United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon “Monica
Wellington's [Renewed] Motion to Dismiss Complaint,
” (“Motion for Reconsideration”) filed May
15, 2018. (Doc. 74). On May 29, 2018, MTGLQ filed
its response, and on June 6, 2018, Ms. Wellington filed her
reply. (Docs. 76 and 78). Having considered the parties'
briefing and the relevant law the Court denies Ms.
the Court also issued a related Memorandum Opinion and Order
(Doc. 97) in which it concluded that Ms. Wellington has
sufficiently alleged that MTGLQ is a debt collector, but
fails to plead a plausible violation of the Fair Debt
Collection Practices Act's (“FDCPA”) venue
provision, 15 U.S.C. 1692i. In particular, Ms. Wellington
fails to allege that the Note was signed outside of New
Mexico or that she resided in California at the commencement
of this action. As explained below, to the extent that Ms.
Wellington moves for a transfer of venue, the Court considers
it moot for failure to make an adequate showing for such a
not Ms. Wellington's first attempt to dismiss MTGLQ's
Complaint. MTGLQ's Complaint contains a personal judgment
claim and a foreclosure claim. (Doc. 1-1) at 1-6. MTGLQ
attached to its Complaint, a copy of the Note, Allonge to
Note, Mortgage, and Assignment of Mortgage related to Ms.
Wellington's 2124 Altura Verde property (“Altura
Verde property”) that is at the heart of this dispute.
(Doc. 1-1) at 8-47; see also (Doc. 71) at 4. On June
23, 2017, Ms. Wellington filed a motion to dismiss
MTGLQ's complaint. (Doc. 9). In this motion to dismiss,
Ms. Wellington argued that MTGLQ's Complaint should be
dismissed (1) for failure to state a claim for relief, (2)
for a violation of the venue provision of the Fair Debt
Collection Practices Act (“FDCPA”), and (3)
seeking the dismissal of “The Unknown Spouse of Monica
Wellington.” The Court considered these arguments and
denied Ms. Wellington's motion in a Memorandum Opinion
and Order (“MOO”), filed on April 27, 2018,
finding, inter alia, that MTGLQ has standing to
enforce the Note and foreclose the Mortgage; the documents
attached to the Complaint were not altered or fabricated;
Fed.R.Civ.P. 9(b) does not apply to MTGLQ's allegations;
MTGLQ's personal judgment claim is timely; and, Ms.
Wellington cannot represent the interest of another party.
Ms. Wellington's Motion for Reconsideration
Motion for Reconsideration, Ms. Wellington requests that the
Court either dismiss MTGLQ's Complaint in its entirety,
or transfer the personal judgment claim to a California
court. Ms. Wellington offers four reasons in support of her
motion. First, she asserts that the FDCPA applies to
MTGLQ's personal judgment claim and therefore the venue
provision of the FDCPA prohibits this Court from hearing that
claim. Second, she asserts that MTGLQ's allegation that
JPMorgan Chase Bank, N.A., may have an interest in the Altura
Verde property demonstrates that MTGLQ lacks standing to
foreclose on the property. Third, she asserts that
MTGLQ's allegation that the Mortgage is in the hands of
its counsel demonstrates that MTGLQ lacks standing to
foreclose on the property. Fourth, she asserts that the Court
did not apply the heightened pleading standard under Rule
9(b) to MTGLQ's allegations of an erroneous assignment or
release of the Mortgage in its Complaint. Ms. Wellington
contends that these allegations amount to allegations of
mistake that trigger Rule 9(b).
response, MTGLQ argues that the FDCPA venue argument should
be dismissed because the Court concluded in another
Memorandum Opinion and Order (Doc. 72), also filed April 27,
2018, that Ms. Wellington failed to allege sufficient facts
in her amended counterclaim showing MTGLQ was a debt
collector under the FDCPA. MTGLQ notes that the Court decided
the standing issue in its MOO (Doc. 71) concluding that MTGLQ
has shown standing to enforce the Note and foreclose on the
Mortgage. MTGLQ does not address whether the Court erred in
failing to apply Rule 9(b) to MTGLQ's allegations of an
erroneous assignment or release.
reply, Ms. Wellington reiterates her four reasons for
dismissal or transfer of the personal judgment claim. Ms.
Wellington does request, for the first time, “limited
discovery in order to uncover whatever facts may be
essential” to the FDCPA venue issue. (Doc. 78) at 4
Wellington's Motion for Reconsideration is “an
interlocutory motion invoking the district court's
general discretionary authority to review and revise
interlocutory rulings prior to entry of final
judgment.” Wagoner v. Wagoner, 938 F.2d 1120,
1122 n.1 (10th Cir. 1991). The Tenth Circuit analyzes motions
to reconsider interlocutory orders, like this one, under Rule
54(b) and looks to Rule 59(e) for guidance in addressing
those motions to reconsider. Ankeney v. Zavaras, 524
Fed.Appx. 454, 458 (10th Cir. 2013) (stating that, in
considering Rule 54(b) motion to reconsider, “court may
look to the standard used to review a motion made pursuant to
Federal Rule of Civil Procedure 59(e).”).
59(e) movant carries the burden of demonstrating that the
Court should alter or amend a judgment. See, e.g.,
Winchester v. Wilkinson, 2015 WL 2412175, at *2
(E.D. Okla.) (“court finds petitioner has failed to
meet his burden for relief under Fed.R.Civ.P. 59(e)”).
Rule 59(e) relief is appropriate if there is new controlling
law, new evidence not available previously, or a “need
to correct clear error or prevent manifest injustice.”
Ankeney, 524 Fed.Appx. at 458 (quoting Servants
of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000)). The Tenth Circuit has defined clear error as
“an arbitrary, capricious, whimsical, or manifestly
unreasonable judgment.” Wright ex rel. Trust Co. of
Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1236 (10th
Cir. 2001). Although the Tenth Circuit has not precisely
defined “manifest injustice” within the meaning
of Rule 59(e), that term is commonly defined as “[a]
direct, obvious, and observable error in a trial
court....” Black's Law Dictionary (10th ed. 2014).
Furthermore, Rule 59(e) does not allow a losing party to
“revisit issues already addressed or advance arguments
that could have been raised in prior briefing.”
Servants of the Paraclete, 204 F.3d at 1012.
Wellington's FDCPA venue argument is unavailing; she has
failed to show that the venue provision of the FDCPA requires
transfer of MTGLQ's personal judgment action. Here, MTGLQ
brings both a personal judgment claim and a foreclosure claim
in its Complaint. Ms. Wellington contends that because the
personal judgment claim seeks to collect a debt, the venue
provision under the FDCPA requires this Court to transfer the
personal judgment claim to California. In its Memorandum
Opinion and Order (Doc. 97), the Court concluded that Ms.
Wellington alleges sufficient facts to plausibly suggest that
MTGLQ is a debt collector under the principal purposes
definition. (Doc. 97) at 6. Ms. Wellington has not
shown, however, that ...