United States District Court, D. New Mexico
PETE D. SALAZAR, Plaintiff,
PENNYMAC MORTGAGE INVESTMENT TRUST HOLDINGS I, LLC; PENNYMAC LOAN SERVICES, LLC; PENNYMAC CORP.; WEINSTEIN & RILEY, P.S., AND DOES 1 THROUGH 50, INCLUSIVE, Defendants.
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Defendant Weinstein &
Riley, P.S.'s Motion to Dismiss (Motion to Dismiss),
filed on July 5, 2019. (Doc. 7). Pro se Plaintiff
did not respond to the Motion to Dismiss. Having considered
the Motion to Dismiss and the Complaint for Wrongful
Foreclosure (Complaint) (Doc. 1-2), the Court grants the
Motion to Dismiss.
September 2013, PennyMac Mortgage Investment Trust Holdings
I, LLC filed a complaint in the Sandoval County District
Court to foreclose on Plaintiff's Placitas property.
PennyMac Mortgage Investment Trust Holdings I, LLC v.
Salazar, D-1329-CV-201301730. In July 2015, the state
district court denied a motion to dismiss, granted summary
judgment in favor of PennyMac Mortgage Investment Trust
Holdings I, LLC, and entered a decree of foreclosure. (Doc.
5-1) at 60, 63. Plaintiff, represented by counsel,
appealed the summary judgment, which the New Mexico Court of
Appeals subsequently upheld in January 2016. 2016 WL 59044
(N.M. Ct. App.). A court-appointed Special Master sold the
property in April 2017. (Doc. 5-1) at 84.
now pro se, filed a motion to set aside the judgment
and to vacate the sale of the property. Id. at
88-108. The state district court denied the motion and
Plaintiff appealed the denial to the New Mexico Court of
Appeals in October 2017. Id. at 125, 128. In July
2018, the New Mexico Court of Appeals dismissed the appeal as
untimely. 2018 WL 3869561 (N.M. Ct. App.). Plaintiff then
sought a petition for writ of certiorari in the New Mexico
Supreme Court, which the New Mexico Supreme Court denied in
October 2018. (Doc. 5-1) at 138-39. In April 2019, the state
district court issued a writ of assistance to allow PennyMac
Mortgage Investment Trust Holdings I, LLC to take possession
of the subject property after May 20, 2019. Id. at
16, 2019, Plaintiff filed this lawsuit in state court. (Doc.
1-2). On June 5, 2019, Defendants PennyMac Mortgage
Investment Trust Holdings I, LLC; PennyMac Loan Services,
LLC; and PennyMac Corp. (collectively, PennyMac) removed that
state lawsuit to federal court. (Doc. 1).
addition to suing PennyMac, Plaintiff is suing Weinstein
& Riley, P.S. (Weinstein & Riley), a law firm that
represented PennyMac in the state foreclosure action.
Plaintiff alleges that Weinstein & Riley “failed to
first perform a reasonable investigation before filing their
foreclosure complaint.” (Doc. 1-2) at ¶ 18.
Plaintiff contends that a reasonable investigation would have
revealed that the foreclosure lawsuit wrongfully sought
“more that [sic] was truly owed.” Id. at
¶ 15. Finally, Plaintiff is suing Does 1-50, inclusive,
who are “in some manner liable to Plaintiff, or claim
some right, title, or interest in the Property.”
Id. at ¶ 20.
brings 12 causes of action:
• First Cause of Action: lack of standing to foreclose
claim brought against Defendants;
• Second Cause of Action: fraud in the concealment claim
brought against Defendants;
• Third Cause of Action: fraud in the inducement claim
brought against Defendants;
• Fourth Cause of Action: New Mexico Unfair Practices
Act (UPA) claim brought against Weinstein & Riley;
• Fifth Cause of Action: breach of contract and breach
of the covenant of good faith and fair dealing claims brought
• Sixth Cause of Action: Fair Debt Collections Practices
Act (FDCPA) claim brought against Weinstein & Riley;
• Seventh Cause of Action: intentional infliction of
emotional distress claim brought against Defendants;
• Eighth Cause of Action: slander of title claim brought