Federal Nat'l Mortg. Assoc. v. Levey
Annotate this Case
Download PDF
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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 FEDERAL NATIONAL MORTGAGE 3 ASSOCIATION, 4 Plaintiff-Appellee, 5 vs. No. 35,946 6 PATRICIA S. LEVEY a/k/a 7 PATRICIA LEVEY, 8 Defendant-Appellant, 9 and 10 WELLS FARGO BANK, N.A., 11 Defendant. 12 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 13 Raymond Z. Ortiz, District Judge 14 15 16 17 McCarthy & Holthus, LLP Karen Weaver Joshua T. Chappell Albuquerque, NM 18 for Appellee 19 Gleason Law Firm, LLC 20 Deidre Gleason 21 Heath, MA 22 for Appellant 1 MEMORANDUM OPINION 2 ZAMORA, Judge. 3 {1} Defendant Patricia S. Levey seeks to appeal from the denial of a motion for 4 summary judgment. We previously issued a notice of proposed summary disposition 5 in which we proposed to dismiss for want of a final order. Defendant has filed a 6 memorandum in opposition, and Plaintiff has filed a memorandum in support, which 7 we have duly considered. Because we remain unpersuaded that this matter is properly 8 before us, we dismiss the appeal. 9 {2} We previously described the pertinent background information in the notice of 10 proposed summary disposition. We will not reiterate at length here. Suffice it to say, 11 although the denial of Defendant’s motion for summary judgment was not a final 12 appealable order, see Doe v. Leach, 1999-NMCA-117, ¶ 12, 128 N.M. 28, 988 P.2d 13 1252, the district court’s subsequent grant of Plaintiff’s cross-motion and entry of an 14 order of foreclosure, would normally be regarded as a final, appealable decision. See 15 also Grygorwicz v. Trujillo, 2009-NMSC-009, ¶ 8, 145 N.M. 650, 203 P.3d 865. 16 However, Defendant subsequently filed a timely motion for reconsideration, which 17 suspended the finality of the district court’s preceding order. See id. (“[W]hen a party 18 makes a motion challenging the district court’s determination of the rights of the 2 1 parties contained in [a] foreclosure decree, the decree is not final . . . until the district 2 court disposes of the motion.”). 3 {3} In her memorandum in opposition Defendant makes no effort to address the 4 foregoing principles, or the authorities cited. Instead, she asserts that the district 5 court’s determination relative to standing should be immediately appealable on 6 grounds that, if the district court erred, the matter should not proceed further. [MIO 7 4-5] The only authority she cites as indirect support for this proposition is Deutsche 8 Bank Nat’l Trust Co. v. Johnston, 2016-NMSC-013, ¶ 23, 369 P.3d 1046. However, 9 Johnston entailed an appeal from a decree of foreclosure; it did not indicate that an 10 interlocutory ruling on a question relative to standing is immediately appealable as a 11 matter of right. Further, Johnston analogized standing challenges, in the context of 12 foreclosure actions, to the defense of failure to state a claim. Id. ¶ 34. Of course, the 13 denial of a motion to dismiss for failure to state a claim generally constitutes an 14 interlocutory order, rather than a final determination that is immediately appealable 15 as a matter of right. See, e.g., Smoot v. Physicians Life Ins. Co., 2004-NMCA-027, 16 ¶¶ 5-6, 135 N.M. 265, 87 P.3d 545 (reviewing the denial of a motion to dismiss for 17 failure to state a claim on interlocutory appeal); Romero v. U.S. Life Ins. Co., 18 1986-NMCA-044, ¶ 1, 104 N.M. 241, 719 P.2d 819 (same). We therefore reject 19 Defendant’s argument. 3 1 {4} In the notice of proposed summary disposition we advised that if the parties 2 should obtain a written ruling on the pending motion, we would proceed to consider 3 the merits. [CN 5] Plaintiff has advised that no such order has been entered. [MIS 3] 4 Until the district court has taken a formal position on the submission, the matter has 5 not been fully and finally resolved; and accordingly, the instant appeal is premature. 6 See Dickens v. Laurel Healthcare, LLC, 2009-NMCA-122, ¶ 6, 147 N.M. 303, 222 7 P.3d 675 (observing that when a motion that challenges the district court’s 8 determination of the rights of the parties is pending in the district court, the judgment 9 or order entered by that court remains non-final, such that appeal is premature); see 10 also Rule 1-054.1 NMRA, committee cmt. (“Because there no longer is an automatic 11 denial of post-judgment motions, the time for filing notices of appeal will run ‘from 12 the filing of an order expressly disposing of the . . . motion’.” (quoting Rule 13 12-201(D)(1)). 14 {5} Accordingly, for the reasons stated above and in the notice of proposed 15 summary disposition, the appeal is summarily dismissed. 16 17 18 {6} IT IS SO ORDERED. M. MONICA ZAMORA, Judge 4 1 WE CONCUR: 2 3 LINDA M. VANZI, Chief Judge 4 5 JULIE J. VARGAS, Judge 5
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.
