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Salazar v. PennyMac Mortgage Investment Trust Holdings I, LLC

United States District Court, D. New Mexico

September 17, 2019

PETE D. SALAZAR, Plaintiff,
v.
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

         This 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.

         A. Procedural History

         In 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.

         Plaintiff, 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 141, 143.

         On May 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).

         In 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.

         Plaintiff 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 against PennyMac;
• 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 ...

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