IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 BANK OF NEW YORK, AS TRUSTEE FOR 2 THE HOLDERS OF THE EQCC ASSET 3 BACKED CERTIFICATES, SERIES 2001-2, 4 Plaintiff-Appellee, 5

v. NO. 29,095 6 SANDRA LEE DODSON, 7 Defendant-Appellant. 8 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 9 Sandra A. Price, District Judge 10 Karen Howden Weaver 11 Albuquerque, NM 12 for Appellee 13 Sandra L. Dodson 14 Farmington, NM 15 Pro Se Appellant 16 MEMORANDUM OPINION 17 KENNEDY, Judge. 18 Defendant Sandra Lee Dodson (Defendant) appeals from the order denying her 19 motion to vacate void judgment and set aside sale. [RP 182] Defendant raises several 20 issues on appeal, regarding the merits of a default judgment of foreclosure, entered on 21 December 29, 2005 (Issues 1-4), and the merits of the order denying Defendant’s 222 objection to sale entered on August 7, 2008 and August 13, 2008 (Issues 5-6). [RP 1 162, 164] As fully discussed in the calendar notice, our case law provides that the 2 judgment of foreclosure issued in 2005 was a final appealable order and the orders 3 confirming the sale filed on August 7 and August 13, 2008, werefinal appealable 4 orders. Defendant did not file a timely no tice of appeal from any of these orders, and 5 this Court does not have jurisdiction to revi ew them on the merits. Defendant did file 6 a timely notice of appeal from the districtcourt’s October 3, 2008 order denying her 7 motion to vacate the void judgment and set aside the sale. The calendar notice 8 proposed to affirm the October 3, 2008 order. Defendant has filed a memorandum 9 in opposition. Unpersuaded, we affirm. 10 DISCUSSION 11 We construe Defendant’s motion to vacate void judgment as a Rule 1-060(B)(4) 12 NMRA motion. Rule 1-060(B)(4) provide s that “On motion and upon such terms as 13 are just, the court may relieve a party or his legal representative from a final judgment, 14 order or proceeding for the following reasons: . . . (4) the judgment is void; . . .” A 15 trial court has discretion to determine wh ether a judgment should be set aside under 16 Rule 1-060(B), and we will only interfere if an abuse of discretion is shown. Sun 17 Country Sav. Bank v. McDowell , 108 N.M. 528, 532, 775 P.2d 730, 734 (1989). To 18 vacate a judgment under Rule 1-060(B), the movant must allege proper material 193 grounds for reopening the judgment. Sun Country Sav. Bank , 108 N.M. at 532, 775 1 P.2d at 734. 2 In the memorandum, Defendant argues th at it would be inthe public’s best 3 interest to set aside the judgment of fo reclosure so that “void judgments will not 4 become the norm.” [MIO 1] Defendant also continues to argue that this Court must 5 review the merits of the 2005 judgment of foreclosure and the August 2008 orders 6 confirming the sale, because when a judgment is void there is no limitation of time 7 within which a motion for relief must be file d. [MIO 2] Defendant further continues 8 to argue the merits of the 2005 foreclosure judgment. [MIO 5] Defendant points out 9 that she is not seeking to reopen the void judgment but to quash it. [MIO 6] 10 Defendant urges this Court to set aside the void judgment that was entered in violation 11 of her due process rights. [MIO 6-7] Sh e further argues that full briefing will assist 12 in resolving the issues on appeal, and c ontends that this Co urt has the power or 13 authority to decide the particular matters presented in “excess of jurisdiction 14 doctrines.” [MIO 7] We are not persuaded. 15 All of Defendant’s arguments rest on the assumption that the 2005 foreclosure 16 judgment is void. Our review of the circ umstances of this case, however, has led us 17 to conclude that the district court correc tly denied Defendant’s motion to vacate void 18 judgment because the foreclosure judgment and the confirmation of sale orders are not 194 void. The 2005 foreclosure judgment determin ed the validity of the loan documents, 1 Defendant’s promise to pay in consideration for the loan, and the validity of the 2 mortgage on Defendant’s resi dence that Defendant executed to secure her promise to 3 pay the loan. Defendant di d not contest that she owes the money and default on 4 repaying it as evidenced by several documents in the record proper and by her 5 participation in the forbearance ag reements discussed below. 6 Moreover, we hold that there was no vi olation of Defendant’s due process 7 rights. Due process requires that noti ce be reasonably calculated, under all the 8 circumstances, to inform parties of the pe ndency of the action and afford them the 9 opportunity to present their objections. See Marinchek v. Paige , 108 N.M. 349, 351- 10 52, 772 P.2d 879, 881-82 (1989). The record proper establishes that Defendant was 11 notified of the foreclosure proceedings and given full opportunity to defend against 12 them. 13 Defendant received notice of the foreclos ure complaint and she failed to appear 14 to defend against it. [RP 31, 35, 37] Af ter judgment was filed and certified as sent 15 to Defendant in January 2006 [RP 43], Defendant did not moveto set aside the default 16 judgment; instead, she entered into the fo rbearance agreements with the Bank. [ See, 17

