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


 2 FLAGSTAR BANK, FSB,

 3                  Plaintiff-Appellee,



 4          vs.                                                  No. 33,212


 5   TOR MAVESTRAND & JANE DOE
 6   MAVESTRAND, HUSBAND AND WIFE;
 7   WELLS FARGO BANK, N.A.; ABC
 8   CORPORATIONS I-X; XYZ
 9   PARTNERSHIPS I-X, JOHN DOES
10   I-X, THE UNKNOWN HEIRS AND
11   DEVISEES OF ANY OF THE ABOVE,
12   IF DECEASED,

13                  Defendants-Appellants.


14 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
15 Francis J. Mathew, District Judge

16 McCarthy & Holthus
17 Denise A. Snyder
18 Albuquerque, NM

19 McCarthy Holthus & Levine
 1 Matthew Silverman
 2 Scottsdale, AZ

 3 for Appellee

 4   Eric Ortiz, Attorney at Law
 5   Eric N. Ortiz
 6   Jean Y. Kao
 7   Joseph C. Gonzales
 8   Albuquerque, NM

 9 for Appellant Tor Mavestrand

10                             MEMORANDUM OPINION

11 HANISEE, Judge.

12   {1}   Appellant-Defendant Tor Mavestrand (Mavestrand) appeals from the district

13 court’s order denying his motion to set aside the default judgment and vacate the

14 foreclosure sale of his home. Our notice proposed to reverse and Plaintiff-Appellee

15 Flagstar Bank (Bank) filed a memorandum in opposition. We are unpersuaded by

16 Bank’s arguments, and therefore reverse.

17   {2}   Mavestrand’s issues relate to the central contention that the district court erred

18 in denying his Rule 1-060(B) NMRA amended motion to set aside the default

19 judgment. [DS 4; RP 90, 97, 110, 116, 122] We review the district court’s denial of

20 a motion to set aside a default judgment for abuse of discretion. See Sunwest Bank v.

21 Roderiguez, 1989-NMSC-011, ¶ 6, 108 N.M. 211, 770 P.2d 533. Mavestrand argues

22 that the default judgment should be set aside based on Bank’s failure to properly serve

                                               2
 1 him with the summons and complaint. [DS 4] Mavestrand also argues that the default

 2 judgment should be set aside because he had a meritorious defense. [DS 4] For

 3 reasons discussed below, we conclude that the propriety of the district court’s ruling

 4 on the motion to set aside turns on the sufficiency of the service of process.

 5   {3}   In support of its argument that the service of process was sufficient [MIO 5],

 6 Bank points to pleadings in the record proper and their attached exhibits which reflect

 7 that Mavestrand was properly served with the summons and complaint. In significant

 8 part, these pleadings and attached exhibits include a certified mail receipt card with

 9 what appears to be Mavestrand’s signature that he received the summons and

10 complaint [RP 97, 101, 104, 116; MIO 2], as well as an affidavit of service by the

11 process server. [RP 100] We acknowledged these pleadings and attached exhibits in

12 our notice, but pointed out that the matter of personal service was nonetheless

13 disputed below. To this end, the docketing statement provides that “Mavestrand was

14 never personally served . . . [and] [i]t was established later that Jane Doe [Jane Doe

15 Mavestrand, Husband’s named wife] was served with summons and complaint via

16 certified mail.” [DS 2] Consistent with this, Mavestrand’s challenge to the service of

17 process was set forth in his affidavit below [RP 93] and, while not apparent from the

18 record proper, perhaps too at the hearing on his motion to set aside the default

19 judgment. [RP 114] Bank disputes Mavestrand’s position that he was not served,


                                              3
 1 arguing Mavestrand “failed to provide evidence that the description provided in the

 2 [a]ffidavit of service was false and failed to state the signature on the green card was

 3 not his . . . [and] [i]nstead . . . prepared a self-serving affidavit claiming service was

 4 not perfected.” [MIO 5; RP 93]

 5   {4}   Bank suggests in its memorandum in opposition that the district court resolved

 6 the dispute over personal service, asserting that the district court “found that service

 7 was perfected upon [Mavestrand] and [Mavestrand] received proper service.” [MIO

 8 5] Significantly and problematically, however, and as we noted in our notice, the

 9 district court’s order does not resolve the factual dispute over whether Mavestrand

10 received proper service of process. Instead, the district court’s order provides that

11 “regardless of whether service was proper,” Mavestrand had actual notice of the

12 complaint [RP 122] for purposes of establishing jurisdiction over Mavestrand for the

13 default judgment. [DS 3; RP 122] Thus, rather than resolve the dispute over whether

14 Mavestrand received proper service of process, the district court instead attempted to

15 rely on Mavestrand’s actual notice of the summons and complaint to establish its

16 jurisdiction over Mavestrand. [RP 122]

17   {5}   As discussed in our notice, actual notice alone was not enough to give the

18 district court jurisdiction over Mavestrand, because case law provides the district court

19 lacks jurisdiction over a defendant absent that individual being properly summoned


                                               4
 1 into court. See generally Trujillo v. Goodwin, 2005-NMCA-095, ¶ 10, 138 N.M. 48,

 2 116 P.3d 839 (refusing to overlook technical deficiencies in service, although

 3 defendant had actual notice of the case, where plaintiff “cite[d] no cases standing for

 4 the proposition that a district court has jurisdiction to issue a binding judgment against

 5 a party not served in accordance with Rule 1-004 who does not somehow waive the

 6 defects in service”); Edmonds v. Martinez, 2009-NMCA-072, ¶ 17, 146 N.M. 753,

 7 215 P.3d 62 (rejecting broader interpretation of the service statute allowing service “to

 8 be performed in a manner reasonably calculated to bring the proceedings to the

 9 attention of the defendant[,]” where plaintiff “cited[d] no cases standing for the

10 proposition that a district court has jurisdiction over a party when personal service was

11 not effectuated subject to the requirements of Rule 1-004”). Accordingly, absent

12 proper service or waiver of service of process, the district court lacked jurisdiction to

13 enter default judgment against Maverstrand, such that the default judgment should be

14 set aside. See Ortiz v. Shaw, 2008-NMCA-136, ¶ 17, 145 N.M. 58, 193 P.3d 605

15 (holding that “where the court never acquires jurisdiction over a defendant because

16 of improper service, it abuses its discretion in refusing to set aside a default

17 judgment”); see also Capco Acquisub, Inc. v. Greka Energy Corp., 2008-NMCA-153,

18 ¶ 46, 145 N.M. 328, 198 P.3d 354 (citing Ortiz as authority for the reversal of default

19 judgment against the defendant who had actual knowledge of the suit, but was never


                                               5
 1 properly served). We decline to resolve the dispute of whether or not Mavestrand

 2 received proper service of process in light of the district court’s failure to do so. See,

 3 e.g., State v. Franks, 1994-NMCA-097, ¶ 8, 119 N.M. 174, 889 P.2d 209 (recognizing

 4 that “ordinarily it is improper for this Court to engage in fact-finding; that is a

 5 trial-court function”).

 6   {6}   To conclude, we reverse and remand for further proceedings in accordance with

 7 this opinion.

 8   {7}   IT IS SO ORDERED.



 9                                                 _____________________________
10                                                 J. MILES HANISEE, Judge


11 WE CONCUR:



12 __________________________________
13 MICHAEL D. BUSTAMANTE, Judge



14 __________________________________
15 TIMOTHY L. GARCIA, Judge




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