IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 MELISSA A. WRIGHT, 2 Defendant-Appellant, 3

v. NO. 29,038 4 VANDERBILT MORTGAGE 5 AND FINANCE, 6 Plaintiff-Appellee. 7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 8 STEVEN L. BELL, District Judge 9 Melissa A. Wright 10 Roswell, NM 11 Pro Se Appellant 12 Craddock, Davis & Krause, LLP 13 Susan P. Crawford 14 Santa Fe, NM 15 Michael J. Craddock 16 Dallas, TX 17 for Appellee 18

MEMORANDUM OPINION 19 CASTILLO, Judge. 20 Defendant appeals from a fi nal order in a case in which the district court 212 ordered the foreclosure of Defendant’s home and denied her counterclaim against 1 Plaintiff. In this Court’s notice of proposed summary disposition, we proposed to 2 affirm. Defendant timely responded with a memorandum in opposition. We have 3 considered Defendant’s arguments and, as we are not persuaded by them, we affirm. 4 Issues 1 & 5 : The district court entered partial summary judgment on the issue 5 of Plaintiff’s right to foreclose Defendant’s property, but the court held a trial on the 6 merits on Defendant’s counterclaim under the Home Loan Protection Act, NMSA 7 1978, §§ 58-21A-1 through -14 (2003). Defendant asserts that the district court 8 should not have granted partial summary j udgment in favor of Plaintiff on the issue 9 of whether Plaintiff was entitled to foreclose on Defendant’s property. 10 “Summary judgment is appropriate where there are no genuine issues of 11 material fact and the movant is entitle d to judgment as a matter of law.” Self v. United 12 Parcel Serv., Inc. , 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. The granting 13 of a summary judgment motion involves ques tions of law that we review de novo. 14 See id. On a motion for summary judgment, “[ t]he movant need only make a prima 15 facie showing that he is entitled to summa ry judgment. Upon the movant making a 16 prima facie showing, the burden shif ts to the party opposing the motion to 17 demonstrate the existence of specific evid entiary facts which would require trial on 18 the merits.” Roth v. Thompson , 113 N.M. 331, 334-35, 825 P.2d 1241, 1244-45 193 (1992) (citation omitted). The specific eviden tiary facts must be shown by affidavit 1 or other evidence. See Los Ranchitos v. Tierra Grande, Inc. , 116 N.M. 222, 227, 861 2 P.2d 263, 268 (Ct. App. 1993) (“Once the m ovant has made a prima facie showing 3 that it is entitled to relief, the nonmoving party must respond by affidavit or other 4 means demonstrating the exis tence of genuine material factual issues bearing on each 5 of its claims.”). Generally, the movant has the burden of demonstrating that no 6 genuine issue of material fact exists regarding affirmative defe nses set forth by the 7 non-moving party. See Mayfield Smithson Enters. v. Com-Quip, Inc. , 120 N.M. 9, 12, 8 896 P.2d 1156, 1159 (1995). However, in this case, Defendant’s answer did not list 9 any affirmative defenses and only rais ed counterclaims. [RP 297-308] Because 10 Defendant listed no affirmative defenses, Pl aintiff was not required to refute any 11 affirmative defenses. Accordingly, we revi ew only whether the district court properly 12 entered summary judgment on the issue of whether Defendant had defaulted on her 13 loan, such that under the terms of the contract, Plaintiff could accelerate the loan and 14 attempt to collect the remaining balan ce on the loan by foreclosing on Defendant’s 15 property. To the degree that some of the assertions in Defendant’s counterclaim could 16 be considered affirmative defenses—as they were based on allegedly fraudulent 17 conduct by Plaintiff that Defendant belie ved should prevent foreclosure of her 18 property—we conclude that the district court appropriately considered Plaintiff’s 194 claim for foreclosure prior to considering Defendant’s counterclai ms, since this is how 1 the issues were presented by the pleadings. See Cordova v. Taos Ski Valley, Inc. , 121 2 N.M. 258, 263, 910 P.2d 334, 339 (“A party who has contributed, at least in part, to 3 perceived shortcomings in a trial court’s ruling should hardly be heard to complain 4 about those shortcomings on appeal.”). 