Martinez v. Citimortgage, Inc. et al
Filing
59
MEMORANDUM OPINION AND ORDER granting 52 MOTION to Quash Service of Summons and Complaint, denying 15 MOTION for Default Judgment as to Shellpoint Mortgage Servicing by District Judge James O. Browning. (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LEONARD MARTINEZ,
Plaintiff,
vs.
No. CIV 17-1195 JB/GBW
CITIMORTGAGE, INC., a successor in
interest by Merger to ABN AMRO
Mortgage Group, Inc.; DITECH
FINANCIAL, LLC, and SHELLPOINT
MORTGAGE SERVICING,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) the Plaintiff’s Motion for Default
Judgment Against Defendant Shellpoint Mortgage Servicing, filed February 21, 2018
(Doc. 15)(“Judgment Motion”); and (ii) Defendant New Penn Financial, LLC DBA Shellpoint
Mortgage Servicing’s Motion to Quash Service of Summons on Complaint, filed August 20,
2018 (Doc. 52)(“Motion to Quash”). The Court held a hearing on August 22, 2018. The
primary issues are: (i) whether Plaintiff Leonard Martinez properly served Defendant Shellpoint
Mortgage Servicing with the Summons on Complaint for Violation of the Unfair Practices Act,
Violation of the Real Estate Settlement Procedure Act (“RESPA”), Breach of Contract, Breach
of the Covenant of Good Faith and Fair Dealing, filed January 25, 2018 (Doc. 8)(“Summons”),
and Complaint for Violation of the Unfair Practices Act, Violation of the Real Estate Settlement
Procedures Act (“RESPA”), Breach of Contract, and Breach of the Covenant of Good Faith and
Fair Dealing, D-202-CV-2017-07661 (Second Judicial District Court, County of Bernalillo, State
of New Mexico, filed October 25, 2017), filed in federal court December 5, 2017 (Doc. 1-
1)(“Complaint”), when he sent those documents via certified mail to the general payment address
that was listed on the monthly mortgage statements that Shellpoint Mortgage gave Martinez; and
(ii) if there was proper service, whether the Court should enter default judgment against
Shellpoint Mortgage. The Court concludes that Martinez did not properly serve the Summons
and the Complaint, because sending the Summons and Complaint to a general payment address
does not satisfy rule 4 of the Federal Rules of Civil Procedure or rule 4 of the New Mexico Rules
of Civil Procedure. Accordingly, the Court will not enter default judgment against Shellpoint
Mortgage, it will deny the Judgment Motion, and it will grant the Motion to Quash.
FACTUAL BACKGROUND
The Court takes its facts from the Complaint.
The Court provides these facts for
background. It does not adopt them as the truth, and it recognizes that these facts are largely
Martinez’ version of events.
Martinez is a homeowner in Bernalillo County, New Mexico. See Complaint ¶¶ 5, 7, at
2. A mortgage mote secures the property Martinez owns at 34 Vallecitos, Tijeras New Mexico
87059. See Complaint ¶ 9, at 2. Defendants CitiMortgage, Inc. and Ditech Financial, LLC are
prior servicers of the mortgage note, and Shellpoint Mortgage is the current servicer. See
Complaint ¶¶ 10-12, at 2.
Around December, 2015, Martinez wanted to modify his loan agreement, so he entered a
Trial Payment Plan (“TPP”) with CitiMortgage, Inc. that, if he successfully completed, would
qualify him for a loan modification. See Complaint ¶ 14, at 2. Martinez made his first four TTP
payments in December, 2015, January, 2015, February, 2016, and April, 2016, respectively. See
Complaint ¶ 16, at 2-3. In April, 2016, however, Martinez received a letter from CitiMortgage,
Inc. stating that the “Repayment/Forbearance plan on your account has been removed.”
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Complaint ¶ 19, at 3. CitiMortgage, Inc. subsequently transferred Martinez’ loan to Ditech
Financial. See Complaint ¶¶ 20-23, at 3. Although Martinez made several mortgage payments
to Ditech Financial, Ditech Financial informed Martinez that he was not eligible for a loan
modification and initiated foreclosure proceedings on Martinez’ home. See Complaint ¶ 25, at 3.
Despite those proceedings, Ditech Financial transferred the loan to Shellpoint Mortgage, which
began servicing the loan on June 16, 2017. See Complaint ¶ 26, at 4. Shellpoint Mortgage did
not recognize or honor the TPP that CitiMortgage, Inc. offered to Martinez. See Complaint ¶ 26,
at 4.
Findings of Fact of Rule 12(b)(5) Motion
There are several factual issues in deciding the motion. The Court makes the following
findings of fact:
1.
On November 7, 2017, Martinez sent the Summons and Complaint via certified
mail to Shellpoint Mortgage at: Shellpoint Mortgage Servicing, P.O. Box 740039, Cincinnati,
Ohio, 45274-003.
See Plaintiff’s Response to Defendant New Penn Financial, LLC DBA
Shellpoint Mortgage Servicing’s Motion to Quash Service of Summons on Complaint, App. 1,
filed August 21, 2018 (Doc. 52)(“Motion to Quash Response”).
2.
The certified mail receipt was signed, and the envelope was stamped with a
delivery date of November 7, 2017. See Exhibit 1, at 1, filed August 21, 2018 (Doc. 53).
3.
Shellpoint Mortgage did not respond to the service or defend the action. See
Affidavit of Eric N. Ortiz ¶¶ 4-5, at 1 (executed February 21, 2018), filed February 21, 2018
(Doc. 15)(“Ortiz Aff.”)(attesting that Shellpoint Mortgage has not defended in this action).
4.
