This memorandum opinion was not selected for publi cation in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 file d by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 FLAGSTAR BANK, FSB, 2 Plaintiff-Appellee, 3

v. NO. 30,909 4 KEITH M. GILES 5 Defendant-Appellant, 6 and 7 JANE DOE GILES (true name unknown), 8 FIRST STATE BANK N.M., 9 JC CONSTRUCTORS, INC., 10 JOHN DOE AND JANE DOE (true names unknown), Tenants 11 Defendants. 12 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY 13 Sam B. Sanchez, District Judge 14 The Hopp Law Firm, LLC 15 Karen H. Weaver 16 Albuquerque, NM 17 for Appellee 18 The Walcott Law Firm, P.C. 19 Donald A. Walcott 20 Santa Fe, NM 212 for Appellant 1

MEMORANDUM OPINION 2 GARCIA, Judge. 3 This case involves the foreclosure of a first mortgage lien on a home owned by 4 Defendant Keith M. Giles (Giles) . Giles appeals the districtcourt’s denial of his Rule 5 1-060(B)(1) NMRA motion to set aside the default judgment entered against him. 6 Giles asserts that it was an abuse of discretion for the district court to conclude that 7 (1) he failed to prove the existence of excusable neglect based on his ongoing 8 negotiations with Plaintiff Flagstar Bank (Fl agstar) and (2) his allegations regarding 9 Flagstar’s standing and fraud in the perfec tion of the mortgage were insufficient to 10 present a meritorious defense. We concludethat Giles did not sufficiently establish 11 excusable neglect and affirm the district court on that basis. 12 FACTS 13 Giles is a principal of a commercial real estate development company. In 14 March 2007, Giles executed and delivered a promissory note (the Note) payable to 15 Chicago Funding, Inc. To secure payment on the Note, Giles executed and delivered 16 a real estate mortgage (theMortgage) to Mortgage Electronic Registration Systems, 17 Inc. (MERS). The property securing the Note was a Taos Ski Valley condominium 183 unit used by Giles as a second home. Ultim ately, the Note and Mortgage were both 1 assigned to Flagstar. 2 In August 2008, Giles failed to timely pay on the Note pursuant to its terms. 3 Since that time, Giles has made no further payments on the Note, and Flagstar has 4 been advancing the taxes and insurance on the property. As a result, Flagstar filed a 5 complaint to foreclose on its Mortgage on December 17, 2008. It is undisputed that 6 Giles was personally served with Flagstar’s foreclosure complaint and summons on 7 January 8, 2009. The summons specifically stat ed that if Giles failed “to file a timely 8 answer or motion, default judgment may be entered against [him] for the relief 9 demanded in the [c]omplaint.” Giles did not file an appearance, an answer, or 10 otherwise respond to the foreclosure comp laint until after the default judgment was 11 entered in favor of Flagstar on April 12, 2010. 12 Giles did contact Flagstar via email to attempt to structure a deed in lieu of 13 foreclosure as a solution to the mortgageforeclosure lawsuit. For a period of 14 approximately eighteen months, the parties discussed the possibility of structuring a 15 deed in lieu of foreclosure. During th at time period, Flagst ar suspended moving 16 forward on its foreclosure complaint. Throughout the course of their discussions, 17 however, Flagstar repeatedly indicated that it would not consider Giles’ request for 18 a deed in lieu of foreclosure until he rem oved the existing liens against the property 19 and the unit was repaired. Flagstar specificallystated that Giles n eeded to clear up all 204 the title encumbrances by Marc h 1, 2010. In response, G iles spent weeks indicating 1 that he had resolved all the issues on th e unit and that the title would be cleared up 2 within days. On February 23, 2010, having received no status update, Flagstar 3 emailed Giles to remind him of the immi nent March 1, 2010 d eadline and to request 4 another update on his efforts to clear title to the property. Giles responded that he 5 could not meet the March 1, 2010 deadline and predicted that he was likely clear up 6 title to the property by March 15. On Ma rch 16, however, Flagstar had received no 7 indication from Giles that the liens on the property were remove d. Giles had also 8 made no attempt to contact Flagstar and expl ain his failure to satisfy the requirements 9 for a deed in lieu. As a result, on April 12, 2010, Flagstar filed its motion for default 10 judgment. 