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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 NEW MEXICO BANK & TRUST, 2 Plaintiff/Counterdefendant-Appellee, 3 v. No. A-1-CA-35486 4 DEL REANNE LUCAS, 5 Defendant/Counterclaimant-Appellant, 6 and 7 BERNALILLO COUNTY; 8 ERIK HIGLEY; PRIMROSE POINTE 9 HOMEOWNERS’ ASSOCIATION, INC.; 10 and TRISH THURSTON, 11 Defendants. 12 APPEAL FROM THE DISTRICT CO URT OF BERNALILLO COUNTY 13 Nan G. Nash, District Judge 14 Jurgens & With, P.A. 15 James R. Jurgens 16 Santa Fe, NM 17 Keleher & McLeod, P.A. 18 Thomas C. Bird 19 Albuquerque, NM 20 for Appellee 212 Cravens Law LLC 1 Richard H. Cravens, IV 2 Albuquerque, NM 3 for Appellant 4 MEMORANDUM OPINION 5 VANZI, Judge. 6

{1} This appeal arises from an in rem fo reclosure action commenced by Plaintiff 7 New Mexico Bank & Trust, successo r-by-merger to Community Bank 8 (collectively, Bank), after Defendant-A ppellant Del Reanne Lucas (Borrower) 9 failed to make payments on a home equ ity line of credit (HELOC). Borrower 10 appeals from the district court’s summa ry and default judgment, decree for 11 foreclosure and order of sale (Final Order), entered following the district court’s 12 order granting Bank’s summary-judg ment motion and denying Borrower’s 13 summary-judgment motion. We affirm, alt hough on grounds different from those 14 stated by the district court. 15 BACKGROUND 16

{2} Borrower represents the facts as undi sputed. On January 19, 2010, Borrower 17 executed and delivered the HELOC at i ssue to Community Bank (a New Mexico18 chartered bank) in the original amount of $78,000, secured by a duly recorded 19 mortgage (Mortgage) creating a lien on property located at 8803 Primrose Court, 20 NE in Albuquerque (Property). The Mortga ge is a valid lien on the Property. New 213 Mexico Bank & Trust, also a New Mexico -chartered bank, is the successor-by1 merger to Community Bank and the owner and holder of the HELOC and 2 Mortgage. 3 Borrower’s Bankruptcy Discharge 4

{3} On May 20, 2014, Borrower filed a voluntary Chapter 7 bankruptcy petition, 5 thereby staying “any act to create, perfect, or enforce against property of the debtor 6 any lien to the extent that such lien secures a claim that arose before the 7 commencement of the case under this title[.]” 11 U.S .C. § 362(a)(5) (2012). 8 Borrower’s Schedule D (Creditors Hold ing Secured Claims) listed the HELOC 9 debt in the amount of $76,100. 10

{4} On June 10, 2014, Bank’s counsel as ked in an email to Borrower’s 11 bankruptcy counsel whether Borrower would “reaffirm th e debt to [Bank]” and 12 whether Bank should “continue to send co mputer generated billing notices for the 13 payments due to the debtor, or [if counsel took] the position that the stay prohibits 14 it.” Borrower did not consent to Bank’s reque st. Borrower disputes that she herself 15 received the email or notice of the inquiry from her bankruptcy counsel. 16

{5} On August 28, 2014, the bankruptcy court issued an order discharging 17 Borrower’s debts pursuant to 11 U.S.C. § 727 (2012), including Borrower’s 18 personal (in personam) liability for the amount owed on the HELOC. A discharge 19 in bankruptcy “operates as an inju nction against the commencement or 204 continuation of an action, the employment of process, or an act, to collect, recover 1 or offset any such debt as a personal liability of the debtor, whether or not 2 discharge of such debt is waived.” 11 U.S.C. § 524(a)(2) (2012). The discharge 3 injunction does not enjoin enforcement of a creditor’s lien against real property. 4 See , e.g. , Johnson v. Home State Bank , 501 U.S. 78, 83-84 (1991) (explaining that 5 the bankruptcy discharge “extinguishes only the personal liability of the debtor”; 6 “the [Bankruptcy] Code provides that a creditor’s right to foreclose on the 7 mortgage survives or passes through the bankruptcy”; and “[e]ven after the 8 debtor’s personal obligations have been extinguished, the mortgage holder still 9 retains a right to payment in the form of its right to the proceeds from the sale of 10 the debtor’s property” (internal quotation marks and citation omitted)). 11 Bank’s Post-Discharge Foreclosure Action 12

