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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

v. NO. 34,567 4 JEROME T. ROYBAL, and 5 AMY J. ROYBAL, 6 Defendants-Appellants. 7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 8 Raymond Z. Ortiz, District Judge 9 Weinstein & Riley, P.S. 10 Jason Bousliman 11 Albuquerque, NM 12 for Appellee 13 Gleason Law Firm, LLC 14 Deirdre Gleason 15 Heath, MA 16 for Appellants 17 MEMORANDUM OPINION 18 VANZI, Chief Judge. 192 {1} Husband and wife, Jerome Roybal and Amy Roybal (Homeowners), appeal 1 from the district court’s order denying thei r motion to vacate a foreclosure judgment 2 due to the foreclosing bank’s, Bank of America (BOA), lack of standing. This appeal 3 implicates a recent New Mexi co Supreme Court case that clarified that a party who 4 fails to challenge standing prior to the completion of a trial on the merits or while 5 litigation is still active waives his standing arguments. See Deutsche Bank Nat’l Tr. 6 Co. v. Johnston , 2016-NMSC-013, ¶¶ 15-19, 369 P.3d 1046. Given this clarification, 7 we affirm the district court and hold that Homeowners waived their right to challenge 8 BOA’s standing because service was proper and they did not raise their standing 9 challenge prior to the district court’s en try of the final judgment. Because resolution 10 of this issue is dispositive of this appeal, we need not reach the other issues raised by 11 Homeowners. 12 BACKGROUND 13
{2} BOA filed a foreclosure complaint agai nst Homeowners, and after three failed 14 attempts at personal service, the district court granted BOA leave to complete service 15 by posting and required the posting to be followed by a first class mailing of the 16 summons and complaint. Homeowners madeno appearance nor did they answer the 17 summons and complaint, and the district court granted BOA a default judgment. BOA 18 then purchased the foreclosed prope rty at a special master’s sale. 193 {3} Subsequently, Homeowners filed a moti on to reinstate the case, alleging that 1 they were never served withany of the documents filed in the case, including the 2 foreclosure complaint. Homeowners additionally alleged that BOA failed to establish 3 its standing because the promissory note att ached to the foreclos ure complaint did not 4 contain a special indorsement indicating that BOA was the holder at the time the 5 complaint was filed. Homeowners also f iled a motion to vacate the default judgment 6 and foreclosure sale and dismiss for lack of subject matter jurisdiction, which the 7 district court denied. This appeal followed. 8 DISCUSSION 9
{4} This case turns on whether Homeowners properly raised the issue of BOA’s 10 standing after entry of the default judgment. “We review the district court’s denial of 11 a motion to set aside a default j udgment for abuse of discretion.” Ortiz v. Shaw , 2008- 12 NMCA-136, ¶ 12, 145 N.M. 58, 193 P.3d 605. Homeowners argue that the default 13 judgment should be set aside under Rule 1- 060(B) NMRA because they did not have 14 the opportunity to raise the standing issue prior to entry of the default judgment since 15 they were improperly served under Rule 1-004(F) NMRA. In light of our Supreme 16 Court’s recent holding in Johnston , however, we hold that under the facts of this case, 17 Homeowners were properly serv ed under Rule 1-004 and, as a result, the district court 184 did not err when it also ruled that Home owners waived any standing arguments by 1 failing to raise them before the entry of the default judgment. 2