On July 19, 2018, Martinez corresponded with Shellpoint Mortgage via telephone
to notify Shellpoint Mortgage that “he was going to court.” Affidavit of Caroline Trinkley ¶ 12,
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at 3 (executed August 20, 2018), filed August 20, 2018 (Doc. 52)(“ Trinkley Aff.”).
5.
On August 10, 2018, Shellpoint Mortgage’s “legal department was advised by co-
defendant Ditech Financial, LLC (“Ditech”)” of the Judgment Motion. Trinkley Aff. ¶ 13, at 3.
6.
Shellpoint Mortgage filed the Motion to Quash on August 20, 2018. Motion to
Quash, ¶ 21, at 7.
7.
Shellpoint Mortgage uses the P.O. Box in Cincinnati, Ohio “for the sole purpose
of collecting mortgage loan payments submitted by borrowers.” Trinkley Aff. ¶ 8, at 2.
8.
Shellpoint Mortgage does not maintain “any officers, managers, general agents or
persons authorized by appointment or law to receive service of process” on its behalf at P.O. Box
740039 in Cincinnati, Ohio. Trinkley Aff. ¶ 9, at 2.
9.
New Penn Financial, LLC does business as Shellpoint Mortgage. See Trinkley
Aff. ¶ 2, at 1.
10.
On June 19, 2015, Shellpoint Mortgage registered an agent for service of process
in New Mexico. See Trinkley Aff. ¶ 10, at 3.
11.
On the website for the Secretary of State of New Mexico, the registered agent is
listed under entity name “New Penn Financial, LLC.” See Search Information, at 1, filed August
20, 2018 (Doc. 52)(dated August 17, 2018).
12.
The address for the registered agent is: 123 East Marcy St., Suite 101, Santa Fe,
New Mexico, 87501. See Search Information, at 1.
13.
The case presents a federal question as to whether Defendants violated the Real
Estate Settlement Procedures Act, 12 U.S.C. §§ 2601-17 (“RESPA”). See Complaint ¶¶ 52-63,
at 7-8.
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PROCEDURAL BACKGROUND
Martinez sues, contending that CitiMortgage, Inc., Ditech Financial, and Shellpoint
Mortgage violated the TPP Agreement, which specifies that, if Martinez makes three TPP
payments, his loan will be modified. See Complaint ¶ 31, at 4; id. ¶ 45, at 6. He argues, under
similar theories, that CitiMortgage, Inc., Ditech Financial, and Shellpoint Mortgage breached the
implied covenant of good faith and fair dealing, and that CitiMortgage, Inc. violated the Real
Estate Settlement Procedures Act, 12 U.S.C. §§ 2601-17 (“RESPA”) and the New Mexico
Unfair Practices Act, N.M. Stat. Ann. §§ 57-12-1 to -26 (“NMUPA”). Complaint ¶¶ 34-43, 4763, at 4-8. CitiMortgage, Inc. removed the case to federal court, asserting that the Court had
jurisdiction, because the Complaint presents a federal question. Notice of Removal ¶ 2, at 1,
filed December 5, 2017 (Doc. 1)(“Notice of Removal”).
1.
The Judgment Motion.
On February 21, 2018, Martinez filed the Judgment Motion, arguing that the Court
should enter a default judgment against Shellpoint Mortgage, because he served Shellpoint
Mortgage via certified mail on November 7, 2017, and Shellpoint Mortgage did not timely
respond to that service. See Judgment Motion ¶¶ 2-4, at 1-2. According to Martinez, “‘[w]hen a
party . . . has failed to plead or otherwise defend, and that failure is shown by affidavit or
otherwise, the clerk must enter the party’s default.’”
Judgment Motion ¶ 5, at 2 (quoting
Fed. R. Civ. P. 55(a)(emphasis in Judgment Motion)). Martinez concludes, thus, that, because
Shellpoint Mortgage has not defended and because Martinez presents an affidavit attesting that
Shellpoint Mortgage has not defended, the Court should enter default judgment against
Shellpoint Mortgage. See Judgment Motion ¶ 6, at 2. See also Ortiz Aff.
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2.
Motion to Quash.
Shellpoint Mortgage moves to quash service of the Summons and Complaint, arguing
that the address Martinez used for service is used “solely to collect mortgage payments in its
regular course of business as a mortgage servicer.” Motion to Quash at 2 (emphasis original).
According to Shellpoint Mortgage, Martinez’ use of that mailing address does not satisfy the
federal or state servicing rules, because Martinez did not deliver the Summons and Complaint on
an officer, manager, general agent, or any other agent authorized to accept service. See Motion
to Quash at 5-6 (citing Fed. R. Civ. P. 4(e)(1), (h)(1); N.M. Rules Ann. 1-004(G)(1)(a)-(G)(3)).
Shellpoint Mortgage adds that it was not aware of this action until August 14, 2018, when Ditech
Financial contacted Shellpoint Mortgage about it. See Motion to Quash at 6. It concludes that,
because service was improper and because it did not have actual notice of the lawsuit until six
days before it filed the Motion to Quash, the Court should quash service, and deny the requests
in the Judgment Motion. See Motion to Quash at 6-7.
3.
Motion to Quash Response.
Martinez responded. See Motion to Quash Response. He contends that his service on
Shellpoint Mortgage is proper, because he served it in a “manner reasonably calculated . . . to
apprise the defendant of the existence and pendency of the action.” Motion to Quash Response
at 1 (citing N.M. Rules Ann. 1-004(E)(1)). He argues that he is authorized to complete service
“by mail” as long as: (i) the “envelope is addressed to the named defendant”; and (ii) ”the
defendant signs a receipt for the envelope containing the summons and complaint.” Motion to
Quash Response at 1-2 (citing N.M. Rules Ann. 1-004(E)(3), (G)(3)). He contends that he
satisfies both of those requirements, because he mailed an envelope with the Summons and
Complaint to the named Defendant -- Shellpoint Mortgage -- and because someone from
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Shellpoint “signed for it.” Motion to Quash Response at 2. Martinez also asserts that Shellpoint
Mortgage regularly receives mail at the address to which he sent it, so according to Martinez, he
served Shellpoint Mortgage in a manner reasonably calculated to alert it to the lawsuit. See
Motion to Quash Response at 2.
