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Volt Asset Holdings Trust XVI v. Martinez

United States District Court, D. New Mexico

October 6, 2017

VOLT ASSET HOLDINGS TRUST XVI, Plaintiff,
v.
MARIE A. MARTINEZ A/K/A MARIE MARTINEZ, FELIX J. MARTINEZ A/K/A FELIX JOE MARTINEZ, FELIX JOE MARTINEZ PUBLIC TRUST, and SOUTHWEST FINANCIAL SERVICES, INC., Defendants.

          JUDGMENT AND ORDER APPOINTING SPECIAL MASTER

         This matter comes before the Court upon Plaintiff's Motion for Award of Amounts (Motion) and Elizabeth Dranntel's Affidavit of Attorney Fees and Costs (Affidavit), both filed on July 7, 2017. (Docs. 149 and 150). Defendants Marie A. Martinez a/k/a Marie Martinez and Felix J. Martinez a/k/a Felix Joe Martinez (collectively, the Martinezes) filed a response on July 30, 2017, and Plaintiff filed a reply on August 10, 2017. (Docs. 156 and 157). Having reviewed the Motion, the Affidavit, and the accompanying briefs, the Court grants the Motion.

         Plaintiff seeks an order awarding $445, 248.51, the total amount owed on the Note (including interest, tax, and costs) at issue in this foreclosure action as of June 18, 2017, and $34, 256.51, the amount of attorney's fees and costs incurred in litigating this lawsuit. Plaintiff also requests that the Court appoint Jennifer A. Taylor as Special Master to hold the foreclosure sale of the property.

         In response to the Motion, the Martinezes apparently argue that the Court should reconsider its March 1, 2017, Memorandum Opinion and Order in which it granted summary judgment in favor of Plaintiff. See (Doc. 140). Because the Martinezes made their request to reconsider more than 28 days after the Court entered its Memorandum Opinion and Order, the Court construes the request to reconsider under Fed.R.Civ.P. 60(b) (providing for motion for relief from judgment). Cf. Fed. R. Civ. P. 59(e) (“A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.”). Federal Rule of Civil Procedure Rule 60(c)(1) states that a Rule 60(b) motion “must be made within a reasonable time….” A reasonable time is dependent upon whether the movant has provided “sufficient justification for the delay.” Sorbo v. United Parcel Serv., 432 F.3d 1169, 1178 (10th Cir. 2005). Here, the Martinezes waited almost five months to request reconsideration and did not provide any reason for such a delay. The Court determines that the Martinezes' request for reconsideration was not made within a reasonable time. For that reason, the Court denies the request for reconsideration.

         The Martinezes do not otherwise object to the amount of the awards Plaintiff seeks. Independent of the absence of an objection, and having reviewed the Affidavit, the Court finds that the request for attorney's fees and costs is reasonable. The Martinezes also do not object to Plaintiff's proposed Special Master, Jennifer A. Taylor.

         The Martinezes, however, “[r]equest that the court order the sequestering of the alleged note until the Debt is satisfied, and if the Plaintiff refuses Martinez [sic] request that the Court order Plaintiff to allow Martinezes to inspect the alleged Note at Plaintiffs [sic] office.” (Doc. 156) at 9. Plaintiff did not respond to this request. Finding no prejudice to Plaintiff, the Court will order that Plaintiff's attorney allow the Martinezes to inspect the Note at her office.

         For the foregoing reasons, the Court ORDERS that:

1. Plaintiff's Motion for Award of Amounts (Doc. 149) is granted;
2. the Martinezes' request for reconsideration is denied as untimely;
3. Plaintiff is awarded a judgment in the amount of $445, 248.51;
4. Plaintiff is awarded attorney's fees and costs in the amount of $34, 256.51; and
5. Plaintiff's attorney shall allow the Martinezes to inspect the Note at issue at Plaintiff's attorney's office at a time convenient to the parties, but no later than October 31, 2017.

         IT IS FURTHER ORDERED that

         1. the Property at issue in this lawsuit is ordered to be sold and that Jennifer A. Taylor, Ancillary Legal Support, Inc., is appointed Special Master to advertise and sell the Property and make a report thereof to this Court as provided by law;

         2. in the event that the Special Master is unable to conduct the sale when scheduled, the Special Master may designate a successor to act as Special Master, without further notice or order, and said successor shall conduct the sale, notice of ...


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