June 8, 2020- Specialized Loan Servicing, LLC v. Matthew J. Fichera, No. A-1-CA-38268

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Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
SPECIALIZED LOAN SERVICING, LLC,	2
Plaintiff-Appellee,	3
v. 	NO. A-1-CA-38268	4
MATTHEW J. FICHERA,	5
Defendant-Appellant,	6
and	7
TAXATION AND REVENUE	8
DEPARTMENT OF THE STATE	9
OF NEW MEXICO,	10
Defendant.	11
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	12
Lisa Chavez Ortega, District Judge	13
Tiffany & Bosco, P.A.	14
Karen H. Bradley	15
Albuquerque, NM	16
for Appellee	17
Matthew J. Fichera	18
Albuquerque, NM	19
Pro Se Appellant	20
Court of Appeals of New Mexico
Filed 6/8/2020 10:05 AM

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MEMORANDUM OPINION	1
HANISEE, Chief Judge.	2
{1} 	Defendant Matthew Fichera, who is self-represented, appeals from an order	3
denying his motion to set aside a default foreclosure judgment. [RP 170, 186] We	4
issued 	a 	calendar 	notice 	proposing 	to 	affirm. 	Defendant 	has 	filed 	a 	timely	5
memorandum in opposition. Unpersuaded, we affirm the district court’s judgment.	6
{2} 	As we observed in our calendar notice, the foreclosure judgment was filed on	7
August 31, 2018. [RP 106] Defendant’s motion challenging that judgment was filed	8
on February 1, 2019. [RP 143] We therefore construe Defendant’s motion as a motion	9
made pursuant to Rule 1-060(B) NMRA. See Marquez v. Larrabee, 2016-NMCA-087,	10
¶ 9, 382 P.3d 968 (explaining that because the notice of appeal was timely only as to	11
the district court’s denial of the defendants’ motion to set aside the default judgment	12
under Rule 1-060 and not as to the district court’s order granting the plaintiff’s motion	13
for a default judgment, this Court would address only the district court’s denial of the	14
motion to set aside the default judgment).	15
{3} 	Rule 1-060(B) provides, in pertinent part, that “[o]n motion and on such terms	16
as are just, the court may relieve a party or the party’s legal representative from a final	17
judgment, order, or proceeding for” reasons including “mistake, inadvertence,	18
surprise, or excusable neglect” or “newly discovered evidence which by due diligence	19
could not have been discovered in time to move for a new trial under Rule 1-059	20

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NMRA.” Rule 1-060(B)(1), (2). “We review the district court’s denial of a motion to	1
set aside a default judgment for abuse of discretion.” Ortiz v. Shaw, 2008-NMCA-136,	2
¶ 12, 145 N.M. 58, 193 P.3d 605.	3
{4} 	Defendant’s motion to set aside appears to have alleged mistake and/or new	4
evidence. [RP 143] The district court denied the motion after holding an evidentiary	5
hearing. [RP 170] To the extent Defendant alleged new evidence, in the form of	6
documents and matters relating to his equity in the property, Defendant has not	7
established that he could not have discovered this evidence within the time limits of	8
Rule 1-060(B)(2). To the extent that Defendant’s motion relied on his claims of	9
mistake, lack of notice, or excusable neglect, these claims raised matters of credibility.	10
“It is the sole responsibility of the trier of fact to weigh the testimony, determine the	11
credibility of the witnesses, reconcile inconsistencies, and determine where the truth	12
lies, and we, as the reviewing court, do not weigh the credibility of live witnesses.”	13
N.M. Taxation & Revenue Dep’t v. Casias Trucking, 2014-NMCA-099, ¶ 23, 336 P.3d	14
436 (alteration, internal quotation marks, and citation omitted).	15
{5} 	Finally, with respect to the claim [MIO 2] that the one-month redemption period	16
was too short, our Legislature has specifically authorized parties to contractually bind	17
themselves to this amount of time. See NMSA 1978, § 39-5-19 (1965) (“The parties	18
to any such instrument may, by its terms, shorten the redemption period to not less	19
than one month[.]”). We therefore hold that Defendant has not established that the	20

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district court abused its discretion in denying his motion. See Benz v. Town Ctr. Land,	1
LLC, 2013-NMCA-111, ¶ 11, 314 P.3d 688 (stating that “[a]n abuse of discretion	2
occurs when a ruling is clearly contrary to the logical conclusions demanded by the	3
facts and circumstances of the case”).	4
{6} 	For the reasons provided in the notice and in this opinion, we affirm the district	5
court’s judgment.	6
{7} 	IT IS SO ORDERED.	7
__________________________________	8
J. MILES HANISEE, Chief Judge	9
WE CONCUR:	10
_________________________________	11
KRISTINA BOGARDUS, Judge	12
_________________________________	13
ZACHARY A. IVES, Judge	14