11 The district court entered the default j udgment in favor of Flagstar on April 12, 12 2010. A sale of the property was scheduled for May 26, 2010, and a notice of sale 13 was filed on April 28, 2010. Upon being informed by Flagstar’s representative, Mr. 14 Hammond, that the property was to be sold, Giles sent another email on April 27, 15 2010. At that time, only two of the liens had been removed, but Giles anticipated that 16 the release of the third lien was imminent. Giles specifically stated that he was 17 “anxious to reinstate the [deed in lieu] approvals for this unit[,]” and was hoping to 18 hear from Flagstar “to discuss how to make that happen.” 19 On May 13, 2010, Giles’ counsel file d his entry of appearance in the 205 foreclosure lawsuit. On May 18, 2010, Gi les filed a motion to set aside default 1 judgment. In support of his motion, Giles cited Rule 1-060(B)(1) and argued that his 2 failure to timely respond to Flagstar’s comp laint constituted excusable neglect. Giles 3 stated that “[f]rom the time this case was filed, Flagstarand Giles werenegotiating a 4 settlement of Giles’ debt to Flagstar, which resulted in an agreemen t [for a deed in lieu 5 of foreclosure] between the parties inApril 2009.” Giles attached the above 6 mentioned email discussions as proof of this alleged agreement. In his motion, Giles 7 did not contest Flagstar’s standing to fo reclose the Mortgage or raise any issue 8 regarding the perfection of the Note or the Mortgage. These defenses were raised for 9 the first time in his reply. 10 Flagstar agreed to postpone the May 26, 2010 foreclosure sale until after the 11 hearing on Giles’ motion to set aside the default judgment. The hearing, however, 12 was postponed several times. As a result, Fl agstar proceeded with the sale of the 13 property to avoid further postponement of fees , but agreed not to confirm the sale until 14 after the hearing. Flagstar also agreed tore-review Giles’ request for a deed in lieu 15 of foreclosure as the three liens on the pr operty had finally beenremoved. In July 16 2010, however, Flagstar learned that the condominium unit had been gutted, and its 17 value had decreased considerably as a result of this damage. At that time, Flagstar 18 informed Giles that it would only consider a deed in lieu if Giles repaired the property 19 to its original condition by September 15, 2010. When Giles had not completed the 206 repairs by this date, Flagstar denied his latest request for deed in lieu and proceeded 1 to address the motion to set aside the default judgment. 2 The district court denied Giles’ motion to set aside the default judgment on 3 October 21, 2010. At the hearing, the c ourt explained that Rule 1-060(B) required 4 Giles to demonstrate both excusable negl ect and the existence of a meritorious 5 defense. The district court reasoned th at Giles had not demonstrated excusable 6 neglect because the summons was very clear that default judgment could be entered 7 if Giles did not file an answer to Flagst ar’s complaint. The court further found that 8 there was no agreement between th e parties, particularly in li ght of the fact that their 9 ongoing discussions lasted for a year and a half. Although unnecessary in the absence 10 of excusable neglect, the district court al so addressed the meritorious defense prong 11 of the Rule 1-060(B)(1) requirements. The court concluded that Giles had not raised 12 a meritorious defense. Giles filed a timely appeal to this Court. 13 DISCUSSION 14 Giles contends that his failure to an swer Flagstar’s complaint was excusable 15 neglect and that he raised a meritorious de fense in light of his argument that Flagstar 16 lacked standing to bring the complaint or, alternatively, based on his challenge to the 17 validity of the assignment of the Mortgageand the Note to Plaintiff through MERS. 18 As such, he asks this Court to reverse th e district court’s order denying his motion to 19 set aside the default judgment and to remand for further proceedings. 