May 24, 2021- Federal National Mortgage Association v. Bernie B. Trissell, No. A-1-CA-37395

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
Filed 5/24/2021 5:30 PM

Filing Date: May 24, 2021 / [>
~
No. A-1-CA-37395 Mark Reynolds

FEDERAL NATIONAL MORTGAGE
ASSOCIATION (“FANNIE MAE”), a
corporation organized and existing under
the laws of the United States of America,

Opinion Number:

Plaintiff-Appellee,

BERNIE B. TRISSELL and MICHAEL D.
TRISSELL,

Defendants-Appellants.

APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
John F. Davis, District Judge

McCarthy & Holthus, LLP
Joshua T. Chappell
Albuquerque, NM

Akerman LLP
Michael J. McKleroy, Jr.
Dallas, TX

for Appellee

—

2

4

Durham, Pittard & Spalding, LLP
Caren I. Friedman
Santa Fe, NM

for Appellants

OPINION	1
IVES, Judge.	2
{1} 	In this foreclosure action, Defendants Bernie and Michael Trissell appeal the	3
district court’s entry of summary judgment for Plaintiff Federal National Mortgage	4
Association (Fannie Mae), arguing that (1) Plaintiff lacked standing, (2) the district	5
court erred by entering summary judgment against Defendants on their affirmative	6
defenses, and (3) the district court should have allowed Defendants to conduct	7
additional 	discovery 	before 	ruling 	on 	Plaintiff’s 	summary 	judgment 	motion.	8
Unpersuaded, we affirm.	9
{2} 	However, we acknowledge that precedents from our Supreme Court and this	10
Court are unclear on a pivotal issue in this case: the allocation of summary judgment	11
burdens where the plaintiff is the moving party. We therefore issue this precedential	12
opinion to explain our understanding that, in New Mexico, once a plaintiff-movant	13
has made a prima facie case on its claim alone, a defendant resisting summary	14
judgment with an affirmative defense has the burden of demonstrating a genuine	15
issue of material fact as to the defense. Applying that rule to this case, we hold that	16
Defendants failed to carry their burden and thus failed to overcome Plaintiff’s prima	17
facie showing of entitlement to judgment on its claim.	18

2
BACKGROUND	1
{3} 	In 2008, Defendants executed a promissory note in favor of Lewallen	2
Mortgage, Inc., secured by a mortgage that Defendants executed that same day. By	3
August 2010, a different mortgage company, SunTrust Mortgage, Inc., was servicing	4
Defendants’ loan, and Defendants contacted SunTrust to discuss a recent increase in	5
the amount of their monthly loan payment. Defendants later failed to remit the	6
installment that was due on January 1, 2011, and asked SunTrust to modify the loan.	7
SunTrust declined and, in February 2011, notified Defendants that their loan was in	8
default. After it had been assigned the mortgage, SunTrust brought a foreclosure	9
action against Defendants. SunTrust eventually assigned the mortgage to Plaintiff,	10
and Plaintiff was substituted for SunTrust as the plaintiff. The original foreclosure	11
action was dismissed without prejudice for lack of prosecution in November 2015.	12
{4} 	Plaintiff initiated the present foreclosure action in March 2016. Plaintiff	13
attached to its complaint a copy of the promissory note, which SunTrust had indorsed	14
in blank, along with an allonge showing a special indorsement from Lewallen to	15
Suntrust. Defendants raised thirteen affirmative defenses in their answer. Plaintiff	16
moved for summary judgment on the claim in its complaint and on Defendants’	17
affirmative defenses. In their response, Defendants, while elaborating upon only	18
some of their affirmative defenses, argued that summary judgment was improper	19
because Plaintiff had failed to make a prima facie showing of entitlement to	20

3
summary judgment on those defenses. After Plaintiff filed its reply, the district court	1
allowed both parties to file sur-replies. Following a hearing, the district court granted	2
the motion and entered judgment for Plaintiff. Defendants appeal.	3
DISCUSSION	4
I. 	Standard of Review	5
{5} 	“We review the district court’s grant of summary judgment de novo.” HSBC	6
Bank USA v. Wiles, 2020-NMCA-035, ¶ 8, 468 P.3d 922, cert. denied, 2020-	7
NMCERT-___ 	(No. 	S-1-SC-38290, 	June 	8, 	2020). 	Summary 	judgment 	is	8
appropriate where “there is no genuine issue as to any material fact and . . . the	9
moving party is entitled to a judgment as a matter of law.” Rule 1-056(C) NMRA.	10
We “review the whole record in the light most favorable to the party opposing	11
summary judgment to determine if there is any evidence that places a genuine issue	12
of material fact in dispute.” Wiles, 2020-NMCA-035, ¶ 8 (internal quotation marks	13
and citation omitted).	14
{6} 	A summary judgment movant bears the “initial burden of establishing a prima	15
facie case for summary judgment.” Romero v. Philip Morris Inc., 2010-NMSC-035,	16
¶ 10, 148 N.M. 713, 242 P.3d 280. A movant establishes a prima facie case when	17
the motion is supported by “such evidence as is sufficient in law to raise a	18
presumption of fact or establish the fact in question unless rebutted.” Id. (internal	19
quotation marks and citation omitted). “[U]ntil a party has made a prima facie	20