{6} Borrower did not make the monthly HELOC payment due August 21, 2014, 13 and failed to make other mo nthly payments due thereafte r. On January 22, 2015, 14 Bank filed a complaint for foreclosure (in rem), seeking to foreclose on the 15 Property. 1 In addition to allegations concerning Borrower’s default and Bank’s 16 right to foreclose, the complaint noted the bankruptcy discharge of Borrower’s in 17 personam liability on the HELOC. The co mplaint did not allege that Bank 18 provided notice to Borrower under New Me xico’s Home Loan Protection Act 19

1 The complaint named other defendants in addition to Borrower. We address only the issues pertinent to Bank and Borrower.5 (HLPA), NMSA 1978, §§ 58-21A-1 to - 14 (2003, as amended through 2009), 1 which provides, in pertinent part: “Before an action is f iled to foreclose or collect 2 money due pursuant to a home loan or be fore other action is taken to seize or 3 transfer ownership of property subject to a home loan, the creditor or creditor’s 4 assignee of the loan shall deliver to the borrower a notice of the right to cure the 5 default informing the borrower of” certa in information. Section 58-21A-6(A). 6

{7} Borrower’s answer to the complaint asserted seve ral general affirmative 7 defenses, which did not incl ude a defense based on HLPA , and reserved the right 8 to assert additional defenses. After Bank moved to compel discovery responses 9 from her, Borrower filed an “Objection to Written Discovery, Deposition, and 10 Motion for Protective Order,” arguing (am ong other things) that the HELOC debt 11 had been discharged in bankruptcy; Bank was the junior mortgage holder and had 12 failed to notify the senior mortgage holde r of the foreclosure action; and Bank’s 13 discovery “furthers the abuse of process th at started with the filing of a Complaint 14 without probable cause.” In a “Reply in Support of Her Objection,” Borrower also 15 asserted that she was not in default. 16

{8} Months later, on November 10, 2015, Bo rrower moved to vacate the district 17 court’s scheduling order and trial on the grounds that Ba nk “did not give Notice or 18 a chance to Cure before filing the Comp laint”; Bank was “prohibited from filing 19 the Complaint in Foreclosure without gi ving Notice and the opportunity to Cure” 206 (citing Section 58-21A-6); and “[t]he violations of stat e law and covenant [of good 1 faith and fair dealing] requi re [Borrower] to seek leav e of the Court to amend her 2 Answer and make Counterclaims.” In opposing Borrower’s motion, Bank stated 3 that Borrower “did not consent to reaffi rming the debt or that [Bank] could 4 continue to send computer notices of pa yments due” and that, in answering the 5 foreclosure complaint, Borrower did not ra ise a HLPA-based defense or assert any 6 counterclaims. Bank argued that Borro wer’s motion was untimely and that 7 amendment would be futile be cause, while “a post-discha rge act to enforce a lien 8 against real property of a debtor (to collect a debt in rem), does not violate the 9 discharge injunction[,]” Ba nk “could not send an HLPA notice without violating 10 the discharge injunction and exposing itself to being held in contempt of court and 11 to damages[,]” and “[p]ursuant to the Supremacy Clause, [Bank]’s duty to obey 12 federal law overrides any state law duty to send a HLPA notice.” “If [Borrower] is 13 allowed to assert a counterclaim under the HLPA,” Bank argued, “she will be 14 asking th[e district c]ourt [to] hold [ Bank] liable for not sending a notice that 15 would have exposed [Bank] to being held in contempt of the Bankruptcy Court.” 16

{9} On January 4, 2016, Bank moved to di smiss the foreclosure action without 17 prejudice, stating, “While [Bank] believes that an HL PA notice was preempted by 18 the discharge injunction, to avoid furthe r unnecessary litigation on the issue [Bank] 19 will consent to dismissal of this case [to allow the Bank to provide the HLPA 207 Notice.]” The record cont ains no response to the motion from Borrower. On 1 January 5, 2016, Borrower mo ved to amend her answer and assert counterclaims, 2 arguing the same grounds stated in her ear lier motion to vacate. In a January 20, 3 2016 order, the district court ruled that Bank’s motion to dismiss and Borrower’s 4 motion to amend were untimely, but gran ted Borrower’s motion for leave to amend 5 while denying her motion to vacate. 6

