This memorandum opinion was not selected for pub lication 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 MATRIX FINANCIAL SERVICES CORP, 2 Plaintiff-Appellant, 3 v. No. 34,635 4 ADELE LARRIBAS, 5 Defendant-Appellee, 6 and 7 ELAINE CHAVEZ, and if married, 8 JOHN DOE B (true name unknown), her spouse; 9 and SECRETARY OF HOUSING AND 10 URBAN DEVELOPMENT, 11 Defendants. 12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Victor S. Lopez and Nan G. Nash, District Judges 14 Little, Bradley & Nesbitt, P.A. 15 Sandra A. Brown 16 Lucinda R. Silva, Of Counsel 17 Albuquerque, NM 18 for Appellant 19 JRSPC, LLC 20 Joshua R. Simms 21 Albuquerque, NM 222 for Appellee 1 MEMORANDUM OPINION 2 HANISEE, Judge. 3
{1} Plaintiff-Appellant Matrix Financial Services Corporation (Matrix) appeals 4 from the district court’s order gran ting Defendant-Appell ee Adele Larribas’s 5 (Larribas) motion to vacate foreclosure judgment due to lack of standing and 6 dismissing Matrix’s foreclosure complaint with prejudice. On appeal, Matrix argues 7 that the district court erred in considering the motion in the first place; in granting the 8 motion when Larribas failed to articulate her standing objections or otherwise respond 9 or appear at the hearing regarding the same ; in finding that standing had to be proven 10 with a dated indorsement as of the filing of the complaint; in concluding that Matrix 11 did not prove that it had standing as of th e filing of the complaint based on the record 12 presented; and in dismissing Matrix’s foreclosure complaint withprejudice. 13
{2} As discussed more fully in this Opini on, our Supreme Court recently clarified 14 that a party who fails to challenge standi ng prior to the completion of a trial on the 15 merits, or while litigation is still active, waives his standing arguments. See Deutsche 16 Bank Nat’l Trust Co. v. Johnston , No. 34,726, 2016 WL 852521, 2016-NMSC-013, 17 ¶¶ 10-19, ___ P.3d ___. In light of this clarif ication, we hold that Larribas waived her 18 right to challenge Matrix’s evidence regarding standing because she failed to make 193 such a challenge prior to entry of the final judgment. Because resolution of this issue 1 is dispositive of this appeal, we do not reach the remaining issues raised by Matrix. 2 We reverse and remand with instructions to reinstate the vacated judgment. 3 BACKGROUND 4
{3} Matrix filed a complaint for foreclosure against Larribas, as well as other 5 defendants not relevant to this appeal. Larribas filed an answer, asserting, inter alia , 6 the affirmative defense that Matrix l acks standing to foreclose, without any 7 explanation as to how or why Matrix lacks standing. Thereafter, Matrix filed a motion 8 for summary judgment, including additional factual information and an affidavit 9 attesting to its standing. Larribas did not respond to the motion and did not challenge 10 the evidence Matrix provided to show that it did, in fact, have standing to bring the 11 foreclosure complaint. A hearing was he ld on the motion for summary judgment, at 12 which Larribas did not appear. The distri ct court entered summary and default 13 judgment in Matrix’s favor. A special master’s sale was held, and the district court 14 entered an order approving the saleand the special master’s report. 15
{4} Nearly four months after the summary and default judgment was entered, 16 Larribas filed a motion to vacate the sale and declare the judgment void, challenging 17 Matrix’s standing pursuant to Rule 1-060( B) NMRA. Matrix responded to the motion 18 and also filed an affidavit by its counsel regarding possessi on of the original note; an 194 affidavit by an authorized signer for Matrix, attesting to Matrix’s standing at the time 1 of filing the complaint; and a custodian’s affidavit, attesting to Matrix’s custodian’s 2 physical possession of the original note sin ce 2004. Two hearings were held, at which 3 Larribas presented no evidence and after whic h the district court nonetheless granted 4 Larribas’s motion. By its order, the districtcourt vacated the fo reclosure judgment and 5 dismissed the foreclosure complain t with prejudice. Matrix appeals. 6 DISCUSSION 7
