LANB v. Urban

 Annotate this Case
Download PDF
1 2 3 4 5 6 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 LOS ALAMOS NATIONAL BANK, 8 Plaintiff-Appellee, 9 v. NO. 31,427 10 MAX URBAN and UNA ZAKAS, 11 Defendants-Appellants. 12 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 13 Barbara J. Vigil, District Judge 14 Jurgens & With, P.A. 15 James R. Jurgens 16 Santa Fe, NM 17 for Appellee 18 Max Urban 19 Santa Fe, NM 20 Pro Se Appellant 21 MEMORANDUM OPINION 22 WECHSLER, Judge. 23 Pro se Defendants appeal an order denying their motion for relief from 1 judgment pursuant to Rule 1-060(B)(5) and (6) NMRA ( Motion ). We proposed to 2 affirm in a notice of proposed summary disposition, and Defendants have filed a 3 timely memorandum in opposition. We remain unpersuaded by Defendants 4 arguments and therefore affirm the district court s order denying their Motion for 5 relief from judgment. 6 Standard of review 7 We review the district court s decision on whether to grant relief pursuant to 8 Rule 1-060(B) NMRA for abuse of discretion unless the only issue presented is one 9 of law. Kinder Morgan CO2 Co., L.P. v. State of N.M. Taxation & Revenue Dep t, 10 2009-NMCA-019, ¶ 9, 145 N.M. 579, 203 P.3d 110. An abuse of discretion occurs 11 when a ruling is clearly contrary to the logical conclusions demanded by the facts and 12 circumstances of the case. Sims v. Sims, 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930 13 P.2d 153. 14 Discussion 15 On August 17, 2009, the district court granted summary judgment to Plaintiff, 16 Los Alamos National Bank, and entered a decree of foreclosure ( Summary Judgment 17 Order ). [RP 508, 512; DS 2] Defendants appealed the Summary Judgment Order, 18 and this Court issued a memorandum opinion affirming in Case No. 29,905, with 19 mandate issuing on June 9, 2010. [RP 774-781] On October 15, 2010, Defendants 2 1 filed their Motion for relief from judgment, [RP 783] and the district court denied the 2 Motion on May 27, 2011. [RP 867-868] 3 In denying Defendants Motion, the district court found that, to the extent 4 Defendants were seeking to revisit the Court of Appeals decision in Case No. 29,905, 5 such review was precluded because Defendants failed to file a petition for writ of 6 certiorari with the Supreme Court. [RP 867-868] We proposed to affirm this finding 7 in our notice of proposed disposition. 8 In their memorandum in opposition, Defendants do not rebut the analysis 9 contained in our previous notice. [MIO 1-2] Instead, they argue that this Court can 10 treat a notice of appeal and docketing statement as a petition for writ of certiorari. 11 [MIO 2] Even if this may be true in certain circumstances, in this case Defendants 12 failed to file any documents with the Supreme Court to seek review of this Court s 13 opinion in Case No. 29,905. Cf. Rule 12-502(B) NMRA (stating that a petition for 14 writ of certiorari must be filed with the Supreme Court clerk within thirty (30) days 15 after final action by the Court of Appeals ). Therefore, for the reasons set forth in our 16 notice of proposed summary disposition, we affirm the district court s finding that 17 Defendants failure to file a timely petition for writ of certiorari with the Supreme 18 Court precludes the district court from revisiting this Court s affirmance of the 19 Summary Judgment Order. 3 1 In our notice, we also proposed to affirm the district court s findings that 2 Defendants failed to make a sufficient showing entitling them to relief under Rule 13 060(B)(5) and (6). [RP 868] We noted that Defendants failed to make a showing that 4 they were entitled to relief pursuant to Rule 1-060(B)(5) because they failed to show 5 why enforcement of the Summary Judgment Order was no longer equitable. Cf. 6 Edens v. Edens, 2005-NMCA-033, ¶ 23, 137 N.M. 207, 109 P.3d 295 (declining to 7 set aside portions of a settlement agreement pursuant to Rule 1-060(B)(5) because the 8 husband failed to show that enforcement of the agreement was inequitable). 9 As to Rule 1-060(B)(6), we noted that relief is only warranted if the movant 10 establishes exceptional circumstances beyond the grounds enumerated in the other 11 subsections. Resolution Trust Corp. v. Ferri, 120 N.M. 320, 326, 901 P.2d 738, 744 12 (1995); see Meiboom v. Watson, 2000-NMSC-004, ¶¶ 19, 33, 128 N.M. 536, 994 P.2d 13 1154 (noting that relief pursuant to Rule 1-060(B)(6) requires the moving party to 14 demonstrate compelling or exceptional circumstances). We proposed to hold that 15 Defendants failed to make the requisite showing of exceptional circumstances. 16 In their memorandum in opposition, Defendants fail to rebut or even to address 17 the analysis contained in our notice of proposed summary disposition. [MIO 3-5] 18 Instead, they reiterate the arguments made to the district court as to why the Summary 19 Judgment Order was no longer, and had never been equitable. [MIO 3-4; RP 783- 4 1 790] We continue to disagree for the reasons set forth in our notice of proposed 2 summary disposition. 3 In sum, Defendants reiteration of the arguments made in their Motion fails to 4 convince us that the analysis contained in our proposed disposition is in error. 5 Therefore, for the reasons set forth in our previous notice, we remain of the opinion 6 that the district court did not err in denying Defendants Motion for relief from 7 judgment. Cf. Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 8 683 ( Our courts have repeatedly held that, in summary calendar cases, the burden is 9 on the party opposing the proposed disposition to clearly point out errors in fact or 10 law. ). 11 Conclusion 12 For the reasons set forth above as well as those set forth in our notice of 13 proposed summary disposition, we affirm the district court s order denying 14 Defendants Motion for relief from judgment pursuant to Rule 1-060(B)(5) and (6). 15 IT IS SO ORDERED. 16 17 ________________________________ JAMES J. WECHSLER, Judge 5 1 WE CONCUR: 2 _________________________________ 3 RODERICK T. KENNEDY, Judge 4 _________________________________ 5 TIMOTHY L. GARCIA, Judge 6

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.