U.S. Bank National Association v. Moralez ( 2016 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 U.S. BANK NATIONAL ASSOCIATION,
3 Plaintiff-Appellee,
4 v. NO. 34,946
5 THOMAS R. MORALEZ, and if
6 married, JANE DOE MORALEZ
7 (true name unknown), his spouse,
8 Defendants-Appellants.
9 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
10 C. Shannon Bacon, District Judge
11 Little, Bradley & Nesbitt, P.A.
12 Sandra A. Brown
13 Albuquerque, NM
14 for Appellee
15 JRSPC, LLC
16 Joshua R. Simms
17 Albuquerque, NM
18 for Appellants
19 MEMORANDUM OPINION
20 KENNEDY, Judge.
1 {1} Appellant Thomas Moralez (Appellant) seeks to appeal from an order denying
2 his motion to vacate a foreclosure sale and declare the default judgment against him
3 void for lack of jurisdiction. [DS 2; RP 140] In this Court’s notice of proposed
4 disposition, we proposed to dismiss based on an untimely notice of appeal. [CN 1]
5 Appellant filed a memorandum in opposition, which we have duly considered.
6 Remaining unpersuaded, we dismiss.
7 {2} As we stated in our proposed disposition, the timely filing of a notice of appeal
8 in the district court is a mandatory precondition to our jurisdiction over an appeal. See
9 Govich v. N. Am. Sys., Inc., 1991-NMSC-061, ¶ 12, 112 N.M. 226, 814 P.2d 94
10 (explaining that time and place of filing notice of appeal is a mandatory precondition
11 to appellate jurisdiction). [CN 2] Appellant has not pointed to any facts or law
12 demonstrating his notice of appeal was timely filed. Hennessy v. Duryea,
13 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly
14 held that, in summary calendar cases, the burden is on the party opposing the proposed
15 disposition to clearly point out errors in fact or law.”). Nor has Appellant
16 demonstrated any unusual circumstances beyond his control that would allow this
17 Court to exercise its discretion to consider the appeal. See Trujillo v. Serrano, 1994-
18 NMSC-024, ¶ 15, 117 N.M. 273, 871 P.2d 369 (stating this Court may exercise its
2
1 discretion to consider an untimely appeal in the event of unusual circumstances
2 beyond the control of a party).
3 {3} Appellant instead argues a judgment may be challenged as void at any time.
4 [MIO 2] In support of this assertion, Appellant cites to Heckathorn v. Heckathorn,
5 1967-NMSC-017, ¶ 15, 77 N.M. 369, 423 P.2d 410 (stating “[t]here is no time
6 limitation on asserting that the judgment is void.”), and Phoenix Funding, LLC v.
7 Aurora Loan Services, LLC, 2016-NMCA-010, ¶ 10, 365 P.3d 8 (citing Heckathorn
8 for the same proposition), cert. granted, 2015-NMCERT-001, ___ P.3d ___ (No.
9 35,512, Jan. 19, 2016). We note the propositions to which Appellant cites relate to
10 collateral challenges to judgments in district court, not the exercise of appellate
11 jurisdiction to review a judgment challenged as void. See Heckathorn, 1967-NMSC-
12 017, ¶¶ 4, 15; Phoenix Funding, LLC, 2016-NMCA-010, ¶ 4. Thus, Appellant’s
13 argument is unavailing. Accordingly, we dismiss.
14 {4} IT IS SO ORDERED.
15 _______________________________
16 RODERICK T. KENNEDY, Judge
17 WE CONCUR:
3
1 ___________________________________
2 JAMES J. WECHSLER, Judge
3 _________________________________
4 TIMOTHY L. GARCIA, Judge
4