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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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 CITIMORTGAGE, INC., 7 Plaintiff-Appellee, 8

v. NO. 29,008 9 RICARDO S. GIRON, 10 Defendant-Appellant. 11 Consolidated with: 12 RICARDO S. GIRON, 13 Plaintiff-Appellant, 14

v. 15 CITIMORTGAGE, INC., 16 Defendant-Appellee. 17 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY 18 John M. Paternoster, District Judge 19 Holland & Hart LLP 20 Larry J. Montano 21 Santa Fe, NM 22 Kristina E. Martinez 232 Santa Fe, NM 1 for Appellee 2

Ricardo S. Giron 3 Las Vegas, NM 4 Pro Se Appellant 5 MEMORANDUM OPINION 6 KENNEDY, Judge. 7 Ricardo S. Giron (Defendant) appeals from the order entering judgment on the 8 pleadings in favor of Citimortgage, Inc. (Plaintiff). [RP 809, 904] Defendant also 9 appeals from the district court’s decisi on on Defendant’s Rule 1-060(B)/Rule 1-059 10 NMRA motion. [Supp. RP 963, 981] This Court’s calendar notice proposed 11 summary affirmance. [Ct. App. File, CN1] Defendant has filed a memorandum in 12 opposition that we have duly considered. [Ct. App. File, MIO] Unpersuaded, 13 however, we affirm. 14 DISCUSSION 15 The initial docketing statement raises issu es that challenge the validity of the 16 foreclosure judgment. [Ct. App. File, DS] The supplemental docketing statement 17 raises issues that challenge the validity of the decision on the Rule 1-060(B) motion. 18 [Ct. App. File, Supp. DS] Defendant’s memorandum in opposition purports to raise 193 an additional legal issue that lacks merit under the circumstances of this case, as we 1 will discuss in this opinion. Defendant a sserts that the nature of this action is 2 Plaintiff’s suit for money damages, a legal ac tion that should have been tried to a jury, 3 and since this case was not tried to a jury , Defendant has been deprived of property 4 in violation of the New Mexico Constitution. [MIO 3-24, 28, 33] Defendant also 5 continues to generally challe nge the validity of the Noteand Mortgage [MIO 24-25]; 6 Plaintiff’s standing to sue Defendant [MIO 25]; the validity of the Goins affidavit as 7 a basis for summary judgment [MIO 28]; and Defendant continues to express his 8 disagreement with this Court’s proposed summary affirmance as set forth in the 9 calendar notice. We discuss Defendant’s jurytrial issue below in subsection C of this 10 opinion. In the calendar notice, we addressed Defendant’s c ontinuing challenges to 11 the validity of the Note and Mortgage, Pl aintiff’s standing to sue Defendant, the 12 validity of the Goins affidavit as a basis for summary judgment, and the numerous 13 other legal issues raised by Defendant in the docketing statement and the supplemental 14 docketing statement. We are not persuaded by Defendant’s memorandum that 15 summary affirmance on these issues in incorrect or inappropriate under the 16 circumstances of this case. 17 A. Issues Relating to the District Co urt’s Order Granting Plaintiff’s Motion 18 to Dismiss Defendant’s Complaint 19 With regard to the analysis in the calendar notice of Defendant’s issues that he 204 raised in the docketing statement, Defendant’s memorandum does not provide 1 additional facts or authorities that would pers uade us that the anal ysis of these issues 2 was incorrect or inappropriate. See State v. Ibarra , 116 N.M. 486, 489, 864 P.2d 302, 3 305 (Ct. App. 1993) (“A party opposing su mmary disposition is required to come 4 forward and specifically point out errors in fact and/or law.”). Thus, we rely on the 5 calendar notice analysis in affirming Defendant ’s issues relating to the district court’s 6 order granting Plaintiff’s motion to dismiss Defendant’s complaint, as follows. 