5 In this Court’s notice, we proposed to c onclude that Plaintiff made a prima facie 6 showing that it was entitled to summary ju dgment. Plaintiff’s motion stated that 7 pursuant to a note and mortgage, Defendant promised to pay a total sum of 8 $164,861.09 plus interest in monthly installments of $1,296.96. [RP 51] Plaintiff 9 indicated that with the amount due to escrow, the total monthly payment was 10 $1,330.86. [RP 84] Plainti ff asserted the note and mortgage provide for acceleration 11 of maturity of the entire debt in the event of any default by Defendant. [RP 51] 12 Plaintiff asserted that Defendant defaulte d under the terms of the loan agreement by 13 failing to make an installment payment due on June 1, 2006, and by failing to make 14 any subsequent payments. [RP 51] Plainti ff asserted that it notif ied Defendant of the 15 default and the consequences if Defendant failed to cure the default. [RP 51] Plaintiff 16 asserted that Defendant failed to cure th e default. [RP 51-52] Plaintiff supported 17 these assertions with the note for $164,861. 09 [RP 60]; the mortgage on the Santa Fe 18 property that secured the note [RP 64]; the assignment of a mortgage lien on the 195 Roswell property that secured the note [RP 72]; evidence that Plaintiff defaulted on 1 the loan [RP 85]; evidence that Plaintiff provided Defendant with notice of her default 2 [RP 76], among other documents; and an affidavit by C. Allen Pruitt, a legal affairs 3 representative of Plaintiff, who authenticated the submitted documents [RP 56–59]. 4 As we proposed to hold that this evidence was sufficient to make a prima facie case 5 that Plaintiff wa s entitled to summary judgment, we noted that the burden therefore 6 shifted to Defendant to point out specific di sputed material facts that required a trial 7 on the merits on this issue. See Roth , 113 N.M. at 334-35, 825 P.2d at 1244-45. 8 Defendant’s memorandum in opposition assert s that Defendant raised a triable 9 issue of fact when she pres ented evidence to the district court that she made a June 10 2006 payment of $1,300.00, which Defendant asserts constituted a full payment. [MIO 11 1, 6] However, even if wewere to conclude that Defendant made a full payment in 12 June 2006, this would not change our conclusion that summary judgment was 13 appropriate. As we stated in our notice of proposed summary disposition, Defendant’s 14 alleged failure to make the full June 2006 payment was not the only basis for the 15 default, since Plaintiff provided evidence inthe form of an affidavit that Defendant 16 had failed to make anypayments after June 2006 [RP 57 (¶ 4)], so Defendant would 17 have been in default based on the subsequent payments ev en if she had made the June 18 2006 payment in full. Therefore, where Defendant did not provide any evidence to 196 call into question the Plaintiff’s evidence th at Defendant made no payments after June 1 2006, we hold that even if she made the J une 2006 payment in full, this fact would not 2 be material to the question of whether sh e had defaulted on the loan by failing to make 3 any subsequent payments. 4 Defendant also claims that Plaintiff never provided evidence or documentation 5 to support the increase in Defendant’s monthl y payments to $ 1,330. 86. [MIO 2, 5-6, 6 7; RP 140 (¶ 33)] However, as we indicatedin our notice, Defendant’s own evidence 7 indicated that she had made payments of $1,330.86 in the months prior to June 2006, 8 suggesting that she was aware of the correct payment amount. [RP 148] Furthermore, 9 even if Defendant was correct that Plaintiff should not have charged her the increased 10 payment, she does not provide any authority to suggest that this fact would somehow 11 relieve her of her contractual obligation to pay $1,296.96. Where it is undisputed that 12 Defendant did not make any payments after June 2006, wehold that any questions of 13 fact related to the increase in Defendant ’s monthly payment were not material. 