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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2   U.S. BANK, NA AS TRUSTEE
 3   RELATING TO THE CHEVY CHASE
 4   FUNDING LLC MORTGAGE BACKED
 5   CERTIFICATES, SERIES 2005-3,

 6          Plaintiff-Appellee,

 7 v.                                                                                   NO. 33,006

 8 JAY MARTIN PAYNE,

 9          Defendant-Appellant.


10 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
11 Sarah M. Singleton, District Judge

12 Vance Chavez and Associates, LLC
13 James A. Chavez
14 Albuquerque, NM

15 for Appellee

16 Jay Martin Payne
17 Santa Fe, NM

18 Pro Se Appellant

19                                 MEMORANDUM OPINION
 1 GARCIA, Judge.

 2   {1}   Defendant appeals the summary judgment entered in this foreclosure action.

 3 This Court proposed to affirm in a notice of proposed summary disposition, relying

 4 largely upon the fact that Defendant failed to dispute any of the material facts recited

 5 in Plaintiff’s motion for summary judgment. [CN 2-5] As a result of that failure, this

 6 Court, like the district court, is required to treat the facts asserted in Plaintiff’s motion

 7 for summary judgment as having been admitted by Defendant. See Rule 1-056(D)(2)

 8 NMRA (requiring that “material facts set forth in the statement of the moving party

 9 shall be deemed admitted unless specifically controverted” in a memorandum in

10 opposition to the summary judgment motion). Because the facts so admitted

11 established Plaintiff’s entitlement to judgment as a matter of law, the district court

12 properly granted the motion. Rule 1-056(C) NMRA.

13   {2}   Defendant has filed a “memorandum of objection” to our proposed disposition

14 that does not address his failure to respond to Plaintiff’s summary judgment motion.

15 Instead, Defendant’s memorandum of objection continues to argue that Plaintiff either

16 lacked standing or committed some form of fraud in the prosecution of this case. See

17 State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating

18 that a party responding to a summary calendar notice has the burden of pointing out

19 errors of law and fact, and the repetition of earlier arguments does not fulfill this


                                                 2
 1 requirement). These arguments are based upon facts that have not been properly

 2 asserted or preserved in the record below. As a result, Defendant’s arguments are not

 3 before this Court at this time. See State v. Reynolds, 1990-NMCA-122, ¶ 16, 111 N.M.

 4 263, 804 P.2d 1082 (noting that “[m]atters outside the record present no issue for

 5 [appellate] review”). Further, many of the facts asserted by Defendant on appeal are

 6 contrary to those recited in Plaintiff’s motion for summary judgment. As noted above

 7 and more fully explained in our notice of proposed summary disposition, however,

 8 both the district court and this Court are bound to accept as true the uncontroverted

 9 facts recited in Plaintiff’s motion for summary judgment. [CN 4-5] Rule 1-056(D)(2).

10 As also noted in our notice of proposed summary disposition, those facts include the

11 recitation that the Plaintiff is the assignee of the mortgage at issue in this case and the

12 holder in due course of the promissory note secured by that mortgage. [CN 5; RP 101-

13 02] Further, these facts are supported by an affidavit filed with the motion for

14 summary judgment. [RP 118-20] As the uncontroverted facts appear to establish the

15 Plaintiff’s standing in this case, we are unpersuaded by Defendant’s memorandum that

16 our proposed disposition is based upon any mistake of law or fact.