7 As we stated in the calendar notice, although Defendant raises seventeen issues 8 in the docketing statement, they all relate to whether the district court erred in granting 9 Citimortgage, Inc.’s (Plaintiff’s) motion fo r summary judgment in this consolidated 10 case. The consolidated case involves Plaintiff’s suit to foreclose on a mortgage 11 pursuant to Defendant’s default under a promissory note and Defendant’s suit to 12 challenge Plaintiff’s litigation conduct and the legal validity of Plaintiff’s foreclosure 13 action in general. [RP 461- 464, 690] We hold that Plaintiff is entitled to judgment 14 as a matter of law because (1) in response to Plaintiff’s motion for summary judgment, 15 Defendant failed to meet his burden to show that there were material issues of fact 16 requiring a trial, and (2) De fendant failed to show that Plaintiff is not entitled to 17 judgment, or that Defendant is entitled to judgment, based on the legal contentions 18 Defendant made below and continues to raise on appeal. A ccordingly, we affirm the 195 district court’s judgment on the pleadings in favor of Plaintiff. [RP 809] 1 We apply the following standards in reviewing an order granting summary 2 judgment. “Summary judgment is appropriate where there are no genuine issues of 3 material fact and the movant is entitled to judgment as a matter of law . . . . We review 4 these legal questions de novo.” Self v. United Parcel Serv., Inc. , 1998-NMSC-046, 5 ¶ 6, 126 N.M. 396, 970 P.2d 582 (c itation omitted). “The movant need only make a 6 prima facie showing that he is entitled to summary judgment. Upon the movant 7 making a prima facie showing, the burden shifts to the party opposing the motion to 8 demonstrate the existence of specific evid entiary facts which would require trial on 9 the merits.” Roth v. Thompson , 113 N.M. 331, 334-35, 825 P.2d 1241, 1244-45 10 (1992) (citations omitted). A prima facie cas e may be established without affidavits 11 if, through discovery, it appears that th e party opposing summary judgment cannot 12 factually establish an essential element of his or her case. Blauwkamp v. Univ. of New 13 Mexico Hosp. , 114 N.M. 228, 232, 836 P.2d 1249, 1253 (Ct. App. 1992) (citing 14 Celotex Corp. v. Catrett , 477 U.S. 317 (1986)). Summary judgment is proper where 15 there is no evidence raising a reasonable doubtthat a genuine issue of material fact 16 exists. Cates v. Regents of the N. M. Inst. of Mining & Tech ., 1998-NMSC-002, ¶ 9, 17 124 N.M. 633, 954 P.2d 65. A party opposing summary judgment may not simply 18 argue that evidentiary facts requiring a trial on the merits may exist, “nor may [a 196 party] rest upon the allegations of the complaint.” Dow v. Chilili Coop. Ass'n , 105 1 N.M. 52, 54-55, 728 P.2d 462, 464-65 (1986). 2 In the debt and foreclosure action, Plaintiff filed a motion for summary 3 judgment on all claims made in its complaint against Defendant, the United States of 4 America (IRS) and New Mexico Taxation and Revenue (NM Tax and Rev). [RP 352] 5 The motion for summary judgment presented undisputed facts and supporting 6 documentation, including the affidavit of Plaintiff’s Legal Support Specialist Patty 7 Goins. [RP 362, Exhibit 1] Ms. Goins’ affidavit assertedpersonal knowledge of 8 Plaintiff’s contractual relationship with De fendant. [Id.] The affidavit states that 9 Principal Residential Morgage, Inc. (PRM) , a company now merged into Plaintiff, 10 loaned Defendant $115,000 together with interest at the rate of 7.375% per annum 11 until paid in full as evidenced by the promissory note executed by Defendant on 12 January 5, 2000 (the Note). [RP 353, ¶ 1; Exhibit 1-A; RP367] The Note is secured 13 by a mortgage against the real property fully described therein, commonly known as 14 41 Mirasol Road or 41 Mira Sol Road, Las Vegas, New Mexico, also executed by 15 Defendant on January 5, 2000 (the Mortgage). [RP 354, ¶¶ 2-4; Exhibit 1-B; RP 375] 16 Under the Note and Mortgage, Defendant promised to pay principal and interest to the 17 Note holder, now Plaintiff, under the terms of the Note or be “in default.” [RP 354, 18 ¶ 5] If Defendant is in default under the terms of the Note, Plaintiff may declare all 197 sums immediately due and it may foreclose on the Mortgage, as well as collect all 1 expenses incurred in pursuing its remedies , including reasonable attorney fees and 2 costs. [RP 354-55, ¶¶ 6-7] On January 1, 2005, PRM merged into Plaintiff, by which 3 Plaintiff succeeded to PRM’s interests including its rights in the Note and Mortgage. 