United States District Court, D. New Mexico
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
MEMORANDUM OPINION AND ORDER ADOPTING PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
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”).
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.
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.
REGARDING PRO SE PARTIES
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
REGARDING ADVERSE POSSESSION
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.
REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
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, ...