IN THE COURT OF APPEALS
OF THE STATE OF NEW MEXICO
DENNIS NELSON
Respondent- Appellant
v.
LUCIA PROPERTIES LLC.
Petitioner- Appellee
Appeal Case No. ______________
DOCKETING STATEMENT
Appellant DENNIS NELSON makes the following Docketing Statement pursuant to Rule
12-208 N. M. R. App. P.
1. Nature of the proceeding: This is an appeal pursuant to N.M. R. App. P. 12-201 from
the Order Granting Motion for Summary Judgment on Petition for Redemption of Real
Property; Order Denying Motion to Dismiss; Order Granting Motion to Supplement
Deposit and Authorizing Supplemental Deposit of Funds in Connection with
Redemption of Real Estate, entered by the New Mexico San Miguel County 4 th Judicial
District Court on July 20, 2022.
2. Timeliness: The Final Order was entered on July 20, 2022. Appellant filed a Notice of
Appeal dated August 18, 2021, which was timely in accordance with N.M. R. App. P.
12-201.
3. Statement of the Case: (a) Procedural Background. Appellee then filed a Redemption
Petition on August 10, 2021.
4. On or about October 14, 2021, Appellant filed a Response to the Petition for
Redemption.
5. Appellee filed the Motion to Authorize Supplemental Deposit of Funds in Connection
with Redemption of Real Estate on or about August 10, 2021. In this motion, Appellee
sought inter alia, to deposit into the court’s registry $5,546.21allegedly consisting of
the amount Appellant tendered to Special Master for purchase of the foreclosed
property at issue, plus statutory interest thereon.
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6. On or about August 25, 2021, the Court issued an Order Authorizing Deposit of Funds
in Connection with Redemption of Real Estate.
7. On or about February 3, 2022, Appellee filed a Motion to Supplement Deposit. In the
motion, the Appellee sought to deposit an additional $2,207.83 to cover the payment of
property taxes by the Appellant.
8. On or about February 7, 2022, the Appellee filed a Motion for Summary Judgment. In
the motion, the Appellee alleged inter alia, that the assignment of the right of
redemption was properly acquired and that Lisa Griego and Lucas Giego had
authorization to sign the assignment.
9. On or about February 7, 2022, the Appellee also filed an Opposition to Appellant’s
Response to the Petition for Redemption. In the opposition, Appellant maintained their
argument that Lisa Griego and Lucas Giego were authorized to sign the assignment.
Appellee also alleged that the Assignment is not an instrument evidencing redemption,
and is therefore exempt from NM Stat § 7-38-12.1. Lastly, the Appellee averred that its
insufficient service of process occasioned Appellant no harm.
10. On or about March 3, 2022, the Appellant filed a Motion for Dismissal of Petition for
Redemption of Real Estate. In the motion, the Appellant alleged, inter alia, that there
was insufficient service of process, which consequentially denied the Court jurisdiction
over the matter. Appellant also asserted that the statute of limitations had already
expired when the Appellee correctly served Appellant. Also, Appellant averred that the
Appellee failed to prosecute the case when they did not file any pleading until February
3, 2022, six months after their initial filing. Appellant then argued the improper
redemption attempted by the Appellee.
11. On or about March 3, 2022, Appellant also filed an Objection to Appellee’s Motion to
Supplement Deposit. In the objection, the Appellant maintained that the redemption
period cannot be extended.
12. On or about March 7, 2022, Appellant filed an Opposition to Appellee’s Motion for
Summary Judgment. Appellant averred inter alia, there was improper exercise of
redemption rights. Appellant also averred that he is entitled to reimbursement for
repairs and improvements made to the property.
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13. On or about March 21, 2022, the Appellee filed an Opposition to Appellant’s Motion
for Dismissal of Petition for Redemption of Real Estate. In the opposition, Appellant
averred that the Court has jurisdiction over the matter and that the Appellee has
prosecuted its claim.