17   {3}   Defendant has also filed with this Court a document styled a “praecipe,” in

18 which he asks that the clerk of court “[s]eal the instant case a private estate matter,”

19 and in which he seeks to exercise a peremptory election to excuse the calendaring


                                                3
 1 judge from this case. [3-28-14 MOT 2] At common law, the praecipe was a writ used

 2 to request some ministerial action of the court, such as the setting of a trial or the entry

 3 of a judgment. Black’s Law Dictionary 1192 (7th ed. 1999). In New Mexico, the

 4 praecipe has survived principally as a means of requesting the preparation of a

 5 transcript for appeal. See, e.g., State v. Romero, 1974-NMCA-090, ¶ 40, 86 N.M. 674,

 6 526 P.2d 816 (Sutin, J., dissenting) (describing a defendant’s praecipe requesting a

 7 transcript). In this instance, however, the relief requested in Defendant’s praecipe is

 8 discretionary, rather than ministerial, and the authority to grant that relief is vested in

 9 the court, rather than the clerk. Thus, if treated as a traditional request for the writ of

10 praecipe, Defendant’s praecipe would have to be denied. Rather than deny on that

11 basis, however, we will construe Defendant’s praecipe as a motion filed pursuant to

12 Rule 12-309 NMRA, in order that it may be addressed on the merits.

13   {4}   Although Defendant cites no authority for the proposition that this Court may

14 seal records on appeal, procedures for the sealing of documents are governed by Rule

15 12-314 NMRA. Specifically, the grounds that must be established before this Court

16 will seal records on appeal are described at Rule 12-314(G)(1). In his request,

17 however, Defendant has asserted no basis for sealing any records apart from his

18 general assertion that the case somehow involves “a private estate matter.” [3-28-14




                                                4
 1 MOT 2] As that vague assertion does not overcome the right of public access to court

 2 records, Defendant’s request to seal records in this appeal is denied.

 3   {5}   As authority for his attempt to excuse the calendaring judge from this case,

 4 Defendant cites to Rule 1-088.1 NMRA. [3-28-14 MOT 1] That rule, which provides

 5 for a peremptory excusal as contemplated by NMSA 1978 Section 38-3-9 (1985), does

 6 not require the movant to establish any cause for the excusal requested, but is

 7 applicable only in district courts and not this Court. See Rule 1-088.1(C) (providing

 8 method to “exercise the statutory right to excuse the district judge”). Defendant also

 9 asserts, however, that the calendaring judge in this case is biased against him,

10 apparently for the purpose of establishing just cause for an excusal. [3-28-14 MOT 2,

11 3] Defendant’s sole basis for asserting bias, however, is his disagreement with this

12 Court’s proposed summary disposition. [Id. 2]

13   {6}   For obvious reasons, a litigant’s disagreement with the rulings or holdings of

14 a court cannot form the basis for a motion to excuse the judge. Instead, in order to

15 justify an excusal on the basis of bias, the alleged bias “must stem from an

16 extrajudicial source and result in an opinion on the merits on some basis other than

17 what the judge learned from his participation in the case.” United Nuclear Corp. v.

18 General Atomic Co., 1980-NMSC-094, ¶ 418, 96 N.M. 155, 629 P.2d 231 (internal

19 quotation marks and citation omitted). Or, as particularly relevant to this case, the bias


                                               5
 1 at issue “must be personal, and cannot be based on unfavorable rulings.” State v. Case,

 2 1984-NMSC-012, ¶ 7, 100 N.M. 714, 676 P.2d 241.

 3   {7}   Defendant’s motion seeking excusal asserts, as its sole basis for alleging the

 4 bias of the calendaring judge, Defendant’s own disagreement with the notice of

 5 proposed summary disposition. As a result, Defendant has alleged no recognized basis

 6 for a judicial excusal in this appeal, and the motion is denied.

 7   8}    Having considered the arguments asserted by Defendant in his memorandum,

 8 we remain unpersuaded that the judgment in this case resulted from error. Thus, for

 9 the reasons stated here and in our notice of proposed summary disposition, we affirm

10 the summary judgment entered by the district court. Defendant’s requests that the

11 record in this case be sealed and that the calendaring judge be excused are both

12 denied.

13   {9}   IT IS SO ORDERED.

14
15                                         TIMOTHY L. GARCIA, Judge


16
17 WE CONCUR:



18
19 JAMES J. WECHSLER, Judge


                                              6
1
2 MICHAEL D. BUSTAMANTE, Judge




                                 7
