Loancare v. Harris
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 LOANCARE, A DIVISION OF 3 FNF SERVICING, INC., 4 Plaintiff-Appellee, 5 v. NO. 33,648 6 JOSEPH HARRIS and PATRICIA 7 HARRIS, 8 Defendants-Appellants. 9 APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY 10 Henry R. Quintero, District Judge 11 McCarthy & Holthus, LLP 12 Joshua A. Spencer 13 Albuquerque, NM 14 Office of the Arizona Attorney General 15 Matthew Silverman 16 Phoenix, AZ 17 Melissa Robbins Coutts 18 San Diego, CA 19 for Appellee 1 The Law Office of Anita M. Kelley 2 Anita M. Kelley 3 Albuquerque, NM 4 for Appellant 5 MEMORANDUM OPINION 6 WECHSLER, Judge. 7 {1} Defendants appeal from the denial of a Rule 1-060(B) NMRA motion to set 8 aside a judgment in a foreclosure action. We previously issued a notice of proposed 9 summary disposition, proposing to affirm. Defendants have filed a memorandum in 10 opposition. After due consideration, we remain unpersuaded. We therefore affirm. 11 {2} The pertinent background information having been set forth in the notice of 12 proposed summary disposition, we will avoid undue reiteration here, focusing instead 13 on the content of the memorandum in opposition. 14 {3} Defendants continue to assert that they should have been granted relief from the 15 judgment and permitted to engage in discovery in order to determine whether their 16 loan was procured by fraud. [DS 4; MIO 2-6] However, as we previously observed, 17 fraud was not asserted as an affirmative defense, and insofar as the materials relied 18 upon by Defendants to support their vague allegations were available far in advance 19 of the original award of summary judgment, [RP 95, 112-18] their failure to advance 20 the defense in a timely fashion is fatal. See, e.g., Charter Bank v. Francoeur, 2012- 1 NMCA-078, ¶¶ 3, 25, 287 P.3d 333 (concluding that a homeowner’s assertions of 2 fraud, misrepresentation, and/or “other misconduct” in conjunction with a motion to 3 set aside were insufficient to preserve these matters, where the homeowner filed no 4 answer to the complaint, “did not specifically raise a bad-faith defense and therefore 5 did not fairly invoke a ruling by the district court”). 6 {4} In their memorandum in opposition, Defendants contend that their allegations 7 of fraud and request for discovery should be regarded as timely, insofar as these 8 matters were mentioned at the hearing on Loancare’s motion for summary judgment. 9 [MIO 2-5] However, because Defendants neither propounded discovery, [MIO 5] nor 10 submitted an affidavit specifically demonstrating how postponement of a ruling and 11 granting additional time for discovery would enable Defendants to rebut Loancare’s 12 showing, see Rule 1-056(F) NMRA (requiring such an affidavit), the district court was 13 at liberty to proceed with the award of summary judgment. See Butler v. Deutsche 14 Morgan Grenfell, Inc., 2006-NMCA-084, ¶¶ 38-39, 140 N.M. 111, 140 P.3d 532 15 (arriving at a similar conclusion under similar circumstances). Although Defendant 16 suggests that his comments at the summary judgment hearing should supply an 17 adequate substitute for failure to comply with Rule 1-056(F), we disagree. See 18 generally Bruce v. Lester, 1999-NMCA-051, ¶ 4, 127 N.M. 301, 980 P.2d 84 1 (observing that pro se litigants must comply with the rules of the court and will not 2 be treated differently from litigants with counsel). 3 {5} Finally, we understand Defendants to contend that the district court should have 4 granted their Rule 1-060(B) motion as a matter of equity, in order to afford them the 5 opportunity to inspect their original loan documents. [DS 5-6] However, Defendants 6 were not denied this opportunity; they simply failed to avail themselves of standard 7 discovery practice in a timely and appropriate fashion. Under such circumstances, we 8 remain unpersuaded that Defendants were entitled to relief. See generally Benavidez 9 v. Benavidez, 1983-NMSC-032, ¶ 14, 99 N.M. 535, 660 P.2d 1017 (observing that 10 Rule 1-060(B) “cannot be used to relieve a party from the duty to take legal steps to 11 protect his interests”). 12 {6} Accordingly, for the reasons stated above and in the notice of proposed 13 summary disposition, we affirm. 14 {7} IT IS SO ORDERED. 15 16 17 WE CONCUR: 18 ________________________________ ________________________________ JAMES J. WECHSLER, Judge 1 MICHAEL D. BUSTAMANTE, Judge 2 ________________________________ 3 RODERICK T. KENNEDY, Judge
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