Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

MTGLQ Investors, LP v. Wellington

United States District Court, D. New Mexico

April 27, 2018

MTGLQ INVESTORS, LP, Plaintiff,
v.
MONICA L. WELLINGTON, THE MONICA L. WELLINGTON DECLARATION OF TRUST DATED DECEMBER 28, 2007, ALTURA VILLAGE HOMEOWNERS' ASSOCIATION, INC., JPMORGAN CHASE BANK, N.A., AND THE UNKNOWN SPOUSE OF MONICA L. WELLINGTON, Defendants, and MONICA L. WELLINGTON, Counter-Claimant,
v.
MTGLQ INVESTORS, LP, Counter-Defendant, and MONICA L. WELLINGTON, Cross-Claimant,
v.
JPMORGAN CHASE BANK, N.A., Cross-Defendant, and MONICA L. WELLINGTON, Third-Party Plaintiff,
v.
WEINSTEIN & RILEY, PS., ELIZABETH V. FRIEDENSTEIN, RUSHMORE LOAN MANAGEMENT SERVICES, LLC, Third-Party Defendants.

          MEMORANDUM OPINION AND ORDER

         This matter comes before the Court on MTGLQ Investors, LP (“MTGLQ”), Rushmore Loan Management Services, LLC (“Rushmore”), and Weinstein & Riley, P.S. and Elizabeth V. Friedenstein's (collectively, “Law Firm”) “Plaintiff/Counterdefendant's and Third Party Defendant's Renewed Motions to Dismiss Amended Counterclaims” (“Motion to Dismiss Amended Counterclaim”), filed on July 11, 2017.[1] See (Doc. 24). The Motion to Dismiss Amended Counterclaim incorporates by reference two others motions to dismiss. (Docs. 8 and 11). All of the motions to dismiss are completely briefed and ready for ruling. (Docs. 13, 20, 31, and 34).

         The Court conducted a hearing on March 28, 2018, in which it briefly explained its reasons for granting these motions. That same day, the Court entered an Order noting its tentative ruling. (Doc. 69). This Memorandum Opinion and Order constitutes the full written opinion mentioned at the hearing and in the Order.

         I. Background

         On January 25, 2017, MTGLQ filed its “Complaint for Debt and Money Due and for Foreclosure” (“Complaint”), in the Second Judicial District Court in the County of Bernalillo, State of New Mexico. (Doc. 1-1) at 1-50. In its Complaint, MTGLQ pleaded two causes of action, “Debt and Money Due” (“Count I”) against Ms. Wellington, and “Foreclosure” (“Count II”) against Ms. Wellington, Altura Village Homeowners' Association, Inc., JPMorgan Chase, and the Unknown Spouse of Monica L. Wellington. Id. at 1-6. MTGLQ seeks foreclosure of property “commonly described as 2124 Altura Verde Ln NE, Albuquerque, NM 87110.” Id. at 3, ¶ 11. MTGLQ also requests an “in personam judgment against” Ms. Wellington. Id. at 5. MTGLQ attached several exhibits to its Complaint: a copy of the promissory note executed by Ms. Wellington, copies of the mortgage and re-recorded mortgage, and the assignment of the mortgage from Mortgage Electronic Registration Systems, Inc. (“MERS”) to MTGLQ. Id. at 8-47.

         On May 21, 2017, Monica L. Wellington filed “Counterclaim of Monica L. Wellington” (“Counterclaim”), against MTGLQ, Law Firm, Rushmore, Profolio Home Mortgage Corporation (“Profolio”), and JPMorgan Chase. In her Counterclaim, Ms. Wellington alleges various violations of the Fair Debt Collection Practices Act (“FDCPA”) against MTGLQ, Rushmore, and Law Firm. See 15 U.S.C. §§ 1692e, 1692f(1), 1692g(b), 1692i; see also (Doc. 6) at 3-14, ¶¶ 9-76 (First Cause of Action through Thirteenth Cause of Action). Ms. Wellington also pleads a declaratory judgment claim against Profolio, JPMorgan Chase, and MTGLQ. Id. at 14, ¶¶ 77-81 (Fourteenth Cause of Action). Ms. Wellington alleges that neither MTGLQ nor JPMorgan Chase received a “legitimate assignment” of the note or mortgage, and that along with Profolio none of them can pursue a claim against her or the property. Id.

