This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 CARDREW, LLC, a limited liability 7 company, 8 Plaintiff-Appellee, 9

v. NO. 28,745 10 TOMMY JONES and 11 CAROL ANTOINE, 12 Defendant-Appellants. 13 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 14 Karen L. Parsons, District Judge 15 J. Robert Beauvais, P.A. 16 J. Robert Beauvais 17 Ruidoso, NM 18 for Appellee 19 Richard A. Hawthorne, P.A. 20 Richard A. Hawthorne 21 Ruidoso, NM 22 for Appellants 23

MEMORANDUM OPINION 24 GARCIA, Judge. 252 Plaintiff, Cardrew LLC, filed suit ag ainst Defendants Tommy Jones and his 1 girlfriend, Carol Antoine, requesting that the district court set aside Antoine’s 2 redemption of the property in question. Cardrew asserts the distri ct court erred (1) in 3 determining that the foreclosure sale on th e property extinguished the junior mortgage, 4 (2) in determining that Jones’s assignment of his right of redemption was not 5 fraudulent, and (3) in denying his motion to reconsider. We affirm. 6 BACKGROUND 7 When Jones and Kathryn Dewbre were married, they took out a mortgage with 8 Suburban Mortgage on their house (Lot 14). The couple also owned the lot next door 9 (Lot 15). Lot 15 was not subject to the mo rtgage with Suburban Mortgage. Jones and 10 Dewbre later divorced, and as part of the divorce, Jones kept Lots 14 and 15 in 11 exchange for paying Dewbre $40,000. To secure the debt, Jones gave Dewbre a 12 mortgage on both Lots 14 and 15. 13 Jones defaulted on both th e mortgage with Suburban Mortgage and the 14 mortgage with Dewbre. In 1998, Suburban Mortgage filed a foreclosure action 15 against Jones and Dewbre on Lot 14. De wbre successfully cross-claimed against 16 Jones and was awarded a monetary judgment against him for $5,000, the amount still 17 owed on her mortgage. A foreclosure d ecree was entered in favor of Suburban 18 Mortgage, extinguishing the mortgage give n to Dewbre as it related to Lot 14. 193 Cardrew was the successful bidder in the February 16, 2000, foreclosure sale, paying 1 $43,000 for Lot 14. On March 9, 2000, after the foreclosure sale, Dewbre assigned 2 her mortgage on Lots 14 and 15 to Cardrew. 3 Jones assigned his right of redemption on the Suburban Mortgage to Antoine 4 in May 2000. At that time, Jones and Anto ine did not know that Dewbre had assigned 5 her mortgage to Cardrew. Antoine secured her own mortgage and bought back Lot 6 14 under her right of redemption. Anto ine paid the full redemption amount of 7 $44,013.08, to Cardrew, which included interest . Cardrew filed this lawsuit against 8 Jones, Antoine, Dewbre, and other defe ndants in October 2001. As part of a 9 settlement agreement reached in January 2004, Dewbre transferred to Cardrew her 10 $5,000 monetary judgment against Jones. 11 In this case, Cardrew asserted that the redemption for Lot 14 should be set aside 12 because Jones’s assignment of his right of redemption to Antoine was a fraudulent 13 transfer in violation of the Uniform Fraudulent Transfer Act (UFTA), NMSA 1978, 14 §§ 56-10-14 to -25 (1989). The district court ruled that the assignment to Antoine was 15 not fraudulent, that Cardrew was entitled to a monetary judgment in the amount of 16 $5,258.70 plus interest, and that Cardrew was entitled to a decree of foreclosure on 17 said monetary judgment against Lot 15. Cardrew appeals from the district court’s 18 order. 194 DISCUSSION 1 Redemption and Assignment of Mortgage 2 Cardrew relies on Turner v. Les File Drywall, Inc. , 117 N.M. 7, 868 P.2d 652 3 (1994), to support what appears to be its ar gument that “[o]nce the foreclosure was set 4 aside, the Jones[’] mortga ge assigned to Cardrew was revived[,]” thereby providing 5 it with a legal interest in Lot 14. In Turner , the Supreme Court held that a 6 “mortgagor’s assignee takes property redeemed after foreclosure free of all prior 7 junior judgment liens not his own [since] the property of one man cannot be subjected 8 to the payment of the debts of another.” Id. at 9, 868 P.2d at 654 (internal quotation 9 marks and citation omitted). Under this holding, the junior mortgage assigned to 10 Cardrew would not survive since Jones’ a ssignee redeemed the property. The Court 11 in Turner , however, also noted that a right of redemption is subject to the UFTA. Id. 12 Cardrew argues that Jones’ transfer to Antoine violated the UFTA, thereby causing 13 the junior mortgage to be revived. Th erefore, we must determine whether Jones’ 14 transfer of his right of redemption wa s fraudulent under the UFTA before we can 15 determine whether Cardrew retained any interest in Lot 14 as the holder of the junior 16 mortgage. 