2d 309 (recognizing
5 1 that the reviewing court neither weighs conflicts in evidence nor determines credibility
2 of witnesses). We further disagree with Defendants’ assertion that Vanderbilt
3 Mortgage, in addition to personal service, was required to serve Defendants by mail.
4 [MIO 5] Rule 1-004(E)(1) NMRA provides “Process shall be served in a manner
5 reasonably calculated, under all the circumstances, to apprise the defendant of the
6 existence and pendency of the action and to afford a reasonable opportunity to appear
7 and defend.” While service by mail is an option, see Rule 1-004(E)(3), it is not
8 required.
9 Moreover, apart from Defendants’ failure to show adequate grounds for
10 vacating the default judgment, Defendants also failed to provide a meritorious defense
11 to the default judgment. See Rodriguez v. Conant, 105 N.M. 746, 749, 737 P.2d 527,
12 530 (1987) (“A party seeking relief from a default judgment must show the existence
13 of grounds for opening or vacating the judgment and a meritorious defense or cause
14 of action.”). We recognize Defendants’ analogy to an artisan’s and mechanic’s lien,
15 and their view that Vanderbilt Mortgage must pay them for the amount of their lien.
16 [MIO 3] However, given that Vanderbilt Mortgage’s finance agreement with Paula
17 Valdez was initiated in 2000 [Case #2 RP 2] and that Defendants’ alleged interest in
18 the property arose thereafter [DS 5; Case #2 RP 73], Vanderbilt Mortgage had a
19 priority lien on the property. See generally Macaron v. Assocs. Capital Servs. Corp.,
6 1 105 N.M. 380, 381-82, 733 P.2d 11, 12-13 (Ct. App. 1987) (recognizing that the
2 mortgagee’s security interest generally has priority over subsequent claims or liens
3 attaching to the property). Defendants therefore failed to provide a meritorious
4 defense to the default judgment in favor of Vanderbilt Mortgage. Cf. Rodriguez, 105
5 N.M. at 749, 737 P.2d at 530 (providing that, to set aside a default judgment, the
6 movant must demonstrate grounds for opening or vacating the judgment and a
7 meritorious defense).
8 Conclusion
9 Based on the foregoing discussion and for the reasons set forth in our notice,
10 we dismiss for lack of a final order in Case #1 relating to Defendants’ cross-claim
11 against co-defendant Paula Valdez. We affirm the district court’s denial of
12 Defendants’ motion to reconsider the order denying Defendants’ motion to set aside
13 the default judgment in Case #2. And, given the default judgment and resultant post-
14 judgment writ of possession, we similarly affirm the district court’s denial of
15 Defendants’ motion to reconsider the denial of their motion to proceed with their
16 counterclaim against Vanderbilt Mortgage in Case #1. In light of the default judgment
17 against Defendants and their lack of a meritorious defense in Case #2, their
18 counterclaim against Vanderbilt Mortgage in Case #1 is effectively moot.
19 IT IS SO ORDERED.
7 1 ________________________________ 2 JAMES J. WECHSLER, Judge
3 WE CONCUR:
4 _____________________________ 5 CYNTHIA A. FRY, Judge
6 _____________________________ 7 J. MILES HANISEE, Judge