         On June 9, 2017, MTGLQ and Rushmore filed “Plaintiff/Counter Defendant's Motion to Dismiss Counterclaims” (“MTGLQ and Rushmore's Motion to Dismiss Counterclaim”) (Doc. 8). On June 26, 2017, Law Firm filed “Third Party Defendants Weinstein & Riley, P.S. and Elizabeth V. Friedenstein's Motion to Dismiss Counterclaims” (“Law Firm's Motion to Dismiss Counterclaim”) (Doc. 11). Law Firm's Motion to Dismiss Counterclaim is identical to MTGLQ and Rushmore's Motion to Dismiss Counterclaim, with the exception of the parties bringing the motion. Compare (Doc. 8), with (Doc. 11).

         On June 27, 2017, Ms. Wellington filed “First Amended Counterclaim of Monica L. Wellington” (“Amended Counterclaim”). In her Amended Counterclaim, Ms. Wellington alleges the same thirteen violations in her Counterclaim, adding a violation of 15 U.S.C. § 1692e by Law Firm in the Eighth Cause of Action. See (Doc. 12) at 3-15, ¶¶ 8-80. Additionally, Ms. Wellington drops her declaratory judgment claim against Profolio. Id. at 15, ¶¶ 81-85.

         Also on June 27, 2017, Ms. Wellington filed a response to the motions to dismiss and on July 11, 2017, MTGLQ, Rushmore, and Law Firm filed a reply to that response. (Docs. 13 and 20). On July 11, 2017, MTGLQ, Rushmore, and Law Firm filed their Motion to Dismiss Amended Counterclaim. (Doc. 24). On July 25, 2017, Ms. Wellington responded to that motion to dismiss, and, on August 8, 2017, MTGLQ, Rushmore, and Law Firm filed a reply. (Docs. 31 and 34).

         II. Standard of Review

         In ruling on a Fed.R.Civ.P. 12(b)(6) motion to dismiss, the Court must accept all well-pleaded allegations as true and must view them in the light most favorable to the plaintiff. See Zinermon v. Burch, 494 U.S. 113, 118 (1990); Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984). Rule 12(b)(6) requires that a complaint set forth the grounds of a plaintiff's entitlement to relief through more than labels, conclusions and a formulaic recitation of the elements of a cause of action. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege facts sufficient to state a plausible claim of relief. Id. at 570. A claim is facially plausible if the plaintiff pleads facts sufficient for the court to reasonably infer that the defendant is liable for the alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556).

         “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-521 (1972)). Nonetheless, it is not “the proper function of the district court to assume the role of advocate for the pro se litigant.” Bellmon, 935 F.2d at 1110. For instance, the Court “will not supply additional facts, nor will [it] construct a legal theory for [a pro se] plaintiff that assumes facts that have not been pleaded.” Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (per curiam).

         III. Discussion

         MTGLQ, Rushmore, and Law Firm raise substantive arguments regarding whether Ms. Wellington states a claim for relief. In addition, they and Ms. Wellington raise procedural issues. The Court will consider these procedural issues before turning to whether Ms. Wellington failed to state a claim for relief under Rule 12(b)(6).

         A. The Procedural Issues

         In their Motion to Dismiss the Amended Counterclaim, MTGLQ, Rushmore, and Law Firm argue that Ms. Wellington failed to obtain leave of court to amend her Counterclaim. (Doc. 24) at 1. They argue that Ms. Wellington did not comply with Fed.R.Civ.P. 15(a)(2). They fail, however, to explain why Rule 15(a)(2) applies here. Ms. Wellington, on the other hand, correctly points out that under Rule 15(a)(1)(B), a party may amend her pleading “once as a matter of course…if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b)….”

         Under Rule 15(a)(1)(B), Ms. Wellington had 21 days to amend her Counterclaim from the filing of MTGLQ and Rushmore's Motion to Dismiss Counterclaim (Doc. 8). MTGLQ and Rushmore filed their Motion to Dismiss Counterclaim on June 9, 2017. Thus, Ms. Wellington had until June 30, 2017, to amend her Counterclaim as a matter of course. Ms. Wellington met this time limit by filing her Amended Counterclaim on June 27, 2017.

         Next, the Court turns to Ms. Wellington's argument that the Motion to Dismiss Amended Counterclaim should be stricken. (Doc. 31) at 2. Ms. Wellington argues that MTGLQ, Rushmore, and Law Firm misuse D.N.M.LR-Civ. 7.1(a) in their Motion to Dismiss Amended Counterclaim. In that motion they incorporate by reference their arguments in MTGLQ and Rushmore's Motion to Dismiss Counterclaim, Law Firm's Motion to Dismiss Counterclaim, and the reply to the motions to dismiss under Local Rule 7.1(a). See (Doc. 24) at 2. Ms. Wellington points to Local Rule 7.1(a), which provides in relevant part, “[a] party may adopt by reference another party's motion or other paper by making specific reference to the filing date and docket number of such motion or other paper.” Ms. Wellington ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.