4
showing that it is entitled to summary judgment, the nonmoving party is not required	1
to make any showing with respect to factual issues.” Knapp v. Fraternal Order of	2
Eagles, 1987-NMCA-064, ¶ 9, 106 N.M. 11, 738 P.2d 129. When “the facts are not	3
in dispute,” a court’s only task is to determine the “legal effect of [those] facts.”	4
Koenig v. Perez, 1986-NMSC-066, ¶ 10, 104 N.M. 664, 726 P.2d 341.	5
II. 	The District Court Did Not Err by Granting Plaintiff’s Motion for	6
Summary Judgment	7
{7} 	We affirm the district court’s entry of summary judgment, holding that (A)	8
Plaintiff had standing; (B) Defendants bore the burden of showing that a genuine	9
dispute of material fact on their affirmative defenses precluded summary judgment	10
and their contentions that they met this burden do not merit review; and (C)	11
Defendants failed to preserve their argument that the district court erred by not	12
allowing Defendants to conduct additional discovery before ruling on Plaintiff’s	13
summary judgment motion.	14
A. 	Plaintiff Had Standing	15
{8} 	Standing 	to 	foreclose 	depends 	on 	whether 	the 	foreclosing 	party 	can	16
“demonstrate that it had the right to enforce the note and the right to foreclose the	17
mortgage at the time the foreclosure suit was filed.” PNC Mortg. v. Romero, 2016-	18
NMCA-064, ¶ 19, 377 P.3d 461 (alteration, internal quotation marks, and citation	19
omitted). To establish its right to enforce the promissory note underlying the	20
mortgage, a third party seeking foreclosure must prove that, “at the time of filing,”	21

5
Deutsche Bank Nat’l Tr. Co. v. Johnston, 2016-NMSC-013, ¶ 27, 369 P.3d 1046	1
(emphasis omitted), it had “both physical possession and the right to enforcement	2
through either a proper indorsement or a transfer by negotiation.” Bank of N.Y. v.	3
Romero, 2014-NMSC-007, ¶ 21, 320 P.3d 1. The “holder” of the note has a right to	4
enforce it and foreclose the mortgage. 	See 	NMSA 1978, § 55-3-301 (1992)	5
(providing that the “holder of [an] instrument” is a person entitled to enforce it);	6
Johnston, 2016-NMSC-013, ¶ 14 (explaining that the statutory “definition of who	7
may enforce a note” guides the determination of whether a particular plaintiff has	8
established “an injury in fact sufficient to confer standing” to foreclose); Wiles,	9
2020-NMCA-035, 	¶¶ 12-13 	(affirming 	“the 	long-standing 	principle 	that 	‘the	10
mortgage follows the note’ ”). The Uniform Commercial Code defines “holder” as	11
“the person in possession of a negotiable instrument that is payable either to bearer	12
or to an identified person that is the person in possession[.]” NMSA 1978, § 55-1-	13
201(b)(21)(A) (2005). Accordingly, a foreclosing party may establish that it is the	14
holder of a note—and therefore entitled to enforce it—by attaching to the initial	15
complaint a note that is indorsed to the foreclosing party or in blank. See Johnston,	16
2016-NMSC-013, ¶ 23 (explaining that a foreclosing party may establish its right to	17
enforce the note by “attaching a note containing an undated indorsement to the initial	18
complaint”).	19

6
{9} 	Here, Plaintiff demonstrated that it had standing to foreclose by attaching a	1
note containing a blank indorsement to its initial complaint. See generally Bank of	2
N.Y., 2014-NMSC-007, ¶ 24 (“A blank indorsement, as its name suggests, does not	3
identify a person to whom the instrument is payable but instead makes it payable to	4
anyone who holds it as bearer paper.”). Although Defendants do not contest that the	5
note attached to the initial complaint was indorsed in blank, Defendants argue that	6
Plaintiff failed to prove its right to enforce the note because Plaintiff did not	7
demonstrate a transfer of the note or that it was the holder. Compare § 55-3-301	8
(providing that the “holder of [an] instrument” is entitled to enforce it), with id.	9
(providing that “a nonholder in possession of the instrument who has the rights of a	10
holder” is entitled to enforce the instrument), and NMSA 1978, § 55-3-203 cmt. 2	11
(1992) (explaining that a “transferee is not a holder” when “the transferor did not	12
indorse” and, in that situation, the transferee must demonstrate that it “obtained the	13
rights of the transferor” through proof of “the transaction through which the	14
transferee acquired” the unindorsed instrument). However, by attaching a note with	15
a blank indorsement to its initial complaint, Plaintiff did establish itself as the holder	16
at 	the 	time 	the 	complaint 	was 	filed. 	See 	Johnston, 	2016-NMSC-013, 	¶ 	23.	17
Defendants argue further that Plaintiff failed to present sufficient evidence that it	18
possessed the original note. Although Plaintiff attempted to prove its possession of	19
the note in various ways, attaching a copy of the original note to the initial complaint	20