17 UFTA Claim 18 Cardrew’s argument requires us to reviewwhether the district court erred in 195 finding that it did not prove by clear and convincing evidence that Jones fraudulently 1 transferred his right of redemption to Antoine. See Ellen Equip. Corp. v. C.V. 2 Consultants & Assocs., Inc. , 2008-NMCA-057, ¶ 1, 144 N.M. 55, 183 P.3d 940. A 3 fraudulent transfer under Section 56-10-18(A) of the UFTA is one where a debtor 4 transfers an asset: 5 (1) with actual intent to hinder, de lay or defraud any creditor of the 6 debtor; or 7 (2) without receiving a reasonably equivalent value in exchange for 8 the transfer or obligation, and the debtor: 9 (a) was engaged or wa s about to engage in a business or a 10 transaction for which the remain ing assets of the debtor were 11 unreasonably small in relation to the business or transaction; or 12 (b) intended to incur, or be lieved or reasonably should have 13 believed that he would incur, debts beyond his ability to pay as they 14 became due. 15 Pursuant to Section 56-10-18(A)(1), the district court found that Cardrew 16 “failed to offer sufficient proof that Jones’ assignment of his right of redemption was 17 made with the intent to hinder, delay, or defraud [Cardrew ].” We review the district 18 court’s findings of fact for substantial evidence. Ellen Equip. , 2008-NMCA-057, ¶ 8. 19 Substantial evidence is “such relevant evidence as a reasonable mind might accept as 20 adequate to support a conclusion.” Id. (internal quotation marks and citation omitted). 21 We consider the facts in th e light most favorable to the district court’s decision, 22 resolving all conflicts and i ndulging all inferences to support the court’s decision. Id. 23 Section 56-10-18(B) lists eleven factors or badges of fraud that a district court 246 may consider when determining whether a party had actual intent under Section 56- 1 10-18(A)(1). Cardrew lists five of the factor s that he argues were present in this case: 2 (1) the transfer or obligation was to an in sider; (2) the debtorretained possession or 3 control of the property after the transfer ; (3) before the transfer was made or 4 obligation was incurred, the debtor had beensued or threatened with suit; (4) the 5 transfer was of substantially all of the debtor’s assets; and (5) the value of the 6 consideration received by the debtor was not reasonably equivalent to the value of the 7 transferred asset. The district court found that Cardrew did not present evidence of 8 the badges of fraud, and our review of the record confirms the district court’s finding. 9 There was no evidence that Jones was inpossession or control of Lot 14 after 10 the redemption. Antoine obtained title to Lo t 14, and Jones was allowed to live there 11 with her permission. There is no evidence that Jones was threatened with suit prior 12 to transferring his right of redemption to Antoine or that the tran sfer was substantially 13 all of the Jones’ assets. Jones still owned Lot 15 after th e foreclosure sale, and we do 14 not know if Jones had other assets. Finally, there was no evidence presented 15 regarding the value of the right of rede mption for Lot 14. The burden was on Cardrew 16 to establish the value of the right of redemption by clear and convincing evidence. 17 The district court erred in speculating about the value of Jones’ right of redemption 18 based upon the alleged market value of Lot 14. 197 Although not listed as one of the proven badges of fraud, Cardrew also argues, 1 in a different page of its brief, that the di strict court erred in determining that Jones 2 was not insolvent. SeeSection 56-10-18(B)(9) (listing insolvency as a badge of 3 fraud). Cardrew contends that Jones was in solvent based on the facts that Jones was 4 in default on his mortgages fo r Lots 14 and 15 and that hehad not been working full 5 time for several years. This evidence alonedoes not prove insolvency. There was no 6 complete evidence of Jones’ other debts and assets, except it was established that he 7 still owned other property. 8 Finally, we look at the remaining badgeof fraud—whether the transfer was to 9 an insider. It is not clear whether or not Antoine was an insider under the statute since 10 she is not a relative or busine ss partner of Jones. However, even if we assume without 11 deciding that she was an insider as a result of her personal relati onship with Jones, our 12 holding would not change. The badges of fraud are only potential indicators of fraud 13 that the district court may but is not required to consider. Ellen Equip. , 2008-NMCA14 057, ¶ 9. As explained in Ellen Equipment , “[t]he badges of fraud . . . are designed 15 to assist the [district] court in determini ng the actual intent of the debtor, not to limit 16 the scope of the inquiry.” Id. ¶ 12. Cardrew failed to present uncontradicted evidence 17 to support even one of the other badges of fraud. 18 The evidence in this case supports the determinati on that Jones and Antoine did 198 not intend to defraud Cardrew. Each submitte d an affidavit stating that they did not 1 know that Cardrew was assigned the junior mortgage from Dewbre at the time the 2 right of redemption was transf erred. The junior mortgagewas still valid and secured 3 against Lot 15. We conclude that the ev idence was sufficient to support the district 4 court’s finding that Cardrew failed to prove by clear and convincing evidence that 5 Jones and Antoine violated the UFTA under Section 56-10-18(A)(1). 