{10} The affirmative defenses asserted in Borrower’s amended answer, filed 7 January 22, 2016, include that Bank failed to comply with state and federal law in 8 seeking foreclosure and failed to comply with and violated HLPA, and that HLPA 9 notice and right to cure “is a mandatory condition precedent to commencing suit.” 10 The counterclaim alleged that Bank “was prohibited from filing the Complaint in 11 Foreclosure without giving Notice and the Right to Cure pursuant to [Section] 58- 12 21A-6(A)” and asserted entitlement to r ecover damages and a ttorney fees for 13 violations of HLPA, the Unfair Practi ces Act (UPA), NMSA 1978, §§ 57-12-1 to - 14 26 (1967, as amended thro ugh 2009), and the covenant of good faith and fair 15 dealing, and for malicious abuse of process and civil conspiracy. 16 Dispositive Motions 17

{11} On December 4, 2015, (before filing th e amended answer and counterclaim) 18 Borrower moved for summary judgment on the foreclosure complaint, arguing that 19 Bank “is prohibited from filing the Complain t in Foreclosure without giving Notice 208 and the opportunity to Cure” (citing Sec tion 58-21A-6); Bank’s failure “to give 1 Notice or a chance to Cure violates the covenant of goo d faith and fair dealing”; 2 and the filing of the foreclosure action without first providing notice and a cure 3 opportunity constitutes a violation of HLPA and a per se violation of the UPA. 4 Borrower also argued, relying exclusively on Bank of N.Y. v. Romero , 2014- 5 NMSC-007, 320 P.3d 1, that “HLPA is not preempted by federal law.” 6

{12} On December 10, 2015, Ban k moved for summary judgment, arguing (as 7 relevant here) that it properly exercised its rights under the HELOC and Mortgage 8 by filing its complaint for “in rem forecl osure of the lien of the Mortgage as 9 against the Property”; and that it also wa s entitled to judgment as a matter of law 10 on Borrower’s affirmative defenses because (among other things) the Mortgage did 11 not require notice after default and Ban k was prohibited from sending a HLPA 12 notice because “it would have violated the bankruptcy discharge injunction and 13 exposed [Bank] to being he ld in contempt of court and for damages.” Bank also 14 argued that “[p]ursuant to the Supremacy Clause, [Bank]’s duty to obey federal 15 law overrides any state law duty to send a HLPA notice.” 16

{13} In its December 22, 2015 opposition to Borrower’s summary-judgment 17 motion, Bank admitted it did not give Borro wer notice of defau lt before filing the 18 foreclosure complaint, but asserted that Borrower “refused to consent to the 19 continuation of payment notices and [Ba nk] was prohibited from sending a notice 209 to [Borrower] demanding payment by 11 U.S.C. § 542(a)(2) [(2012)].” Bank 1 argued (among other things) that Borrowe r’s lack-of-notice defense was barred by 2 equitable doctrines, and reite rated its arguments that th e Mortgage did not require 3 notice after default and that Bank was prohibited from sending a HLPA notice 4 because, although “the injunction created by § 542(a) does not affect a creditor’s 5 lien against real property[,]” Bank could not comply with HLPA Section 58-21A-6 6 “without violating the discharge injunction and exposing itself to being held in 7 contempt of court and to damages.” Under the head ing “Federal Preemption,” 8 Bank argued that it “could not obey the discharge injunc tion and comply with the 9 HLPA’s notice requirements” and “[t]he Bankruptcy Code preempts the HLPA[,]” 10 citing the Supremacy Clause and stating th at “[c]onflict preemption occurs either 11 when compliance with both federal and state law is a physical impossibility or 12 when state law stands as an obstacle to the accomplishment and execution of the 13 full purposes and objectives of Congress.” Bank also argued that Romero , 2014- 14 NMSC-007, relied on by Borro wer, did not control this case because Bank is a 15 state-chartered bank and Romero involved a nationally chartered bank and 16 addressed whether HLPA wa s preempted by federal law not at issue here—the 17 National Bank Act (NBA), th e Dodd-Frank Act, and fede ral regulations governing 18 national banks. 1910 {14} In its December 28, 2015 opposition to Bank’s summary-judgment motion, 1 Borrower admitted that Bank is a state-ch artered bank. In re iterating her argument 2 that the filing of the foreclosure action without first providing notice and a cure 3 opportunity constitutes a violation of HLPA and a per se UPA violation, Borrower 4 asserted (citing no authority) that notic e and opportunity to cure under HLPA 5 Section 58-21A-6 “is a statutory condition precedent to a foreclosure action in 6 New Mexico” and that failure to provide such notice and opportunity to cure is “a 7 clear violation of the [HLPA], which is a per se violation of the UPA.” 8