7
was sufficient. Compare Wiles, 2020-NMCA-035, ¶ 10 (holding that the plaintiff	1
“established a prima facie case of standing” when it “attached a copy of the [n]ote	2
indorsed in blank to its complaint”), with Los Alamos Nat’l Bank v. Velasquez, 2019-	3
NMCA-040, ¶ 16, 446 P.3d 1220 (analyzing whether there was evidence “to	4
establish that [the plaintiff] had possession of the note at the time it filed the	5
complaint” because the note “was neither attached to the initial complaint nor	6
dated”), cert. denied, 2019-NMCERT-___ (No. S-1-SC-37688, Aug. 5, 2019).	7
Defendants argue that this case is similar to others where there was insufficient	8
evidence to demonstrate that the plaintiff had a right to enforce the note. However,	9
this case is unlike the cases on which Defendants rely because here Plaintiff attached	10
a note containing a blank indorsement to its initial complaint. See PNC Mortg., 2016-	11
NMCA-064, ¶ 25; Johnston, 2016-NMSC-013, ¶ 25; Bank of N.Y., 2014-NMSC-	12
007, ¶¶ 10, 23. Because Defendants did not present any evidence to rebut Plaintiff’s	13
prima facie case of standing, cf. Wiles, 2020-NMCA-035, ¶¶ 4-5 (explaining that the	14
defendant used discovery to inspect his loan file at the office of the plaintiff’s	15
counsel and uncover evidence to support his position, though unmeritorious, that	16
there was a genuine issue of material fact regarding the plaintiff’s standing to	17
foreclose), we hold that Plaintiff had standing to enforce the note and foreclose the	18
mortgage.	19

8
B. 	Defendants 	Have 	Not 	Shown 	That 	the 	District 	Court 	Erred 	by	1
Concluding That Defendants Failed to Carry Their Burden to Avoid	2
Summary Judgment on Their Affirmative Defenses	3
{10} 	Our holding that Plaintiff had standing resolves the only disputed issue	4
regarding the adequacy of Plaintiff’s prima facie case on its foreclosure claim. But	5
Defendants argue that, regardless of whether Plaintiff established standing, Plaintiff	6
failed to shoulder an additional burden regarding Defendants’ affirmative defenses	7
and therefore Plaintiff never established a prima facie case for summary judgment.	8
Specifically, Defendants contend that, under Fidelity National Bank v. Tommy L.	9
Goff, Inc., (Goff) 1978-NMSC-074, ¶¶ 5, 8-9, 92 N.M. 106, 583 P.2d 470, to make	10
a prima facie case for summary judgment, Plaintiff was required to show that there	11
was no genuine issue of material fact as to Defendants’ affirmative defenses. If	12
Defendants are correct, then the next step in our analysis is to determine whether	13
Plaintiff 	carried 	that 	burden. 	But 	if 	Defendants 	are 	incorrect, 	then 	Plaintiff	14
successfully shifted the burden to Defendants when it made a prima facie case for	15
judgment on its claim, and the next (and final) step in our analysis is to determine	16
whether Defendants showed that a genuine issue of material fact as to any of their	17
affirmative defenses precluded summary judgment.	18
{11} 	In Goff, our Supreme Court held that, even though the defendant had provided	19
no “factual amplification” of the twelve affirmative defenses asserted in his answer,	20
the burden was on the plaintiff to contravene each of the affirmative defenses in its	21

9
motion for summary judgment. Id. ¶¶ 2-5, 9, 11-12. With this holding, the Court	1
overruled Kassel v. Anderson, 1973-NMCA-028, 84 N.M. 697, 507 P.2d 444, in	2
which this Court held that the “bare contention” of affirmative defenses in the	3
defendant’s amended answer were “insufficient to defeat” the plaintiffs’ summary	4
judgment motion because the plaintiffs had made the requisite prima facie showing.	5
Goff, 	1978-NMSC-074, 	¶ 	10. 	In 	contrast, 	the 	Goff 	Court 	reasoned 	that 	the	6
defendant’s “averment of affirmative defenses” required the plaintiff “to produce the	7
necessary affidavits or other material to expose [the] affirmative defenses as	8
unmerited.” Id. ¶ 9. Thus, under Goff, to overcome unclear or conclusory affirmative	9
defenses and obtain summary judgment on their claims, plaintiff-movants must avail	10
themselves of “pre[]trial discovery mechanisms” to demonstrate that those defenses	11
are factually or legally deficient. Id. ¶¶ 9, 11.	12
{12} 	However, we are unable to reconcile that proposition with two more recent	13
precedents from our Supreme Court, Mayfield Smithson Enterprises v. Com-Quip,	14
Inc., 1995-NMSC-034, 120 N.M. 9, 896 P.2d 1156, and Western Bank of Santa Fe	15
v. Biava, 1990-NMSC-023, 109 N.M. 550, 787 P.2d 830, and one precedent from	16
this Court, Galef v. Buena Vista Dairy, 1994-NMCA-068, 117 N.M. 701, 875 P.2d	17
1132. Although the opinions in those cases are not completely clear, we think that	18
their analyses are best read to put the onus on the defendant opposing summary	19

10
judgment with an affirmative defense to present factual support for the defense after	1
the plaintiff has made a prima facie case on its claim alone.	2
{13} 	In Mayfield Smithson Enterprises, our Supreme Court held that the district	3
court had properly entered summary judgment for the plaintiff in a quiet title action.	4
1995-NMSC-034, ¶ 26. Although the Court acknowledged the Goff holding, see	5
Mayfield Smithson Enters., 1995-NMSC-034 ¶ 9, its reasoning departed from that	6
holding. The Court observed that the defendant had asserted as an affirmative	7
defense that the plaintiff was equitably estopped from denying the existence of the	8
defendant’s interest in the property but that the defendant failed to “indicate to the	9
trial court [the] fact or facts” supporting “each element of equitable estoppel[.]” Id.	10
¶¶ 7, 10. This led the Court to conclude that the plaintiff had “made a prima facie	11
showing 	of 	entitlement 	to 	summary 	judgment” 	that 	went 	unrebutted 	by 	the	12
defendant’s “vague allegations” in the record. Id. ¶ 10.	13
{14} 	Our Supreme Court also departed from Goff in Biava. There, the Court stated	14
that the plaintiff-movant was “correct” in asserting that, once it “adduced [the	15
defendant’s] answer admitting liability on [a promissory] note, . . . the burden . . .	16
[of] com[ing] forward with sufficient evidentiary matters to establish a genuine issue	17
of fact” on the affirmative defense of accord and satisfaction “rested on [the	18

