United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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).
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. (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).
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).
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.
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.
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.
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.
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.
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