United States District Court, D. New Mexico
M. DORA LEE ORTIZ FKA M. DORA LEE RIBONI, Plaintiff,
NEW MEXICO FEDERAL SAVINGS AND LOAN ASSOCIATION; JPMORGAN CHASE BANK, N.A.; MORTGAGE ELECTRONIC REGISTRATION SYSTEM “MERS”; and DOES 1 THROUGH 100 INCLUSIVE, ET AL., Defendants.
MEMORANDUM OPINION AND ORDER
C. BRACK SENIOR U.S. DISTRICT JUDGE.
matter is before the Court on Defendant JPMorgan Chase Bank,
N.A.'s Motion to Dismiss and Brief in Support, filed on
January 25, 2018. (Doc. 6.) Jurisdiction arises under 28
U.S.C. §§ 1331 and 1332. Having considered the
submissions of counsel and the relevant law, the Court will
GRANT the motion. The Court will also order
Plaintiff to show cause regarding the remaining Defendants as
2, 1986, Plaintiff M. Dora Lee Ortiz (formerly known as M.
Dora Lee Riboni) and Albert Riboni executed a note for real
property that was secured by a mortgage in the amount of
$104, 800. The original lender of the note and mortgage was
New Mexico Federal Savings and Loan Association (NMFSLA).
Over the next 17 years, the note and mortgage were assigned
to six different entities, ultimately landing with Defendant
JPMorgan Chase Bank, N.A. (Chase). In 2013, Chase instituted
foreclosure proceedings against Plaintiff and Albert Riboni
in New Mexico state court. The state court granted summary
judgment to Chase in 2015, and ordered a foreclosure sale.
Despite the judgment and order, Plaintiff filed suit in state
court in 2017, asserting a variety of claims against NMFSLA,
Chase, Mortgage Electronic Registration System (MERS), and
John Does 1-100. Chase has removed the case to federal court
and now seeks to dismiss Plaintiff's claims pursuant to
Federal Rule of Civil Procedure 12(b)(6).
May 2, 1986, Debtors Albert Riboni and Plaintiff . . .
executed a negotiable promissory note and a security interest
in the form of a mortgage in the amount of $104, 800.”
(See Doc. 1-A-13 (Plaintiff's First Amended
Complaint (FAC) ¶ 24.) “The original lender of the
promissory note and mortgage” was Defendant NMFSLA.
note and mortgage have been assigned to several different
entities over the years. As revealed in Santa Fe County, New
Mexico public records, the assignments include:
June 19, 1991, Resolution Trust Corporation, as receiver for
NMFSLA, assigned the note and mortgage to Greenwich Capital
Financial, Inc. (see Doc. 6-1-C);
December 26, 1991, Greenwich Capital Financial, Inc. assigned
the deed of trust and mortgage to First Gibraltar Bank, FSB
(see Doc. 6-1-D);
October 15, 1992, First Gibraltar Bank, FSB assigned the
mortgage to First Gibraltar Mortgage Corporation
(see Doc. 6-1-E);
October 15, 1992, First Gibraltar Mortgage Corporation
assigned the mortgage to Bank United of Texas, FSB
(see Doc. 6-1-F);
December 1, 2003, Washington Mutual Bank, F.A., successor by
merger to Bank United of Texas, FSB assigned the mortgage to
Washington Mutual Bank, F.A. (see Doc.
February 13, 2013, Federal Deposit Insurance Corporation, as
receiver for Washington Mutual Bank, formerly known as
Washington Mutual Bank, F.A., successor by merger to Bank
United of Texas, FSB, assigned the mortgage to Chase
(see Doc. 6-1-H).
November 7, 2013, Chase filed a foreclosure action against
Plaintiff and Albert Riboni in the First Judicial District
Court, County of Santa Fe, State of New Mexico. JPMorgan
Chase Bank, N.A., v. Riboni, D-101-CV-201302887, Compl.
for Foreclosure (1st Judicial Dist., Santa Fe Cty., N.M. Nov.
7, 2013). In 2014, Chase filed a Motion for Summary
Judgment, Default Judgment, and for Order for Foreclosure
Sale. See id., Mot. for Summ. J. (June 11, 2014).
The state court granted the motion on July 27, 2015. See
id., Summ. J., Default J., & Order for Foreclosure
Sale (July 27, 2015). (See also Doc. 6-J.) The court
made several findings relevant to this case: Chase is
entitled to enforce the note; Chase is the mortgagee of
record; Plaintiff and Albert Riboni failed to make payments
under the terms of the note and mortgage; Chase has a valid
lien against the property described in the mortgage and is
entitled to have the mortgage foreclosed. (See Doc.
6-J at 2, 4-5.)
April 7, 2016, the New Mexico Court of Appeals filed a Notice
of Proposed Summary Disposition in the state case.
Id., Notice Proposed Summ. Disposition (Apr. 7,
2016). (See also Doc. 6-K.) Ms. Ortiz argued to the
appellate court that Chase did not have standing to enforce
the mortgage due to an insufficient chain of indorsements.