4 [RP 355, ¶ 8, Exhibit 1-C] 5 After Defendant executed the Note and Mortgage in 2000, he made payments 6 to PRM and continued to make payments to Plaintiff for two years after the merger 7 between PRM and Plaintiff in 2005. [RP 447] After making a payment in March 8 2007, however, Defendant defau lted on his obligation to make payments as provided 9 in the Note and as demonstrated in a printout of Defendant’s account history. [RP 10 355,¶ 9; Exhibits 1-D, 1-E] Plaintiff i ssued a default letter and a demand letter to 11 Defendant, exercised its remedies to decl are all sums due under the Note, and brought 12 its complaint to foreclose on the Mortgage. [RP 355,¶¶ 10-12; Exhibits 1-F, 1-G] 13 We hold that Plaintiff’s evidence was su fficient to make a prima facie showing 14 that Defendant owed Plaintiff money under the Note as secured by the Mortgage, that 15 Defendant is in default under the terms of the Note and Mortgage, and that Plaintiff 16 is entitled to accelerate all sums due under the Note and exercise its remedy to 17 foreclose on the real property secured by th e Mortgage. Under the circumstances, the 18 burden then shifted to Defendant to demons trate the existence of specific evidentiary 198 facts that would require a trial on the merits. See Roth , 113 N.M. at 334-35, 825 P.2d 1 at 1244-45. 2 In his response, however, Defendant di d not challenge the facts set forth in 3 Plaintiff’s motion. [RP 410-444] See Turner v. Barnhart, 83 N.M. 759, 761, 497 4 P.2d 970, 972 (1972) (stating that the party opposing summary judgment cannot 5 defeat the motion simply by relying on the barecontention that an issue of fact exists, 6 but must show that evidence is available that would justify a trial on the issue). 7 Moreover, Defendant never de nied that he is the Ricardo S. Giron who borrowed the 8 money, executed the Note and Mortgage, and proceeded to make payments to PRM 9 and Plaintiff until March 2007, when he defaulted on his obligations. 10 Instead, Defendant raised, and continue s to raise on appeal, in the docketing 11 statement, the supplemental docketing st atement, and the memorandum in opposition, 12 numerous meritless legal contentions about why summary judgment should not be 13 granted. [DS, Supp. DS, MIO] In partic ular, contrary to Defendant’s contentions, as 14 a matter of law, the Note and Mortgage were properly beforethe district court as duly 15 authenticated business records containing Defendant’s initials and signatures; in 16 addition, they are documents that wereproduced in discovery. [RP 448-49] SeeRule 17 11-803(F) NMRA; see also, e.g. , Miller & Assocs., Ltd. v. Rainwater, 102 N.M. 170, 18 171, 692 P.2d 1319, 1320 (1985) (noting that summaries of business records are 199 admissible); State ex rel. Elec. Supply Co., Inc. v. Kitchens Constr. Co. , 106 N.M. 1 753, 756, 750 P.2d 114, 117 (1988) (holding thatcomputer printouts are admissible 2 as business records). In addition, contrary to Defendant’s contentions, as the 3 successor-in-interest to PRM, under the terms of the mergerand applicable corporate 4 law, Plaintiff is the holder of the Note and the Mortgage and the party entitled to 5 enforce Defendant’s obligations set forth th erein. [RP 449-51] These contentions do 6 not defeat Plaintiff’s prima facie case for summary judgment. 7 After responding to the motion for su mmary judgment, Defendant filed 8 numerous motions to dismiss as further legal challenges to Plaintiff’s foreclosure 9 action. Defendant claimed the district c ourt lacked subject matter and in personam 10 jurisdiction over the case. He claimed that he was entitled to sanctions and injunctive 11 relief for the alleged misconduct, treason and fraud of Plaintiff’s attorneys and the 12 alleged corruption of the judicial system. [RP 499] Defendant argued against 13 consolidation of the cases as an attempt to “rig” the case outcome and as an abrogation 14 of his substantive due process rights. [RP 514] Defendant claimed that his procedural 15 due process rights wereviolated by Plaintiff on the basis that he was not provided 16 notice that PRM merged with Plaintiff and because Plaintiff had faxed many of its 17 pleadings to the district court. [RP 587] Defendant filed a