{5} Matrix first argues that Larribas’ moti on to vacate does not meet the threshold 8 requirement of timeliness and the district court erred in entertaining the untimely Rule 9 1-060(B)(4) motion and refusing to recognize and enforce the finality of the summary 10 and default judgment. Our Supreme Court recently addressed this issue in Johnston , 11 2016-NMSC-013, ¶¶ 10-19. 12
{6} In Johnston , the Supreme Court first explained and clarified New Mexico law 13 on whether standing is jurisdictional. The Court explained that, 14 [a]s a general rule, standing in our courts is not derived from the state 15 constitution, and is not jurisdictional. However, when a statute creates a 16 cause of action and designates who may sue, the issue of standing 17 becomes interwoven with that of subject matter jurisdiction. Standing 18 then becomes a jurisdictional prerequisiteto an action. . . . [W]e take this 19 opportunity to clarify . . . and hold that mortgage foreclosure actions are 20 not created by statute. Therefore, the issue of standing in those cases 21 cannot be jurisdictional. 225 Id. ¶ 11 (alteration, internal quotation marks, and citations omitted). Further, since a 1 cause of action to enforce a promissory note was not created by statute, standing is not 2 jurisdictional in such a case. Id. ¶ 10; see also id. ¶ 12 (explaining further). 3 Accordingly, “only prudential rules of standing apply[.]” Id. ¶¶ 10, 12. 4
{7} With regard to such prudential rules, the Court explained that, “[a]lthough the 5 [Uniform Commercial Code’s (UCC)] defi nition of who may enforce a note does not 6 create a jurisdictional prerequisite . . ., it nonetheless guides our determination of 7 whether the plaintiff can articul ate a direct injury that th e cause of action is intended 8 to address.” Id. ¶ 14. Specifically, a party seeking to enforce a negotiable instrument 9 such as a promissory note, must “establish that it [falls] into one of the[ ] three 10 statutory categories [in NMSA 1978, S ection 55-3-301 (1992), identifying who is 11 entitled to enforce an instrument,] that would establish both its right to enforce [the 12 h]omeowner’s promissory note and its basis for claiming that it suffered a direct injury 13 from [the h]omeowner’s alleged default on the note.” Johnston , 2016-NMSC-013, ¶ 14 14. 15
{8} The Court further stated that, because standing is not jurisdictional, the 16 possibility remains that a homeowner can waive the issue. Id. ¶ 15. The Court then 17 analogized arguments based on lack of prudential standing to asserting that a litigant 186 has failed to state a legal cause of action, and held that Rule 1-012(H)(2) NMRA 1 applies to issues of prudential standing. Johnston , 2016-NMSC-013, ¶ 16. 2 Rule 1-012(H)(2) states: 3 A defense of failure to state a clai m upon which relief canbe granted, a 4 defense of failure to join a party indispensable under Rule 1-019 NMRA 5 and an objection of failure to state a legal defense to a claim may be 6 made in any pleading permitted or ordered under Ru le 1-007 NMRA, or 7 by motion for judgment on the pleadings, or at the trial on the merits. 