Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ortiz v. New Mexico Federal Savings and Loan Association

United States District Court, D. New Mexico

September 11, 2018

M. DORA LEE ORTIZ FKA M. DORA LEE RIBONI, Plaintiff,
v.
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

          ROBERT C. BRACK SENIOR U.S. DISTRICT JUDGE.

         This 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.[1] 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 described herein.

         On May 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).

         I. Background[2]

         “On 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. (Id.)

         The 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:

         (1) on 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[3]);

         (2) on December 26, 1991, Greenwich Capital Financial, Inc. assigned the deed of trust and mortgage to First Gibraltar Bank, FSB (see Doc. 6-1-D[4]);

         (3) on October 15, 1992, First Gibraltar Bank, FSB assigned the mortgage to First Gibraltar Mortgage Corporation (see Doc. 6-1-E[5]);

         (4) on October 15, 1992, First Gibraltar Mortgage Corporation assigned the mortgage to Bank United of Texas, FSB (see Doc. 6-1-F[6]);

         (5) on 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. 6-1-G[7]); and

         (6) on 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[8]).

         On 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).[9] 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.)

         On 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).)

         Plaintiff 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. ¶¶ 15-16.)

         Plaintiff 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. ¶ 40.)

         Plaintiff 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. ¶ 42.)

         Plaintiff 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).

         II. Legal Standards

         Plaintiff's “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).

         In 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.)

         “[W]hile 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 marks, alterations, and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.