This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 LOS ALAMOS NATIONAL BANK, 7 Plaintiff-Appellee, 8

v. NO. 29,905 9 MAX URBAN and UNA ZAKAS, 10 Defendants-Appellants. 11

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 12 James A. Hall, District Judge 13 Jurgens & With, PA 14 James R. Jurgens 15 Santa Fe, NM 16 for Appellee 17 Max Urban 18 Santa Fe, NM 19 Pro Se Appellant 20

MEMORANDUM OPINION 21 BUSTAMANTE, Judge. 22 Defendants Max Urban and Una Zakas (D efendants), husband and wife, pro 232 se, appeal a district court order granti ng summary judgment in favor of Los Alamos 1 National Bank (LANB), resulting in foreclos ure of their property. We issued a 2 calendar notice proposing to affirm and Defendants timely filed a memorandum in 3 opposition (MIO). LANB filed a memorandum in support (MIS) of our proposed 4 disposition. Defendants also filed a mo tion to amend their memorandum in opposition 5 (MAM), to which LANB has objected and Defendants have re sponded (RESP). We 6 remain unpersuaded by Defendants’ memorandum in opposition and affirm the district 7 court’s order. 8 We first note that Defendants’ mo tion to amend their memorandum in 9 opposition is granted. 10 Turning to the merits of the appeal, “[ s]ummary judgment is appropriate where 11 there are no genuine issues of material fact and the movant is entitled to judgment as 12 a matter of law.” Self v. United Parcel Serv., Inc. , 1998-NMSC-046, ¶ 6, 126 N.M. 13 396, 970 P.2d 582 (citation omitted) . “We are mindful that summary judgment is a 14 ‘drastic remedial tool which demands the ex ercise of caution in its application,’ and 15 we review the record in the light most favorable to support a trial on the merits.” 16 Woodhull v. Meinel , 2009-NMCA-015, ¶ 7, 145 N.M . 533, 202 P.3d 126 (filed 2008), 17 cert. denied , 2009-NMCERT-001, 145 N.M. 655, 203 P.3d 870. However, the 18 “movant need only make a prima facie showing that he is entitled to summary 193 judgment. Upon the movant making a prima facie showing, the burden shifts to the 1 party opposing the motion to demonstrate the existence of specifi c evidentiary facts 2 which would require trial on the merits.” Roth v. Thompson , 113 N.M. 331, 334-35, 3 825 P.2d 1241, 1244-45 (1992) (citation omitted). A party opposing summary 4 judgment may not simply argue that eviden tiary facts requiring a trial on the merits 5 may exist. Dow v. Chilili Coop. Ass’n , 105 N.M. 52, 54-55, 728 P.2d 462, 464-65 6 (1986). Rather, “the party opposing summary judgment has the burden to show at 7 least a reasonable doubt, rather than a sli ght doubt, as to the ex istence of a genuine 8 issue of fact.” Eisert v. Archdiocese of Santa Fe , 2009-NMCA-042, ¶ 10, 146 N.M. 9 179, 207 P.3d 1156 (internal quotation marks omitted), cert. denied , 2009-NMCERT10 004, 146 N.M. 641, 213 P.3d 791. 11 We are also mindful, that “[b]efore ordering dismissal with prejudice on a 12 motion for summary judgment for failure to respond, a district court should consider: 13 (1) the degree of actual prejudice to the [opposing party], (2) the amount of 14 interference with the judicial process, and (3) the culpability of the litigant.” Lujan 15 v. City of Albuquerque , 2003-NMCA-104, ¶ 12, 134 N.M . 207, 75 P.3d 423 (internal 16 quotation marks and citation omitted). A moving party may not be entitled to 17 judgment, even if a non-moving party totally fails to respond to the motion. Brown 18 v. Taylor , 120 N.M. 302, 305, 901 P.2d 720, 723 (1995). 194 Here, LANB appears to havefiled ten separate mo tions for summary judgment 1 against Defendants. [RP 220, 226, 237, 249, 271, 285, 304, 328, 381, 408] These 2 motions were apparently considered at a hearing on July 1, 2009. [RP 508] Defendants 3 failed to appear at that hearing, instead f iling a motion to extend time to respond. [RP 4 446] Defendants also filed an “Objection to Summary Judgment On Decree For 5 Foreclosure and Order of Sale,” apparentlyin response to a notice of presentment of 6 order. [RP 465] The objection states De fendants mistakenly believed they had 30 7 days to respond to the motions for summary judgment and also mistakenly believed 8 an amended notice of hearing rescheduling a pre-trial conference to July 9, 2009, had 9 moved the July 1, 2009, hearing on the mo tions for summary judgment. [RP 465-469] 10