Service Was Proper Under Rule 1-004 3
{5} As a preliminary matter, we address th e question of whether Homeowners were 4 properly served with the summons and complaint. We defer to the district court’s 5 findings of fact when its findings are supported by substantial evidence. See Bank of 6 N.Y. v. Romero , 2014-NMSC-007, ¶ 18, 320 P.3d 1 (expl aining that an appellate court 7 reviews a district court’s findings of f act for substantial evidence). “Substantial 8 evidence means relevant evidence that a reasonable mind could accept as adequate to 9 support a conclusion.” Id. (internal quotation marks and citation omitted). On appeal, 10 the appellate courts “resolve all disputedfacts and indulge all reasonable inferences 11 in favor of the trial court’s findings.” Id. (internal quotation marks and citation 12 omitted). Under Rule 1-004(F)(1), 13 [p]ersonal service of process shall be made upon an individual by 14 delivering a copy of a summons and comp laint or other process . . . to the 15 individual personally; or if the indi vidual refuses to accept service, by 16 leaving the process at the location where the individual has been found; 17 and if the individual refuses to receivesuch copies or permit them to be 18 left, such action shall constitute valid service; or . . . by mail or 19 commercial courier service. 205 However, Rule 1-004(J) provides that, wh ere it has been shown by affidavit that 1 service cannot otherwise be reasonably ma de under Rule 1-004, a moving party may 2 seek leave of the court to effect servi ce “by any method or combination of methods 3 . . . that is reasonably calculated under all of the circumstances to apprise the 4 defendant of the existence and pendency of the action and afford a reasonable 5 opportunity to appear and defend.” 6
{6} Here, BOA attempted to personally serve Homeowners with the summons and 7 complaint at Homeowners’ residence on three separate occasions. In his affidavit of 8 attempted service, the process server st ated that he first attempted to serve 9 Homeowners on August 13, 2013, at 10:45 a.m ., but that there was no answer, so he 10 left a note on their door. On that date, he verified with a neighbor that Homeowners 11 lived at that address. On August 15, 2013, the process server attempted service again 12 at 2:00 p.m. and again received no response. He verified with a different neighbor that 13 Homeowners lived at that address. Notici ng that the first note had been removed from 14 the door, the process server left a card taped to the garage door. The process server 15 made a third attempt to serve Homeowners on August 19, 2013 at 6:00 p.m. Despite 16 “several times ringing the doorbell, knocking and calling out ‘Hello[,]’ ” there was no 17 response even though the garage door was open and two vehicles registered to 18 Homeowners were parked in the garage. The process server testified to the same 196 effect. On August 22, 2013, BOA filed a motion with the district court for leave to 1 effect personal service of process by posting pursuant to Rule 1-004(J). The district 2 court granted leave for BOA to serve the summons and complaint for foreclosure by 3 posting it at Homeowners’ residence, follo wed by a first class mailing of the summons 4 and complaint to that address. In complian ce with the court’s order, the process server 5 posted two copies of the summons and complaint along with the district court’s order 6 “in the most public part of [Homeowners’] premises,” while BOA mailed the same 7 documents along with a copy of the certificate of mailing to Homeowners’ address via 8 first class mail. 9
{7} Homeowners allege that they were never served with any of the documents filed 10 in the case, including the foreclosure comp laint. Homeowners provided affidavits to 11 the district court stating that they never received the posting of the foreclosure 12 complaint. Further, Homeowners stated thatthey were both working when the process 13 server attempted service the first two inst ances and that on the third occasion, they 14 were likely out for their regular evening walk. Finally, Homeowners alleged that they 15 did not receive the complaint by mail or posting. 16
