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Moya v. Wells Fargo Bank, N.A.

United States District Court, D. New Mexico

June 29, 2018

CYNTHIA MOYA, guardian ad litem, Plaintiff,
v.
WELLS FARGO BANK, N.A., as Trustee, f/b/o holders of Structured Asset Mortgage Investments II Trust 2007-AR4, Mortgage Pass-Through Certificates, Series 2007- AR4, including all appurtenances and improvements thereto; Select Portfolio Servicing, Inc.; 3316 22ND AVE, S.E., RIO RANCHO ESTATES, UNIT 16; APN: 1-013-067-081-112, including all appurtenances and improvements thereto; LOT 28 IN BLOCK 21 OF RIO RANCHO ESTATES, UNIT 16, a subdivision in the City of Rio Rancho, New Mexico, including all appurtenances and improvements thereto, and DEED OF TRUST NO. 78809, Defendants.

          Cynthia Moya Corrales, New Mexico Plaintiff pro se.

          Charlie S. Baser Jordan L. Kessler Larry J. Montano Holland & Hart, LLP Santa Fe, New Mexico Attorneys for the Defendants.

          MEMORANDUM OPINION AND ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS MATTER comes before the Court on: (i) the Magistrate Judge's Proposed Findings and Recommended Disposition, filed May 31, 2018 (Doc. 18)(“PFRD”); and (ii) the Defendants Wells Fargo Bank, N.A., and Select Portfolio Servicing, Inc.'s Motion to Dismiss, filed February 7, 2018 (Doc. 4)(“Motion to Dismiss”). Because the Court concludes that the PFRD is not clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion, the Court will adopt the PFRD. Accordingly, the Court will dismiss with prejudice Plaintiff Cynthia Moya's Presentment in for Adverse Claim of Possession, filed in state court on January 5, 2018, filed in federal court February 1, 2018 (Doc. 1-1)(“Complaint”).

         BACKGROUND

         Moya filed the Complaint in the Thirteenth Judicial District, County of Sandoval, State of New Mexico, on January 5, 2018. See Complaint at 4. As “affirmative relief, ” Moya requests possession of certain real property. See Complaint at 7. The Defendants assert that they are the holders of the Note and mortgage on the property at issue, and the loan servicing company. See Defendants Wells Fargo Bank N.A. and Select Portfolio Servicing Inc.'s Notice of Removal Pursuant to 28 U.S.C. § 1441 at 1, filed February 1, 2018 (Doc. 1)(“Notice of Removal”); Affidavit of Kajay Williams in Support of Wells Fargo's Motion for Summary Judgment on All of the Claims and Defenses Asserted in this Lawsuit ¶¶ 6-17, at 2, (dated June 5, 2015), filed February 1, 2018 (Doc. 1-3)(“Williams Aff.”). The Defendants removed the case to federal court on February 1, 2018. See Notice of Removal at 1. Soon thereafter, the Defendants filed their Motion to Dismiss. See Motion to Dismiss at 1. The Defendants argue that the Court should dismiss Moya's claim because she has not established the elements of adverse possession under New Mexico law. See Motion to Dismiss at 4-5.

         The Honorable Jerry H. Ritter, United States Magistrate Judge for the United States District Court for the District of New Mexico, reviewed this case and entered his PFRD on May 31, 2018. See PFRD at 1. Moya thereafter filed a letter to the Court explaining that she has been “unable to work or reply to the Court in a timely manner” due to health problems and “now enter[s] this Motion for Default and request for Order for Default.” Letter from Moya to the Court at 1 (dated June 6, 2018), filed June 7, 2018 (Doc. 19)(“Letter”). Moya did not object to Magistrate Judge Ritter's PFRD. This matter is now ripe for the Court's resolution.

         LAW REGARDING PRO SE PARTIES

         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)(quoting Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)). The Tenth Circuit explains that

if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “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.” Smith v. United States, 561 F.3d 1090, 1096.

         LAW REGARDING ADVERSE POSSESSION

         “Under 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). Here, a statute governs the claim at issue -- adverse possession. See N.M. Stat. Ann. § 37-1-22. 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 N.M. Stat. Ann. § 37-1-22), for a period of ten years, see N.M. Stat. Ann. 37-1-22. “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, ¶ 7, 104 P.3d 554, 557 (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.” Williams v. Howell, 1989-NMSC-009, ¶ 10, 770 P.2d 870, 872. “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, 1028.

         LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND RECOMMENDATIONS

         District courts may refer dispositive motions to a Magistrate Judge for a recommended disposition. See Fed.R.Civ.P. 72(b)(1) (“A magistrate judge must promptly conduct the required proceedings when assigned, without the parties' consent, to hear a pretrial matter dispositive of a claim or defense . . . .”). Rule 72(b)(2) governs objections: “Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations.” Finally, when resolving objections to a Magistrate Judge's proposal, “[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, ...


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