MTGLQ Investors, LP v. Wellington et al

Filing 275

ORDER by District Judge Kenneth J. Gonzales granting 273 MTGLQ Investors, LP's Motion for Writ of Assistance. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MTGLQ INVESTORS, LP,
Plaintiff,
vs.

Case No. 17-CV-487-KG-LF

MONICA L. WELLINGTON,
Defendant.
ORDER GRANTING MOTION
This matter is before the Court on Plaintiff MTGLQ Investors, LP’s Motion for Writ of
Assistance (Doc. 273), seeking to evict any occupants from the property which has been the
subject of this mortgage foreclosure case. Defendant Monica Wellington responded in
opposition. (Doc. 274). The Court, being fully advised and determining that a reply would not
aid its adjudication of the matter, grants the Motion.
A preliminary note: the Court previously entered final judgment and closed this case,
(Doc. 272), but it agrees with MTGLQ that it nonetheless maintains jurisdiction to enforce the
judgment, see (Doc. 273) at 1. “While a district court's jurisdiction typically ends when a case is
closed and judgment entered, a district court retains ancillary jurisdiction to manage its
proceedings, vindicate its authority, and effectuate its decrees.” FDIC v. Harger, No. 89-CV0237 JB/RLP, 2009 WL 1232087, *2 (D.N.M. Apr. 27, 2009), vacated on other grounds by 778
F. Supp. 2d 1123 (D.N.M. 2011) (citing Jenkins v. Kan. City Mo. Sch. Dist., 516 F.3d 1074, 1081
(8th Cir. 2008)).
MTGLQ brought its Motion under Federal Rule of Civil Procedure 70. Rule 70(d) states,
“[o]n application by a party who obtains a judgment or order for possession, the clerk must issue

a writ of execution or assistance.” Ms. Wellington argues that the Court has no authority to issue
the writ because no “‘judgment or order for possession’ has ever been issued.” (Doc. 274) at 1.
She cites no authority for this narrow interpretation of the Rule and the Court is unpersuaded by
frivolous procedural objections while rightful transfer of the underlying property has been
delayed for years.
By the time MTGLQ sought the Writ of Assistance, this Court had entered a Judgment of
Foreclosure and Sale (Doc. 204), MTGLQ purchased the property at auction (Doc. 254), a sale
which this Court approved (Doc. 257)—and which the Tenth Circuit affirmed (Doc. 271)—in an
Order which granted to MTGLQ a deed which entitled it to “immediate possession of the real
property,” subject only to the redemption period which has long expired, (Doc. 257) at 1. Thus,
MTGLQ is entitled to possession of the property, and also entitled to a writ of assistance to
enforce its previously adjudicated right to possession. See, e.g., United States v. Young, 806 F.2d
805, 807 (8th Cir.1986) (affirming the issuance of a writ of assistance to put a purchaser in
possession after a foreclosure sale because the purchaser was clearly entitled to possession of the
property), cert. denied, 484 U.S. 836 (1987).
The Court, therefore, grants the Motion. Writ of Assistance to follow.
IT IS SO ORDERED.

____________________________________
UNITED STATES DISTRICT JUDGE

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