11
defendant.]” 1 Biava, 1990-NMSC-023, ¶ 11. Having concluded that the plaintiff had	1
made a prima facie case for summary judgment, the Court proceeded to analyze	2
whether the defendant had introduced sufficient evidence to overcome the plaintiff’s	3
prima facie case, ultimately reversing the entry of summary judgment because the	4
defendant had introduced an affidavit and deposition testimony that “raise[d] a	5
genuine issue of fact as to” “the accord-and-satisfaction defense.” Id. ¶¶ 12-16.	6
{15} 	This Court took the same approach in Galef, reasoning that, once the plaintiff	7
“moved for summary judgment on his claim” for a charging order, “[i]t was	8
incumbent on [the d]efendants to make a factual showing regarding the elements of	9
[their affirmative defenses.]” 1994-NMCA-068, ¶¶ 1, 12-13. Because the record	10
before the Court indicated that the defendants had not met that burden, the Court	11
affirmed the entry of summary judgment for the plaintiff. Id. ¶¶ 10-14.	12
1 In his specially concurring opinion in Biava, Justice Ransom took the
position, consistent with Goff—but without asserting that the majority’s approach
was inconsistent with Goff—that until a plaintiff has made a prima facie showing
that there is no genuine issue of material fact as to an affirmative defense, it is not
incumbent on the defendant to establish the facts supporting the defense. Biava,
1990-NMSC-023, 	¶¶ 	20-21 	(Ransom, 	J., 	specially 	concurring); 	see 	also
Transamerica Ins. Co. v. Sydow, 1988-NMSC-029, ¶ 4, 107 N.M. 104, 753 P.2d 350
(holding that the plaintiff-movant had met its burden of rebutting the defendant’s
affirmative defense of accord and satisfaction “by presenting an affidavit showing
[that the defendant] had made no reimbursement” of amounts paid by the plaintiff
for an injury caused by a third party); Azar v. Prudential Ins. Co. of Am., 2003-
NMCA-062, ¶ 88, 133 N.M. 669, 68 P.3d 909 (holding that the plaintiffs had not
met their burden of “demonstrating that no genuine issue of material fact existed as
to each element of their claims, and as to the [defendant’s] affirmative defenses”
(emphasis added)).

12
{16} 	We read the opinions in Mayfield Smithson Enterprises, Biava, and Galef to	1
place the burden with respect to affirmative defenses on the defense, but we	2
acknowledge that a different reading is possible. The primary basis for an alternative	3
reading is what the opinions do not say; they include no discussion of whether the	4
movants made evidentiary showings that demonstrated prima facie entitlement to	5
judgment on the affirmative defenses. It is tempting to interpret this silence, as the	6
dissent apparently does, to mean that the movant in each case had made such a	7
showing and that the court in each case was simply applying Goff. The temptation is	8
especially strong considering that New Mexico generally takes a cautious approach	9
to summary judgment, see Romero, 2010-NMSC-035, ¶ 8; that reading the cases as	10
we do effects a return to the approach in Kassel, which Goff expressly overruled,	11
1978-NMSC-074, ¶ 10; and that our Supreme Court cited Goff in both Mayfield	12
Smithson Enterprises, 1995-NMSC-034, ¶ 9, and Biava, 1990-NMSC-023, ¶ 11.	13
{17} 	Although this alternative interpretation is possible, we think it is implausible	14
because it cannot be squared with the explicit reasoning set forth in the opinions. In	15
Biava, although “only the legal effect of the facts [was] presented for determination,”	16
Koenig, 1986-NMSC-066, ¶ 10; see Biava, 1990-NMSC-023, ¶ 4, our Supreme	17
Court expressly agreed with the plaintiff-movant that it had “shifted the burden” to	18
the 	nonmovant 	by 	“mov[ing] 	for 	summary 	judgment 	and 	adduc[ing 	the	19
nonmovant’s] answer admitting liability” on the promissory note at issue. Biava,	20

13
1990-NMSC-023, ¶ 11. And in Mayfield Smithson Enterprises, our Supreme Court	1
stated that the discussion in “the remainder of [its] opinion” supported the Court’s	2
conclusion that the plaintiff had “made a prima facie showing of entitlement to	3
summary judgment.” 1995-NMSC-034, ¶ 10. Yet, in detailing the evidence that	4
supported the plaintiff’s case for summary judgment, the Court never mentioned,	5
much less discussed, the defendant’s affirmative defense that the plaintiff-movant	6
was equitably estopped from denying the existence of a lien. See id. ¶¶ 11-21.	7
Finally, in Galef, this Court relied on Biava, but not Goff in holding that the	8
defendant had not carried its burden of rebutting the plaintiff-movant’s prima facie	9
showing of entitlement to summary judgment. Contrary to the dissent’s assertion,	10
the analyses in these more recent precedents do not “illustrate Goff’s application.”	11
Dissent Op. ¶ 35. The dissent does not identify anything in the opinions that is	12
consistent with its conclusory assertion.	13
{18} 	Based on our understanding of binding New Mexico precedent, we conclude	14
that once the plaintiff-movant makes a prima facie case on its claim alone, the	15
defendant bears the burden of demonstrating a genuine issue of material fact	16
regarding any affirmative defense that it relies on to oppose the entry of summary	17
judgment.	18
{19} 	Applying this rule to the case before us, we now ask, as to each affirmative	19
defense, whether the district court erred by concluding that Defendants failed to	20