The objection also argues genuine issues of material fact exist precluding 11 summary judgment, but does not introduce any evidence which might establish a 12 material issue of fact. [RP 468-473] The sole evidentiary attachment is a deposition 13 correction, in which Defendant Urban st ates that: “No letter granting Power of 14 Attorney was ever recorded. So, although Ms. Zakas signed for me as attorney in fact, 15 it is an improper signature.” [RP 473] Defendants did not offer any explanation as 16 to how this might establish a material issue of fact as to any of the summary judgment 17 motions. 185 Thereafter, LANB filed an objection to Defendants’ motion to extend time, 1 Defendants filed a second moti on to extend time, and LANB filed a response to the 2 second motion. [RP 487, 495, 499] Notice of hearing on the presentments of 3 summary judgments, the motions for extensi on of time, and the obj ections were filed 4 on August 4. The district court entered the order granting summary judgment, decree 5 of foreclosure and order of sale on Augus t 17, 2009, after a h earing. [RP 508, 512] 6 Defendants appeal. 7 Defendants do not directly attack the district court’s denial of the motion to 8 extend time, but rather attack the district court’s final grant of summary judgment and 9 decree of foreclosure. Defendants argue issues of material fact preclude summary 10 judgment. [DS 2; MIO 1; RESP 2 ] Sp ecifically, Defendants argue their “responses 11 to plaintiff’s request for admissions alone s how that genuine issues of material facts 12 exist.” [DS 2] They also allege LANB prematurely reported their account past due to 13 the credit bureau, causing Defendants to be unable to refinance their loan. [RESP 2, 14 Ex. A-B] It does not appear, however, thateither Exhibits A and B or Defendants’ 15 answers to the requests to admit wereoffered as evidence during the summary 16 judgment proceedings See In the Matter of Aaron L., 2000-NMCA-024, ¶ 27, 128 17 N.M. 641, 996 P.2d 431 (explaining “[t]his Court will not cons ider and counsel should 18 not refer to matters not of record in their briefs.”); Jemko, Inc. v. Liaghat, 106 N.M. 196 50, 55, 738 P.2d 922, 927 (Ct. App. 1987) (“It is improper to attach to a brief 1 documents which are not part of the record on appeal.”). 2 Simply put, this is not sufficient to carry Defendants’ burden. Once LANB 3 made a prima facie case for summary judgment, the burden shifted to Defendants to 4 demonstrate the existence of specific evid entiary facts which would require trial on 5 the merits. Thompson , 113 N.M. at 334-35, 825 P.2d at 1244-45. Our proposed 6 notice indicated that if Defendants assert genui ne issues of material fact existed at the 7 time the district court granted summary j udgment, they were required to outline in 8 their memorandum in opposition those facts whic h were before the district court that 9 they believe precluded summary judgment. This they have not done, instead relying 10 on information that was not before the district court at the time it considered the 11 motions for summary judgment. 12 Moreover, Defendants havefailed to outline with any specificity which claims 13 they believe as to which LANB failed toestablish even a prima facie case for 14 summary judgment. See Rule 12-208(D)(3) NMRA (requiring a party’s docketing 15 statement to include “a conc ise, accurate statement of the case summarizing all facts 16 material to a consideration of the issues presented”); see also Muse v. Muse , 17 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P. 3d 104 (explaining we will not search 18 the record for facts, arguments, and rulings in order to support generalized 197 arguments); see also Hennessy v. Duryea , 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 1 P.2d 683 (reiterating in summary calendar cas es, the burden is on the party opposing 2 the proposed disposition to clearly point out errors in fact or law). Finally, as 3 indicated in LANB’s memorandum in support, a review of the record indicates 4 evidence was introduced providing a factual basis for each of LANB’s motions for 5 summary judgment, thereby establishing a prima facie case for summary judgment. 6 [ See, e.g., RP 223, 230, 242, 256] 7 We therefore affirm the district court’s grant of summary judgment and order 8 of foreclosure. 9 IT IS SO ORDERED. 10

11 MICHAEL D. BUSTAMANTE, Judge 12 WE CONCUR: 13

14 JONATHAN B. SUTIN, Judge 15

16 CELIA FOY CASTILLO, Judge 178