United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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. 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).
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.
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.
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.
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).
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.
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).
Standard of Review
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).
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).
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).
The Procedural Issues
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
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,
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 ...