He argues that, contrary to Shellpoint Mortgage’s
representations, he did not need to mail the Summons and Complaint to a registered agent,
because service by mail suffices. See Motion to Quash at 3. He concludes by asking the Court
to deny the requests in the Motion to Quash and to grant the Judgment Motion. See Motion to
Quash at 3.
4.
The Hearing.
The Court held a hearing on August 22, 2018. See Clerk’s Minutes at 1, filed August 21,
2018 (Doc. 54). The Court noted that default is a two-step process. See Transcript of Hearing at
4:11-12, taken August 22, 2018 (Court)(“Tr.”).1 It asked whether it should deny the Judgment
Motion, because the Clerk of the Court had not filed a Certificate of Default. See Tr. at 4:6-21.
Martinez stated that he understood the Clerk of the Court had filed a certificate of default. See
Tr. at 4:23-25 (Gonzales.) The Court noted that it did not have a Certificate of Default from the
Clerk of the Court. See Tr. at 5:20-23 (Court). See Civil Docket for Case #: 1:17-cv-01195-JBLF, CMECF, https://ecf.nmd.circ10.dcn/cgi-bin/DktRpt.pl?902308060071476-L_1_0-1.
Martinez contended that New Mexico requires that service occur “in a manner reasonably
calculated under all circumstances to apprise a defendant of the existence and pendency of the
action and to afford a reasonable opportunity to appear and defend.”
(Gonzales)(citing N.M. Rules Ann. 1-004(E)(1)).2
1
Tr. at 7:20-26
Under Martinez’ interpretation, rules 1-
The Court’s citations to the transcript of the hearing refer to the court reporter’s original,
unedited version. Any final transcript may contain slightly different page and/or line numbers.
2
Rule 1-004(E)(1) provides: “Process shall be served in a manner reasonably calculated,
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004(E)(3) and 1-004(G(3) authorize service by certified mail when the defendant signs a receipt
for the delivery. See Tr. at 9:8-10 (Gonzales)(citing N.M. Rules Ann. 1-004(E)(3), (G)(3)).3
Martinez argued that he satisfied New Mexico law, because he sent service through certified
mail to an address that Shellpoint Mortgage regularly checked and the envelope was stamped,
indicating that Shellpoint Mortgage received the delivery. See Tr. at 8:14-16 (Gonzales); id. at
9:18-21 (Gonzales). Further, Martinez argued that he could not have discovered the address for
the registered agent for Shellpoint Mortgage. See Tr. at 10:11-18 (Gonzales).
Shellpoint Mortgage responded that the summons and complaint must be mailed to an
agent authorized to accept service, and that Martinez did not satisfy that requirement. See Tr. at
13:7-9 (Edwards)(citing N.M. Rules Ann. 1-004(G)(1)(a), (c)).4 Shellpoint Mortgage also cited
under all the circumstances, to apprise the defendant of the existence and pendency of the action
and to afford a reasonable opportunity to appear and defend.” N.M. Rules Ann. 1-004(E)(1).
3
Rule 1-004(E)(3) provides:
Service may be made 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, writ or other process. Service by mail or
commercial courier service shall be complete on the date the receipt is signed as
provided by this subparagraph. For purposes of this rule “signs” includes the
electronic representation of a signature.
N.M. Rules Ann. 1-004(E)(3). Rule 1-004(G)(3) states: “Service may be made on a
person or entity described in Subparagraph (1) of this paragraph by mail or commercial
courier service in the manner provided in Subparagraph (3) of Paragraph E of this rule.”
N.M. Rules Ann. 1-004(G)(3).
4
The relevant provisions are:
(1) Service may be made upon:
(a) a domestic or foreign corporation, a limited liability company or an
equivalent business entity by serving a copy of the process to an officer, a
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Hukill v. Oklahoma Native American Domestic Violence Coalition, 542 F.3d 794 (10th Cir.
2008), to support its argument. See Tr. at 13:24-14:1 (Edwards). Shellpoint Mortgage explained
that, in Hukill v. Oklahoma Native American Domestic Violence Coalition, the United States
Court of Appeals for the Tenth Circuit concluded that the plaintiff should have served an
authorized person even though the Oklahoma statute stated only that “service by mail should be
accomplished by mailing a copy of the summons and petition by certified mail return receipt
requested and delivery restricted to the addressee.” Tr. at 15:13-16 (Edwards)(citing Hukill v.
Okla. Native Am. Domestic Violence Coal., 542 F.3d at 798)(citing Okla Stat. tit. 12
§ 2004(C)(2)(b))). The Court asked for the language that the Tenth Circuit used. See Tr. at
23:15-25:15(Court). Shellpoint Mortgage explained that, in that case, a corporation was “served
via unauthorized people.”
Tr. at 3:16 (Edwards).
The Tenth Circuit held that, because
“Ms. Hukill’s attempted service by mail was accepted by an unauthorized person, it did not
substantially comply with the statute and wasn’t valid.” Tr. at 15-17:16 (Edwards)(citing Hukill
v. Okla. Native Am. Domestic Violence Coal., 542 F.3d at 802). The Court returned the
discussion to rule 1-004, and asked whether rule 1-004(G)(1) had to be satisfied. See Tr. at
managing or a general agent or to any other agent authorized by
appointment, by law or by this rule to receive service of process. If the
agent is one authorized by statute to receive service and the statute so
requires, by also mailing a copy to the defendant;
...