(See Doc. 6-K at 2-3.) The appellate court
disagreed, noting that the chain of indorsements, as
presented by Chase and “corroborated by information
available in the public record” (id. at 3),
“constituted a prima facie showing of the Bank's
standing to enforce the promissory note in question.”
(Id. at 2.) Finally, the court noted that Ms. Ortiz
“was able to raise her only apparent defense, lack of
standing, in [a] motion to vacate.” (Id. at
5.) The court found the defense meritless and affirmed the
district court's decision to award Chase summary and
default judgment and an order for a foreclosure sale.
(Id. at 5-6; see also Doc. 6-L (affirming
the Proposed Summary Disposition).)
filed suit in state court on December 8, 2017. (See
Doc. 1-2.) She filed her First Amended Complaint on January
14, 2018. (See FAC.) Chase removed the lawsuit to
this Court on January 18, 2018. (See Doc. 1.)
Plaintiff asserts that Chase does not have standing to
enforce the mortgage. (FAC ¶ 11.) Plaintiff believes
that “Defendants participated in a transactional scheme
whereby a purported Tangible Note is converted/exchanged for
a Payment Intangible asset to provide an alternative
investment offering via Special Deposit to certificate or
bond holders . . . .” (Id. ¶ 13.)
Ultimately, Plaintiff believes that NMFSLA “unlawfully
purported to assign, transfer, or convey its interest in
Plaintiff's Note[, ]” thus Chase does not have a
colorable claim on the mortgage. (Id. ¶¶
questions the employment records of individuals who signed
the different assignments as representatives of the varying
companies. (See Id. ¶¶ 27-39.) Plaintiff
states that she obtained a Forensic Chain of Title
Securitization Analysis, which “indicates that the
Promissory Note may have been converted into a stock as a
permanent fixture.” (Id. ¶¶ 22, 40.)
Plaintiff also asserts that “[t]here is no evidence on
Record to indicate that the Mortgage was ever transferred
concurrently with the purported legal transfer of the Note,
such that the Mortgage and Note has [sic] been irrevocably
separated, thus making a nullity out of the purported
security in [the] property, as claimed.” (Id.
asserts that Defendants have posted public notices of the
foreclosure sale and have posted public notices on her door,
revealing her debt status to others. (Id. ¶
brings eight causes of action against the various Defendants:
(1) lack of standing/wrongful foreclosure against all
Defendants (id. ¶¶ 46-59); (2)
unconscionable contract against Chase and John Does 1-100
(id. ¶¶ 60-67); (3) rescission against all
Defendants (id. ¶¶ 68-72); (4) quiet title
against all Defendants (id. ¶¶ 73-80); (5)
slander of title against all Defendants (id.
¶¶ 81-86); (6) fraud against all Defendants
(id. ¶¶ 87-90); (7) violation of the New
Mexico Fair Debt Collection Practices Act against Chase
(id. ¶¶ 91-94); and (8) declaratory relief
against all Defendants (id. ¶¶ 95-98).
“pro se . . . pleadings are to be construed liberally
and held to a less stringent standard than formal pleadings
drafted by lawyers.” Garrett v. Selby Connor Maddux
& Janer, 425 F.3d 836, 80 (10th Cir. 2005) (citing
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991) (internal citation omitted)). The Court may not,
however, “serv[e] as the litigant's attorney in
constructing arguments and searching the record.”
Id. (citation omitted).
reviewing a motion to dismiss under Rule 12(b)(6), the Court
“must accept all the well-pleaded allegations of the
complaint as true and must construe them in the light most
favorable to the plaintiff.” In re Gold Res. Corp.
Sec. Litig., 776 F.3d 1103, 1108 (10th Cir. 2015)
(citation omitted). “To survive a motion to dismiss,
” the complaint does not need to contain
“detailed factual allegations, ” but it
“must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
Plausibility does not equate to probability, but there must
be “more than a sheer possibility that a defendant has
acted unlawfully.” Id. (citing
Twombly, 550 U.S. at 556.)
ordinarily, a motion to dismiss must be converted to a motion
for summary judgment when the court considers matters outside
the complaint, see Fed. R. Civ. P. 12(d), matters
that are judicially noticeable do not have that effect,
see Duprey v. Twelfth Judicial Dist. Court, 760
F.Supp.2d 1180, 1192-93 (D.N.M. 2009) . . . .”
Genesee Cty. Emps.' Ret. Sys. v. Thornburg Mortg.
Sec. Tr. 2006-3, 825 F.Supp.2d 1082, 1122 (D.N.M. 2011)
(internal citation omitted).
Ordinarily, consideration of material attached to a
defendant's answer or motion to dismiss requires the
court to convert the motion into one for summary judgment and
afford the parties notice and an opportunity to present
relevant evidence. However, facts subject to judicial notice
may be considered in a Rule 12(b)(6) motion without
converting the motion to dismiss into a motion for summary
judgment. This allows the court to take judicial notice of
its own files and records, as well as facts which are a
matter of public record. However, the documents may only be
considered to show their contents, not to prove the truth of
matters asserted therein.
Id. at 1122-23 (quoting Tal v. Hogan, 453
F.3d 1244, 1264 n.24 (10th Cir. 2006) (internal quotation
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