US Bank v. Gallegos

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 U.S. BANK, NATIONAL ASSOCIATION, 3 AS TRUSTEE UNDER THE POOLING 4 AND SERVICING AGREEMENT DATED 5 AS OF MARCH 1, 2007, GSAMP TRUST 6 2007-HE2, MORTGAGE PASS-THROUGH 7 CERTIFICATES, SERIES 2007-HE2, 8 Plaintiff-Appellee, 9 v. NO. A-1-CA-36422 10 RUTH GALLEGOS a/k/a RUTH ODOM 11 a/k/a RUTH ODOM-INGRAM, ROBERT 12 M. GALLEGOS a/k/a ROBERT MICHAEL 13 GALLEGOS, MOUNTAIN VISTA APARTMENTS 14 TAXATION AND REVENUE DEPARTMENT OF 15 THE STATE OF NEW MEXICO and UNKNOWN 16 TENANT (REAL NAME UNKNOWN), 17 Defendants-Appellants, 18 and 19 MUKHTIAR KHALSA, 20 Putative Intervenor-Appellant. 21 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 22 Valerie A. Huling, District Judge 23 Rose L. Brand & Associates, P.C. 1 Eraina Marie Edwards 2 Albuquerque, NM 3 for Appellee 4 Ruth Gallegos 5 Albuquerque, NM 6 Pro Se Appellant 7 Mukhtiar S. Khalsa 8 Santa Cruz, NM 9 Pro Se Appellant 10 MEMORANDUM OPINION 11 VANZI, Chief Judge. 12 {1} Mukhtiar Khalsa appeals following the district court’s order denying his motion 13 to intervene and judgment foreclosing upon the property. [DS 2; 2 RP 307, 220] This 14 Court issued a notice proposing to affirm. [CN 2] Khalsa filed a memorandum in 15 opposition, which we have duly considered. Remaining unpersuaded, we affirm. 16 {2} In addition to repeating his argument that U.S. Bank (Plaintiff) lacked standing 17 to foreclose upon the subject property, Khalsa argues for reversal on the grounds that 18 this Court must review his motion to dismiss for failure to state a claim de novo, the 19 motion to intervene was improperly denied because one of the original defendants to 20 the foreclosure action has also appealed, and Plaintiff failed to file any opposition to 21 the motion. [MIO 4, 6] Because Khalsa did not initially raise the issues regarding the [2] 1 availability of review by this Court of a motion to dismiss and the denial of his motion 2 to intervene, we construe the addition of these arguments as a motion to amend the 3 docketing statement. The essential requirements to show good cause for amendment 4 of a docketing statement are: (1) the motion be timely, (2) the new issue sought to be 5 raised was either (a) properly preserved below or (b) allowed to be raised for the first 6 time on appeal, and (3) the issues raised are viable. See State v. Moore, [7] 1989-NMCA-073 , ¶ 42, 109 N.M. 119 , 782 P.2d 91 , superseded by rule on other 8 grounds as stated in State v. Salgado, 1991-NMCA-044 , 112 N.M. 537 , 817 P.2d 730 . 9 For the following reasons, we deny Khalsa’s motion to amend the docketing statement 10 because the issues are not viable. 11 {3} We first note Khalsa was never made a party to the case below, and thus, no 12 motion to dismiss is part of the record below. “[I]n the usual case or lawsuit which 13 reaches this court for appellate review, the parties before this court must have 14 appeared as litigants in the court below, and the record must so show.” New Energy 15 Economy, Inc. v. Vanzi, 2012-NMSC-005, ¶ 56 , 274 P.3d 53 . “Matters outside the 16 record present no issue for review.” Kepler v. Slade, 1995-NMSC-035 , ¶ 13, 119 N.M. 17 802, 896 P.2d 482 (internal quotation marks and citation omitted). Because Khalsa 18 was not a party to the case and the district court never considered a motion to dismiss 19 filed by Khalsa, we decline to review any ground for dismissal Khalsa seeks to 20 advance on appeal. [3] 1 {4} We next note Khalsa appeals on his own behalf and does not appear to be part 2 of any other appeal of this case from the district court. [2 RP 309] We further