{15} In an order entered Febr uary 9, 2016, the district court denied Borrower’s 9 summary judgment motion and granted Ba nk’s summary judgment motion, ruling 10 that Bank was “entitled to summary judgment for in rem foreclosure of the lien of 11 the Mortgage as against the property” and “entitled to summary judgment on 12 [Borrower]’s affirmative defenses.” In so doing, the court noted that “[Bank]’s 13 failure to comply with HLPA is [Borro wer]’s only real challenge to [Bank]’s 14 Complaint” and that Borrower’s challenges to Bank’s facts “failed to meet the 15 standard set forth in Rule 1-056(D)(2) [N MRA].” The court ba sed its order on the 16 bankruptcy discharge injunction and conf lict preemption, concluding that “the 17 bankruptcy discharge injunction prohibite d [Bank] from sendi ng a HLPA notice”; 18 “[t]he requirements of HLPA, requiring no tice to the debtor prior to foreclosure 19 proceedings conflict with the federal bankruptcy discharge injunction” and, 2011 therefore, Bank “could not give the re quired state HLPA notice while also 1 refraining from the facially impermissible actions with regard to the discharge 2 injunction”; and “Section 58-21A-6 is pr eempted by federal ba nkruptcy law.” In 3 reaching its conclusions, the district co urt rejected Borrower’s reliance on our 4 Supreme Court’s decision in Romero , reasoning that Romero was “based on the 5 analysis of the federal law at issue, whic h addressed national ba nks . . . not federal 6 bankruptcy law, as in the pres ent matter” and that “[t]he Romero holding cannot 7 logically be understood as precluding a c onclusion that unrelated federal laws do 8 not preempt HLPA.” The court did not addr ess the other arguments raised in the 9 parties’ summary judgment motions. 10 Final Order, Notice of Appeal and Property Sale 11

{16} The district court issued its Final Order on March 1, 2016, holding (among 12 other things) that Bank was entitled to summary judgment on Borrower’s 13 affirmative defenses and counterclaim a nd ordered that Borrower’s affirmative 14 defenses and counterclaim be dismissed w ith prejudice. As in its earlier order on 15 the summary-judgment motions , the court concluded that “[t]he bankruptcy 16 discharge injunction prohibited [Bank] from sending a HLPA notice”; “[t]he 17 requirements of HLPA, requ iring notice to the debtor prior to foreclosure 18 proceedings conflict with the federal bankruptcy discharge injunction” and, 19 therefore, Bank “could not give the re quired state HLPA notice while also 2012 refraining from the facially impermissible actions with regard to the discharge 1 injunction”; and “Section 58-21A-6 [of the HLPA] is preempted by federal 2 bankruptcy law.” 3

{17} The Final Order also held that Bank “was entitled to accelerate all amounts 4 owed on the HELOC and foreclose the Mortgage in rem” and ordered that “[t]he 5 Mortgage is foreclosed and the Property sh all be sold to sati sfy the indebtedness 6 owed to [Bank] under the HELOC, free and clear of all right, title and interest of 7 all the defendants.” The Final Order include d other rulings and orders concerning 8 the amount owed on the HELOC, attorney fees and costs, and matte rs related to the 9 sale of the Property, and al so referenced the need for a subsequent order approving 10 the foreclosure sale. 11