e.g. , RP 113, 296] Moreover, after the fo reclosure judgment was filed in December 18 2005, the record proper indicates that Defe ndant was sent notice that the sale was 195 postponed from February 2006 to March 2006. [RP 47, 49] The next document in the 1 record proper is a notice of sale filed on January 29, 2008. [RP 52] Between January 2 2006 and January 2008, the parties entere d into forbearance agreements, which 3 specifically recite the fact of Defendant’s default under the loan and the existence of 4 the foreclosure proceedings on the mortgage. [ See, e.g. , RP 113, 296] In a “relief and 5 good cause” pleading filed in July 2008, Defendant admits that she knew she was 6 three months behind in her mortgage loan payments “when the foreclosure started.” 7 [RP 154] In that pleadi ng, Defendant further acknowle dges that she knew that the 8 initial sale date was postponed from February 2006 to March 2006. [RP 155] 9 The record proper indicates that the Bank spent almost three years after the 10 foreclosure judgment was entered in December 2005, attempting to work out payment 11 arrangements with Defendant and forestalling the sale of th e real property. The Bank 12 entered into two forbearance agreements with Defendant, both of which she breached, 13 and postponed the date of sale numerous times in order to check and recheck their 14 records against Defendant’s allegations and assurances of payments made or to be 15 made. [RP 49, 113, 138, 154, 268, 291, 302-19] After th e sale did finally occur in 16 May 2008, Defendant’s objections to the sale were heard. [RP 162, 352] To the 17 extent Defendant continues to argue that the Bank essentially misled her into not 18 appearing in the initial foreclosure proceedi ngs, we are mindful that the trier of fact 196 is in the best position to evaluate the credibility of witnesses, and, on appeal, we do 1 not reweigh evidence or draw our own conc lusions about the credibility of witnesses. 2 See Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 127, 767 P.2d 363, 366 3 (Ct. App. 1988) (s tating that the trial court is in the best position to evaluate the 4 credibility of witnesses). After hearing Defe ndant’s objections to the sale, the district 5 court entered the August 2008 orders, denyi ng Defendant’s objections and confirming 6 the sale. [RP 162, 164] 7 CONCLUSION 8 Under the circumstances, we cannot say that the district court abused its 9 discretion in refusing to void the 2005 judgment of foreclosure or the August 2008 10 orders denying her objections and confirming the sale of the real property. 11 Accordingly, we affirm the October 3, 2008 order. 12 IT IS SO ORDERED. 13

___________________________________ 14 RODERICK T. KENNEDY, Judge 15

WE CONCUR : 167 ___________________________ 1 JAMES J. WECHSLER, Judge 2

___________________________ 3 CELIA FOY CASTILLO, Judge 4