14
carry their burden of showing a genuine issue of material fact. To overcome the	1
presumption that the district court ruled correctly, Defendants “must affirmatively	2
demonstrate” error. See Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 1990-	3
NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063.	4
1. 	Home Loan Protection Act	5
{20} 	Defendants argue that summary judgment was improper because there was a	6
genuine issue as to whether the actions of SunTrust 2 violated the Home Loan	7
Protection Act (HLPA), NMSA 1978, §§ 58-21A-1 to -14 (2003, as amended	8
through 2009), and, in turn, the Unfair Practices Act. See generally § 58-21A-12 (“A	9
violation of the [HLPA] constitutes an unfair or deceptive trade practice pursuant to	10
the Unfair Practices Act.”). In their answer, Defendants pled, as an affirmative	11
defense, a violation of the HLPA under Section 58-21A-4. In its motion for summary	12
judgment, Plaintiff pointed to Defendants’ failure to plead facts in support of the	13
defense. In the ensuing litigation, Plaintiff argued that Section 58-21A-11(B) is the	14
only provision of the HLPA that provides a defense to foreclosure and that	15
Defendants 	did 	not 	have 	a 	viable 	defense 	under 	that 	provision. 	Defendants	16
2Because Defendants’ affirmative defenses are, for the most part, based on
SunTrust’s conduct, cf. Bank of N.Y., 2014-NMSC-007, ¶ 39 (recognizing that the
defendants had asserted an earlier lender’s alleged misconduct as a defense to the
plaintiff’s attempt at foreclosure), we assume without deciding throughout the
remainder of this opinion that SunTrust’s conduct could preclude Plaintiff from
foreclosing Defendants’ mortgage.

15
responded by arguing that their HLPA defense was not based on Section 58-21A-	1
11(B).	2
{21} 	On appeal, Defendants argue that SunTrust’s conduct violated Subsections	3
(H) and (L) of Section 58-21A-4 because SunTrust never adequately explained the	4
alleged escrow shortage that caused an increase in their monthly mortgage payment,	5
denied Defendants’ request for a loan modification, and made no other loss	6
mitigation efforts. See generally § 58-21A-4(H) (prohibiting creditors from charging	7
“any fees or other charges, other than those that are bona fide, reasonable and actual,	8
to modify, renew, extend or amend a home loan”); § 58-21A-4(L) (prohibiting	9
creditors from “mak[ing] a home loan that contains a provision that permits the	10
creditor, in its sole discretion, to accelerate the indebtedness” but permitting	11
acceleration “in good faith due to a borrower’s failure to abide by the material terms	12
of the loan”). Section 58-21A-4 includes Subsections (A) through (N), each of which	13
defines at least one practice that the HLPA prohibits. Although Defendants argued	14
in the district court that their HLPA defense did not arise under Subsection (B) of	15
Section 58-21A-4, they did not argue for the applicability of any other subsection of	16
the statute. Because Defendants neither identified their HLPA claim as arising under	17
Subsection (H) or (L) of Section 58-21A-4 in the district court nor identified	18
SunTrust’s acceleration of their indebtedness as the conduct that violated the HLPA,	19
we conclude that they did not “fairly invoke[]” a ruling on whether either provision	20

16
barred the entry of summary judgment. See Rule 12-321(A) NMRA. Hence, we	1
decline to review that question, see Crutchfield v. N.M. Dep’t of Tax’n & Revenue,	2
2005-NMCA-022, ¶ 14, 137 N.M. 26, 106 P.3d 1273, and, absent any other	3
argument on appeal for why the HLPA barred summary judgment for Plaintiff, we	4
cannot conclude that the district court erred in rejecting Defendants’ HLPA defense	5
as a matter of law. See Farmers, Inc., 1990-NMSC-100, ¶ 8.	6
2. 	Unclean Hands	7
{22} 	Defendants argue that summary judgment was improper because there was a	8
genuine issue as to whether Plaintiff came to this foreclosure action with unclean	9
hands. We disagree.	10
{23} 	In their answer, Defendants pled that “[t]he claims and causes of action	11
contained in the [c]omplaint are barred by the doctrine of unclean hands.” Plaintiff	12
addressed 	the 	affirmative 	defense 	in 	its 	motion 	for 	summary 	judgment 	by	13
highlighting that Defendants’ answer pled “no specific facts in support of” the	14
defense. Defendants eventually explained the factual basis for their unclean-hands	15
defense in their sur-reply to Plaintiff’s summary judgment motion; they contended	16
that SunTrust was responsible for their default as evidenced by SunTrust’s refusal	17
to accommodate Defendants’ inability to afford their monthly loan payment, which	18
SunTrust had 	recently 	increased. 	Defendants 	relied 	on 	entries 	in 	SunTrust’s	19
“consolidated notes log” to suggest that SunTrust advised Defendants that their	20