{18} On March 10, 2016, after she filed her notice of appeal from the Final Order 12 on March 9, 2016, Borrower m oved in the district court to stay the judgment 13 pending appeal, which relief Bank opposed unless Borrower posted a bond. On 14 April 14, 2016, the Special Master appoint ed to conduct the sale of the Property 15 filed a report describing the sale held Ap ril 13, 2016, at which the “[n]o objections 16 were raised by any party or person pres ent to the conduct of the sale” and Bank 17 was the highest bidder. The proposed Speci al Master’s Deed, submitted with the 18 report for the district court’s approval, pu rported to convey the property “subject to 19 a first mortgage believed to be in favor of J.P. Morgan Chase and believed to be in 2013 the approximate amount of $390,000.” The Special Master reque sted that “the 1 [district c]ourt approve and ratify his acts,” including the proposed “Special 2 Master’s Deed and costs of sale[.]” The record on appeal does not include an order 3 approving or confirming the sale or any filings challenging the sale. 4 DISCUSSION 5

{19} In ruling against Borrower and in favor of Bank, the district court recognized 6 that “[Bank]’s failure to comply with HLPA is [Borrower]’s only real challenge to 7 [Bank]’s Complaint” and that Borrower’s challenges to Bank’s facts “fail[ed] to 8 meet the standard set forth in Rule 1- 056(D)(2).” But the court did not address 9 Borrower’s argument that notice and opportu nity to cure under HLPA Section 58- 10 21A-6 “is a statutory condition precedent to a foreclosure action in New 11 Mexico[,]” resting its decision on the conc lusions that “the bankruptcy discharge 12 injunction prohibited [Bank] from sending a HLPA notice”; “[t]he requirements of 13 HLPA, requiring notice to the debtor prior to foreclosure proceedings conflict with 14 the federal bankruptcy discha rge injunction” and, theref ore, Bank “could not give 15 the required state HLPA notice while also refraining from the facially 16 impermissible actions with regard to th e discharge injunction”; and “Section 58- 17 21A-6 is preempted by federal ba nkruptcy law.” Even assuming, arguendo , that 18 the district court erred in these rulings, as Borrower contends, nothing in HLPA’s 19 text bars the filing and prosecution of an in rem foreclosure action. 2014 {20} Because we conclude that entry of ju dgment in favor of Bank and against 1 Borrower is proper even if HLPA is not preempted, we affirm without ruling on 2 the preemption issue. See , e.g. , Bd. of Cty. Comm’rs of v. Chavez , 2008-NMCA3 028, ¶ 12, 143 N.M. 543, 178 P. 3d 828 (explaining that “the reviewing court is not 4 limited to the district court’s reasoning in affirming a grant of summary judgment” 5 and noting the well-established principle th at “an appellate c ourt will affirm the 6 district court if it is right for any reason and if affirmance is not unfair to the 7 appellant” (internal quotati on marks and citations omitte d)). Borrower’s contention 8 that the sale should be set aside is not prope rly before us, as the district court must 9 enter an order approving and confirming th e Property sale and no such order is in 10 the record. 11 A. Standard of Review 12

{21} “Summary judgment is appropriate wh ere there are no genuine issues of 13 material fact and the movant is entitled to j udgment as a matter of law.” Self v. 14 United Parcel Serv., Inc. , 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. We 15 review questions of law de novo, includi ng the question whether a party is entitled 16 to judgment as a matter of law, see id. , and questions concerning statutory 17 construction and preemption, see also Baker v. Hedstrom , 2013-NMSC-043, ¶ 10, 18 309 P.3d 1047; Alliance Health of Santa Teresa, In c. v. Nat’l Presto Indus., Inc. , 19 2005-NMCA-053, ¶ 25, 137 N.M . 537, 113 P.3d 360. 2015 B. The District Court Did Not Err In Entering Judgment In Bank’s Favor, 1 Dismissing Borrower’s Affirmative Defenses and Counterclaim, and 2 Denying Borrower’s Summary Judgment Motion 3 1. Section 58-21A-6 Does Not Ba r Bank’s Foreclosure Complaint 4