14 Defendant asserts that the fact that she introduced evidence that her principal 15 balance increased in 2002 was also material to the foreclosure action. [MIO 7] The 16 fact that the principal balance increased was not disputedby the parties. Instead, it 17 was the reason for the increase that was disputed: Plainti ff asserted that the balance 18 was readjusted upward to make up for a mi stake that had occurred years earlier when 197 the 100,000 digit was dropped as a result of a computer error [RP 228], while 1 Defendant argued that this increase suggestedthat the original loan was for less than 2 the $164,861.09 and was somehow invalid becauseit had been divided into two loans 3 [RP 145]. However, Defendant never provided any evidence that would raise a 4 reasonable doubt as to whether the initial lo an was for less than the original amount 5 or that it was divided in two, since she never provided any evidence that she did not 6 sign the original note for $164,861.09 or th at this amount was not the amount she 7 borrowed. See Matrix Prod. Co. v. Ricks Exploration, Inc. , 2004-NMCA-135, ¶ 9, 8 136 N.M. 593, 102 P.3d 1285 (“Summary judgment is proper where there is no 9 evidence raising a reasonable doubt that a ge nuine issue of material fact exists.”). 10 Furthermore, as we indicated in our notice, Defendant’s claim that Plaintiff failed to 11 explain why her principal balance jumpedby $99,855.37 is not immediately relevant 12 to the question of whether she defaulted on the loan, since the loan document itself 13 makes clear that Defendant owed payments of $1,296.96 until the loan was paid in 14 full, and Defendant did not contend th at she had paid the loan in full. 15 Defendant also asserts that she presented evidence that raised issues of material 16 fact as to whether Plaintiff forged Defendant’s signature on a doc ument relating to her 17 mobile home, whether her mobile home was ever properly recorded as being attached 18 to the Santa Fe property, and whether, when it was still in Santa Fe, the mobile home 198 was recorded as belonging to Defendant. [MIO 8] However, Defendant has not 1 provided this Court with any legal authority that would suggest that these claimed 2 defects with regard to documents relating to the mobile home would somehow be 3 material to the question of her obligation to repay in accordance w ith the terms of the 4 note, the $164,861.09 she borrowed, or to the question of whether Plaintiff was 5 entitled to foreclose her Chaves County property as a result of nonpayment. See In 6 re Adoption of Doe , 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (providing that 7 when a party fails to cite any legal authority to support an argument, we will presume 8 that no such authority exists). Therefore, we conclude that these questions of fact 9 were not material and did not preclude summary judgment on Plaintiff’s foreclosure 10 action. 11 We note that by holding a trial on the merits of Defendant’s counterclaim, the 12 district court did not in fact grant summary judgment as to Defendant’s arguments 13 regarding Plaintiff’s alleged wrongful c onduct and the effect such conduct should 14 have on the foreclosure acti on. After the trial on the merits, the district court made 15 findings of fact that Plaintiff took the note and original mortgage “for value, in good 16 faith, and without notice of irregularities ordefenses,” that Defendant did not prove 17 that Plaintiff engaged in subterfuge, that Plaintiff did not forge Defendant’s signature 18 on an application for title, and that Defendant’s testimony about the forgery was not 199 credible. [RP 759 (¶ 7), 761 (¶¶ 21-22), 762 (¶ 23)] Therefore, to the degree that 1 Defendant claims that there were issues of fact that could only be resolved at trial 2 regarding Defendant’s claims that Plaintiff engaged in fraud, the district court did not 3 resolve those issues on summary judgment and instead held a trial on the merits in 4 order to resolve them. 5 Issues 3, 4, 6, 8, 11, 12,13, 14, 15, 16, 17, 18, 19 : Defendant raises a number 6 of issues challenging the sufficiency of the evidence to support the judgment in favor 7 of Plaintiff on Defendant’s counterclaim. Th e sole issue at the trial on the merits was 8 whether Plaintiff’s allegedly fraudulent c onduct violated the Home Loan Protection 9 Act. [RP 758 (¶ 2 indicating that Defendant’s counterclai ms were based solely on a 10 violation of the Home Loan Protection Ac t and the Unfair Practices Act)] In our 11 notice of proposed summary