Moya v. Wells Fargo Bank, N.A., CIV 18-0104 JB\JHR
| Decision Date | 29 June 2018 |
| Docket Number | No. CIV 18-0104 JB\JHR,CIV 18-0104 JB\JHR |
| Citation | 328 F.Supp.3d 1232 |
| Parties | Cynthia MOYA, guardian ad litem, Plaintiff, v. WELLS FARGO BANK, N.A., as Trustee, f/b/o holders of Structured Asset Mortgage Investments II Trust 2007-AR4, Mortgage Pass-Through Certificates, Series 2007-AR4, including all appurtenances and improvements thereto; Select Portfolio Servicing, Inc.; 3316 22nd Ave, S.E., Rio Rancho Estates, Unit 16; APN: 1-013-067-081-112, including all appurtenances and improvements thereto; Lot 28 in Block 21 of Rio Rancho Estates, Unit 16, a subdivision in the City of Rio Rancho, New Mexico, including all appurtenances and improvements thereto, and Deed of Trust No. 78809, Defendants. |
| Court | U.S. District Court — District of New Mexico |
Cynthia Moya, Corrales, New Mexico, Plaintiff pro se
Charlie S. Baser, Jordan L. Kessler, Larry J. Montano, Holland & Hart, LLP, Santa Fe, New Mexico, Attorneys for the Defendants
THIS MATTER comes before the Court on: (i) the Magistrate Judge's Proposed Findings and Recommended Disposition, filed May 31, 2018 (Doc. 18)("PFRD"); and (ii) the Defendants Wells Fargo Bank, N.A., and Select Portfolio Servicing, Inc.'s Motion to Dismiss, filed February 7, 2018 (Doc. 4)("Motion to Dismiss"). Because the Court concludes that the PFRD is not clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion, the Court will adopt the PFRD. Accordingly, the Court will dismiss with prejudice Plaintiff Cynthia Moya's Presentment in for Adverse Claim of Possession, filed in state court on January 5, 2018, filed in federal court February 1, 2018 (Doc. 1-1)("Complaint").
Moya filed the Complaint in the Thirteenth Judicial District, County of Sandoval, State of New Mexico, on January 5, 2018. See Complaint at 4. As "affirmative relief," Moya requests possession of certain real property. See Complaint at 7. The Defendants assert that they are the holders of the Note and mortgage on the property at issue, and the loan servicing company. See Defendants Wells Fargo Bank N.A. and Select Portfolio Servicing Inc.'s Notice of Removal Pursuant to 28 U.S.C. § 1441 at 1, filed February 1, 2018 (Doc. 1)("Notice of Removal"); Affidavit of Kajay Williams in Support of Wells Fargo's Motion for Summary Judgment on All of the Claims and Defenses Asserted in this Lawsuit ¶¶ 6-17, at 2, (dated June 5, 2015), filed February 1, 2018 (Doc. 1-3)("Williams Aff."). The Defendants removed the case to federal court on February 1, 2018. See Notice of Removal at 1. Soon thereafter, the Defendants filed their Motion to Dismiss. See Motion to Dismiss at 1. The Defendants argue that the Court should dismiss Moya's claim because she has not established the elements of adverse possession under New Mexico law. See Motion to Dismiss at 4-5.
The Honorable Jerry H. Ritter, United States Magistrate Judge for the United States District Court for the District of New Mexico, reviewed this case and entered his PFRD on May 31, 2018. See PFRD at 1. Moya thereafter filed a letter to the Court explaining that she has been "unable to work or reply to the Court in a timely manner" due to health problems and "now enter[s] this Motion for Default and request for Order for Default." Letter from Moya to the Court at 1 (dated June 6, 2018), filed June 7, 2018 (Doc. 19)("Letter"). Moya did not object to Magistrate Judge Ritter's PFRD. This matter is now ripe for the Court's resolution.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). "This court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Smith v. United States, 561 F.3d 1090, 1096.
"Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’ " Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012). Here, a statute governs the claim at issue -- adverse possession. See N.M. Stat. Ann. § 37-1-22. Under this statute, "[a]dverse possession is defined as ‘an actual and visible appropriation of land, commenced and continued under a color of title and claim of right inconsistent with and hostile to the claim of another," City of Rio Rancho v. Amrep Southwest, Inc., 2011-NMSC-037, ¶ 21, 150 N.M. 428, 260 P.3d 414 (quoting N.M. Stat. Ann. § 37-1-22 ), for a period of ten years, see N.M. Stat. Ann. 37-1-22. "The burden of proving adverse possession is on the party asserting it, and it must be proven by clear and convincing evidence." Board of Trustees of the Tecolote Land Grant v. Griego, 2005-NMCA-007, ¶ 7, 136 N.M. 688, 104 P.3d 554, 557 (citation omitted). Thus, "[a] party claiming ownership of land by adverse possession must prove by clear and convincing evidence continuous adverse possession for ten years under color of title, in good faith, and payment of taxes on the property during these years." Williams v. Howell, 1989-NMSC-009, ¶ 10, 108 N.M. 225, 770 P.2d 870, 872. "If any one of the necessary elements required to establish title by adverse possession is lacking, title by adverse possession cannot be proven." Slemmons v. Massie, 1984-NMSC-108, ¶ 6, 102 N.M. 33, 690 P.2d 1027, 1028.
District courts may refer dispositive motions to a Magistrate Judge for a recommended disposition. See Fed. R. Civ. P. 72(b)(1) (). Rule 72(b)(2) governs objections: "Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations." Finally, when resolving objections to a Magistrate Judge's proposal, Fed. R. Civ. P. 72(b)(3). Similarly, 28 U.S.C. § 636 provides:
A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.
28 U.S.C. § 636(b)(1).
" ‘The filing of objections to a magistrate's report enables the district judge to focus attention on those issues -- factual and legal -- that are at the heart of the parties' dispute.’ " United States v. One Parcel of Real Prop., With Bldgs., Appurtenances, Improvements, and Contents, 73 F.3d 1057, 1059 (10th Cir. 1996) (" One Parcel")(quoting Thomas v. Arn, 474 U.S. 140, 147, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ). As the United States Court of Appeals for the Tenth Circuit has noted, "the filing of objections advances the interests that underlie the Magistrate's Act[, 28 U.S.C. §§ 631 - 639 ], including judicial efficiency." One Parcel, 73 F.3d at 1059 (citing Niehaus v. Kan. Bar Ass'n, 793 F.2d 1159, 1165 (10th Cir. 1986) ; United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981) ).
The Tenth Circuit held "that a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." One Parcel, 73 F.3d at 1060. "To further advance the policies behind the Magistrate's Act, [the Tenth Circuit], like numerous other circuits, have adopted ‘a firm waiver rule’ that ‘provides that the failure to make timely objections to the magistrate's findings or recommendations waives appellate review of both factual and legal questions.’ " One Parcel, 73 F.3d at 1059 (citations omitted). In addition to requiring specificity in objections, the Tenth Circuit has stated that "[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived." Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). See United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (). In an unpublished opinion, the Tenth Circuit stated that "the district court correctly held that [a petitioner] had waived [an] argument by failing to raise it before the magistrate." Pevehouse v. Scibana, 229 F. App'x 795, 796 (10th Cir. 2007) (unpublished).1
In One Parcel, the Tenth Circuit, in accord with other Courts of Appeals, expanded the waiver rule to cover objections that are timely but too general. See One Parcel, 73 F.3d at 1060. The Supreme Court of the United States of America -- in the course of approving the United States Court of Appeals for the Sixth Circuit's use of the waiver rule -- noted:
It does not appear that Congress intended to require district...
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