motion to recuse the 18 district court judge on grounds of bias and prejudice. [RP 697] Defendant filed 1910 motions challenging the foreclosure action for failure to produce the original 1 promissory note. [RP 466, 635] He file d a “mandatory judicial notice” regarding 2 Plaintiff’s alleged status as a defunct co rporation. [RP 674] Defendant filed a 3 “mandatory judicial notice” regarding alleged alteration of the promissory note. 4 Defendant filed a notice of Plaintiff’s non-response to Defendant’s motion for 5 summary judgment, which Plaintiff denied. [RP 734, 803] Plaintiff fully responded 6 to each of Defendant’s challenges to the foreclosure action. [RP 461, 526, 528, 545, 7 549, 554, 558, 568, 578, 602, 624, 646, 700, 703, 741] For the reasons set forth in 8 Plaintiff’s responses, these motions do notdefeat Plaintiff’s prima facie case for 9 summary judgment. 10 After several continuances, a hearing on all pending motions was held on July 11 22, 2008. [RP 809, first ¶] De fendant did not appear at the hearing. [Id.] After the 12 hearing, however, Defendant filed an amended brief in opposition to Plaintiff’s 13 motion for summary judgment and to strike the Goins affidavit, largely raising the 14 same legal objections to the foreclosure prev iously raised in the pre-hearing motions; 15 Plaintiff responded. [RP 755, 803] Plainti ff then filed a notice of proposed order for 16 judgment on the pleadings, and Defendant objected by a brief in opposition. [RP 783, 17 789] Upon consideration of all pleadings , exhibits, documents, and affidavits, 18 including Defendant’s post-hearing pleadings and objections on the merits, the district 1911 court ruled, entering judgment on the pleadings in favor of Plaintiff. [RP 809] 1 Having reviewed the parties’ pleadings , legal authorities, exhibits, documents, 2 and affidavits, we hold that De fendant raises no issue of material fact requiring a trial. 3 See Barnhart, 83 N.M. at 761, 497 P.2d at 972 (stating that the party opposing 4 summary judgment cannot defeat the motion simply by relying on the bare contention 5 that an issue of fact exists, but must show that evidence is available that would justify 6 a trial on the issue). We also hold that Defendant’s contentions involve legal issues 7 that are legally insufficient and they th erefore do not defeat summary judgment. See 8 Fidelity Nat’l Bank v. Tommy L. Goff, Inc., 92 N.M. 106, 108, 583 P.2d 470, 472 9 (1978). 10 To the extent Defendant continues to c ontend on appeal that the district court 11 was without subject matter jurisdiction, wedisagree. “A court has subject matter 12 jurisdiction in an action if the case is withinthe general class of cases that the court 13 has been empowered, by constitution or statute, to determine.” Marchman v. NCNB 14 Texas Nat’l Bank , 120 N.M. 74, 83, 898 P.2d 709, 718 (1995). We hold that the 15 district court, as a court of general jurisdiction, see N.M. Const. art.VI, §13, has 16 subject matter jurisdiction to decide an ac tion to foreclose the Mortgage regarding 17 Defendant’s default under the Note. See id. (stating that the district court has 18 jurisdiction over contract claims). To the extent Defendant is arguing that the 1912 pleadings were insufficient to confer subj ect matter jurisdiction, we disagree. As 1 discussed more fully above, we hold that the Goins affidavit and the accompanying 2 documents and exhibits created an unrebutted prima facie case entitling Plaintiff to 3 summary judgment, and they were sufficient to provide fair notice to Defendant. See 4 Schmitz v. Smentowski , 109 N.M. 386, 389-90, 785 P.2d 726, 729-30 (1990) (stating 5 that notice pleading requires fair notice of claims, and the grounds on which they are 6 based, and does not require that every th eory be described in the pleadings). 