Ford Motor Credit Company, Respondent, vs. Nancy Lazaryan, f/k/a Nancy Johnson, Appellant, Aaron Johnson, Defendant.

Ford Motor Credit Company, Respondent, vs. Nancy Lazaryan, f/k/a Nancy Johnson, Appellant, Aaron Johnson, Defendant. A05-802, Court of Appeals Unpublished, March 21, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-802

 

 

Ford Motor Credit Company,

Respondent,

 

vs.

 

Nancy Lazaryan, f/k/a Nancy Johnson,

Appellant,

 

Aaron Johnson,

Defendant.

 

 

Filed March 21, 2006

Affirmed

Toussaint, Chief Judge

 

 

Stearns County District Court

File No. C6-04-4474

 

 

Brian A. Chou, Derrick N. Weber, Messerli and Kramer, P.A., 3033 Campus Drive, Suite 250, Plymouth, MN  55441 (for respondent)

 

Nancy Lazaryan, 10734 West Lake Road, Rice, MN  56367 (pro se appellant)

 

 

            Considered and decided by Toussaint, Chief Judge; Klaphake, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant Nancy Lazaryan, f/k/a Nancy Johnson, challenges the district court order denying her motion to vacate a default judgment.  Because appellant cannot show that she had any defense on the merits, we affirm.

D E C I S I O N

            Appellant and her then-husband purchased a vehicle but failed to make any of the monthly payments due.  Respondent Ford Motor Credit Company sued, serving a summons and complaint.  Although appellant acknowledged service and was in telephone contact with respondent's attorney, she did not answer the complaint.  The district court entered a default judgment, and respondent commenced collection proceedings.  Appellant raised several challenges, including seeking to vacate the default judgment based on fraud.  The district court denied the motion to vacate, finding no fraud and ruling that appellant failed to show she could prevail on the merits.

             "To prevail [in a 60.02 motion based on fraud], the moving party must establish by clear and convincing evidence that the adverse party engaged in fraud or other misconduct which prevented it from fully and fairly presenting its case."  Regents of Univ. of Minn. v. Med. Inc., 405 N.W.2d 474, 480 (Minn. App. 1987), review denied (Minn. July 15, 1987).  The court will consider whether the defendant "(a) is possessed of a reasonable defense on the merits, (b) has a reasonable excuse for his failure or neglect to answer, (c) has acted with due diligence after notice of the entry of judgment, and (d) [shows] that no substantial prejudice will result to the other party."  Conley v. Downing, 321 N.W.2d 36, 40 (Minn. 1982) (quotation omitted).  The moving party bears the burden of proving all four elements.  Imperial Premium Fin., Inc. v. GK Cab Co., 603 N.W.2d 853, 857 (Minn. App. 2000).  This "determination is within the trial court's discretion as fact finder and evaluator of weight and credibility of evidence."  J.L.B. v. T.E.B., 474 N.W.2d 599, 603 (Minn. App. 1991), review denied (Minn. Oct. 11, 1991).

            Under the contract, appellant was obligated to make payments, she failed to make any payments, and there is no evidence that respondent waived any of these payments.  Further, appellant admits she executed the contract in question and that she defaulted under the contract.  Regardless of any other arguments that appellant might make, she cannot prevail because she cannot show that she could present any defense on the merits.

            Appellant also asserted that she should have had the right to produce evidence to establish fraud and that the district court failed to make any findings.  In fact, both parties produced affidavits, and the district court, after an extensive review of the record, made a finding that there was no fraud.  This finding is supported by the record and is not an abuse of discretion.

            Appellant raises several issues not decided by the district court.  This court generally may not address such issues.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).  In any event, her additional arguments have no merit.  First, appellant argues that she made a valid response to the complaint even though she did not answer.  There is no caselaw to support this proposition.  Second, appellant argues that the default judgment against her was in an inappropriate amount because her codefendant had been given a settlement offer that she was not given.  Minn. R. Evid. 408 provides that evidence regarding settlement offers is generally not admissible.

            Affirmed.