207 Standard of Review 1 Default judgments are not favored and a case should be heard on its merits 2 whenever possible. N. M. Educators Fed. Credit Union v. Woods , 102 N.M. 16, 17, 3 690 P.2d 1010, 1011 (1984). However, it is with in the district court’s discretion to 4 grant a default judgment. Id. As such, it is also within the district court’s discretion 5 to set aside a default judgment, and we will reverse a district court’s ruling on a 6 motion to set aside a default judgment only for an abuse of discretion. Id. 7 “An abuse of discretion occurs when the ru ling is clearly against the logic and effect 8 of the facts and circumstances of the case.” Kinder Morgan CO2 Co. v. State 9 Taxation & Revenue Dep’t , 2009-NMCA-019, ¶ 9, 145 N.M. 579, 203 P.3d 110 10 (internal quotation marks and citation omitted) . There is no abuse of discretion when 11 reasons exist that both support and detract from a district court decision. Id. 12 Rule 1-060(B)(1) requires the party seeki ng relief to demonstrate the existence 13 of both excusable neglect and a meritorious defense. See Rodriguez v. Conant , 105 14 N.M. 746, 749, 737 P.2d 527, 530 (1987) (“A party seeking relief from a default 15 judgment must show the existence of grounds for opening or vacating the judgment 16 and a meritorious defense or cause of acti on.”). If these two elements are found and 17 there are no intervening equities in favor of the non-moving party, a court may set 18 aside the default judgment. N. M. Educators Fed. Credit Union , 102 N.M. at 17, 690 19 P.2d at 1011; see also Kinder Morgan CO2 Co. , 2009-NMCA-019, ¶ 14 (holding that 208 Rule 1-060(B) “empowers the [district] court with the discretion, in the rare occasions 1 when appropriate, to grant relief from its own judgments”). 2 Excusable Neglect 3 Giles argues that he did not timely file ananswer or otherwise participate in the 4 litigation because he was engaged in settle ment negotiations with Flagstar and, 5 therefore, he was not on notice that a default judgment might be entered against him. 6 He contends that under those circumstances his failure to prevent a default judgment 7 by timely filing an answer constitutes excusable neglect. 8 Whether a party’s failure constitutes excusable neglect is an equitable 9 determination that requires consideration of all of the relevant circumstances 10 surrounding the omission. Kinder Morgan CO2 Co. , 2009-NMCA-019, ¶ 13; see also 11 Sunwest Bank v. Roderiguez , 108 N.M. 211, 214, 770 P.2d 533, 536 (1989) (holding 12 that courts should analyze claims of excu sable neglect pursuant to Rule 1-060(B)(1) 13 based on the facts and circumstances of each case). The relevant circumstances 14 “include the danger of prejudice to the non- moving party, the length of the delay and 15 its potential impact on judicial proceedings, the reason for the delay, including 16 whether it was within the reasonable contro l of the movant, and whether the movant 17 acted in good faith.” Kinder Morgan CO2 Co. , 2009-NMCA-019, ¶ 12 (alterations, 18 internal quotation marks, and citation omitted). In analyzing the totality of the 19 circumstances, the district court is in the best position to “decide and act in accordance 209 with what is fair and equitable.” Mendoza v. Mendoza103 N.M. 327, 332, 706 P.2d 1 869, 874 (Ct. App. 1985); see also Kinder Morgan CO2 Co. , 2009-NMCA-019, ¶ 13 2 (“[T]he district court’s intimate familiarity with [the] circumstances puts it in a better 3 position than an appellate court to determine whether a party [has] truly failed to 4 actively pursue a claim.”). 5 On appeal, Giles focuses his argument on the reason for his delay in filing an 6 answer or otherwise participating in the litigation. He asserts that he was not on 7 notice that his participation in the litigati on was necessary to prevent the entry of a 8 default judgment because he believed that the parties had negotiated a settlement of 9 the foreclosure lawsuit through a deed in lie u of foreclosure. Alternatively, Giles 10 argues that regardless of his failure to appear in the lawsuit, it was inequitable for 11 Flagstar to seek default judgment w ithout notice to Giles under the specific 12 circumstances of this case. See, e.g. , Dean Witter Reynolds, Inc. v. Roven , 94 N.M. 13 273, 274, 609 P.2d 720, 721 (1980) (requiring notice before default judgment against 14 the defendants who did not enter an appearance or file plead ings because plaintiffs had 15 represented to the defendants that they would not seek default during settlement 16 negotiations). We are unpers uaded by these arguments because substantial evidence 17 in the record supports the district court’s finding that Giles was aware of the 18 likelihood that a default judgment might beentered against him even though he was 19 informally attempting to structure a resolu tion of the lawsuit through a deed in lieu. 2010 The record is clear that Giles was aware of Flagstar’s complaint for foreclosure 1 and was personally served with the summons and complaint. Despite the express 2 language of the summons requiring a response and stating that the failure to timely 3 answer or submit a motion may result in a de fault judgment, Giles chose not to enter 4 an appearance or otherwise address the co mplaint for approximately eighteen months. 