disposition, wenoted that as the Act was not enacted 12 until 2003 and Defendant’s loan was initiated in 1998, the Act likely did not apply to 13 this case. See Howell v. Heim , 118 N.M. 500, 506, 882 P.2d 541, 547 (1994) 14 (explaining that “New Mexico law pres umes that statutes and rules apply 15 prospectively absent a clear intention to the contrary”). Defe ndant has not responded 16 with any authority that would suggest that this conclusion was erroneous. See 17 Hennessy v. Duryea , 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our 18 courts have repeatedly held that, in summary calendar cases, the burden is on the party 1910 opposing the proposed disposition to clearly point out errors in fact or law.”). 1 Accordingly, we affirm the district court’s determination that Defendant could not 2 bring a counterclaim pursuant to the Act. 3 Furthermore, even if the Act applied, th e district court correctly determined that 4 Defendant could not bring a cl aim under the Act. The Act provides for either a three5 or six-year statute of limitations depending on th e type of loan at issue, that begins to 6 run from the time of the closing of the loan. See § 58-21A-11(B)(1) & (3). As 7 Defendant’s loan closed in 1998, these time limits had passed. Ho wever, the Act also 8 provides that a homeowner can assert 9 at any time during the term of a high- cost home loan, any defense, claim 10 or counterclaim, or action to enjoin foreclosure or to preserve or obtain 11 possession of the dwelling that secure s the loan, including but not limited 12 to a violation of the Home Loan Protection Act, after an action to collect 13 on the home loan or fo reclose on the collateral securing the home loan 14 has been initiated or the debt arising from the home loan has been 15 accelerated or the home loan has b ecome sixty days in default[.] 16 Section 58-21A-11(B)(2). Therefore, Defe ndant’s counterclaims against Plaintiff as 17 the purchaser of Defendant’s loan could only be brought if the loan qualified as a 18 “high-cost home loan” under the Act. 19 In our notice, we proposed to hold th at the district court did not err in 20 determining that the loan was not a high-co st home loan. The Act defines such a loan 21 as “a home loan in which: (1) the contractrate exceeds the rates threshold; or (2) the 2211 total points and fees exceed the total points and fees threshold.” Section 1 58-21A-3(H). At trial, Defendant did not c ontend that the contract rate exceeded the 2 rate threshold rate and argue d only that the total points and fees exceeded the total 3 points and fees threshold. [RP 716] Under the Act, fo r a home loan over $20,000, the 4 “total points and fees thresh old” is “an amount equal to five percent of the total 5 principal loan amount.” Section 58-21A-3(N)(1). 6 Defendant conceded at trial that th e loan amount was $164,861.09 and that five 7 percent of this amount was $8,243.05. [RP 716] Defendant also argued—and 8 continues to argue in her memorandum inopposition—that there were problems with 9 the documents that called into question th e correct amount of the loan. [RP 716-17; 10 MIO 10-11] However, Defendant did not actually introduce any evidence that would 11 establish the amount of the loan as anything other than $164,861.09. The note itself 12 was for $164,861.09 [RP 7], and the district court found that this was the amount of 13 the loan [RP 760 (¶ 14)]. To the degree that Defendant raised questions at trial about 14 the actual amount of the loan, the districtcourt was entitled to resolve any conflicts 15 in the evidence, and this Court will not reweigh the evidence on appeal. See Las 16 Cruces Prof’l Fire Fighte rs v. City of Las Cruces , 1997-NMCA-044, ¶ 12, 123 N.M. 17 329, 940 P.2d 177. 