Bank of Am., N.A. v. Lebreton
| Decision Date | 20 April 2015 |
| Docket Number | No. CIV 14-0319 JB/KBM,CIV 14-0319 JB/KBM |
| Court | U.S. District Court — District of New Mexico |
| Parties | BANK OF AMERICA, N.A., Plaintiff, v. LAURENCE LISA LEBRETON; MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC., as Nominee for America's Wholesale Lender; and FNU LNU, Unknown Tenant (Real Name Unknown), Defendants. |
THIS MATTER comes before the Court on: (i) the Defendant's Motion to Dismiss Pursuant to NMRA 1-012(A) and Fed. R. Civ. P. 12(b)(6), filed April 25, 2014 (Doc. 4) ("MTD");2 (ii) the Verified Motion for a More Definite Statement and Joinder, filed July 11, 2014 (Doc. 25)("Motion for More Definite Statement"); (iii) the Verified Motion to StrikeDefendants [sic] Motion to Dismiss Pursuant to NMRA 1-012(A) and Fed. R. Civ. P. 12(b)(6) with Memorandum of Objection, filed July 11, 2014 (Doc. 26)("1st Motion to Strike"); (iv) the Notice of Motion and Verified Motion to Strike Documents 28, 29, 30, 31 BANA's Opposition to Motion to Strike Et Al, Motion to Dismiss for Promissory Estoppel, Breach of Contract, Unclean Hands, Rule 7 Violations, Lack of First Hand Knowledge, filed August 11, 2014 (Doc. 32)("2nd Motion to Strike"); and (v) the Notice of Motion and Motion to Strike Request for Status Conference as Motion for Status Conference, filed August 22, 2014 (Doc. 34)("3rd Motion to Strike"). The Court held a hearing on March 18, 2015. The primary issues are: (i) whether the Court has original -- either federal-question or diversity -- jurisdiction over this case; (ii) whether, if the Court has original jurisdiction, Defendant Lisa Lebreton's noncompliance with three different removal rules -- the thirty-day limitation, the one-year limitation, and the forum-defendant rule -- deprives the Court of subject-matter jurisdiction; (iii) whether the Court should dismiss Lebreton's Counter Claim, filed April 3, 2014 (Doc. 1-2 at 8-14), where the Counter Claim was not alleged in one of the enumerated pleadings in rule 7(a) of the Federal Rules of Civil Procedure and appears to be composed of a patchwork of various judicial opinions; (iv) whether the Court should, under rule 12(e), order Plaintiff Bank of America, N.A. to provide a more definite statement of its MTD; (v) whether the Court should strike the MTD under rule 12(f); and (vi) whether the Court should set a status conference in this case. As to the first issue, the Court doubts that it has original jurisdiction over this case, but those doubts are based on materials outside the record, and the Court will therefore give the parties an opportunity to make their case. The Court will order the parties to adduce evidence establishing original jurisdiction within the next seven days or else it will remand the case to state court. As to the second issue, assuming that the Court has original jurisdiction, Lebreton'snoncompliance with the three removal rules will not strip the Court of that jurisdiction. The thirty-day limitation on removal, the one-year limitation on removal, and the forum-defendant rule are all procedural, and not jurisdictional. As to the third issue, because the Counter Claim is improperly pled by federal standards, the Court will dismiss it without prejudice to Lebreton amending her Answer, No. D-101-CV-2012-00267 (N.M. Dist. Ct. July 18, 2012), to reassert the counterclaim at a later date. The Court will thus grant the MTD. As to the fourth issue, because motions for a more definite statement under rule 12(e) are properly directed at pleadings -- and not at motions like the MTD -- the Court will not require Bank of America to formulate the MTD into a more definite statement. The Court will thus deny the Motion for More Definite Statement. As to the fifth issue, because the Court interprets the word "pleading" in rule 12(f) as applying only to the documents enumerated in rule 7(a), the Court will not strike the MTD, which is a motion rather than a pleading. The Court will thus deny the 1st Motion to Strike in full, the 2nd Motion to Strike in full, and the 3rd Motion to Strike in part. As to the sixth issue, because the Court has broad discretion to manage its docket and because the Court finds status conferences helpful to it and the parties in achieving efficient, fair case resolution, the Court will schedule a status conference. The Court thus grants the 3rd Motion to Strike in part.