5 As the principal of a commercial real estatecompany, the district court can presume 6 that Giles has experience in real estate litigation and is fully aware of his duty to 7 respond to a complaint filed against him. See In re Gaines , 113 N.M. 652, 658, 830 8 P.2d 569, 575 (Ct. App. 1992) (“[A] party, served w ith an initial summons and thus 9 having actual notice of the litigation, [cannot] claim ‘excusable neglect’ under Rule 10 [1-0]60(B) for not being aware of subse quent proceedings in the matter.” (citation 11 omitted)). Giles chose from the outset to address the foreclosure lawsuit informally 12 and to do nothing in the court proceedings until after he learned that default judgment 13 was entered against him. See Rule 1-055(B) NMRA (recogni zing that a party is only 14 entitled to three days’ written notice and a hearing before the entry of a default 15 judgment when the party or the party’s representative “has appeared in the action”); 16 Rodriguez , 105 N.M. at 748, 737 P.2d at 529 (requiring notice only when a party has 17 appeared in the action). As such, Gile s had no entitlement to notice and he was not 18 excused from filing a response or motion to Flagstar’s complaint. See Kinder Morgan 19 CO2 Co. , 2009-NMCA-019, ¶ 18 (“[C]arelessness by a litigant . . . does not afford a 2011 basis for relief under Rule [1 -060(B)(1).]” (alteration, in ternal quotation marks, and 1 citation omitted)). 2 We are likewise unpersuaded by Giles’ ar gument that his conduct is excusable 3 in part because he reacted quickly to the default judgment by obtaining legal 4 representation and moving to set aside the default judgment. The fact remains that for 5 an extremely long period of time Giles neglected to file a response to the complaint 6 in this case. See Magnolia Mountain Ltd. P'ship v. Ski Rio Partners, Ltd. , 2006- 7 NMCA-027, ¶ 37, 139 N.M. 288, 131 P.3d 675 ( “[ E]quity aids the vigilant, not those 8 who slumber on their rights.” (internal quot ation marks and citation omitted)). We 9 will not excuse Giles’ failure to timely acknowledge the case or defend himself based 10 on his quick response to the en try of default judgment. See Adams v. Para-Chem So., 11 Inc. , 1998-NMCA-161, ¶ 21, 126 N.M. 189, 967 P.2d 864 (holding that a defendant’s 12 failure to react to a complaint for over two years was not excusable neglect even in a 13 situation where the plaintiff caused the delay between the filing of the complaint and 14 entering of default judgment and where the de fendant acted very quickly to set aside 15 the default judgment). 16 Finally, substantial evidence supports the di strict court’s finding that the parties 17 had not entered into a settlement agreement th at would justify Gile s’ failure to respond 18 to the complaint. Giles even conceded that there was no suchagreement when he 19 stated in the April 27, 2010, email that he was “anxious to reinstate the [deed in lieu] 2012 approvals for this unit[,]” and was hoping to “discuss how to make that happen.” In 1 addition, Flagstar never represented that anagreement had been reached for a deed in 2 lieu or that it would not seek default judgment against Giles. See Dean Witter 3 Reynolds, Inc. , 94 N.M. at 274, 609 P.2d at 721 (finding the defendants’ failure to 4 timely answer was excusable neglect where the parties were engaged in settlement 5 negotiations and the plaintiff had told the defendants that it would not seek entry of 6 default judgment during the negotiations). Infact, Flagstar stated the opposite: that 7 it would consider his deed inlieu request only if he cleared title to the property and 8 made the necessary repairs by certain specified dates. 