DocketNumber： 33,457
Filed Date： 7/29/2014
Status： Non-Precedential
Modified Date： 4/18/2021
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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 THE BANK OF NEW YORK MELLON
3 f/k/a THE BANK OF NEW YORK,
4 AS TRUSTEE FOR CERTIFICATE-
5 HOLDERS OF ASSETS-BACKED
6 CERTIFICATES, SERIES 2003-2,
7 Plaintiff-Counterdefendant-Appellee,
8 v. No. 33,457
9 DIANE M. MOYA, WILLIAM L. MOYA,
10 TAXATION AND REVENUE DEPARTMENT
11 OF THE STATE OF NEW MEXICO, and
12 UNIFUND CCR,
13 Defendants,
14 and
15 ANGEL GARCIA,
16 Defendant-Counterclaimant and Crossclaimant-Appellant,
17 v.
18 THE BANK OF NEW YORK MELLON
19 f/k/a THE BANK OF NEW YORK,
20 AS TRUSTEE FOR CERTIFICATE-
21 HOLDERS OF ASSETS-BACKED
22 CERTIFICATES, SERIES 2003-2,
23 Plaintiff-Counterdefendant-Appellee,
1 and
2 DIANE M. MOYA and WILLIAM L. MOYA,
3 Crossdefendants.
4 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
5 Shannon C. Bacon, District Judge
6 Susan C. Little & Associates, P.A.
7 Sandra A. Brown
8 Albuquerque, NM
9 for Appellee Bank of New York Mellon
10 The Law Office of Anita M. Kelley
11 Anita M. Kelley
12 Albuquerque, NM
13 for Appellant Angel Garcia
14 MEMORANDUM OPINION
15 FRY, Judge.
16 {1} Appellant Angel Garcia (Garcia) appeals from the district court’s summary
17 judgment ruling that Appellee Bank of New York (Bank) has a valid first lien on the
18 property described in Bank’s mortgage and has priority for the amounts owed under
19 the original note and the loan modifications identified in Bank’s complaint. [RP 173]
20 Our notice proposed to dismiss for lack of a final order, and Garcia filed a
21 memorandum in opposition. We are not persuaded by Garcia’s arguments in
22 opposition to our notice, and therefore dismiss.
2
1 {2} While the district court’s summary judgment ruling resolves Bank’s claim
2 against Garcia, yet to be addressed by the district court are Garcia’s outstanding five
3 counterclaims against Bank. [RP 78, 84-88] Because matters remain to be decided, we
4 lack a final order for purposes of appeal. See generally Watson v. Blakely, 1987-
5 NMCA-147, ¶ 14, 106 N.M. 687,748 P.2d 984
(stating that “[a]n order disposing of 6 the issues contained in the complaint but not the counterclaim is not a final 7 judgment”), overruled on other grounds by Kelly Inn No. 102, Inc. v. Kapnison, 1992- 8 NMSC-005, ¶ 25, 113 N.M 231,824 P.2d 1033
; Tarin’s, Inc. v. Tinley, 2000-NMCA- 9 048, ¶ 2,129 N.M. 185
,3 P.3d 680
(holding that a judgment containing no mention
10 of a counterclaim was not a final, appealable order).
11 {3} Garcia acknowledges the counterclaims, but nonetheless urges this Court to
12 view the proceedings as final, asserting her counterclaims “are based almost entirely
13 on her claim that her lien is superior to the bank’s modifications of the loan” [MIO 2]
14 and that “these counterclaims are untenable based on the district court’s ruling that the
15 bank’s loan modifications have priority.” [MIO 3] Garcia thus advocates that her
16 counterclaims are effectively implicitly denied by the district court’s summary
17 judgment ruling. Garcia however limits her argument to counts 1 through 4 of her
18 counterclaims and qualifies her argument with regard to count 5 of her counterclaims.
19 For this count, Garcia provides that “[a]rguably there is one counter-claim [count 5]
3
1 that is somewhat independent” of the summary judgment issues, but contends this
2 counterclaim should not affect finality because it “affects . . . Garcia’s ability to cure
3 and/or reinstate the mortgage.” [MIO 3] Despite her view that count 5 remains
4 unresolved, Garcia argues that this Court should view the summary judgment ruling
5 as final for purposes of appeal. [MIO 3] We decline to do so, because matters remain
6 to be decided. Rather than make assumptions about counterclaims that need to be
7 expressly ruled upon by the district court in the first instance, we instead dismiss for
8 lack of a final order so that the district court may consider and expressly rule upon all
9 of Garcia’s outstanding counterclaims.
10 {4} For the reasons discussed above and set forth in our notice, we dismiss for lack
11 of a final order.
12 {5} IT IS SO ORDERED.
13
14 CYNTHIA A. FRY, Judge
15 WE CONCUR:
16
17 MICHAEL D. BUSTAMANTE, Judge
18
19 J. MILES HANISEE, Judge
4