Court of Appeals of New Mexico
Decision Information
Rule Set 12 - Rules of Appellate Procedure - cited by 9,472 documents
Citations - New Mexico Appellate Reports
Alexander v. Delgado ex rel. Delgado - cited by 376 documents
Hugh K. Gale Post, No. 2182 VFW v. Norris - cited by 100 documents
Newsome v. Farer - cited by 175 documents
Decision Content
BAC HOME LOANS SERVICING, LP V. HENDERSON-STILL
This memorandum opinion was not selected for publication 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 filed by the Court of Appeals and does not include the filing date.
BAC HOME LOANS SERVICING, LP
f/k/a Countrywide Home Loans Servicing, LP,
Plaintiff-Appellee,
vs.
JO B. HENDERSON-STILL;
MICHAEL P. STILL; U.S. BANK
NATIONAL ASSOCIATION, ND;
and JOHN DOE AND JANE DOE (true
names unknown), tenants,
Defendants-Appellants.
No. 31,634
COURT OF APPEALS OF NEW MEXICO
June 1, 2012
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, C.
Shannon Bacon, District Judge
COUNSEL
Susan C. Little & Associates, P.A., Susan C. Little, Albuquerque, NM, for Appellee
Jo B. Henderson-Still, Michael P. Still, Albuquerque, NM, Pro se Appellants
JUDGES
TIMOTHY L. GARCIA, Judge. WE CONCUR: JAMES W. WECHSLER, Judge, CYNTHIA A. FRY, Judge
MEMORANDUM OPINION
GARCIA, Judge.
Defendants Jo B. Henderson-Still and Michael P. Still appeal, pro se, from a district court order denying their motion to dismiss a foreclosure complaint. We issued a calendar notice proposing to affirm. Defendants have responded with a memorandum in opposition. We affirm.
A default foreclosure judgment was entered on August 17, 2010. [RP 61] In January 2011 Defendants filed a motion to set aside that judgment. [RP 120] The motion was denied on June 28, 2011. [RP 242] Defendants then filed a motion to dismiss the complaint, alleging that Plaintiff lacked capacity to sue. [RP 245] The motion was denied. [RP 294]
As we indicated in our calendar notice, the issue of a plaintiff’s capacity to sue is waived if not raised by motion or answer. Hugh K. Gale Post No. 2182 VFW v. Norris, 53 N.M. 58, 62, 201 P.2d 777, 779 (1949). “It is waived after answer [is] filed.” Id. We are bound by this Supreme Court precedent. See Alexander v. Delgado, 84 N.M. 717, 718, 507 P.2d 778, 779 (1973) (holding that Supreme Court precedent controls).
As we stated above, a default judgment was entered in this case; thus no answer was ever filed. We note, however, that Defendants did not raise the standing issue in their motion to set aside the default judgment and the accompanying brief. [RP 120- 21] Defendants acknowledge that they first raised the issue in their reply to the response to their motion to set aside the default judgment. [MIO 4] That motion was denied on June 28, 2011. [RP 242] We therefore conclude that Defendants had waived their standing issue by waiting to raise it until after a post-judgment motion had been denied. We also note that the fact that they are pro se will not persuade us to overlook the timeliness issue. See Newsome v. Farer, 103 N.M. 415, 419, 708 P.2d 327, 331 (1985) (“Although pro se pleadings are viewed with tolerance, . . . a pro se litigant, having chosen to represent himself, is held to the same standard of conduct and compliance with court rules, procedures, and orders as are members of the bar.” (emphasis omitted)).
For the reasons set forth above, we affirm.
IT IS SO ORDERED.
TIMOTHY L. GARCIA, Judge
WE CONCUR:
JAMES W. WECHSLER, Judge
CYNTHIA A. FRY, Judge