8 Thus, as analogized, a defense that the plaintiff lacks standing “may be made in any 9 pleading permitted or ordered under Rule 1-007, or by motion for judgment on the 10 pleadings, or at the trial on the merits.” Inother words, a challenge to standing must 11 be made prior to or at the trial on the merits, Rule 1-012(H)(2); Johnston , 2016- 12 NMSC-013, ¶ 16, or at any point in an active litigation, id. ¶ 18 (“When standing is 13 a prudential consideration, it can be raised for the first time at any point in an active 14 litigation[.]”). Judgment on a motion for summary judgment necessarily precludes 15 trial, so for purposes of applying Rule1-012(H)(2) to a case in which summary 16 judgment is granted, the entry of the fi nal judgment serves as the ending point to 17 active litigation. See Paez v. Burlington N. Santa Fe Ry. , 2015-NMCA-112, ¶ 26, 362 18 P.3d 116 (“The purpose of summary judgment is to pierce the boilerplate of the 19 pleadings and assay the parties’ proof in order to determine wh ether trial is actually 20 required.” (internal quotation marks and citation omitted)); see also Rule 1-060(B)(6) 217 (stating that “[a] motion under this paragraph does not affect the finality of a judgment 1 or suspend its operation”); Martinez v. Friede , 2004-NMSC-006, ¶ 17, 135 N.M. 171, 2 86 P.3d 596 (noting that a district court’s power to reopen judgment and grant a new 3 trial under Rule 1-060(B) has “ no effect on the parties’ ab ility to calculate the time in 4 which they must file their notice of app eal . . . because a motion under Rule 1-060(B) 5 does not affect the finality of a judgment orsuspend its operation” (internal quotation 6 marks and citation omitted)), superseded by rule on other grounds as stated in State 7 v. Moreland, 2008-NMSC-031, 144 N.M. 192, 185 P.3d 363; cf. In re Estates of 8 Hayes , 1998-NMCA-136, ¶ 17, 125 N.M. 820, 965 P.2d 939 (stressing that, “if the 9 time period for filing a notice of appeal on the underlying judgment has elapsed, a 10 Rule 1-060(A) order does not establish a new time period for appealing the original 11 judgment”). 12
{9} The homeowner in Johnstondid not waive standing becau se he raised the issue 13 in a motion prior to trial. Johnston , 2016-NMSC-013, ¶ 17. Conversely, in the present 14 case, Larribas filed her motion to vacate th e judgment, only then challenging Matrix’s 15 evidence attesting to its standing, several months after the final judgment was entered. 16 Because Larribas did not challenge Matrix’s standing evidence until months after the 17 litigation was no longer active, we conclude that Larribas waived her right to 188 challenge Matrix’s prudential standing. See Johnston , 2016-NMSC-013, ¶¶ 15-19; 1 Rule 1-012(H)(2). 2
{10} Moreover and importantly, Johnstonheld that “a final judgment on any . . . 3 cause of action [other than one that lacks standing as a jurisdictional matter], including 4 an action to enforce a promisso ry note such as this case, is not voidable under Rule 5 1-060(B) due to a lack of prudential standing.” Johnston , 2016-NMSC-013, ¶ 34 6 (emphasis added). Likewise, in the presen t case, the final judgment granting Matrix 7 summary and default judgment is not voidable under Rule 1-060(B) due to a lack of 8 prudential standing. Johnston , 2016-NMSC-013, ¶ 34; see also Ealy v. McGahen , 9 1933-NMSC-033, ¶ 19, 37 N.M. 246, 21 P. 2d 84 (“Where an action or suit is 10 regularly commenced and prosecuted, judgment regularly entered, even though by 11 default, the defendant cannot thereafter on motion vacate such judgment on the ground 12 of the existence of a complete defense tothe action, which defense was available to 13 the defendant before the entry of the judgment.”). We therefore conclude that the 14 district court erred in considering the merits of Larribas’s post-final judgment, Rule 15 1-060(B) challenge to Matrix ’s prudential standing, and in granting Larribas’s motion 16 to vacate on such grounds. 179 CONCLUSION 1
{11} For the foregoing reasons, we reverse the district court’s order granting 2 Larribas’s motion to vacate, and we remand tothe district court with instructions to 3 reinstate the judgment and foreclosure complaint. 4
{12} IT IS SO ORDERED. 5

_________________________________ 6 J. MILES HANISEE, Judge 7

WE CONCUR: 8

_________________________________ 9 RODERICK T. KENNEDY, Judge 10

_________________________________ 11 STEPHEN G. FRENCH, Judge 12