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MTGLQ Investors, LP v. Wellington

United States District Court, D. New Mexico

September 23, 2019



         This matter comes before the Court upon Plaintiff’s Motion for Summary Judgment, filed November 21, 2018. (Doc. 123). Pro se Defendant Monica L. Wellington[1] filed a response on December 7, 2018, and Plaintiff filed a reply on December 18, 2018. (Docs. 135 and 138). Having considered the Motion for Summary Judgment, the accompanying briefing, and the Affidavit in Support of Judgment, (Doc. 123-3) at 3-9, as well as the Complaint for Debt and Money Due and for Foreclosure (Complaint), (Doc. 1-1), and its attached exhibits, the Court grants the Motion for Summary Judgment.

         A. The Complaint

         Plaintiff brings this action to recover amounts due on a Note secured by a Mortgage on a Bernalillo County property purchased by Wellington in February 2007. See (Doc. 1-1) at 8. In Count I, Plaintiff seeks a judgment “for the full outstanding and unpaid amount of the Note, together with any and all intertest, attorney fees and costs.” (Doc. 1-1) at 2, ¶9. In Count II, Plaintiff seeks to foreclose the Mortgage.

         Plaintiff attached a copy of the Note, dated February 20, 2007, to the Complaint. The original lender was Profolio Home Mortgage Corporation (Profolio). (Doc. 1-1) at 8. The Note, signed by Wellington, indicates that the principal is $134, 500 with a yearly interest rate of 5.750%. Id. at 8-10. The Note has attached to it an allonge that contains an indorsement from Profolio payable to the order of Ohio Savings Bank, without recourse. Id. at 11. That indorsement was signed by Baron Wilhelm, “President, ” presumably of Profolio. Id. In addition, the allonge contains a blank indorsement from Ohio Savings Bank which states “pay to the order of, ” without recourse. Id. Christian Flowers, “Authorized Agent” for Ohio Savings Bank, signed that indorsement. Id.

         Plaintiff also attached a copy of the Mortgage, dated February 20, 2007, to the Complaint. Wellington signed the Mortgage, which was recorded in March 2007 in Bernalillo County. Id. at 12-28. The Mortgage indicates that Mortgage Electronic Registration Systems, Inc. (MERS) “is acting solely as a nominee” for Profolio and its “successors and assigns.” Id. at 12. Plaintiff notes that in November 2012 MERS, as nominee for Profolio, “erroneously released” the Mortgage and “erroneously assigned” the Mortgage to JP Morgan Chase Bank, N.A. Id. at 3, ¶¶ 12 and 13.

         On February 19, 2016, MERS, as nominee for Profolio, assigned the Mortgage to Plaintiff. Plaintiff attached a copy of that Assignment of Mortgage to the Complaint. Id. at 45-47. The Assignment of Mortgage was recorded in Bernalillo County in March 2016. Id.

         Plaintiff alleges that Wellington’s last Note payment was applied to the February 1, 2011, scheduled installment. Id. at 2, ¶ 8. Furthermore, Plaintiff alleges that the unpaid principal at that time was $125, 049.37. Id. Plaintiff contends that Wellington also owes interest on that principal accruing from February 1, 2011, as well as late charges, escrows, and advances as provided by the Note and Mortgage. Id.

         B. The Affidavit in Support of Judgment

         Plaintiff submits an affidavit, affirmed under penalty of perjury, by Michael Bennett, an attorney in fact for Plaintiff and assistant vice-president for Rushmore Loan Management Services, LLC (Rushmore). (Doc. 123) at 3, ¶ 1, and at 5. Rushmore services the Note and Mortgage for Plaintiff. Bennett states that “[i]n the regular performance of [his] job functions, ” he is “familiar with business records” Plaintiff or its agent maintains “for the purpose of servicing mortgage loans.” Id. at 3, ¶ 1. Bennett attests that “[t]hese records (which include data compilations, electronically imaged documents, and others) are made at or near the time by, or from information provided by, persons with knowledge of the activity and transactions reflected in such records….” Id. Bennett further attests that he has “personally examined these business records” which “are kept in the course of business activity conducted regularly by Plaintiff or its agent.” Id. According to Bennett, “[i]t is a regular practice of Plaintiff’s or its agent’s mortgage servicing business to make these records.” Id.

         Moreover, Bennett states that the copies of the Note and Mortgage attached to the Complaint are true and correct copies. Id. at 3-4, ¶¶ 2 and 3. In addition, Bennett attests that as of the date Plaintiff filed its Complaint, “Plaintiff was and is now in possession of” the Note executed by Wellington. Id. at 3-4, ¶ 2.

         Bennett also states that the Plaintiff is the assignee of the Mortgage and that the copy of the Assignment of Mortgage attached to the Complaint is a true and correct copy. Id. at 4, ¶ 3. Bennett notes that the Mortgage was originally recorded in March 2007 in Bernalillo County and then re-recorded in September 2016.[2] Id.

         Next, Bennett attests that Wellington is in default on the Note and that in accordance with the Note the unpaid principal of $125, 049.37, accrued interest on that principal, corporate advances, and escrow advances are due and payable immediately. Id. at 4, ¶¶ 4 and 5. Bennett states that as of November 1, 2018, Wellington owed Plaintiff a total of $199, 299.21. Id.

         Bennett attached Exhibit A to his affidavit, which Bennett attests is “[a] true and correct copy of Plaintiff’s business records” he relied upon to calculate the total amount due and owing to Plaintiff. Id. at ¶ 6. Those business records list, by date, various fees and costs Plaintiff has incurred with respect to the subject property as well as the outstanding principal balance and interest owed as of November 1, 2018. Id. at 6-9.

         C. Summary Judgment Standard

         Summary judgment is appropriate if there is no genuine dispute as to a material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).[3] When applying this standard, the Court examines the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Applied Genetics Intl., Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Only then does the burden shift to the non-movant to come forward with evidence showing that there is a genuine issue of material fact. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). An issue of material fact is genuine if a reasonable jury could return a verdict for the non-movant. Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996) (citation omitted). The non-moving party may not avoid summary judgment by resting upon the mere allegations or denials of his or her pleadings. Bacchus Indus., Inc., 939 F.2d at 891.

         D. Discussion

         Plaintiff asserts that the undisputed facts demonstrate that it is entitled to (1) the money Wellington owes under the Note, and (2) foreclose the Mortgage. Wellington, however, attacks the Motion for Summary Judgment on several grounds. The Court addresses Wellington’s objections first.

         1. Wellingtons’ Objections

         a. Lack of Diversity Jurisdiction

         Once more, Wellington argues that the Court lacks diversity jurisdiction over this matter. The Court, however, has addressed this argument and concluded that it, indeed, has ...

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