{22} HLPA Section 58-21A-6(A) provides: 5 A. Before an action is filed to foreclose or collect money 6 due pursuant to a home loan . . . th e creditor or creditor’s assignee of 7 the loan shall deliver to the borrowe r a notice of the right to cure the 8 default informing the borrower of: 9 (1) the nature of the default; 10 11 (2) the borrower’s right to cure the default by paying 12 the sum of money required[;] 13 (3) the date by which the borrower may cure the 14 default to avoid a court action, acceleration and initiation of 15 foreclosure or other action to seize the property[;] 16 (4) that if the borrower does not cure the default by the 17 date specified, the creditor or assi gnee may file an action for money 18 due or take steps to terminate bo rrower’s ownership in the property by 19 requiring payment in full of the home loan and commencing a 20 foreclosure proceedings or other action to seize the property; and 21 (5) the name and addre ss and telephone number of a 22 person whom the borrower may contact if the borrower disagrees with 23 the assertion that a default has oc curred or the correctness of the 24 calculation of the amount required to cure the default. 25

{23} Borrower contends that “[p]roviding Notice and Right to Cure pursuant to 26 HLPA is a statutory condition precedent, without which suit may not be filed.” 27 Borrower cites no authority for this prop osition, other than Section 58-21A-6(A). 28 She simply asserts that Bank “knew, or should have known, th at controlling law 2916 prohibited the foreclosure action without first giving Notice and the Right to Cure” 1 and that she “believes” that “providing HLPA Notice and the Right to Cure is a 2 statutory condition precedent to filing su it for foreclosure in New Mexico[.]” 3 Borrower has not shown that Bank’s failur e to comply with the requirements of 4 Section 58-21A-6(A) barred Bank’s foreclosure action. 5

{24} When a statute contains language whic h is clear and unambiguous, courts 6 “must give effect to that language and refrain from further statutory 7 interpretation.” United Rentals Nw., Inc. v. Yearout Mech., Inc. , 2010-NMSC-030, 8 ¶ 9, 148 N.M. 426 (internal quota tion marks and citation omitted). Section 58-21A9 6(A) does state that a creditor “shall” inform a borrower of the right to cure before 10 filing its action. Section 58-21A-6(A). Bu t nothing in Section 58-21A-6(A), or 11 elsewhere in the HLPA, provi des that a creditor’s failure to comply with Section 12 58-21A-6(A) operates to deprive the cred itor of its legal rights or deprive the 13 district court of jurisdiction over an in rem foreclosure action. And courts may not 14 “read into [a] statute language which is not there, [particul arly if it] makes sense as 15 written.” Levario v. Ysidro V illareal Labor Agency , 1995-NMCA-133, ¶12, 120 16 N.M. 734 (internal quotation marks and citation omitted). 17

{25} Our Supreme Court has admonished, more over, that courts must analyze a 18 “statute’s function within a comprehe nsive legislative scheme” and may not 19 consider subsections “in a vacuum[.]” State v. Rivera , 2004-NMSC-001, ¶ 13, 134 2017 N.M. 768, 82 P.3d 939 (internal quotation ma rks and citation omitted). Subsection 1
E

— within Section 58-21A-6 further undermines any argument that the Legislature 2 intended to condition the right to bring a foreclosure action (or jurisdiction over 3 such cases) on compliance with Subsecti on A’s notice requirement, making clear 4 that alleged violations of HLPA may be asserted as claims or defenses in a 5 foreclosure action. See § 58-21A-6(E) (stating that a creditor “that has the legal 6 right to foreclose shall, in a foreclosure, use the judicial foreclosure procedures 7 provided by law” and that the borrower may assert in such proceeding “the 8 nonexistence of a default and any other claim or defense to acceleration and 9 foreclosure, including any based on a vi olation of the [HLPA], though no such 10 claim or defense shall be deemed a compulsory counterclaim”). 11

{26} Other statutes contain clear langua ge identifying bars to suit. See , e.g. , 12 NMSA 1978, § 41-4-16(B) (1977) (“No su it or action for which immunity has 13 been waived under the Tort Claims Act sha ll be maintained and no court shall have 14 jurisdiction to consider any suit or action against the state or any local public body 15 unless notice has been given as required by this section, or unless the governmental 16 entity had actual notice of the occurre nce.”). Had the Legislature intended non17 compliance with Section 58-21A-6(A) to operate as a bar to the filing of a 18 foreclosure action, it would have said so. See State v. Greenwood , 2012-NMCA19 017, ¶ 38, 271 P.3d 753 (“The Legislature knows how to include language in a 2018 statute if it so desires.”) (alteration, in ternal quotation marks, and citation omitted). 1 And it would not have stated in Section 58-21A-6(E) that alleged violations of 2 HLPA may be asserted as claims or defenses in a foreclosure action. See also 3 NMSA 1978, § 12-2A-19 (1997) (“The text of a statute or rule is the primary, 4 essential source of its meaning.”); N.M. Bd. of Veterinary Med. v. Riegger , 2007- 5 NMSC-044, ¶ 11, 142 N.M. 248, 164 P.3d 947 (“We will construe the entire 6 statute as a whole so that all the provisi ons will be considered in relation to one 7 another.” (internal quotation ma rks and citations omitted)). 8