6 We now turn to Cardrew’s claim under Section 56-10-18(A)(2). Section 56-10- 7 18(A)(2) required Cardrew to prove that J ones did not receive a reasonable value for 8 the right of redemption, and either (1) that Jones was engaged in a transaction for 9 which his remaining assets were unreasonably small compared to the transaction, or 10 (2) that Jones was about to incur debts th at were beyond his ability to pay. Cardrew 11 fails to identify facts in the record to establish the value of the right of redemption or 12 to support its position that Jones was going to incur debt beyond his ability to pay. 13 In its brief, Cardrew only states that the district court erred in not concluding that 14 “Jones should have reasonabl y believed that he would incur debt beyond his ability 15 to pay.” We will not reviewCardrew’s general asserti ons unless they are supported 16 by authority and citations to the record. See Rule 12-213(A) NMRA; Wilburn v. 17 Stewart , 110 N.M. 268, 272, 794 P.2d 1197, 1201 (1990); see also Muse v. Muse , 18 2009-NMCA-003, ¶ 51, 145 N.M. 451, 200 P.3d 104 (filed 2008) (“The mere 199 assertions and arguments of counsel are not evidence.”). Without evidence to support 1 Cardrew’s argument, we cannot determine that the district court erred when it 2 concluded that Jones did not violate the UFTA under Section 56-10-18(A)(2). 3 We agree with the district court. Car drew has failed to prove Jones fraudulently 4 transferred his right of redemption to Antoine. As a result, Dewbre’s mortgage 5 against Lot 14 was extinguished and did not survive the foreclosure sale. Dewbre and 6 her assignee, Cardrew, retained no legal interest in Lot 14 that could be asserted 7 against Antoine after the foreclosure was final. 8 Motion to Reconsider 9 Although it is not clear from the manner in which it presented the issue, 10 Cardrew filed two motions to reconsider. The first was a motion to reconsider the 11 court’s order setting aside the stipulated agreement for judgment. The second was a 12 motion to reconsider the court’s final order. In its brief, Cardrew only argues that the 13 court erred in denying the first motion to set aside the parties’ stipulation. We will 14 only address the motion for reconsideration raised by Cardrew in its brief. We review 15 the court’s decision for anabuse of discretion. GCM, Inc. v. Ky. Cent. Life Ins. Co. , 16 1997-NMSC-052, ¶ 28, 124 N.M. 186, 947 P.2d 143 (“A district court has broad 17 discretion in ruling upon a motion for recons ideration and will only be reversed for 18 an abuse of that discretion.”). An abus e of discretion results when a judge acts 1910 arbitrarily or capriciously under the circumstances. Id. 1 Cardrew argues that the district court erred in denying its motion for 2 reconsideration because the district court had previously erred in setting aside the 3 parties’ stipulated agreement made in open court. We disagree. As Cardrew 4 acknowledges, courts may set aside a stipulated agreemen t when there has been a 5 mistake of fact, the mistake is material to the case, and the mistake was not avoidable 6 with due diligence. See Pena v. Westland Dev. Co. , 107 N.M. 560, 563, 761 P.2d 438, 7 441 (Ct. App. 1988); Marrujo v. Chavez , 77 N.M. 595, 600, 426 P.2d 199, 202 (1967). 8 A material mistake of fact existed whenJones and Antoine made their alleged 9 agreement with Cardrew. 10 Cardrew amended its original complaint three times. In the third amended 11 complaint, it alleged for the first time that Jones’ assignment of his right of 12 redemption to Antoine was fraudulent. Car drew failed to serve either Jones or 13 Antoine with the third amende d complaint. At the hearing in April 2005, when the 14 alleged agreement was discu ssed, Jones and Antoine, al ong with the court, understood 15 that the hearing concerned the merits of the second amended complaint. In addition, 16 Jones and Antoine were not represented by counsel at the hearing. Given the 17 circumstances, Cardrew has failed to demonstr ate that the court’s decision to set aside 18 the stipulated agreement based upon the undi sclosed third amended complaint was in 1911 error. In light of the district court’s discretion and the misunderstanding regarding the 1 multiple amended complaints at the time the stipulated agreement was entered in open 2 court, we cannot conclude that the distri ct court erred in denying Cardrew’s first 3 motion for reconsideration. 4 CONCLUSION 5 We affirm the district court for the reasons stated herein. 6 IT IS SO ORDERED. 7

______________________________ 8 TIMOTHY L. GARCIA, Judge 9

WE CONCUR: 10

_________________________________ 11 MICHAEL D. BUSTAMANTE, Judge 12

_________________________________ 13 LINDA M. VANZI, Judge 14