MTGLQ Investors, LP v. Wellington et al

Filing 44

ORDER by Magistrate Judge Laura Fashing denying without prejudice 36 Motion for Service by Publication. (ccp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MTGLQ INVESTORS, LP,
Plaintiff,
vs.
MONICA L. WELLINGTON, THE MONICA L.
WELLINGTON DECLARATION OF TRUST
DATED DECEMBER 28, 2007, ALTURA VILLAGE
HOMEOWNERS' ASSOCIATION, INC., JP MORGAN
CHASE BANK, N.A., AND THE UNKNOWN SPOUSE
OF MONICA L. WELLINGTON,

1:17-cv-00487-KG-LF

Defendant,
and
MONICA WELLINGTON,
Counter Claimant,
v.
WEINSTEIN & RILEY, P.S., ELIZABETH V.
FRIEDENSTEIN, RUSHMORE LOAN MANAGEMENT
SERVICES, LLC, JP MORGAN CHASE BANK, N.A.,
PROFOLIO HOME MORTGAGE CORPORATION,
MTGLQ INVESTORS, LP,
Counter Defendants.
ORDER DENYING MOTION FOR SERVICE
BY PUBLICATION WITHOUT PREJUDICE
THIS MATTER is before the Court on Plaintiff’s Motion for Service by Publication and
Certification Regarding Due Diligence, filed on August 23, 2017. Doc. 36. In the motion,
plaintiff asks the Court for an order granting permission to serve by publication defendants “The
Monica L. Wellington Declaration of Trust dated December 28, 2007” and The Unknown
Spouse of Monica L. Wellington. Id. at 1. Defendant JP Morgan Chase Bank, N.A. concurred in

the motion. Id. Defendant Monica L. Wellington filed a response in opposition to the motion.
Doc. 40. Plaintiff filed a reply. Doc. 41. The Court, having reviewed the parties’ submissions
and the relevant law, and being otherwise fully advised, finds the motion is not well taken, and it
will be denied without prejudice.
Under the Federal Rules of Civil Procedure, a person may be served in a judicial
district in the United States by:
(1) following state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the district court is located
or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the
individual personally;
(B) leaving a copy of each at the individual's dwelling or usual
place of abode with someone of suitable age and discretion who
resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
FED. R. CIV. P. 4(e).
Thus, in this case, service can be made by following the laws of service for New Mexico,
where this Court is located, or by following the laws of service of the state in which the unserved
defendants reside. The Court will apply the laws of service for New Mexico. New Mexico’s
rules governing service allow for both personal service and service “by mail or commercial
courier service provided that the envelope is addressed to the named defendant and further
provided that the defendant or a person authorized by appointment, by law or by this rule to
accept service of process upon the defendant signs a receipt for the envelope or package
containing the summons and complaint.” Rule 1-004(E)(3), (F)(1) NMRA. If personal service
and service by mail are unsuccessful, service may be made by “delivering a copy of the process
to some person residing at the usual place of abode of the defendant who is over the age of

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fifteen (15) years and mailing by first class mail to the defendant at the defendant’s last known
mailing address a copy of the process” or by “delivering a copy of the process at the actual place
of business or employment of the defendant to the person apparently in charge thereof and by
mailing a copy of the summons and complaint by first class mail to the defendant at the
defendant’s last known mailing address and at the defendant’s actual place of business or
employment.” Rule 1-004(F)(1)–(2) NMRA.
If neither personal service nor service by registered mail is successful, New Mexico’s
laws of service also allow service to be made by “delivering a copy of the process at the actual
place of business or employment of the defendant.” See Rule 1-004(F)(3) NMRA. Service on
an individual trustee is governed by the same rules of service. See Rule 1-004(I)(2) NMRA.
If a plaintiff shows by affidavit that service “cannot reasonably be made as provided by
this rule,” the court may order service by publication. Rule 1-004(J) NMRA. The motion for
service by publication must include a copy of the proposed notice. Rule 1-004(K) NMRA. If
the Court allows service by publication, the notice must be published once a week for three
consecutive weeks in a newspaper of general circulation “in the county which reasonably
appears is most likely to give the defendant notice of the action.” Rule 1-004(K)(1) NMRA.
Courts should permit service by publication only when service has been attempted through the
“hierarchy of mechanisms set out under NMRA 1-004(F), and requires that a party requesting
service by unconventional methods demonstrate that this hierarchy was followed in detail,
although the attempts were unsuccessful.” Soto v. Village of Milan Police Dept., et al, No.
10cv43 WJ/ACT, Doc. 51 at 5–6 (D.N.M. Sept. 17, 2010); see also Hunt v. Inter-Globe Energy,
Inc., 770 F.2d 145, 147 (10th Cir. 1985) (due diligence shown in attempt to serve process by
carefully following the procedural steps outlined in the state’s rule governing service).

