United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Plaintiff’s Motion
for Summary Judgment, filed November 21, 2018. (Doc. 123).
Pro se Defendant Monica L. Wellington 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.
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
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.
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.
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.
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
The Affidavit in Support of Judgment
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
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.
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. Id.
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.
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.
Summary Judgment Standard
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). 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.
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.
Lack of Diversity Jurisdiction
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