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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 WELLS FARGO BANK, N.A, 2 Plaintiff-Appellee, 3

v. NO. 34,244 4 PATTY J. DIBBLE and 5 PHILLIP W. DIBBLE, 6 Defendants-Appellants, 7 and 8 THE STATE OF NEW MEXICO 9 DEPARTMENT OF TAXATION 10 AND REVENUE, 11 Defendants. 12

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 13 Pedro G. Rael, District Judge 14 Andrew Yarrington 15 Albuquerque, NM 16 for Appellee 17 Joshua R. Simms, P.C. 18 Joshua R. Simms 192 Albuquerque, NM 1 for Appellants 2

MEMORANDUM OPINION 3 GARCIA, Judge. 4 {1} Homeowners Patty and Phillip Dibble app eal from the district court’s order 5 denying their motion to vacate for lack of standing. [RP 219] We issued a notice of 6 proposed disposition proposing to affirm, and Homeowners haveresponded with a 7 memorandum in opposition. We have carefullyconsidered the arguments raised in 8 that memorandum; however, for the reas ons stated in the notice of proposed 9 disposition and below, we continue to belie ve that summary affirmance is appropriate 10 in this case. We therefore affirm the district court’s decision. 11 {2} In our notice, we proposed to hol d that Wells Fargo Bank (the Bank) 12 established its standing as a holder in due c ourse of the note on the basis that it is the 13 original lender and had possession of the orig inal note at the time of the filing of the 14 complaint. [RP 6-8] See Bank of New York v. Romero , 2014-NMSC-007, ¶ 21, 320 15 P.3d 1, (parenthetically noting that “[t]he payee is always a holder if the payee has 16 possession” (internal quotation marks and citation omitted)). As an alternative basis, 17 we further proposed to conclude that because the allegations in the complaint were 18 deemed admitted by Homeowners when th ey failed to contest the foreclosure, see 193 Passino v. Cascade Steel Fabricators, Inc. , 1986-NMCA-078, ¶ 8, 105 N.M. 457, 734 1 P.2d 235, overruled on other grounds by Burge v. Mid-Continent Cas. Co. , 2 1997-NMSC-009, ¶¶ 23-24, 123 N.M. 1, 933 P.2d 210; Gallegos v. Franklin , 3 1976-NMCA-019, ¶ 36, 89 N.M. 118, 547 P.2d 1160, and those allegations 4 established that the Bank was the holder of the note, the Bank had satisfied its burden 5 under Bank of New York v. Romeroand Deutsche Bank Nat’l Trust Co. v. Beneficial 6 New Mexico Inc. , 2014-NMCA-090, 335 P.3d 217, cert. granted 2014-NMCERT-008 7 (No. 34,726, August 29, 2014). 8 {3} In response, Homeowners ask this Court to treat the issue of standing in this 9 case in the same manner that our Supreme Court treated comp arative negligence in 10 Burge. [MIO 2-3] In that case, the Court held that “a de faulting party admits only to 11 the liability aspect of the complaint, thus reserving for the damages hearing a 12 determination of damages in accordance with the application of comparative 13 negligence and apportionment of damages” under New Mexico precedent. Burge , 14 1997-NMSC-009, ¶ 22. In other words, when a party defaults in a negligence case, the 15 tortfeasor is still entitled to show the extent to which its damages should be reduced 16 based on the other party’s comparative fault. See id. ¶¶ 24-25. In essence, 17 Homeowners ask this Court to set aside th e general rule that “once default judgment 18 has been entered, liability is not an issue, and the allegations of the complaint become 194 findings of fact[,]” id. ¶ 23 (internal quotation marks and citation omitted), in 1 foreclosure cases where a defendant has defaulted and standing is at issue. 2 {4} We decline to address Homeowners’ argument with respect to Burge , because 3 even if we adopted Homeowners’ approach , Homeowners would not prevail in this 4 appeal. As we noted above, there were tw o alternative bases for affirmance, and 5 Homeowners’ argument addresses only one of them. Homeowners have failed to 6 address our proposed conclusion that the Bank established its standing as a holder in 7 due course of the note on the basis that it is the original lender and had possession of 8 the original note at the time of the filing of the complaint. See Hennessy v. Duryea , 9 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly 10 held that, in summary calendar cases, th e burden is on the party opposing the proposed 11 disposition to clearly point out errors in fact or law.”). We continue to believe that, 12 even setting aside the default, the Bank ha s established standing to enforce the note 13 in this case. 14 {5} Accordingly, based on the foregoing discussion and our notice of proposed 15 disposition, we affirm the district court’s decision in this case. 16 {6} IT IS SO ORDERED. 17

__________________ ______________ 18 TIMOTHY L. GARCIA, Judge 195 WE CONCUR: 1

_______________________________ 2 MICHAEL D. BUSTAMANTE, Judge 3

_______________________________ 4 J. MILES HANISEE, Judge 5