{27} Based on the foregoing analysis, we co nclude that Borrower’s “only real 9 challenge to [Bank]’s Complaint[,]” as th e district court described it, fails as a 10 matter of law based on the text of Section 58-21A-6, upon which Borrower relies. 11 Because Borrower’s erroneous contention that compliance with Section 58-21A-6 12 is a “statutory condition precedent” to a foreclosure suit forms the basis for all 13 Borrower’s claims against Bank ( e.g. , UPA violation, breach of the covenant of 14 good faith and fair dealing, malicious abuse of process, conspiracy) those claims 15 too fail as a matter of law. 16 2. Borrower Has Not Challenged An y Material Facts Upon Which the 17 District Court Based its Rulings 18

{28} Summary judgment “shall be rendere d forthwith if the pleadings, 19 depositions, answers to interrogatories a nd admissions on file, together with the 20 affidavits, if any, show that there is no genuine issue as to a ny material fact and 2119 that the moving party is entitled to a judg ment as a matter of law.” Rule 1-056(C). 1 The district court stated that Borrower’s challenges to Bank’s facts “failed to meet 2 the standard set forth in Rule 1-056(D)(2).” See id. (requiring party opposing 3 summary judgment to submit “a concise statem ent of the material facts as to which 4 the party contends a genuine issue does exis t” and “shall refer w ith particularity to 5 those portions of the record upon which the opposing party relies”; providing that 6 “[a]ll material facts set forth in the stat ement of the moving party shall be deemed 7 admitted unless specifically controvert ed”); Rule 1-056(E) NMRA (“When a 8 motion for summary judgment is made and su pported as provided in this rule, an 9 adverse party may not rest upon the mere allegations or de nials of his pleading, but 10 his response, by affidavits or as otherwise provided in this rule, must set forth 11 specific facts showing that there is a genuine issue for trial. If he does not so 12 respond, summary judgment, if appropria te, shall be entered against him.”). 13

{29} On appeal, Borrower does not challenge any material facts upon which the 14 district court based its rulings. To the c ontrary, Borrower represents the facts as 15 undisputed. Accordingly, Borrower has not shown any error in the district court’s 16 entry of summary judgment in favor of Bank based upon the existence of a genuine 17 dispute of material fact requiring trial. 18 3. Borrower Has Not Shown Harm From Non-Compliance With Section 19 58- 21A-6(A) 2020 {30} The HLPA provision authorizing civil actions gives standing to borrowers 1 “harmed by a violation of the [HLPA] .” Section 58-21A-9. Although Borrower 2 asserts entitlement to recover damages and ot her relief for viola tions of HLPA, she 3 has not shown that she was “harmed” by Ba nk’s failure to comply with Section 58- 4 21A-6(A). See Horne v. Los Alam os Nat’l Sec., L.L.C. , 2013-NMSC-004, ¶ 15, 5 296 P.3d 478 (explaining that “the party opposing summary judgment has the 6 burden to demonstrate the existence of specific evidentiary facts which would 7 require trial on the merits” and “may not si mply argue that such evidentiary facts 8 might exist” or “rest upon the allegations of the complaint”) (alteration, internal 9 quotation marks, and c itations omitted). 10