7 To the extent Defendant continues to c ontend that the district court was without 8 personal jurisdiction, we remain unpersuaded. Defendant is a resident of Las Vegas, 9 New Mexico in San Miguel County. The real property covered by the Mortgage is 10 located in San Miguel County, New Mexico. Plaintiff is not a defunct corporation; 11 it is the current holder of the Note and the Mortgage, and the party in interest entitled 12 to enforce the remedies set forth thereunder. [RP 700] As the injured party under 13 contractual agreements with Defendant, including the Note breached by Defendant, 14 who is a resident of Las Vegas, New Mexi co, and the Mortgage covering real property 15 located in Las Vegas, New Mexico, Plai ntiff has standing to sue and enforce its 16 remedies under the Note and Mortgage inSan Miguel County, New Mexico. 17 To the extent Defendant attacks the su mmary judgment procedure in this case, 18 arguing that it cannot be based on the Goins affidavit and the exhibits attached thereto, 1913 we disagree. The Goins affidavit and other documentation submitted by Plaintiff are 1 valid to support Plaintiff’s claim. As morefully discussed above, considered together, 2 they establish that Plaintiff lent Defendant money upon the terms and conditions set 3 forth in the Note that was executed by Defendant; the repayment of the Note is 4 secured by the Mortgage that was execute d by Defendant; Defendant is in default 5 under the Note and Plaintiff is entitled to fo reclose on the real property covered by the 6 Mortgage. Defendant’s issues in this regard raise no genui ne issue of material fact. 7 See Oschwald v. Christie , 95 N.M. 251, 253, 620 P.2d 1276, 1278 (1980) (stating that 8 it is not enough that there are factual issu es because issues must be material; 9 immaterial facts create no triable issue). 10 To the extent Defendant continues to ar gue that he was de nied due process or 11 that the district court judge was biased or prejudiced against Defendant, we are not 12 persuaded. Due process requires that no tice be reasonably calculated, under all the 13 circumstances, to inform parties of the pe ndency of the action and afford them the 14 opportunity to present their objections. See Marinchek v. Paige , 108 N.M. 349, 351- 15 52, 772 P.2d 879, 881-82 (1989). Due process doe s not require that a party agree with 16 the outcome or prevail on the merits of his or her claims. 17 Moreover, in this case, the record proper indicates that Defendant fully 18 participated in the proceedings and the h earings. Defendant’s claims and objections 1914 were carefully considered in extensive and exhaustive pleadings, documents, and 1 exhibits; hearings as applicable; and in written orders of the district court. As 2 discussed above, Defendant’s legal challenges to the foreclosure action were rejected 3 in accordance with applicable law. See, e.g. , State v. Case , 100 N.M. 714, 717, 676 4 P.2d 241, 244 (1984) (stating that personal bias cannot be inferred from an adverse 5 ruling); see also, e.g. , Pizza Hut, Inc. v. Branch, 89 N.M. 325, 327, 552 P.2d 227, 229 6 (Ct. App. 1976) (stating that “[district] c ourts have supervisory control over their 7 dockets and inherent power tomanage their own affairs so as to achieve the orderly 8 and expeditious disposition of cases”). Wecannot say that Defendant did not receive 9 due process of law. 10 Because the record indicates that the district court judge fully considered 11 Defendant’s claims and gavehim full opportunity to present them, Defendant has not 12 persuaded us that the district court judgewas actually biased or prejudiced against 13 him, nor that the district judge was required to recuse himself. Additionally, any facts 14 about the relationship between Plaintiff and its attorneys is immaterial, and would not 15 defeat summary judgment in this action to foreclose on a mortgage. Ochswald , 95 16 N.M. at 253, 620 P.2d at 1278. Our review of the record indicates that the district 17 court judge applied the applicable law to the facts of this case and ruled against 18 Defendant on the merits in accordance therewith. 1915 We affirm the district court’s summary judgment in favor of Plaintiff. 1