(c) an unincorporated association which is subject to suit under a common
name, by serving a copy of the process to an officer, a managing or
general agent or to any other agent authorized by appointment, by law or
by this rule to receive service of process. If the agent is one authorized by
law to receive service and the statute so requires, by also mailing a copy to
the unincorporated association.
N.M. Rules Ann. 1-004(G)(1)(a), (c).
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15:17-17:17 (Court).
004(G)(1).
Shellpoint Mortgage concluded that service had to satisfy rule 1-
See Tr. at 19:17-25:17 (Edwards).
The Court then asked whether Shellpoint
Mortgage read Hukill v. Oklahoma Native American Domestic Violence Coalition to mean that
due process requires a plaintiff to mail a summons and complaint to an authorized person, and
Shellpoint Mortgage agreed that it read the case in that manner. See Tr. ¶¶ 19:17-25:17 (Court).
Shellpoint Mortgage contended that Martinez sent a Summons and Complaint to an
address that Shellpoint Mortgage used only to receive payments, and that address was not used
for litigation. See Tr. at 11:22-24 (Edwards). Shellpoint Mortgage admitted that there is a return
stamp on the envelope with which Martinez tried to serve Shellpoint Mortgage, but no person
authorized to accept service signed the envelope. See Tr. at 2:1-6 (Edwards). Shellpoint
Mortgage contended that such service does not suffice under federal or New Mexico rules. See
Tr. at 13:7-9 (Edwards). Shellpoint Mortgage further noted that Martinez could have discovered
that New Penn Financial LLC does business as Shellpoint Mortgage and that Martinez could
have discovered the registered agent by searching for New Penn Financial LLC on the New
Mexico Secretary of State’s website. See Tr. at 19:5-11 (Edwards).5
Martinez reiterated that New Mexico does not require that the summons and complaint be
mailed to a registered agent. See Tr. at 21:6-8 (Gonzales). He asserted that New Mexico
requires only that they be mailed to an address at which the defendant regularly receives mail.
See Tr. at 21:9-12 (Gonzales). The Court asked Martinez about Hukill v. Oklahoma Native
American Domestic Violence Coalition, see Tr. at 24:11-35 (Court), and Martinez differentiated
5
The Court notes that the Shellpoint Mortgage website clarifies that New Penn Financial
LLC does business as Shellpoint Mortgage Servicing. See Shellpoint Mortgage Servicing,
https://www.shellpointmtg.com/. The website for the New Mexico Secretary of State lists a
registered agent for New Penn Financial, LLC. See Search Information at 1-2. The registered
agent noted is Corporation Service Company, located at: 123 East Marcy St., Suite 101, Santa
Fe, New Mexico 87501. See Search Information at 2.
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the case from the present facts, citing the Tenth Circuit’s reliance on an Oklahoma statute, see
Tr. at 21:9-12 (Gonzales). The Court looked at rule 1-004(G) and explained that the Court reads
the statute by beginning with rule 1-004(G)(1)(a), which describes on whom a plaintiff may
serve the summons and complaint. See Tr. at 27:4-14 (Court)(citing N.M. Rules Ann. 1004(G)(1)(a)). Then, the Court turned to rule 1-004(G)(1)(c), according to which, “service may
be made on a person or entity described in paragraph 1 of this paragraph.” Tr. at 27:14-21
(Court)(citing N.M. Rules Ann. 1-004(G)(1)(c)). The Court stated: “So you’ve got to go back up
to paragraph 1, by mail, or it gives some other provisions.” Tr. at 27:14-18 (Court). Following a
review of rule 1-004(G), the Court looked to rule 1-004(E)(3) for directions on mailing the
summons and complaint. See Tr. at 28:3-8 (Court)(citing N.M. Rules Ann. 1-004(E)(3)). The
Court stated that it was inclined to hold that service has to be on a person listed in rule 1004(G)(1). See Tr. at 28:8-14 (Court)(citing N.M. Rules Ann. 1-004(G)(1)). The Court stated:
“Probably the reason that the signature requirement is important [is] to see who signed for it and
see if they were in fact authorized.” Tr. at 28:17-19 (Court). The Court indicated that it was
inclined to grant the Motion to Quash and deny the Judgment Motion. See Tr. at 28:19-24
(Court).
LAW REGARDING 12(b)(5)
Rule 12(b)(5) provides, in pertinent part: “Every defense to a claim for relief in any
pleading must be asserted in the responsive pleading if one is required. But a party may assert
the following defenses by motion . . . (5) insufficient service of process.”
Fed. R. Civ. P.
12(b)(5). Under rules 12(b)(4) and 12(b)(5), a “defendant may object to plaintiff’s failure to
comply with the procedural requirements for proper service set forth in or incorporated by Rule
4.”
Richardson v. Alliance Tire & Rubber Co., 158 F.R.D. 475, 477 (D. Kan.
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1994)(Crow, J.)(quoting 5A C. Wright & A. Miller, Federal Practice and Procedure § 1353 (2d
ed. 1990)). “Rules 12(b)(4) and 12(b)(5) allow a defendant to defend against a claim on the
grounds of insufficiency of process and insufficiency of service of process.” Whitsell v. United
States, No. 99-5114, 1999 WL 987355 at *1 (10th Cir. 1999).6 “A Rule 12(b)(4) motion
constitutes an objection to the form of process or the content of the summons rather than the
method of its delivery.” Oltremari by McDaniel v. Kan. Soc. & Rehab. Serv., 871 F. Supp.
1331, 1349 (D. Kan. 1994)(Lungstrum, J.)(citation omitted). See United States v. Sharon Steel
Corp., 681 F. Supp. 1492, 1499 n.14 (D. Utah 1987)(Jenkins, J.).