9 We recognize that settlement negotiations are relevant to a determination of 10 excusable neglect. See, e.g. , Kinder Morgan CO2 Co. , 2009-NMCA-019, ¶¶ 7, 21 11 (considering the fact that the parties were engaged in ongoing settlement negotiations 12 and had informed that court that a settleme nt “in principle” had been reached as a 13 relevant factor in determining excusable negl ect). But, the district court did not abuse 14 its discretion when the evidence establis hed that Giles was neither diligent or 15 compliant with his informal efforts to pursu e a deed in lieu of foreclosure and avoid 16 a judgment being entered against him. To th e contrary, the record indicates that Giles 17 failed to meet any of the extended deadlines provided by Flagstar or offer any 18 explanations for his delay in fulfilling thes e conditions. Similarly, he failed to seek 19 any assurances from Flagstar that these failures would not affect the status of his 2013 informal request for a deed in lieu of th e pending foreclosure complaint against him. 1 See Adams , 1998-NMCA-161, ¶ 23 (“A defendant cannot assert a justifiable belief 2 that his interests were being protected, if he fails to inquire concerning possible 3 problems of which he should have been aw are under the circum stances.” (internal 4 quotation marks and citation omitted)). In li ght of Giles’ repeated failures to fulfill 5 the extra-judicial accommodations being extended to him in order to reach a non6 judicial resolution to the foreclosure lawsu it, we conclude that no abuse of discretion 7 occurred when the district court found that Giles had not established excusable neglect 8 in order to set aside the default judgment in this case. See Benavidez v. Benavidez , 99 9 N.M. 535, 539, 660 P.2d 1017, 1021 (1983) (hol ding that Rule 1-060(B)(1) relief is 10 not to be invoked where the party has cons ciously engaged in behaviors that later 11 appear to be detrimental). 12 Meritorious Defense 13 Because Rule 1-060(B)(1) requires that the moving party establish both 14 excusable neglect and a meritorious defens e, it is not necessary to address Giles 15 arguments regarding whether he sufficiently established a meritorious defense to the 16 foreclosure complaint that would have ju stified setting aside the default judgment. 17 Cf. Rodriguez , 105 N.M. at 749, 737 P.2d at 530 (recognizing that a party seeking 18 relief from default judgment must show both (1) grounds for opening or vacating 19 judgment and (2) a meritorious defense). As a result, we will not address this 2014 argument further. 1 Good Cause 2 In his brief, Giles also raises a curs ory argument that “the conduct of Flagstar 3 is suspicious,” and this Court should se t aside the default judgment for good cause 4 pursuant to Rule 1-060(B)(6). However, G iles has not supported any of his assertions 5 regarding Flagstar’s suspicious conduct with citations to the record or to authority. 6 See Ross v. City of Las Cruces , 2010-NMCA-015, ¶ 18, 148 N.M. 81, 229 P.3d 1253 7 (“Where a party fails to cite any portion of the record to support its factual allegations, 8 the Court need not consider its argument on appeal.”); Aspen Landscaping, Inc., v. 9 Longford Homes of N.M., Inc. , 2004-NMCA-063, ¶ 29, 135 N.M. 607, 92 P.3d 53 10 (“Failure to provide citations and challe nge findings affect this Court’s ability to 11 decide the issues.”); State v. Clifford , 117 N.M. 508, 513, 873 P.2d 254, 259 (1994) 12 (“Mere reference in a conclusory statemen t will not suffice and is in violation of our 13 rules of appellate procedure. ”). In addition, excusable neglect was the singular basis 14 for relief raised by Giles to th e district court. As such, Giles failed to preserve this 15 Rule 1-060(B)(6) argument for review by this Court and we will not address it any 16 further. See Rule 12-216(A) NMRA (“To preserve a question for review it must 17 appear that a ruling or decision by the district court was fairly invoked[.]”); State v. 18 Lucero , 104 N.M. 587, 590, 725 P.2d 266, 269 (Ct. App. 1986) (“The [district] court 19 had no opportunity to consider the merits of, or to rule intelligently on, the argument 2015 [the] defendant now puts before us.”). 1 CONCLUSION 2 For the reasons stated herein, we affirm the district court’s denial of Giles’ 3 motion to set aside the default judgment. 4 IT IS SO ORDERED. 5

__________________________________ 6 TIMOTHY L. GARCIA, Judge 7

WE CONCUR: 8

_________________________________ 9 RODERICK T. KENNEDY, Judge 10

_________________________________ 11 J. MILES HANISEE, Judge 12