B. Issues Raised in the Supplementa l Docketing Statement Regarding the 2 District Court’s Decision on Defendant’s Rule 1-060(B) Motion 3 Defendant’s memorandum does not provide this Court with additional facts or 4 authorities that would persuade us that the analysis of these issues in the calendar 5 notice was incorrect or inappropriate. See Ibarra , 116 N.M. at 489, 864 P.2d at 305. 6 Accordingly, we affirm the district c ourt on these issues based on the following 7 analysis set forth in the calendar notice. 8 In the supplemental docketing statement, Defendant continues to contend that 9 the district court lacked subject matter juri sdiction because Plaintiff is not the proper 10 party to bring the lawsuit, Defendant doe s not owe this Plaintiff money, and this 11 Plaintiff is a defunct corporation, and it is not the holder of the Note and Mortgage. 12 [Supp. DS 2-4, 7-9] Defendant also continues to contend that Plaintiff’s foreclosure 13 action is flawed because the original Note and Mortgage were not attached to the 14 foreclosure complaint. [Supp. DS 3-4] De fendant also challenges the district court’s 15 judgment as void based on alle gations regarding the taking of the judicial oath and 16 alleged judicial bias in favor of Plaintiff and its attorneys and prejudice against 17 Defendant. [Supp. DS 6-7] Defendant cites many cases to the effect that a void 18 judgment has no force or effect under the law. [Supp. DS 13-18] We note, however, 1916 that these are the same legal challenges to Plaintiff’s foreclosure action raised in the 1 original docketing statement. As such, wedisagree with Defendant’s contentions, and 2 we rely on the reasons fully discussed above. 3 We now turn to consider the remaining new issues set forth in the supplemental 4 docketing statement, [Supp. DS 4-5, 12] whic h we consolidate as: whether the district 5 court abused its discretion in denying Defendant’s post-judgment Rule 1-060(B) 6 motion to vacate a void judgment and for inj unctive and declarative relief. We affirm 7 the district court’s decision. [RP 963] 8 “We generally review the [district] court’s ruling under Rule 1-060(B) for an 9 abuse of discretion except in those instan ces where the issue is one of pure law.” 10 Edens v. Edens , 2005-NMCA-033, ¶ 13, 137 N.M. 207, 109 P.3d 295 (internal 11 quotation marks and cited authority omitted). To reverse the district court under an 12 abuse-of-discretion standard, “it must beshown that the court’s ruling exceeds the 13 bounds of all reason . . . or th at the judicial ac tion taken is arbitrary, fanciful, or 14 unreasonable.” Id. (quoting Meiboom v. Watson , 2000-NMSC-004, ¶ 29, 128 N.M. 15 536, 994 P.2d 1154 (alteration in original) (internal quotation marks)); see Talley v. 16 Talley , 115 N.M. 89, 92, 847 P.2d 323, 326 (Ct. App. 1993) (“When there exist 17 reasons both supporting and detracting from a [district] court decision, there is no 18 abuse of discretion.”). “Where the court’ s discretion is fact-based, we must look at 1917 the facts relied on by the [district] court as a basis for the exercise of its discretion, to 1 determine if these facts are s upported by substantial evidence.” Apodaca v. AAA Gas 2 Co. , 2003-NMCA-085, ¶ 60, 134 N.M. 77, 73 P. 3d 215 (internal quotation marks and 3 citation omitted). 4 Defendant’s Rule 1-060(B) motion alleges that the September 9, 2008, 5 judgment on the pleadings in favor of Plaintiff is void because Defendant paid the 6 Note and Mortgage in full on August 28, 2008. [RP 812, 827-845] Plaintiff’s 7 response, however, indicates that Plaintiff did not accept Defendant’s tender because 8 it did not include any escrow fees, costs, and attorney fees, set forth in the judgment 9 and applicable in a “default” rather a “p repayment” situation. [RP 909-912, 913; RP 10 827, first ¶] 11 On remand, the district court determined in its decision [RP 963] that the 12 amount Defendant tendered was the pre-default sum of the value of the Note owing 13 to Plaintiff and “less than the total and co rrect, proven amount in controversy set forth 14 in the judgment itself.” [RP 964, fof 9-13] The district court concluded that the 15 tender “does not constitute fu ll, complete and lawful satisfaction of the outstanding 16 post-default amounts owing to the plaintiff.” [RP 965, col 6] Thus, the district court 17 upheld the judgment as valid and enforceableuntil satisfied and it denied Defendant’s 18 motion. We agree. Plaintiff was not re quired to accept Defendant’s partial tender as 1918 an accord and satisfaction of the post-default amounts due and owing to Plaintiff 1 under the Note and Mortgage, and we know of no authority that requires such an 2 acceptance. Thus, we agree withthe district court’s decision. 3 Finally, Defendant contends th is Court erred in requesti ng that the district court 4 enter findings and conclusions in the order of limited remand. We know of no 5 authority, however, that so provides, and infact the opposite is well-established. See, 6