“A Rule 12(b)(5)
motion . . . challenges the mode or lack of delivery of a summons and complaint.” Oltremari by
McDaniel v. Kan. Soc. & Rehab Serv., 871 F. Supp. at 1349. See United States v. Sharon Steel
Corp., 681 F. Supp. 1492, 1499 n.14 (D. Utah 1987).
Where a plaintiff does not meet this burden, a court may dismiss for failure to properly
serve.
See Lasky v. Lansford, 76 F. App’x. 240, 240-41 (10th Cir. 2003)(unpublished).
“Motions under Federal Rules 12(b)(4) and 12(b)(5) differ from the other motions permitted by
6
Watkins v. Donnelly is an unpublished opinion, but the Court can rely on an unpublished
opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R.
32.1(A)(“Unpublished decisions are not precedential, but may be cited for their persuasive
value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, . . . and we have
generally determined that citation to unpublished opinions is not favored.
However, if an unpublished opinion or order and judgment has persuasive value
with respect to a material issue in a case and would assist the court in its
disposition, we allow a citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005)(citations omitted). The Court
concludes that Watkins v. Donnelly, United States v. Craighead, 176 F. App’x 922 (10th Cir.
2006)(unpublished), Pinson v. Equifax Credit Information Services, Inc., 316 F. App’x 744 (10th
Cir. 2009)(unpublished), United States v. $285,350.00 in U.S. Currency, 547 F. App’x 886,
(10th Cir. 2013)(unpublished), and Whitsell v. United States, No. 99-5114, 1999 WL 987355
(10th Cir. 1999), all have persuasive value with respect to material issues, and will assist the
Court in its preparation of this Memorandum Opinion and Order.
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Rule 12(b) somewhat in that they offer the district court a course of action -- quashing the
process without dismissing the action -- other than simply dismissing the case when the
defendant’s defense or objection is sustained.” 5B C. Wright & A. Miller, Federal Practice and
Procedure § 1354, at 346 (3d ed. 2004).
“Technical defects in a summons do not justify
dismissal unless a party is able to demonstrate actual prejudice.” Chan v. Soc’y Expeditions,
Inc., 39 F.3d 1398, 1404 (9th Cir. 1994)(citing Fed. Deposit Ins. Corp. v. Swager, 773 F. Supp.
1244, 1249 (D. Minn. 1991)(Devitt, J.); United Food v. Commercial Workers Union, 736 F.2d
1371, 1382 (9th Cir. 1984)(Reinhardt, J.)). See U.S.A. Nutrasource, Inc. v. CNA Ins. Co., 140
F. Supp. 2d 1049, 1052-53 (N.D. Cal. 2001)(Hamilton, J.)(“Dismissals for defects in the form of
summons are generally disfavored. Such defects are considered ‘technical’ and hence are not a
ground for dismissal unless the defendant demonstrates actual prejudice.”(citing Chan v. Soc’y
Expeditions, Inc., 39 F.3d at 1404)). “[W]hen a court finds that service is insufficient but
curable, it generally should quash the service and give the plaintiff an opportunity to re-serve the
defendant.” Pell v. Azar Nut Co., Inc., 711 F.2d 949, 950 n.2 (10th Cir. 1983)(citing 5 C. Wright
& A. Miller, Federal Practice and Procedure § 1354, at 586-87 (1969)).
Where service of process is insufficient, the courts have broad discretion to
dismiss the action or to retain the case but quash the service that has been made
on defendant . . . even though service will ordinarily be quashed and the action
preserved where there is a reasonable prospect that plaintiff ultimately will be
able to serve defendant properly.
Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 740 (2d Cir. 1985)(internal quotations and
citations omitted). In addition, the court has discretion to dismiss the action if it appears unlikely
that proper service can or will be instituted. See Pell v. Azar Nut Co., Inc., 711 F.2d at 950 n.2.
“The party on whose behalf service is made has the burden of establishing its validity when
challenged; to do so, he must demonstrate that the procedure employed satisfied the requirements
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of the relevant portions of Rule 4 and any other applicable provision of law.” Light v. Wolf, 816
F.2d 746, 751 (D.C. Cir. 1987)(internal citations and quotations omitted). See Serna v. Webster,
No. CV 17-0020 JB/WPL, 2017 WL 4386359, at *26 (D.N.M. Sept. 30, 2017)(Browning, J.),
appeal dismissed, No. 17-2177, 2017 WL 8786138 (10th Cir. Nov. 27, 2017), reh’g denied (Dec.
5, 2017)(“The burden of establishing validity of service is on the plaintiff.”(citing Fed. Deposit
Ins. Corp. v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir. 1992))); Payne v. Wilder, No.
CV 16-0312 JB/GJF, 2017 WL 3025912, at *7 (D.N.M. July 7, 2017)(Browning, J.)(same);
McGrath v. City of Albuquerque, No. CIV 14-0504 JB/SCY, 2015 WL 4994735, at *26 (D.N.M.
July 31, 2015)(Browning, J.)(same).
LAW REGARDING SERVICE OF PROCESS
The Federal Rules of Civil Procedure provide the rules for service of process.
A
defendant may be served by the means listed in rule 4(h) of the Federal Rules of Civil Procedure
or by the means provided by the state in which “the district court is located or where service is
made.” Fed. R. Civ. P. 4(h)(1)(a); 4(e)(1). Under rule 4(h), a party may serve
a domestic or foreign corporation, or a partnership or other unincorporated
association . . . by delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or any other agent authorized by
appointment or by law to receive service of process and -- if the agent is one
authorized by statute and the statute so requires -- by also mailing a copy of each
to the defendant.