{8} The district court denied Homeowners ’ motion to vacate default judgment and 17 foreclosure sale and dismiss for lack of jurisdiction because it found that the process 18 server’s testimony and affidav its were credible and that Homeowners were properly 191 We acknowledge Homeowners’ supplemental brief in chief, which addresses 19 the Johnston case. We note, however, that whilethe supplemental brief accurately 20 reflects our Supreme Court’s statement that prudential standing is a “vital procedural 21 safeguard,” see Johnston , 2016-NMSC-013, ¶ 21, Homeow ners did not address the 22 Court’s emphasis on “active litig ation” and subsequent di scussion clarifying that “a 23 final judgment from a cause of action that may have lacked standing . . . is not 24 voidable under Rule 1-060(B) due to a lack of prudential standing.” See Johnston , 25 2016-NMSC-013, ¶¶ 18, 33-34. 26 7 served by posting. In addition, the district court found that Homeowners had 1 attempted to deliberately avoid service. Wedefer to the court’s factual findings and 2 conclude that they were supported by substantial evidence as established by the 3 process server’s affi davits and testimony. See Romero , 2014-NMSC-007, ¶ 18; Perez 4 v. Int’l Minerals & Chem. Corp. , 1981-NMCA-022, ¶ 13, 95 N.M. 628, 624 P.2d 1025 5 (“We will not weigh the evidence or determine the credibility of witnesses [as t]he 6 trier of facts is the sole judge of the credib ility of witnesses and th e weight to be given 7 their testimony.” (internal quotation marks omitted)). Accordingly, we hold that 8 service was proper and that Homeowners ha d an opportunity, but failed, to file a 9 responsive pleading raising their standing challenge before entry of the default 10 judgment. 11 Homeowners Waived Their Ru le 1-060(B) Standing Arguments 12
{9} In Johnston , 1 our Supreme Court clarified New Mexico law on whether 13 standing is jurisdictional. The Court explained that, 148 [a]s a general rule, standing in our c ourts is not derived from the state 1 constitution, and is not jurisdictional. However, when a statute creates a 2 cause of action and designates who may sue, the issue of standing 3 becomes interwoven with that of s ubject matter jurisdiction. Standing 4 then becomes a jurisdictional prerequisiteto an action. . . . [W]e take this 5 opportunity to clarify . . . and hold that mortgage foreclosure actions are 6 not created by statute. Therefore, the issue of standing in those cases 7 cannot be jurisdictional. 8 Johnston , 2016-NMSC-013, ¶ 11 (alteration, internal quotation marks, and citations 9 omitted). Johnston further explained that, because a cause of action to enforce a 10 promissory note is not created by statute, st anding is not jurisdictional in such a case. 11 Id. ¶ 10; see also id. ¶ 12 (stating that “an action to enforce a promissory note fell 12 within the district court’s general subjectmatter jurisdiction . . . because it was not 13 created by statute”). Accordingly, standi ng in foreclosure cases is a prudential 14 consideration that “can be raised for the first time at any point in an active 15 litigation[.]” Id. ¶¶ 10, 18. Our Supreme Court wenton to hold that “standing must be 16 established as of the time of filing su it in mortgage foreclosure cases[.]” Id. ¶ 20. It 17 nevertheless stated that, because standing is not jurisdictional, the possibility remains 18 that a homeowner canwaive the issue. Id. ¶ 15. 19
{10} Moreover and important to our analysis here, Johnston held that “a final 20 judgment on any . . . cause of action [oth er than one that lacks standing as a 21 jurisdictional matter], including an action to enforce a promissory note . . . is not 22 voidable under Rule 1-060(B) due to a lack of prudential standing.” Johnston , 2016- 239 NMSC-013, ¶ 34 (emphasis added). Because a default judgment necessarily precludes 1 trial and is a final order thus ending “active litigation,” see Gallegos v. Franklin , 2 1976-NMCA-019, ¶ 25, 89 N.M. 118, 547 P.2d 1160, in the present case, the final 3 judgment granting BOA default judgment is not voidable under Rule 1-060(B) due 4 to a lack of prudential standing. See Gallegos , 1976-NMCA-019, ¶ 25 (noting that a 5 default judgment is a final judgment). 6
{11} In Johnston , the Court held that the homeown er did not waive standing because 7 he raised the issue during “active litigati on,” i.e., in a motion prior to trial. 2016- 8 NMSC-013, ¶¶ 17-18. In contra st, in this case, Homeowners filed their first motion 9 challenging BOA’s standing over two months after the de fault judgment was entered, 10 and they filed the motion to vacate the de fault judgment and foreclosure sale because 11 of BOA’s alleged lack of standing ten months after the entry of the default judgment. 12 Based on the record before us, servi ce was proper and Home owners had ample 13 opportunity to raise the issue of standing be fore entry of the default judgment. Yet 14 Homeowners did not challenge BOA’s standing until months after “active litigation” 15 was complete. Consequently, under Johnston , they waived their right to do so. See id. 16 ¶¶ 15-19. The district court did not abuse its discretion in denying Homeowners’ Rule 17 1-060(B) motion to vacate the default judgm ent and foreclosure sale in this case. 18 CONCLUSION 1910 {12} We affirm. 1
{13} IT IS SO ORDERED. 2

__________________________________ 3 LINDA M. VANZI, Chief Judge 4 WE CONCUR: 5

_________________________________ 6 JAMES J. WECHSLER, Judge 7

_________________________________ 8 TIMOTHY L. GARCIA, Judge 9