Wells Fargo Bank, N.A. v. Alverson ( 2017 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 WELLS FARGO BANK, N.A.,
3 Plaintiff-Appellee,
4 v. No. A-1-CA-36057
5 STEVE ALVERSON,
6 Defendant-Appellant,
7 and
8 DEPARTMENT OF THE TREASURY-INTERNAL
9 REVENUE SERVICE,
10 Defendant.
11 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
12 David K. Thomson, District Judge
13 Snell & Wilmer L.L.P.
14 Sandra A. Brown
15 Steven J. Lucero
16 Jeannette Martinez Whittaker
17 Albuquerque, NM
18 for Appellee
19 Steve Alverson
20 Santa Fe, NM
1 Pro Se Appellant
2 MEMORANDUM OPINION
3 SUTIN, Judge.
4 {1} In this foreclosure case, Defendant Steve Alverson (Homeowner), a self-
5 represented litigant, appeals from the district court’s final order denying his motion
6 to dismiss and motion to vacate, entered December 2, 2016. [DS 2; 3 RP 462-65] In
7 our notice of proposed summary disposition, we proposed to affirm. In response to
8 this Court’s notice, Defendant filed a memorandum in opposition that we have duly
9 considered. For the reasons stated in the notice of proposed disposition and in this
10 opinion, we affirm.
11 {2} Issues 1, 3-5: Homeowner’s central contention, raised in Issues 1, 3, 4, and 5,
12 was that Wells Fargo Bank, N.A. (Wells Fargo) did not have standing to foreclose on
13 his property. [DS 5-6] In our notice of proposed disposition, we noted that the district
14 court entered its judgment, decree of foreclosure, appointment of special master and
15 order for sale on May 8, 2014. Homeowner did not file a timely notice of appeal from
16 this judgment, and the appeal currently before this Court is from the denial of
17 Homeowner’s motion for relief from judgment under Rule 1-060(B) NMRA. [CN 2]
18 As such, we limited our review to the district court’s denial of Homeowner’s Rule 1-
19 060(B) motion. [CN 2-3] See Marquez v. Larrabee, 2016-NMCA-087, ¶ 9, 382 P.3d
2
 1 968 (explaining that because the notice of appeal was timely only as to the district
2 court’s denial of the defendants’ motion to set aside the default judgment under Rule
3 1-060 and not as to the district court’s order granting the plaintiff’s motion for a
4 default judgment, this Court would address only the district court’s denial of the
5 motion to set aside the default judgment). Homeowner does not challenge our decision
6 to limit our review to the denial of his Rule 1-060(B) motion. [See generally MIO]
7 {3} With respect to the standing arguments raised in Homeowner’s Rule 1-060(B)
8 motion, we proposed to conclude that the prudential standing requirement was waived
9 in this case by Homeowner’s failure to timely appeal from the foreclosure judgment,
10 and standing cannot be the basis for the collateral attack here under Rule 1-060(B).
11 [CN 3] See Deutsche Bank Nat’l Trust Co. v. Johnston, 2016-NMSC-013, ¶ 34, 369
12 P.3d 1046 (holding that “a final judgment . . . to enforce a promissory note . . . is not
13 voidable under Rule 1-060(B) due to a lack of prudential standing”).
14 {4} In response, Homeowner asserts that Rule 1-060(B)(6) “[p]rovides that a
15 judgment may be vacated for ‘any other reason[,]’” and substantial justice requires
16 vacation of the judgment in this case. [MIO 1-2] While Rule 1-060(B)(6) provides that
17 “the court may relieve a party or his legal representative from a final judgment, order,
18 or proceeding for . . . any other reason justifying relief from the operation of the
19 judgment[,]” Homeowner has not demonstrated that he is entitled to such relief in this
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1 case. See Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111
2 N.M. 6, 800 P.2d 1063 (stating that the appellate courts presume that the district court
3 is correct and the burden is on the appellant to clearly demonstrate that the lower court
4 erred).
5 {5} Issue 2: In his docketing statement, Homeowner also claimed that the district
6 court erred in denying his Rule 1-060(B) motion on due process grounds. [DS 5] He
7 claimed that he did not receive notice of the pleadings filed between November 2,
8 2013 and July 21, 2014. [DS 5; see also 3 RP 378-81, 404-08]
9 {6} Because his due process challenge concerned factual issues, we reviewed the
10 district court’s order for an abuse of discretion. [CN 3-4] See Edens v. Edens,
11 2005-NMCA-033, ¶ 13, 137 N.M. 207, 109 P.3d 295 (“We generally review the trial
12 court’s ruling under Rule 1-060(B) for an abuse of discretion except in those instances
13 where the issue is one of pure law.” (internal quotation marks and citation omitted));
14 Sims v. Sims, 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930 P.2d 153 (“An abuse of
15 discretion occurs when a ruling is clearly contrary to the logical conclusions
16 demanded by the facts and circumstances of the case.”). In response, Homeowner
17 claims that his due process challenge raises questions of law and the proper standard
18 of review is de novo. [MIO 2-3] However, Homeowner continues to argue only a
19 factual issue—whether he received correspondence from Wells Fargo for periods of
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1 time from November 2013 through July 2014. [MIO 1] Therefore, we are not
2 convinced that the proper standard of review is de novo.
3 {7} In our notice of proposed disposition, we noted that Wells Fargo stated below
4 that attorney N. Ana Gardner entered her appearance, without limitation, on October
5 16, 2012, on behalf of Homeowner; no order permitting her withdrawal had been
6 entered; and Wells Fargo served Ms. Gardner with notice of all pleadings after
7 October 16, 2012 in this matter. [CN 4] See Rule 1-005(B) NMRA (“Whenever under
8 these rules service is required or permitted to be made upon a party represented by an
9 attorney, the service shall be made upon the attorney unless service upon the party is
10 ordered by the court.”); Rule 1-089(B)(1) NMRA (“An attorney shall obtain a court
11 order permitting withdrawal when . . . the attorney has appeared without
12 limitation[.]”). We further noted that Wells Fargo stated that after Homeowner filed
13 his “Notice of Dismissal of Attorney” on November 1, 2013, “all subsequent filings
14 were served upon [Homeowner] as a pro-se party at the address he himself indicated
15 was the appropriate address for service of pleadings.” [CN 5] In light of the foregoing,
16 we suggested that we could not conclude that the district court abused its discretion
17 in denying Homeowner’s Rule 1-060(B) motion on due process grounds. [CN 5]
18 {8} In response, Homeowner claims that, per his affidavit filed in district court on
19 September 3, 2014, he did not receive correspondence from Wells Fargo “after
5
1 November 1, 2013 [until] July 28[,] 2014,” and Homeowner attached a copy of the
2 affidavit to his memorandum in opposition. [MIO 1, 4-5] Homeowner further
3 contends that Wells Fargo did not rebut the information contained in his affidavit, and
4 therefore, “[i]t is undisputed that [he] did not receive proper notice and was therefor[e]
5 denied due process.” [MIO 1-2] As discussed in the notice of proposed disposition and
6 in this opinion, the record does not support these arguments.
7 {9} Accordingly, for the reasons set forth in our notice of proposed disposition and
8 herein, we affirm.
9 {10} IT IS SO ORDERED.
10 __________________________________
11 JONATHAN B. SUTIN, Judge
12 WE CONCUR:
13 _______________________________
14 MICHAEL E. VIGIL, Judge
15 _______________________________
16 JULIE J. VARGAS, Judge
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