See Fed. R. Civ. P. 4(h), 4(h)(1)(b).
Rule 1-004(G) of the New Mexico Rules of Civil Procedure specifies procedures by
which service of process on business entities, including limited liability companies, may be
accomplished. See N.M. Rules Ann. 1-004(G)(1); Comment to N.M. Rules Ann. 1-004(G).
“New Mexico law permits service to be made upon a designated agent.” Aranda v. Foamex
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Int’l, 884 F. Supp. 2d 1186, 1212 (D.N.M. July 10, 2012)(Browning, J.)(citing N.M. Rules Ann.
1-004(G)). Rule 1-004(G)(1)(a) and (c) provide:
(1) Service may be made upon:
(a) a domestic or foreign corporation, a limited liability company or an
equivalent business entity by serving a copy of the process to an officer, a
managing or a general agent or to any other agent authorized by
appointment, by law or by this rule to receive service of process. If the
agent is one authorized by statute to receive service and the statute so
requires, by also mailing a copy to the defendant.
...
(c) an unincorporated association which is subject to suit under a common
name, by serving a copy of the process to an officer, a managing or
general agent or to any other agent authorized by appointment, by law or
by this rule to receive service of process. If the agent is one authorized by
law to receive service and the statute so requires, by also mailing a copy to
the unincorporated association.
N.M. Rules Ann. 1-004(G)(1)(a), (c). Rule 1-004(G)(3) allows service by mail on defendants
and authorized persons, stating: “Service may be made on a person or entity described in
Subparagraph (1) of this paragraph by mail or commercial courier service in the manner
provided in Subparagraph (3) of Paragraph E of this rule.” N.M. Rules Ann. 1-004(G)(3).
Pursuant to rule 1-004(E)(3), service by mail is sufficient “provided that the envelope is
addressed to the defendant and that the defendant or a person authorized by appointment sign a
receipt for the envelope containing the summons and complaint.”
Kabana, Inc. v. King
Larimar, Inc., No. CIV 15-00995 WJ/CG, 2016 WL 10538834, at *3 (D.N.M. May 24, 2016
(citing N.M. Rules Ann. 1-004(E)(3)).
See Glasener v. Farrell & Seldin, No. CV 14-621
KK/WPL, 2014 WL 12786900, at *3 (D.N.M. Oct. 24, 2014); McKeown v. Farrell & Seldin,
No. CV 14-597 SMV/WPL, 2014 WL 12786899, at *3 (D.N.M. Oct. 24, 2014); Roybal v.
Roybal, No. 29,806, 2010 WL 3971587, at *2 (N.M. Ct. App. Jan. 6, 2010). Rule 1-004(E)(3)
states in full:
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Service may be made 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, writ or other process. Service by mail or
commercial courier service shall be complete on the date the receipt is signed as
provided by this subparagraph. For purposes of this rule “signs” includes the
electronic representation of a signature.
N.M. Rules Ann. 1-004(E)(3).
LAW REGARDING DEFAULT JUDGMENTS AND THE ENTRY OF DEFAULT
UNDER RULE 55
Rule 55 of the Federal Rules of Civil Procedure provides a two-step process for a default
judgment. See United States v. Rivera, No. CIV 14-0579 JB/CG, 2015 WL 4042197, at *9-12
(D.N.M. June 30, 2015)(Browning, J.). First, a party must obtain a Clerk of Court’s entry of
default. See Fed. R. Civ. P. 55(a)(“When a party against whom a judgment for affirmative relief
is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or
otherwise, the clerk must enter the party’s default.”); Watkins v. Donnelly, 551 F. App’x 953,
958 (10th Cir. 2014)(unpublished)(“Entry of default by the clerk is a necessary prerequisite that
must be performed before a district court is permitted to issue a default judgment.”). Second, the
party must either request the Clerk to enter default judgment when the claim is for “a sum certain
or a sum that can be made certain by computation,” Fed. R. Civ. P. 55(b)(1), or, “[i]n all other
cases, the party must apply to the court for a default judgment,” Fed. R. Civ. P. 55(b)(2).
After entering default judgment, a district court takes all of the well-pleaded facts in a
complaint as true.
See United States v. Craighead, 176 F. App’x 922, 925 (10th Cir.
2006)(unpublished); Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974)(“While a default
judgment constitutes an admission of liability, the quantum of damages remains to be established
by proof unless the amount is liquidated or susceptible of mathematical computation.” (citations
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omitted)). “If defendant does not contest the amount prayed for in the complaint [by failing to
answer] and the claim is for a sum certain or a sum that can be made certain by computation, the
judgment generally will be entered for that amount without any further hearing.” United States
v. Craighead, 176 F. App’x at 925 (alteration in original)(quoting 10A Wright & Miller, Federal
Practice & Procedure § 2688 (3d ed. 1998)). See Fed. R. Civ. P. 8(d)(“Averments in a pleading
to which a responsive pleading is required, other than those as to the amount of damage, are
admitted when not denied in the responsive pleading.”). A court may enter a default judgment
for a damage award without a hearing if the amount claimed is “one capable of mathematical
calculation.”
Applied Capital, Inc. v. Gibson, 558 F. Supp. 2d 1189, 1202 (D.N.M.
2007)(Browning, J.)(quoting H.B. Hunt v. Inter-Globe Energy, Inc., 770 F.2d 145, 148 (10th Cir.
1985)(citing Venable v. Haislip, 721 F.2d 297, 300 (10th Cir. 1983)). “It is a familiar practice
and an exercise of judicial power for a court upon default, by taking evidence when necessary or
by computation from facts of record, to fix the amount which the plaintiff is lawfully entitled to
recover and to give judgment accordingly.” 10A Wright & Miller, supra, § 2688 (quoting Pope
v. United States, 323 U.S. 1, 12 (1944)). “If the damages sum is not certain or capable of easy
computation, the court may” conduct such hearings or order such references as it deems
necessary. Applied Capital, Inc. v. Gibson, 558 F. Supp. 2d at 12027 (citing Beck v. Atl.