18 The district court found that the closing costs in this case totaled $7,175.57 [RP 1912 761], and this finding was supported by substan tial evidence in the form of an exhibit 1 introduced at trial [RP 712]. Although the di strict court concluded that the amount of 2 the “points and fees” as defined in the statute was actually even lower than this [RP 3 761 (¶ 19)], we need not review this legal conclusion since even the $7,175.57 figure 4 is less than the five percent that woul d make the loan a “high-cost home loan.” 5 Therefore, we hold that the district court did not err in entering judgment against 6 Defendant on her counterclaim. While werecognize that Defendant disagrees with 7 the district court’s factual findings, this Court will not disturb on appeal findings that 8 are supported by substantial evidence. See Rendleman v. Heinley , 2007-NMCA-009, 9 ¶ 9, 140 N.M. 912, 149 P.3d 1009 (“Findings of fact supported by substantial 10 evidence will not be disturbed on appeal.”). 11 Issue 7 : Defendant contends that the district court erred when it denied 12 Defendant’s motion to compel Plaintiff to respond to her second set of discovery 13 requests and granted Plaintiff’s motion for a protective order. [DS 7] We review a 14 district court’s discovery orders for an abuse of discretion. See Estate of Romero ex 15 rel. Romero v. City of Santa Fe , 2006-NMSC-028, ¶ 6, 139 N.M. 671, 137 P.3d 611. 16 Under Rule 1-026(B)(2)(a) NMRA, the district court could limit discovery if it 17 determined that “the discovery sought is unreasonably cumulative or duplicative, or 18 is obtainable from some other source that is more convenient, le ss burdensome, or less 1913 expensive.” Where the requested information is not relevant to the claims, a district 1 court does not abuse its disc retion in denying discovery. See Reaves v. Bergsrud , 2 1999-NMCA-075, ¶ 23, 127 N.M. 446, 982 P.2d 497. And “where it appears that the 3 party requesting discovery has already beengranted sufficient information, discovery 4 may properly be denied or limited.” Id. ¶ 14 (internal quotati on marks and citation 5 omitted). 6 In this Court’s notice, we proposed to c onclude that even if the district court 7 abused its discretion in limiting discovery, Defendant was not prejudiced by the 8 ruling. See Rule 1-061 NMRA (“No error or def ect in any ruling or order . . . is 9 ground for granting a new trial or for setting as ide a verdict or for vacating, modifying 10 or otherwise disturbing a judgment or order, unless refusal to take such action appears 11 to the court inconsistent withsubstantial justice.”). We stated that it appeared that 12 Defendant had all evidence re levant to the foreclosure proceeding and that Defendant 13 was not prejudiced by any failure of the district court to permit discovery in support 14 of Defendant’s claim that Plaintiff violated the Home Loan Protection Act because, 15 ultimately, the district court properly c oncluded that Defendant could not bring a 16 claim under the Act. 17 In Defendant’s memorandum in oppositi on, she asserts that her discovery 18 requests sought “new evidence that would have proven that Plai ntiff[ ] had knowledge 1914 of Defendant[’]s note being fraudulent and not recorded in Santa Fe County since the 1 inception in 1998, [D]efendant[’]s mobile home never being associated with the 2 property, her ownership of either not recorded, documentation in Santa Fe County 3 proving that [the] property was always recorded as vacant land, and documentation 4 of [D]efendant[’]s mobile home being ow ned by Vista Del Mundo Corp.” [MIO 9] 5 However, these issues related to Defe ndant’s counterclaim under the Home Loan 6 Protection Act and, as we havealready discussed, the distri ct court appropriately ruled 7 that Defendant could not bring a counterclaim under the Act. Accordingly, even if the 8 district court erred in limiti ng discovery on this issue, Defendant was not prejudiced. 9 Issues 9 &10 : In our notice, we stated that in these two issues Defendant states 10 alleged facts but does not make any legal cl aim regarding those f acts. We therefore 11 proposed to hold that these issues do not pr ovide a basis for reversal. Defendant has 12 not made any arguments regarding thes e issues in her memorandum in opposition. 13 We therefore hold that they do not warrant reversal. 14 Accordingly, for the reasons stated in this opinion and in our notice of proposed 15 summary disposition, we affirm. 16 IT IS SO ORDERED. 17

________________________________ 18 CELIA FOY CASTILLO, Judge 1915 WE CONCUR: 1

________________________________ 2 MICHAEL E. VIGIL, Judge 3

________________________________ 4 TIMOTHY L. GARCIA, Judge 5