e.g. , Green v. Gen. Accident Ins. Co. of Am. , 106 N.M. 523, 527, 746 P.2d 152, 156 7 (1987) (stating that “[w]here the ends of justice require, this Court may remand a case 8 to district court for the making of proper findings of fact”). Moreover, because the 9 district court entered findings and conclu sions, to the extent they disagree with 10 Defendant’s post-decision proposed findings and conclusions [RP 970], these 11 proposed findings and conclusions are d eemed denied by the district court. Griffin v. 12 Guadalupe Med. Ctr., Inc. , 1997-NMCA-012, ¶ 22, 123 N.M. 60, 933 P.2d 859 13 (“When the [district] court’s findings of fact are supported by substantial evidence, 14 . . . refusal to make contrary findings is not error.”); see Landskroner v. McClure , 107 15 N.M. 773, 775, 765 P.2d 189, 191 (1988) (observing that failure of a trial court to 16 make a finding of fact is regarded as a finding against the party seeking to establish 17 the affirmative); see also, e.g. , State v. Walker , 1998-NMCA-117, ¶ 7, 125 N.M. 603, 18 964 P.2d 164 (observing that “when a [district] court makes specific written findings 1919 of fact that are supported by substantial evidence, those findi ngs prevail over any 1 inconsistent conclusions of law or an inconsistent judgment”). 2 C. Defendant’s Memorandum in Opposition 3 In his memorandum, Defendant asserts that the nature of this action is 4 Plaintiff’s suit for money damage s, a legal action that should have been tried to a jury, 5 and since this case was not tried to a jury , Defendant has been deprived of property 6 in violation of the New Mexico Constitution. [MIO 3-24, 28, 33] Defendant’s full and 7 detailed discussion of this issue for the first time on appeal in the memorandum in 8 opposition is in the nature of a motion to amend the docketing statement and the 9 supplemental docketing statement with an issue that is nonviable. See, e.g. , State v. 10 Moore , 109 N.M. 119, 129, 782 P.2d 91, 101 (Ct. App. 1989) (recognizing that this 11 Court will deny motions to amend that raise issues that are not viable, even if they 12 allege fundamental or jurisdictional error), overruled on other grounds by State v. 13 Salgado , 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991) . It is well-established in New 14 Mexico that “foreclosure suits are equitabl e in nature, . . . and New Mexico courts 15 have not recognized a constitutional right to a jury trial on issues that are necessarily 16 decided in the course of a fo reclosure suit in state court su ch as the existence or the 17 amount of the debt.” Las Campanas Ltd. Pshp. v. Pribble , 1997-NMCA-055, ¶ 9, 123 18 N.M. 520, 943 P.2d 554 (citing Sunwest Bank v. Garrett , 113 N.M. 112, 115-16, 823 1920 P.2d 912, 915-16 (1992)). U nder the circumstances, Plaintiff’s claims for money 1 damages and Defendant’s equ itable and legal separate claims presented in these 2 consolidated cases, were necessarily decided as part of Plaintiff’s foreclosure action. 3 Plaintiff could not foreclose on a mortgage and promissory note that were invalid, and 4 similarly, any affirmative defenses and counterclaims Defendant asserted would 5 necessarily be decided in the cour se of the foreclosure action. See id. 6 CONCLUSION 7 For all of these reasons, we affirm the district court’s decision denying 8 Defendant’s Rule 1-060(B) motion and upholding the judgment on the pleadings in 9 favor of Plaintiff. 10 IT IS SO ORDERED. 11

___________________________________ 12 RODERICK T. KENNEDY, Judge 13 WE CONCUR : 14

_________________________________ 15 MICHAEL D. BUSTAMANTE, Judge 16

_________________________________ 17 CELIA FOY CASTILLO, Judge 18