7
In that case, the Court provided:
“Entry of default precludes a trial on the merits.” Olcott v. Del. Flood Co., 327
F.3d 1115, 1119 n.3 (10th Cir. 2003). Rule 55(b)(2) does not contain an inherent
jury requirement; rather, it preserves the right to a jury only when statute requires.
See Olcott v. Del. Flood Co., 327 F.3d at 1124. At least where the parties have
not requested a jury prior to entry of default, the “[d]efendants do not have a
constitutional right to a jury trial following entry of default.” . . . Mitchell v. Bd.
of Cty Comm’rs of the Cty of Santa Fe, No. 05CV1155, 2007 WL 2219420, at
*18-23 (D.N.M. May 9, 2007)(Browning, J.).
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Contracting Co., 157 F.R.D. 61, 64 (D. Kan. 1994)(Lungstrum, J.) superseded by statute, Kan.
Stat. Ann. 60-308, as recognized in Cessna Fin. Corp. v. VYWB, LLC, 982 F Supp. 2d 1226,
1233 (D. Kan. 2013)(Crow, J.)). See Fed. R. Civ. P. 55(b)(2)(B)(“The court may conduct
hearings or make referrals . . . when, to enter or effectuate judgment, it needs to . . . determine
the amount of damages.”).
“Default judgments are a harsh sanction.” Ruplinger v. Rains, 946 F.2d 731, 732 (10th
Cir. 1991)(per curiam)(“In re Rains”). The Court has noted that, “[b]ecause default judgment is
a harsh sanction involving a court’s power to enter and enforce judgments regardless of the
merits of a case, courts do not favor such a sanction ‘purely as a penalty for delays in filing or
other procedural error.’” Noland v. City of Albuquerque, No. CIV 08–0056 JB/LFG, 2009 WL
2424591, at *1 (D.N.M. June 18, 2009)(Browning, J.)(quoting In re Rains, 946 F.2d at 733).
[S]trong policies favor resolution of disputes on their merits: the default judgment
must normally be viewed as available only when the adversary process has been
halted because of an essentially unresponsive party. In that instance, the diligent
party must be protected lest he be faced with interminable delay and continued
uncertainty as to his rights. The default judgment remedy serves as such a
protection.
In re Rains, 946 F.2d at 732-33 (citations and internal quotation marks omitted). See Noland v.
City of Albuquerque, 2009 WL 2124591, at *1 (denying motion for default judgment, because
the counsel for the defendant City of Albuquerque “entered an appearance three days after
Noland filed his motion for default judgment,” and, thus, the Court could not “reasonably say
that the City of Albuquerque is an essentially unresponsive party, that the adversary process has
been halted, or that Noland faces interminable delay because of the City of Albuquerque’s
actions”).
Applied Capital, Inc. v. Gibson, 558 F. Supp. 2d at 1202.
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“The court may set aside an entry of default for good cause, and it may set aside a default
judgment under Rule 60(b).” Fed. R. Civ. P. 55(c). “[T]he good cause required by Fed. R. Civ.
P. 55(c) for setting aside entry of default poses a lesser standard for the defaulting party than the
excusable neglect which must be shown for relief from judgment under Fed. R. Civ. P. 60(b).”
Pinson v. Equifax Credit Info. Servs., Inc., 316 F. App’x 744, 750 (10th Cir.
2009)(unpublished)(quoting Dennis Garberg & Assocs., Inc. v. Pack-Tech Int’l Corp., 115 F.3d
767, 775 n.6 (10th Cir. 1997)). See Hunt v. Ford Motor Co., No. 94-3054, 1995 WL 523646, at
*3 (10th Cir. 1995)(unpublished). The distinction between setting aside an entry of default and
setting aside a default judgment “reflects the different consequences of the two events and the
different procedures that bring them about.” 10A Wright & Miller, supra, § 2692.
[T]he clerk or the court may enter a default upon the application of the
nondefaulting party. The entry simply is an official recognition of the fact that
one party is in default, as, for example, for failure to comply with the rules, to
appear as scheduled, or to prosecute the case with due diligence. The entry is an
interlocutory step that is taken under Rule 55(a) in anticipation of a final
judgment by default under Rule 55(b).
In sharp contrast, a final default judgment is not possible against a party in
default until the measure of recovery has been ascertained, which typically
requires a hearing, in which the defaulting party may participate; in some
situations, a jury trial may be made available to determine an issue of damages.
Moreover, the entry of a default judgment is a final disposition of the case and an
appealable order.
...
Additional differences between relief from the entry of a default and from
a default judgment appear in the grounds that will support the motion being
granted. Stated generally, the defaulting party is not entitled to relief from a
judgment as a matter of right under Rule 60(b). The movant must present a
justification supporting the relief motion and must establish his contentions if
challenged. Although whether relief will be granted is a matter within the sound
discretion of the trial court, the vacation of a default judgment is subject to the
explicit provisions of Rule 60(b), which places additional restraints upon the
court’s discretion. The motion to set aside a default entry, on the other hand, may
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be granted for “good cause shown,” which gives a court greater freedom in
granting relief than is available in the case of default judgments.
10A Wright & Miller, supra, § 2692 (footnotes omitted).
