United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
H. RITTER UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Defendants Wells Fargo Bank,
N.A.'s, and Select Portfolio Servicing, Inc.'s
(“Defendants”) Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6). Doc. 4.
The Honorable James O. Browning referred this matter to the
undersigned “to perform any legal analysis required to
recommend to the Court an ultimate disposition of the
case.” Doc. 10. The Court has reviewed the
case file, including the documents labeled
“Objection” and “Response” by the
Clerk,  as well as Defendants' Reply. See
Docs. 14, 15, 16. Being satisfied that it has subject
matter jurisdiction over the case,  the Court recommends that
Plaintiff's Complaint against Defendants seeking to
establish a claim to certain property by adverse possession
be dismissed with prejudice.
Cynthia Moya initiated suit in the Thirteenth Judicial
District for the State of New Mexico by filing a document
entitled “Presentment in for [sic] Adverse Claim of
Possession.” See Doc. 1-1 at 4. In this
document, Plaintiff makes various references to her home,
states the statutory minimum required to assert a claim of
adverse possession (ten years), states that she has
“been an (sic) absolute possession of the property for
more than 22 years, ” and asserts that she is bringing
“forth [her] claim of adverse possession of both the
property and parcel for which [she] maintain[s] possession
continuously, notoriously, openly, adversely, and
lawfully[.]” Id. at 5-7. Interestingly,
Plaintiff also incorporates by reference “the mortgage
papers as well as the associated deed of trust” in her
complaint. Id. at 6. Nonetheless, as
“affirmative relief, ” Plaintiff requests
possession of the property. Id. at 7.
assert that they are the holders of the Note and mortgage on
the property at issue, and the loan servicing company.
See Doc. 1 at 4, Doc. 1-3 at 2. They
removed the case to this Court on February 1, 2018. See
generally Doc. 1. Soon thereafter, Defendants filed
their Motion to Dismiss. Doc. 4. Most basically,
Defendants argue that Plaintiff's claim for adverse
possession should be dismissed for want of establishing the
elements thereof under New Mexico law. See Doc. 4 at
4-5. Plaintiff's responsive documents set forth New
Mexico's adverse possession statute, and appear to argue
that she has satisfied the requirements thereof. See
Docs. 14, 15. Specifically, Plaintiff argues
that she is in possession of the property, has paid the taxes
on the property, has colorable title to the property, has
enclosed it, has made improvements to it, for the statutory
period of time, and possessed it in a hostile and notorious
manner. See Doc. 15 at 1. Additionally, Plaintiff
argues that she is “not being permitted equal access to
the court, ” that the Court is holding her to a more
stringent standard than an attorney, and it has failed to
read her pleadings liberally, “ignoring [her]
intent.” Doc. 15 at 3.
outset, it is important to note Plaintiff's pro
se status, as “[a] pro se litigant's pleadings
are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.”
Smith v. United States, 561 F.3d 1090, 1096 (10th
Cir. 2009) (quoted authority omitted). “This court,
however, will not supply additional factual allegations to
round out a plaintiff's complaint or construct a legal
theory on a plaintiff's behalf.” Id.
Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain ‘a short and plain statement of the claim
showing that the pleader is entitled to relief.'”
Khalik v. United Air Lines, 671 F.3d 1188, 1190
(10th Cir. 2012). And, “to withstand a Rule 12(b)(6)
motion to dismiss, a complaint must contain enough
allegations of fact, taken as true, ‘to state a claim
to relief that is plausible on its face.'”
Id. (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007);
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009)). “[O]nly a complaint that states a
plausible claim for relief survives a motion to dismiss. . .
. Thus, mere ‘labels and conclusions' and ‘a
formulaic recitation of the elements of a cause of
action' will not suffice.” Id.
“While the 12(b)(6) standard does not require that
Plaintiff establish a prima facie case in her complaint, the
elements of each alleged cause of action help to determine
whether Plaintiff has set forth a plausible claim.”