17
account was “current” and denied their requested loan modification on January 17,	1
2011, because Defendants did not have a “reason” for imminent default even though	2
their account was in default as of January 1, 2011. In its sur-reply, Plaintiff did not	3
dispute any of the facts that Defendants raised in support of their defense of unclean	4
hands. Instead, Plaintiff contended that, if they were true, Defendants’ factual	5
allegations would have no legal effect. Cf. Biava, 1990-NMSC-023, ¶¶ 3-4; Koenig,	6
1986-NMSC-066, ¶¶ 10-11.	7
{24} 	On the record before us, we cannot conclude that the district court erred by	8
granting summary judgment to Plaintiff on Defendants’ unclean-hands defense.	9
Because the facts supporting the defense were not disputed, only the legal effect of	10
those facts was before the district court when it ruled on Plaintiff’s motion for	11
summary judgment. And Defendants have given us no reason to conclude that (1)	12
Sun Trust dirtied its hands by refusing to modify Defendants’ loan, cf. Magnolia	13
Mountain Ltd. v. Ski Rio Partners, Ltd., 2006-NMCA-027, ¶ 37, 139 N.M. 288, 131	14
P.3d 675 (holding that the district court did not abuse its discretion by rejecting the	15
defendant’s unclean hands defense “[d]espite [the defendant’s] protestations that	16
[the p]laintiff led it astray”), and (2) unclean hands is a defense to foreclosure under	17
these circumstances. Cf. id. (reasoning that it was “unlikely that the defense of	18
unclean hands [was] applicable” to a foreclosure action in part because “there [had]	19
been no allegation of impropriety in the execution of the note and mortgage”).	20

18
Because Defendants have not cited any legal authority or developed any argument	1
to support either conclusion, we decline to reach the issue. See Curry v. Great Nw.	2
Ins. Co., 2014-NMCA-031, ¶ 28, 320 P.3d 482 (“Where a party cites no authority to	3
support 	an 	argument, 	we 	may 	assume 	no 	such 	authority 	exists.”); 	Elane	4
Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (recognizing the	5
“substantial risk of error” that exists when an appellate court “rule[s] on an	6
inadequately briefed issue”). Accordingly, Defendants have not shown that the	7
district court erred by rejecting the defense of unclean hands as a matter of law. See	8
Farmers, Inc., 1990-NMSC-100, ¶ 8.	9
3. 	Failure to Mitigate Damages	10
{25} 	Defendants argue that summary judgment was improper because there were	11
genuine issues as to whether SunTrust could have mitigated its damages by taking	12
action to forestall Defendants’ default and whether Plaintiff eschewed opportunities	13
to reduce the damages after Defendants defaulted. Insofar as Defendants contend	14
that the doctrine of mitigation of damages obligated SunTrust to take action that	15
would have enabled Defendants to avoid default, they have not supported that	16
argument with any pertinent authority, and we therefore decline to review the issue.	17
See In re of Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329.	18
{26} 	To the extent Defendants’ argument on appeal is that the district court erred	19
by granting summary judgment as to the measure of damages, that argument is	20

19
unpreserved. In the district court, Defendants did not argue that Plaintiff’s failure to	1
mitigate damages should reduce the amount of the damages award. See generally	2
Air Ruidoso, Ltd., Inc. v. Exec. Aviation Ctr., Inc., 1996-NMSC-042, ¶ 14, 122 N.M.	3
71, 920 P.2d 1025 (recognizing that a party that fails to mitigate its damages “run[s]	4
the risk that any award of damages will be offset by the amount attributable to its	5
own conduct”). Defendants did not “fairly invoke[]” a ruling, see Rule 12-321(A),	6
on whether a genuine issue of material fact as to the amount of damages required the	7
district court to hold a trial exclusively on that question. Because Defendants did not	8
preserve the issue of whether a damages trial was necessary, we decline to review it.	9
See Crutchfield, 2005-NMCA-022, ¶ 14.	10
{27} 	For these reasons, we reject Defendants’ argument that Plaintiff’s failure to	11
mitigate damages precluded the entry of summary judgment for Plaintiff. 3 See	12
Farmers, Inc., 1990-NMSC-100, ¶ 8.	13
3 Defendants also argue that summary judgment for Plaintiff is “unjust”
because this foreclosure action was delayed to Defendants’ detriment. To the extent
this argument relates to the measure of damages Plaintiff is due, it is unpreserved.
To the extent that, with this argument, Defendants are reasserting the laches defense
they raised in their answer, we hold that, by not litigating laches in response to
Plaintiff’s motion for summary judgment, Defendants failed to carry their burden to
avoid summary judgment with that defense. And, to the extent Defendants contend
that the district court abused its discretion by refusing to grant them equitable relief
on some ground other than the equitable defenses they raised in the district court, we
dismiss that argument as undeveloped and, based on our review of the record,
unpreserved. See Crutchfield, 2005-NMCA-022, ¶ 14; Elane Photography, 2013-
NMSC-040, ¶ 70.