{31} For example, Borrower has not adduced evidence showing that she could or 11 would have cured the defau lt had she been given notice and an opportunity to do 12 so, or that Bank’s foreclosure action deprived her of her right to cure. See § 58- 13 21A-6(B) (“[T]he borrower . . . may, at a ny time prior to the time the title is 14 transferred by means of foreclosure, by judi cial proceeding and sale or otherwise, 15 cure the default and reinstate the home loan . Cure of the default shall reinstate the 16 borrower to the same position as if the de fault had not occurred and shall nullify, 17 as of the date of the cu re, an acceleration of any obligation under the home loan 18 arising from the default.”); Plaza Nat. Ba nk. v. Valdez , 1987-NMSC-105, ¶ 12, 745 19 P.2d 372 (title transfers upon entry of orde r approving special ma ster’s sale). 2021 {32} Absent such evidence, Borrower’s counter claim fails as a ma tter of law. To 1 the extent a showing of harm is required to establish standing to sue under HLPA, 2 the counterclaim fails for lack of jurisdiction. AFSCME v. Bd. of Cty. Comm’rs , 3 2016-NMSC-017, ¶ 14, 373 P.3d 989 (“If a stat ute creates a right and provides that 4 only a specific class of persons may petiti on for judicial review of an alleged 5 violation, then the courts lack the jurisd iction to adjudicate that alleged violation 6 when the petition is brought by a pe rson outside of that class.”); Deutsche Bank 7 Nat’l Trust Co. v. Johnston , 2016-NMSC-013, ¶ 11, 369 P.3d 1046 (where “a 8 statute creates a cause of action and de signates who may sue,” standing is “a 9 jurisdictional prerequis ite to an action”); Disabled Am. Veterans v. Lakeside 10 Veterans Club, Inc., 2011-NMCA-099, ¶ 7, 150 N.M. 569, 263 P.3d 911 (“Our 11 [c]ourts have long recognized that when the issue of standing is considered 12 jurisdictional, it may not be waived an d may be raised at any stage of the 13 proceedings, even sua spont e by the appellate court.”) (internal quotation marks 14 and citations omitted). 15 3. Borrower Has Not Properly Supported or Adequately Developed Any 16 Other Argument Requiring Reversal 17

{33} Borrower cites no facts or legal au thority supporting any other claim 18 asserted in the counterclaim ( e.g. , UPA violation, breach of the covenant of good 19 faith and fair dealing, malic ious abuse of process, cons piracy) and we decline to 20 consider them. See Santa Fe Exploration Co. v. Oil Conservation Comm’n , 1992- 2122 NMSC-044, ¶ 11, 114 N.M. 103, 835 P.2d 819 (an appellate cour t will not review 1 issues raised in appellate briefs and unsupported by cited authority); Muse v. Muse , 2 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P. 3d 104 (“We will not search the 3 record for facts, arguments, and ruli ngs in order to support generalized 4 arguments.”). 5 C. Remaining Issues 6

{34} It is understandable that the partie s devote significant argument to the 7 district court’s conclusions that “the bankruptcy discharge injunction prohibited 8 [Bank] from sending a HLPA notice”; “[t]he requirements of HLPA, requiring 9 notice to the debtor prior to foreclosur e proceedings conflict with the federal 10 bankruptcy discharge injunctio n” and, therefore, Bank “c ould not give the required 11 state HLPA notice while also refraining from the facially impermissible actions 12 with regard to the discharge injunction” ; and “Section 58-21A-6 is preempted by 13 federal bankruptcy law.” As noted, however, even assuming that the district court 14 erred in reaching these conclusions, entry of judgment in favor of Bank and against 15 Borrower is nonetheless correct. Accordingl y, we may affirm without reaching the 16 issues of the discharge injunction and preemption. See Bd. of Cty. Comm’rs , 2008- 17 NMCA-028, ¶ 12. 18

{35} Finally, because the district court must enter an order approving and 19 confirming the Property sale and no such order is in the record, Borrower’s 2023 contention that the sale should be se t aside is not properly before us. See Speckner 1 v. Riebold , 1974-NMSC-029, ¶ 9, 86 N.M. 275, 523 P.2d 10 (“That part of the 2 decree of foreclosure that directs th e manner and terms of the sale of the 3 mortgaged property does not become a final judgment until the judicial 4 confirmation of the sale, wh ereupon it becomes final.”); see also Kelly Inn No. 5 102, Inc. v. Kapnison , 1992-NMSC-005, ¶ 17, 113 N.M. 231, 824 P.2d 1033. 6 CONCLUSION 7
{36} We affirm the district court’s judgment. 8

{37} IT IS SO ORDERED. 9 10 LINDA M. VANZI, Judge 11

WE CONCUR: 12

13 JULIE J. VARGAS, Judge 14

15 JACQUELINE R. MEDINA, Judge 16