note any 3 other appeal from the foreclosure action is not part of the record in this appeal. See id. 4 Moreover, Khalsa does not provide any authority demonstrating why the existence of 5 any related appeal confers on him the status of a party to the underlying case. “Where 6 a party cites no authority to support an argument, we may assume no such authority 7 exists.” Curry v. Great Nw. Ins. Co., 2014-NMCA-031, ¶ 28 , 320 P.3d 482 . This 8 Court will review pro se arguments to the best of its ability, but we cannot respond to 9 unintelligible arguments. See Clayton v. Trotter, 1990-NMCA-078 , ¶ 12, 110 N.M. 10 369 , 796 P.2d 262 ; see also Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15 , [11] 137 N.M. 339 , 110 P.3d 1076 (“We will not review unclear arguments, or guess at 12 what [a party’s] arguments might be.”). Therefore, we conclude the existence of an 13 appeal by another party, if one does exists, does not make Khalsa a party to the case 14 such that he can now appeal the merits of the action below. Accordingly, we conclude 15 this argument regarding Khalsa’s standing on appeal is not viable. 16 {5} Khalsa next argues the district court erred in denying his motion to intervene 17 because Plaintiff failed to respond to his motion. [MIO 6] In support of this argument, 18 Khalsa cites Rule 1-058(D) NMRA, which addresses examination of an order by 19 counsel before it is signed, and Lujan v. City of Albuqueruqe, 2003-NMCA-104 , 20 ¶¶ 15-17, 134 N.M. 207 , 75 P.3d 423 , in which this Court discussed a previous [4] 1 version of Rule 1-007.1(D) NMRA and the proper manner in which to request entry 2 of summary judgment and dismissal with prejudice based on a failure to timely 3 respond. We note the applicable version of Rule 1-007.1(D) states “Unless otherwise 4 specifically provided in these rules, any written response. . . shall be filed within 5 fifteen (15) days after service of the motion. If a party fails to file a response within 6 the prescribed time period the court may rule with or without a hearing.” Therefore, 7 the lack of response to the motion to intervene does not demonstrate the district court 8 erred in denying Khalsa’s motion. Accordingly, we conclude Khalsa’s challenge to 9 the denial of his motion to intervene is not a viable issue. 10 {6} In response to our proposed disposition regarding Khalsa’s arguments regarding 11 Plaintiff’s lack of standing, Khalsa repeats the arguments in this docketing statement 12 and does not demonstrate error in fact or law or explain how he is a party to the 13 district court case, entitling him to any review of the merits of the case below. As we 14 previously noted, “[i]n the usual case or lawsuit which reaches this court for appellate 15 review, the parties before this court must have appeared as litigants in the court below, 16 and the record must so show.” New Energy Economy, Inc., 2012-NMSC-005, ¶ 56 . 17 The burden is on the appellant to clearly demonstrate the trial court erred. Farmers, 18 Inc. v. Dal Mach. & Fabricating, Inc., 1990-NMSC-100 , ¶ 8, 111 N.M. 6 , 800 P.2d 19 1063. Beyond repetition of assertions in his docketing statement and posing additional [5] 1 non-viable issues, Khalsa has not demonstrated he has standing to challenge the merits 2 of the foreclosure judgment. 3 {7} Accordingly, for the reasons explained in our notice of proposed disposition 4 and herein, we affirm. 5 {8} IT IS SO ORDERED. 6 __________________________________ 7 LINDA M. VANZI, Chief Judge 8 WE CONCUR: 9 _________________________________ 10 M. MONICA ZAMORA, Judge 11 _________________________________ 12 HENRY M. BOHNHOFF, Judge