20
C. 	Defendants Failed to Preserve Their Argument That They Needed	1
Additional Discovery to Respond to the Summary Judgment Motion	2
{28} 	Finally, Defendants argue that the district court erred by granting summary	3
judgment to Plaintiff when Defendants were awaiting discovery from Plaintiff. In	4
their January 2017 response to Plaintiff’s motion for summary judgment, Defendants	5
moved for a continuance to allow them to conduct discovery pursuant to Rule 1-	6
056(F). Defendants estimated that they could complete the requested discovery	7
within six months. As Plaintiff correctly points out, Defendants very soon thereafter	8
received responses to their first set of interrogatories and requests for production.	9
Indeed, Defendants attached parts of those discovery materials to their sur-reply to	10
Plaintiff’s motion for summary judgment. At the hearing on the motion, which was	11
held over a year after Defendants requested a six-month continuance, Defendants	12
again relied on the same discovery materials, and they did not ask the district court	13
to continue the hearing so that they could obtain more evidence through discovery.	14
Because Defendants never alerted the district court that they needed any discovery	15
in addition to the responses to interrogatories and requests for production that they	16
had already received and used, Defendants failed to preserve their argument that the	17
district court erred by not allowing additional discovery, and we decline to reach it.	18
See Rule 12-321(A); Nellis v. Farmers Ins. Co. of Ariz., 2012-NMCA-020, ¶ 23, 272	19
P.3d 143 (“The rules of preservation are no different for review of summary	20
judgment than for review of other final orders.”).	21

21
{29} 	Defendants’ use of Rule 1-056(F) to marshal evidence to support their	1
affirmative defenses illustrates a flaw in the dissent’s rationale. The dissent contends	2
that an important function of the Goff rule is to prevent “banks and other large	3
financial institutions [from] overpower[ing] homeowners, consumers, and tenants,	4
obtaining a summary judgment before the facts in defense are known.” Dissent Op.	5
¶ 32. This conflates two distinct issues: (1) how burdens are allocated in summary	6
judgment proceedings and (2) when nonmovants may use discovery to obtain	7
evidence necessary to resist summary judgment. Goff pertains only to the first topic;	8
it has nothing to do with the second, which is governed by Rule 1-056(F).4 With or	9
without the Goff rule, Rule 1-056(F) and the rules of discovery afford all litigants—	10
small and large alike, regardless of the nature of the claims and defenses—a right to	11
use the tried-and-true tools of discovery to acquire evidence they need to oppose	12
4 The dissent construes Goff as “enabl[ing] the defendant either to justify a
discovery request pursuant to Rule 1-056(F) or to respond on its affirmative
defenses[,]” thus making it “the primary responsibility [of] the defendant to show
that trial is required on its defenses.” Dissent Op. ¶ 36. We disagree. As we
understand Goff, our Supreme Court meant to relieve the defendant of any burden
of persuasion unless the plaintiff demonstrates prima facie entitlement to judgment
on both its claim and the defendant’s affirmative defenses. We do not read Goff as
effectively augmenting Rule 1-056(F) by requiring plaintiffs to volunteer some
discovery when the defendant pleads an affirmative defense. Nor do we think that,
in stating that the submission of “some material” is enough to shift the burden to
defendants on their affirmative defenses, Goff, 1978-NMSC-074, ¶ 9, our Supreme
Court intended to lower the quantum of evidence required to make a prima facie
showing at summary judgment. See id. (stating that the obligation to submit “some
material” to overcome a defendant’s affirmative defenses “is no different than the
original obligation on a movant for summary judgment”).

22
summary judgment. The existence of this right is the solution to the problem the	1
dissent identifies. Cf. Fed. Nat’l Mortg. Ass’n v. Chiulli, 2018-NMCA-054, ¶¶ 1,	2
3-5, 20, 425 P.3d 739 (affirming the dismissal, as a discovery sanction, of a	3
foreclosure action in which SunTrust, before the plaintiff took its place as the	4
plaintiff, failed to provide discovery relevant to the defendant’s defenses). When the	5
plaintiff-movant possesses evidence that the nonmovant needs to support its	6
affirmative defenses, the nonmovant may simply request that evidence in discovery	7
and, if necessary, seek a Rule 1-056(F) continuance, just as Defendants did in this	8
case. See also Rule 1-037(B) NMRA (describing the relief that is available when an	9
opposing party fails to provide discovery).	10
CONCLUSION	11
{30} 	We affirm.	12
{31} 	IT IS SO ORDERED.	13
_______________________________	14
ZACHARY A. IVES, Judge	15
I CONCUR:	16
_____________________________	17
BRIANA H. ZAMORA, Judge	18
JANE B. YOHALEM, Judge (dissenting).	19

23
YOHALEM, Judge (dissenting).	1
{32} 	I respectfully dissent from the majority’s holding that New Mexico law no	2
longer requires a plaintiff who seeks summary judgment on its complaint to	3
demonstrate that no genuine issue of material fact exists as to the defendant’s	4
affirmative defenses. The majority concludes that our Supreme Court’s decision in	5
Goff, is no longer good law, having been implicitly overruled by subsequent	6
Supreme Court decisions. I cannot agree with the majority’s conclusion that our	7
Supreme Court’s decisions in Biava, 1990-NMSC-023, and Mayfield Smithson	8
Enterprises, 1995-NMSC-034, overrule Goff. Nor am I persuaded on the merits that	9
the ruling in Goff should be overturned. In my view, our Supreme Court’s decision	10
in Goff, requiring that a plaintiff seeking summary judgment present “some material”	11
1978-NMSC-074, ¶ 9, rebutting the defendant’s affirmative defenses in order to	12
support its motion is required by Rule 1-056(E), remains important to ensure that	13
banks 	and 	other 	large 	financial 	institutions 	do 	not 	overpower 	homeowners,	14
consumers, and tenants, by obtaining a summary judgment before the facts in	15
defense are known. For these reasons, as further explained below, I cannot join the	16
majority opinion.	17
{33} 	In Goff, our Supreme Court overruled this Court’s decision in Kassel, 1973-	18
NMCA-028, see Goff, 1978-NMSC-074, ¶ 10, which held, as the majority does	19
again here today, that a plaintiff need only establish a prima facie case of entitlement	20