14. On or about March 21, 2022, Appellee also filed a reply in support of its Motion for
Summary Judgment. Appellee alleged that there is no genuine issue of material fact,
the assignment of redemption rights was proper, and Appellee rightly complied with
the redemption statutes.
15. On or about July 20, 2022, the Court issued an Order granting Appellee’s Motion for
Summary Judgment in favor of the Appellee. The Court also granted Appellee’s
Motion to Supplement Deposit and Authorizing Supplemental Deposit of Funds in
Connection with Redemption of Real Estate. Lastly, the Court denied Appellant’s
Motion to Dismiss.
16. Statement of the case. (b) Factual Background. This case concerns a public sale of the
real property located at 3205 Luna Drive, Las Vegas, San Miguel, New Mexico
(hereinafter “subject property”). The sale occurred on March 20, 2021 at the San
Miguel County Court House, pursuant to the Foreclosure Judgment. Appellant was the
highest bidder at $5,001.00 for the purchase of the subject property. The matter was
delayed because the presiding judge was appointed to the Court of Appeals. For that
reason, it was until August 3, 2021, when the Court approved the sale of the subject
property. This date started the right of redemption by the original owner, Griego
Properties, LLC.
17. Appellee then filed a Redemption Petition on August 10, 2021. In the Petition, the
Appellee alleged that the one-month right of redemption was assigned to them by
Griefo Properties, LLC.
18. Appellant challenges the alleged assignment of the right of redemption to the Appellant
by Griego Properties, LLC. Appellee filed an Assignment of Borrower’s Right of
Redemption with the Clerk. It is notable that Griego Properties, LLC is a Limited
Liability Company and therefore must have effected the said assignment pursuant to
NM Stat § 53-19-29, which sets forth the process of transferring properties for Limited
Liability Companies. Notably, paragraph E, section 1 of NM Stat § 53-19-30 provides
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in pertinent part that: “(1) title to property of the limited liability company that is held
in the name of the limited liability company may be transferred by an instrument of
transfer executed by any manager in the name of the limited liability company; and (2)
a member, acting solely in his capacity as a member, shall not have such authority.”
19. The alleged assignment was signed by Lisa Griego and Lucas Giego. None of the
aforementioned signed as Manager of the LLC, and therefore lacked authority to effect
the assignment.
20. Next, after the alleged assignment, the Appellee failed to file with the County Assessor
within thirty days of the date of filing the document with the County Clerk. This was in
violation of NM Stat § 7-38-12.1 A, which requires that, for property taxes purposes,
the Appellant should have filed with the county assessor within thirty days of the date
of filing with the county clerk an affidavit signed and completed in accordance with the
provisions of Subsection B of NM Stat § 7-38-12.1.
21. The document filed by the Appellee did not amount to an affidavit as required under
NM Stat § 7-38-12.1 B, which provides in pertinent part that: the
“affidavit shall contain only the following information to be used only for
analytical and statistical purposes in the application of appraisal methods: (1)
the complete names of all transferors and transferees; (2) the current mailing
addresses of all transferors and transferees; (3) the legal description of the
real property interest transferred as it appears in the document of transfer; (4)
the full consideration, including money or any other thing of value, paid or
exchanged for the transfer and the terms of the sale including any amount of
seller incentives; and (5) the value and a description of personal property that
is included in the sale price.”
22. Further, there was improper redemption. Notably, the Appellee did not serve copies of
the Petition for Redemption on Appellant, as required by NM Stat § 39-5-18(2). The
Appellee’s Certificate of Service shows that no service was done on Appellant.
23. It is also notable that the Appellee failed to effect service on Appellant for Appellee’s
Motion to Authorize Supplemental Deposit of Funds in Connection with Redemption
of Real Estate, which motion was filed on or about August 10, 2021.
24. It is also noteworthy that Appellee failed to deposit the correct amount with the County
Clerk, since Appellant had to pay back taxes on the property in the amount of
$2,207.83 for years 2019-20, to avoid the property going up for sale due to unpaid
taxes.