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In this case, plaintiff submitted an affidavit showing multiple attempts to personally serve
defendants “The Monica L. Wellington Declaration of Trust dated December 28, 2007” and the
Unknown Spouse of Monica L. Wellington. Doc. 36 at 4-8. The service attempts were made at
Monica Wellington’s address of record in this case: 13061 Brookpark Rd., Oakland, CA 94619.
Id. In its complaint, plaintiff asserts that Monica Wellington is the “Trustee of the Monica L.
Wellington Declaration of Trust dated December 28, 2007.” Doc. 1-1 at 4. Monica Wellington
has appeared in this case. Thus, if the complaint is accurate, and if Ms. Wellington is married, it
appears likely that “The Monica L. Wellington Declaration of Trust dated December 28, 2007”
and the Unknown Spouse of Monica L. Wellington have actual notice of the pendency of this
action and are attempting to avoid service of process. Nonetheless, service by publication at this
juncture is premature.
Plaintiff states that defendant Monica L. Wellington “has not accepted service on behalf
of the Trust, as its Trustee,” and that she “has painted an unclear picture as to whether she is
married or not,” which obviously has hampered plaintiff’s attempts to serve these defendants.
Doc. 41 at 2. 1 The Court notes that plaintiff has not yet attempted to serve defendants through
the hierarchy of means available under New Mexico law—there have been no attempts to serve
defendants by registered mail, and no attempts to serve the unknown spouse at his or her place of
business or employment. The Court recognizes that service by these methods requires plaintiff
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Plaintiff further notes that “there is an individual named ‘Dave. W’ that receives electronic mail
Notice from this Court regularly.” Doc. 41 at 2. A court may “take judicial notice of its own
files and records, as well as facts which are a matter of public record.” Van Woudenberg ex rel.
Foor v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000), abrogated on other grounds by McGregor v.
Gibson, 248 F.3d 946, 955 (10th Cir. 2001). The Court notes that defendant Monica L.
Wellington is receiving notice in this case at two email addresses: [e-mail], and
[e-mail]. The Court also notes that the first of these email addresses appears to belong
to David Wellington, who resides at the address that is the subject of the foreclosure in this case,
2124 Altura Verde Ln., Albuquerque, NM 87110. See Wellington v Daza et al, 17cv732 KK/LF
(D.N.M. July 12, 2017).
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to ascertain the identity and location of these defendants. Therefore, rather than granting the
motion for service by publication at this time, the Court finds that the better course is to grant
plaintiff a period to conduct limited discovery to ascertain the identity and location of the
defendants it seeks to serve by publication. Therefore, the Court grants plaintiff a 60-day period
to conduct limited discovery to determine whether Monica L. Wellington has a spouse or former
spouse, the spouse or former spouse’s name, home address, and business address; as well as to
obtain copies of trust documents or other information confirming the name and address of the
trustee of “The Monica L. Wellington Declaration of Trust dated December 28, 2007.” Ms.
Wellington must timely comply with all discovery requests that fall within these parameters. At
the close of this limited discovery period, plaintiff is granted an additional 30 days to attempt to
serve the trustee of “The Monica L. Wellington Declaration of Trust dated December 28, 2007”
and any spouse or former spouse of Monica L. Wellington using all methods available under
New Mexico law. If these methods are unsuccessful, plaintiff may file a renewed motion for
service by publication, documenting its attempts to serve these defendants.
IT IS SO ORDERED

_______________________________
Laura Fashing
United States Magistrate Judge

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