24
to summary judgment on its own claim and need not address the affirmative	1
defenses. Id. ¶ 9. Goff overruled Kassel, holding that a plaintiff who seeks summary	2
judgment 	disposing 	of 	all 	claims 	in 	its 	favor 	must 	present 	some 	evidence	3
contravening the defendant’s affirmative defenses, as well as presenting a prima	4
facie case on its own claims. Id. The plaintiff must submit to the court “the necessary	5
affidavits or other material to expose [the defendant’s] affirmative defenses as	6
unmerited.” Id. The Goff Court emphasizes that the additional burden it is imposing	7
on the plaintiff-movant is minimal: the plaintiff is not required to “show or	8
demonstrate beyond all possibility that no genuine issue of fact exists.” Id. All that	9
is required of the plaintiff is the submission of “some material” in order to establish	10
a prima facie case on the defenses and shift the burden to the other party. Id.	11
{34} 	In my view, the policy adopted by our Supreme Court in Goff remains	12
consistent with Rule 1-056(E) and with New Mexico’s cautious approach to	13
summary judgment. See Romero, 2010-NMSC-035, ¶ 8. It remains true, as our	14
Supreme Court said in Goff, that “one good defense will defeat recovery on a claim,”	15
Goff, 1978-NMSC-074, ¶ 8 (internal quotation marks and citation omitted), and that,	16
therefore, a plaintiff must show not only that it has support for its claim but must	17
also present some evidence that rebuts the defendant’s defenses. Only then does the	18
burden shift to the defendant to show that there is a genuine issue of material fact	19
for trial. Id.	20

25
{35} 	I cannot agree that the subsequent cases relied on by the majority abrogate the	1
Goff rule. The two Supreme Court opinions relied on by the majority to support its	2
view that the Court has subsequently rejected the Goff rule on affirmative defenses	3
each cite to Goff and each explicitly rely on Goff’s holding that, only when a plaintiff	4
has presented some factual material negating the affirmative defenses, does the	5
burden shift to the defendant, the proponent of the affirmative defenses, to show that	6
a genuine issue of fact requires trial. Id. ¶¶ 9, 12; see Biava, 1990-NMSC-023, ¶ 11;	7
Mayfield Smithson Enters., 1995-NMSC-034, ¶ 9. Rather than overruling Goff,	8
Biava, and Mayfield Smithson Enterprises, our Supreme Court’s subsequent cases	9
illustrate Goff’s application. In each case, the initial burden to present a prima facie	10
case on the affirmative defenses has been met by the plaintiff, shifting the burden to	11
the defendant to show that a genuine issue of fact regarding one or more of those	12
defenses requires trial. Although the focus of these cases is primarily on whether the	13
defendant has responded by introducing sufficient evidence to rebut the plaintiff’s	14
prima facie case, I do not agree with the majority that this indicates an implicit	15
rejection of Goff. Our Supreme Court has continued after its decisions in Biava and	16
Mayfield Smithson Enterprises to disfavor summary judgment and to impose on the	17
movant the burden of submitting sufficient evidence to make a prima facie case as	18
to each element necessary to support summary judgment. Romero, 2010-NMSC-	19
035, ¶¶ 8, 10.	20

26
{36} 	The rule adopted by our Supreme Court in Goff has proved to have special	1
importance in cases brought by large financial institutions against consumers,	2
homeowners, and tenants. This case is brought by Fannie Mae against homeowners	3
to foreclose on a mortgage. See also Kassel, 1973-NMCA-028, ¶ 3 (landlord-tenant);	4
Sydow, 1988-NMSC-029, ¶ 1 (insurance company v. worker); Biava, 1990-NMSC-	5
023, ¶ 2 (bank against debtor). Often, in these cases, the evidence concerning both	6
the claim and the affirmative defense is in the hands of the plaintiff financial	7
institution. See, e.g., Chiulli, 2018-NMCA-054, ¶¶ 3-4. It is especially important	8
when a large financial institution has the evidence concerning both the transaction	9
and defenses in its possession that the plaintiff be required to submit some material	10
rebutting the affirmative defenses to support its motion for summary judgment. The	11
Goff approach, after all, places the primary responsibility on the defendant to show	12
that trial is required on its defenses. The production of some documentation by the	13
plaintiff to support a prima facie case on the affirmative defenses enables the	14
defendant either to justify a discovery request pursuant to Rule 1-056(F) or to	15
respond to establish a genuine issue of material fact on its affirmative defenses.	16
{37} 	For the reasons stated, I believe that Goff remains good law and that its	17
requirement that a plaintiff introduce some material rebutting the defendant’s	18
affirmative defenses in order to establish a prima facie case on its motion for	19
summary judgment, remains an important safeguard against a rush to summary	20

27
judgment by large financial institutions when an exploration of the facts would show	1
that a trial is necessary to resolve disputed affirmative defenses. Because the	2
majority holds otherwise, I respectfully dissent.	3
_________________________________	4
JANE B. YOHALEM, Judge	5