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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 Defendants PennyMac Mortgage Investment Trust Holdings I, LLC; PennyMac Loan Services, LLC; and PennyMac Corp.'s (collectively, PennyMac) Dismissal Motion, filed June 26, 2019. (Doc. 5). Pro se Plaintiff did not respond to the Dismissal Motion. Having reviewed the Dismissal Motion and the Complaint for Wrongful Foreclosure (Complaint) (Doc. 1-2), the Court grants the Dismissal Motion.

         A. Procedural History

         In June 2007, Plaintiff entered into a Loan and Mortgage agreement with Decision One Mortgage Investment Company (Decision One) with respect to property in Placitas, New Mexico. (Doc. 1-2) at ¶ 40. In September 2013, PennyMac Mortgage Investment Trust Holdings, LLC, a subsequent holder of the Note and assignee of the Mortgage, filed a complaint in the Sandoval County District Court to foreclose on Plaintiff's 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 to PennyMac Loan Services, LLC and executed a Special Master's Deed in favor of PennyMac Loan Services, LLC. (Doc. 5-1) at 81-84.

         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, PennyMac removed that state lawsuit to federal court. (Doc. 1). In addition to suing PennyMac, Plaintiff sued Weinstein & Riley, P.S. (Weinstein & Riley), a law firm that represented PennyMac in the state foreclosure action, as well as Does 1-50, inclusive.

         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 against Defendants;
• Ninth Cause of Action: quiet title claim brought against Defendants;
• Tenth Cause of Action: declaratory relief claim brought against Defendants;
• Eleventh Cause of Action: Truth in Lending Act (TILA) claim brought against Defendants; and
• Twelfth Cause of Action: Real Estate Settlement and Procedures Act (RESPA) claim brought against Defendants.

         PennyMac now moves for dismissal of all causes of action brought against it under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.

         B. Standard of Review

         As an initial matter, the Court notes that “[a] pro se litigant must ‘follow the same rules of procedure that govern other litigants.'” Mayfield v. Presbyterian Hosp. Admin., 772 Fed.Appx. 680, 685 (10th Cir. 2019) (citation omitted). The Federal Rules of Civil Procedure require that a complaint must be “plausible on its face” or else face dismissal under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). To be plausible, the complaint must include well-pleaded facts that, taken as true, “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Rule 12(b)(6) requires that a complaint set forth the grounds of a plaintiff's entitlement to relief through more than labels, conclusions and a formulaic recitation of the elements of a cause of action. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In ruling on a Rule 12(b)(6) motion to dismiss, the Court must view the well-pleaded facts in the light most favorable to the plaintiff. See Zinermon v. Burch, 494 U.S. 113, 118 (1990); Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984).

         C. Discussion

         PennyMac raises multiple reasons for dismissing Plaintiff's claims against it under Rule 12(b)(6). The Court ...


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