This case is a foreclosure action that mortgagee Bank of America has brought against mortgagor Lebreton. The Court takes its facts from the Complaint for Foreclosure, filed April 3, 2014 (Doc. 1-1)("Complaint"), as it must at the motion-to-dismiss stage, see Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) . On March 30, 2006, Lebreton executed and delivered to Countrywide Bank, N.A., an adjustable rate note in the principal sum of $378,400.00, bearing interest at the initial variable rate of 7.1250% (the "Note"). Complaint ¶ 5, at 2.3 As security for the Note, Lebreton mortgaged her property at 810 East Palace Avenue, Unit C, Santa Fe, New Mexico. See Complaint ¶¶ 6, 9, at 2. The Note contains a provision allowing for reasonable attorneys' fees should the mortgage need to be turned over to an attorney for debt collection. See Complaint ¶ 11, at 3. Countrywide Bank assigned the mortgage to Bank of America, successor by merger to BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing LP through an assignment of mortgage dated September 27, 2011, and recorded on October 11, 2011, as document number 1647618, in the records of Santa Fe County. See Complaint ¶ 7, at 2.
Lebreton defaulted on the Note and, despite Bank of America's demands, has failed to cure the default. See Complaint ¶ 10, at 3. Bank of America exercised its option under the Note to accelerate the Note's outstanding balance, and all other amounts due and owing on the Note as of the date of default, and to foreclose the mortgage. See Complaint ¶ 10, at 3. As of January 13, 2012, Lebreton owes: (i) a principal balance of $387,200.26; plus (ii) interest accruing on said amount at variable rates from and including April 1, 2011, through and including January 13, 2012, in the amount of $10,552.10, and thereafter accruing at the current variable rate of 3.3750%; plus (iii) estimated late charges through January 13,2012, in the amount of $174.72; plus (iv) estimated escrow advances through January 13,2012, in the amount of $609.09; plus (v) all other attorneys' fees and other costs that Bank of America sustains in recovering its interests. See Complaint ¶ 19, at 4-5. Costs (i) through (iv) add up to a total of $398,536.17, andBank of America additionally asserts that it has been required to employ counsel "to obtain real estate searches and reports on the premises and has incurred abstracting expenses and costs in this proceeding, all of which are additional indebtedness" that the mortgage secures. Complaint ¶ 18, at 4.
Bank of America states that Defendant Mortgage Electronic Registration Services, Inc. "claims or may claim an interest in the property subject to this action pursuant to a Mortgage (Line of Credit) dated March 30, 2006, and recorded on March 31, 2006, as document number 1426683 and re-recorded on April 4, 2006, as document number 1427389, in the Santa Fe County Records," but that "[s]aid interest is subordinate and inferior to that of Plaintiff, and should be foreclosed herein." Complaint ¶ 14, at 3-4. It further states that, "[t]o the extent that any claim of interest or lien of any Defendants or other party is determined by the Court to be valid," all such claims are inferior and subordinate to Bank of America's lien and interest, and that Bank of America is entitled to have its mortgage lien determined to be a "first and prior" lien upon the property, superior to the rights of all others. Complaint ¶ 16, at 4.
Bank of American filed its Complaint in the First Judicial District Court, County of Santa Fe, State of New Mexico, on January 20, 2012. See Complaint at 1. It seeks a judgment against Lebreton for the principal amount due, plus interest at the variable rate of 3.3750% until all principal and interest are paid, plus such additional sums and amounts as Bank of America may have expended in payment for taxes and insurance, if any, and plus other costs and expenses that Bank of America has been required to pay concerning these proceedings, plus an amount to be ascertained by the Court for reasonable attorneys' fees, plus an amount sufficient to pay all costs of collection in accordance with the Note's provisions through the foreclosure sale date. SeeComplaint ¶ A, at 5. It also requests that the Court foreclose its mortgage lien and sell the property, so that the proceeds can be applied to the payment of the judgment amount. See Complaint ¶ B, at 5. It further asks that the Court appoint: (i) a receiver to take possession of the property and manage it before the sale; and (ii) a special master to manage the sale itself. See Complaint ¶¶ C-D, at 6. Last, it asks for an "Order of Forcible Entry" and an order stating that Bank of America can, itself, be a purchaser at the special master's sale of the property. Complaint ¶¶ E-F, at 6.
For reasons that are not clear, there were two cases relating to this dispute in state court, Bank of America v. Lebreton, No. D-101-CV-201200267 (N.M. Dist. Ct. Jan. 20, 2012) (Thomson, J.), and Bank of America v. Lebreton, No. D-101-CV-201402175 (N.M. Dist. Ct. Oct. 1, 2014)(Thomson, J.), the latter of which was formally removed to federal court and the former of which was dismissed on April 6, 2015, which was three days after the first case's removal. Lebreton defended both cases largely pro se and continues to proceed pro se...
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