Id. at 1192.
the claim at issue - adverse possession - is governed by
statute. See NMSA 1978, § 37-1-22 (1973). Under
this statute, “[a]dverse possession is defined as
‘an actual and visible appropriation of land, commenced
and continued under a color of title and claim of right
inconsistent with and hostile to the claim of another,
” City of Rio Rancho v. Amrep Southwest,
Inc., 2011-NMSC-037, ¶ 21, 260 P.3d 414
(quoting NMSA 1978, 37-1-22 (1973)), for a period of ten
years. NMSA 1978, § 37-1-22 (1973). “The burden of
proving adverse possession is on the party asserting it, and
it must be proven by clear and convincing evidence.”
Board of Trustees of the Tecolote Land Grant v.
Griego, 2005-NMCA-007, 104 P.3d 554 (citation omitted).
Thus, “[a] party claiming ownership of land by adverse
possession must prove by clear and convincing evidence
continuous adverse possession for ten years under color of
title, in good faith, and payment of taxes on the property
during these years.” Id. (quoting Williams
v. Howell, 770 P.2d 870, 872 (1989)). “If any one
of the necessary elements required to establish title by
adverse possession is lacking, title by adverse possession
cannot be proven.” Slemmons v. Massie,
1984-NMSC-108, ¶ 6, 690 P.2d 1027.
argue that Plaintiff has failed to establish that her
possession is (or was) hostile to their interests. See
Doc. 4 at 5-6. The Court agrees that it is impossible
for Plaintiff to have established open and hostile possession
of the property for the statutory time period. “Adverse
possession must be openly hostile. Divestiture of title by
adverse possession rests upon the proof or presumption of
notice to the true owner of hostile character of
possession.” Apodaca v. Tome Land & Imp. Co.
(NSL), 1978-NMSC-018, ¶ 19, 577 P.2d 1237 (quoted
authority omitted). Black's Law Dictionary defines
“hostile” as “adverse[, ] showing ill will
or a desire to harm[, ] antagonistic, unfriendly.”
Black's Law Dictionary, 359 (4th Pocket Ed. 2011).
“[A] mortgagor and mortgagee cannot be hostile to one
another until one party repudiates the relationship, such as
if the mortgagor defaults and the mortgagee forecloses on the
property.” Asnake v. Deutsche Bank National Trust
Co., CIV 18-0819 (JEB), ___F.Supp.3d ___, 2018 WL
2209208 at *3 (D.D.C. 2018); see also Swinley v.
Force, 78 N.J. Eq. 52, 67, 78 A. 249, 255 (Ch. 1910)
(“Dropping all theory and all fictions, the plain fact
is that the mortgagor is in possession upon the distinct
understanding and agreement that he shall remain in
possession with the consent of the mortgagee until the loan
proceedings were commenced against Plaintiff and her husband
in 2014, and an Order Granting Wells Fargo's Motion for
Summary Judgment, Entering Decree of Foreclosure, and
Ordering Judicial Foreclosure Sale, was entered on December
1, 2015. See Doc. 1-3; see
D-1329-CV-201400071; Fed.R.Evid. 201. In other words,
Plaintiff's and Defendants' interests were not
adverse until 2014, at the earliest. See Jeong v. Fed.
Nat. Mortg. Ass'n, 2014 WL 5808594, at *4 (W.D. Tex.
Nov. 7, 2014) (“Specifically with respect to mortgagors
in default who claim adverse possession, the statutory period
does not begin to run until title to the property passes at
the foreclosure sale.”) (citing Warnecke v.
Broad, 138 Tex. 631, 161 S.W.2d 453, 455 (Tex. 1942)).
As such, Plaintiff cannot establish a claim for adverse
possession because her possession of the property was not
adverse or hostile to Defendants until her home was
foreclosed upon. Having failed to establish the element of
hostile possession, Plaintiff's claim necessarily fails.
See Pan Am. Petroleum Corp. v. Candelaria, 403 F.2d
351, 355 (10th Cir. 1968) (“It has long been the law of
New Mexico that if any one of the elements necessary to
constitute adverse possession, namely, actual, visible,
exclusive, hostile, and continuous possession, is lacking,
then no title by adverse possession can ripen.”)
foregoing reasons, the undersigned recommends that this case
be dismissed with prejudice for failure to ...