Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

MTGLQ Investors, LP v. Wellington

United States District Court, D. New Mexico

December 20, 2019

MTGLQ INVESTORS, LP, Plaintiff,
v.
MONICA L. WELLINGTON, Defendant.

          MEMORANDUM OPINION AND ORDER

         This matter comes before the Court upon pro se Defendant Monica L. Wellington's (Wellington) Objections to Proposed Judgment & Foreclosure Decree (Objections), filed November 7, 2019. (Doc. 198). On December 10, 2019, Plaintiff filed a response. (Doc. 201). Having considered the Objections and the response, the Court sustains the Objections, in part, as described herein and will enter a Judgment of Foreclosure and Sale, and Appointment of Special Master based substantially on Plaintiff's proposed “Summary and Default Judgment, Decree of Foreclosure, and Appointment of Special Master” (Doc. 192).

         A. Background

         Plaintiff brought this foreclosure action against Wellington; The Monica L. Wellington Declaration of Trust Dated December 28, 2007; Altura Village Homeowners' Association, Inc.; JP Morgan Chase Bank, N.A.; and Wellington's unknown spouse.[1] (Doc. 1-1). On June 22, 2018, the Court dismissed Plaintiff's claims against Wellington's unknown spouse. (Doc. 83). On August 21, 2018, the Court entered a Stipulated Judgment Foreclosing the Interest of JP Morgan Chase Bank, N.A. (Doc. 100). Then, on July 22, 2019, the Court entered default foreclosure judgments in favor of Plaintiff and against The Monica L. Wellington Declaration of Trust Dated December 28, 2007, and Altura Village Homeowners' Association, Inc. (Doc. 169). Finally, on September 23, 2019, the Court entered summary judgment in favor of Plaintiff and against Wellington, thereby entitling Plaintiff “to foreclose on the property which is the subject of the Note and Mortgage at issue in this foreclosure action.” (Doc. 179).

         Also, on September 23, 2019, the Court ordered Plaintiff to prepare a proposed judgment of foreclosure and sale, including an appointment of a special master. (Doc. 178) at 16. The Court provided Wellington an opportunity to object to the proposed judgment of foreclosure and sale, and provided Plaintiff an opportunity to respond to those objections. Id. Wellington, in fact, filed Objections to Plaintiff's proposed “Summary and Default Judgment, Decree of Foreclosure, and Appointment of Special Master” and Plaintiff responded to those Objections. (Docs. 198 and 201).

         B. Wellingtons' Objections

         1. First Objection

         Wellington contends that the Court “simply skipped over” the issue that no evidence supports Plaintiff's allegation that MERS erroneously released the Mortgage to JP Morgan Chase Bank, N.A. (Doc. 198) at 1 n. 1. The Court, however, addressed that precise issue in its Memorandum Opinion and Order granting Plaintiff's motion for summary judgment. (Doc. 178) at 6-8. The first objection, therefore, lacks merit and is overruled.

         2. Second Objection

         Wellington objects to Plaintiff's claims for attorney fees ($14, 204.65) and attorney costs ($971.54), citing Fed.R.Civ.P. 54(d)(2)(A). See (Doc. 192) at 2, ¶ 4. Rule 54(d)(2)(A) provides that “[a] claim for attorney's fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages.” Wellington argues that Rule 54(d)(2)(A), thus, requires Plaintiff to file a motion to seek an award of the attorney fees and attorney costs. Plaintiff concedes that it must file such a motion and “agrees to remove its attorney fees and costs from the form of judgment, and will submit its separate motion within the timelines outlined in the Federal Rules of Civil Procedure.” (Doc. 201) at 2. Hence, Wellington's objection to Plaintiff's claims for attorney fees and attorney costs is now moot.

         3. Third Objection

         Wellington objects to Plaintiff's claims for corporate advances ($760.22 for property inspections and property preservation) and escrow advances ($17, 694.95 for hazard insurance and taxes). (Doc. 192) at 2, ¶ 4. Wellington also objects to Plaintiff's claim for any future “property taxes and insurance premiums” that “Plaintiff will be required to pay prior to termination of this action….” Id. at 3, ¶ B. Wellington contends that Plaintiff has not provided any evidentiary support for the above claims.

         As Plaintiff notes, it submitted a sworn affidavit by Michael Bennett in support of its motion for summary judgment in which Bennett stated that Wellington owed Plaintiff corporate advances of $760.22 and escrow advances of $17, 694.95, the amount of the advances Plaintiff now claims. (Doc. 123-3) at ¶ 5. In her response to Plaintiff's motion for summary judgment, Wellington attacked the affidavit for the following reasons: (1) Plaintiff did not disclose Bennett as a witness; (2) the affidavit was ambiguous and conclusory; and (3) the affidavit contained inadmissible hearsay. (Doc. 135) at 7-10. Wellington, however, did not specifically attack the accuracy of the amounts of the corporate and escrow advances Bennett provided.

         The Court subsequently rejected Wellington's attacks on Bennett's affidavit and found the affidavit was admissible. (Doc. 178) at 8-14. Therefore, the Court accepts the affidavit as providing evidentiary support for Plaintiff's claims for corporate and escrow advances.

         In addition, Plaintiff asserts that Wellington waived any objection to the amounts of the corporate and escrow advances because her response to Plaintiff's motion for summary judgment did not contest the accuracy of the amounts of those advances in Bennett's affidavit. The Court finds merit in that argument as well. See In re Jack's Const., Inc., 2011 WL 1321386, at *4 n.3 (Bankr. D.N.M) (observing that “[g]enerally, unless a nonmovant moves to strike or files a formal objection that details the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.