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25. As a result of the improper service by the Appellee, Appellant never attended any
proceedings in the case.
26. Legal issues presented on appeal: The first issue on appeal is whether insufficiency of
process denied the Trial Court jurisdiction over the case.
27. Rule 1-004 (C)(2) provides that “Service of process shall be made with reasonable
diligence, and the original summons with proof of service shall be filed with the court
in accordance with the provisions of Paragraph L of this rule.” (Emphasis added).
28. The Court of Appeals of New Mexico in Romero v. Bachicha, 130 N.M. 610, 2001
NMCA 48, 28 P.3d 1151 (N.M. Ct. App. 2001) held that the failure to exercise due
process in effecting service amounts to improper service, which justifies a Motion to
Dismiss. The Appellee failed to exercise due diligence in serving the Petition for
Redemption as they were aware of the name and address of the Appellant, and waited
until the end of the redemption period to effect service, thus prejudicing the Appellant.
29. Further, it is trite law that personal jurisdiction is the very bedrock of due process. See
McRae v. White, 269 App. 455, 604 S.E. 2d 291(2004).
30. The second issue on appeal is whether the Appellee’s Petition is barred by the Statute
of Limitations.
31. NM Stat § 39-5-18 (2) provides in pertinent part that “Copies of the petition for
redemption shall be served upon the purchaser of the real estate at the judicial
foreclosure sale and upon all parties who appeared in the judicial foreclosure case…”
32. Strict compliance with the redemption statue must occur. See Chapel v. Nevitt, 2009-
N.M.C.A. 017, 145 N.M. 674, 203 p. 3d. 889. It is also trite law that time allowed for
redemption cannot be extended by the courts. See Union Esperanza Mining Co. v.
Shandon Mining Co, 18 N.M. 153, 135 P. 78 (1913).
33. The statute of limitations of one month expired before Appellee filed the Petition in
Redemption was properly served on Appellant. This cannot be corrected.
34. The third issue on appeal is whether the Appellee indeed had a right of redemption
under the law.
35. First, Appellee’s affidavit failed to meet the requirements to properly assign the right
of redemption. NM Stat § 7-38-12.1 B, which provides in pertinent part that: the
“affidavit shall contain only the following information to be used only for
analytical and statistical purposes in the application of appraisal methods:
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(1) the complete names of all transferors and transferees; (2) the current
mailing addresses of all transferors and transferees; (3) the legal description
of the real property interest transferred as it appears in the document of
transfer; (4) the full consideration, including money or any other thing of
value, paid or exchanged for the transfer and the terms of the sale including
any amount of seller incentives; and (5) the value and a description of
personal property that is included in the sale price.”
36. The Appellee’s alleged affidavit was not witnessed or notarized. It was also not dated
as to the date it was allegedly created and delivered. Further, the Appellee claims that
Lisa Griego and Lucas Giego are members of Griego Properties, LLC, but they fail to
provide any documentation thereof.
37. Griego Properties, LLC had no right to assign and/or transfer any alleged rights to the
Appellee. On or about January 15, 2015, the subject property was conveyed by owner
financing to Appellant for a period of 30 years at 6.5% interest with a principal amount
of the loan to be financed at $119,000. This contract waived any right of Griego
Properties, LLC to assign any right to any third party. The alleged assignment of the
right of redemption to the Appellee is therefore null and void.
38. Related or Prior Appeals: There is no related or prior appeal(s).
Dated: ________________
Respectfully submitted,
_________________
DENNIS NELSON,
Appellant, pro se
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that he served a copy of this Docketing Statement on the
Appellee pursuant to N.M. R. App. P. 12-307, by depositing a copy, contained in a first-class
postage-paid wrapper or envelope, at an office of the United States Postal Service, addressed as
follows:
[ENTER APPELLEES’ ADDRESS]
_________________
DENNIS NELSON,
Appellant, pro se
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