While there are some differences between setting aside the entry of default and setting
aside a default judgment, there are some important similarities, including that courts may
consider the same factors: whether the party willfully defaulted, whether setting aside the entry
of default or default judgment would prejudice the non-movant, and whether the movant has
presented a meritorious defense. See United States v. $285,350.00 in U.S. Currency, 547
F. App’x 886, 887 (10th Cir. 2013)(unpublished)(“Three requirements must be met when setting
aside a default judgment under Rule 60(b): ‘(1) the moving party’s culpable conduct did not
cause the default; (2) the moving party has a meritorious defense; and (3) the non-moving party
will not be prejudiced by setting aside the judgment.’” (quoting United States v. Timbers
Preserve, 999 F.2d 452, 454 (10th Cir. 1993), abrogated on other grounds by Degen v. United
States, 517 U.S. 820, 825 (1996))); Pinson v. Equifax Credit Info Servs., Inc., 316 F. App’x at
750 (“In deciding whether to set aside an entry of default, courts may consider, among other
things, ‘whether the default was willful, whether setting it aside would prejudice the adversary,
and whether a meritorious defense is presented.’” (quoting Dierschke v. O’Cheskey (In re
Dierschke, 975 F.2d 181, 183 (5th Cir. 1992)(“Dierschke”))). The Tenth Circuit has, at times,
listed two factors rather than three for the standard in setting aside a default judgment:
Rule 60(b) of the Federal Rules of Civil Procedure permits relief from a
final judgment only if the movant can demonstrate justifiable grounds, including
mistake, inadvertence, surprise or excusable neglect. In the case of default
judgments, courts have established the further requirement that a movant
demonstrate the existence of a meritorious defense. E.g., Gomes v. Williams, 420
F.2d 1364, 1366 (10th Cir. 1970). A 60(b) motion thus comprehends two distinct
aspects[:] justification for relief and a meritorious defense.
In re Stone, 588 F.2d 1316, 1319 (10th Cir. 1978). See Sawyer v. USAA Ins. Co., 839 F. Supp.
- 20 -
2d 1189, 1230 (D.N.M. 2012)(Browning, J.)(setting aside a default judgment, because, “when a
plaintiff fails to properly serve a defendant, a default judgment is void and should be set aside
under rule 60(b)(4)”). “Although how these factors will be evaluated and weighed lies within the
discretion of the trial court to a considerable degree, . . . federal courts are willing to grant relief
from a default entry more readily and with a lesser showing than they are in the case of a default
judgment.” 10A Wright & Miller, supra, § 2692 (footnotes omitted). “The standard for setting
aside an entry of default under Rule 55(c) is fairly liberal because ‘[t]he preferred disposition of
any case is upon its merits and not by default judgment.’” Crutcher v. Coleman, 205 F.R.D. 581,
584 (D. Kan. 2001)(Vratil, J.)(quoting Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir.
1970)). See Applied Capital, Inc. v. Gibson, No. Civ 05–98 JB/ACT, 2007 WL 5685131, at *2023 (D.N.M. Sept. 27, 2007)(Browning, J.)(liberally construing a pro se defendant’s motion to
dismiss as a motion to set aside the default, but concluding that the pro se defendant did not
show good cause for the Court to set aside the entry of default, because, although setting aside
the entry of default would not prejudice the plaintiff, the pro se defendant was “fully aware of the
need to answer within the given time limitation and chose not to respond timely,” and he failed
to appear at a hearing to support his allegation that he had a meritorious defense). See also Dogs
Deserve Better, Inc. v. N.M. Dogs Deserve Better, Inc., No. Civ 05–98 JB/ACT, 2016 WL
6396392, at *22 (D.N.M. Oct. 12, 2016)(Browning, J.)(“The standard for setting aside an entry
of default under rule 55(c) is liberal, allowing the Court to consider, among other things, whether
the default was willful and culpable, whether setting it aside would prejudice the adversary, and
whether a meritorious defense is presented.”).
ANALYSIS
There are two primary reasons why the Court should not enter default judgment and
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should grant the challenge to service.
First, Martinez did not properly serve Shellpoint
Mortgage; hence, the Court will grant the Motion to Quash. Second, because the Clerk of the
Court has not entered default, the Court will deny the Judgment Motion.
I.
MARTINEZ DID NOT SERVE THE SUMMONS AND COMPLAINT ON AN
AUTHORIZED PERSON.
Because Martinez mailed a summons and complaint to a general address, where an
authorized agent did not sign the envelope, he did not satisfy rule 4 of the Federal Rules of Civil
Procedure or rule 1.004(G) of the New Mexico Rules of Civil Procedure. See Glasener v. Farrell
& Seldin, 2014 WL 12786900, at *3; McKeown v. Farrell & Seldin, 2014 WL 12786899, at *3;
Roybal v. Roybal, 2010 WL 3971587, at *2.
No officer, general or managing agent, or
authorized agent accepted the package at the Ohio P.O. Box, because Shellpoint Mortgage
maintains that address only to collect mortgage payments. See Trinkley Aff. ¶ 9, at 2; N.M.
Rules Ann. § 1-004(G). Hence, the service of process was not proper. See N.M. Rules Ann. § 1004(G).
In the hearing, Shellpoint Mortgage cited Hukill v. Oklahoma Native American Domestic
Violence Coalition for the proposition that, regardless of statutory language, a plaintiff must
serve an authorized person. The Tenth Circuit’s conclusion in Hukill v. Oklahoma Native
American Domestic Violence Coalition, however, rested on an interpretation of an Oklahoma
statute. See Hukill v. Okla. Native Am. Domestic Violence Coal., 542 F.3d at 798. The Tenth
Circuit noted that “defendants did not raise a constitutional claim that service was invalid despite
technical compliance with the applicable statute. They argued that service was invalid because it
did not satisfy the statutory requirements.” 542 F.3d at 801. Oklahoma applies a rule of
“substantial compliance” in determining whether its statutory requirements for service have been
met. 542 F.3d at 798. The Tenth Circuit, in reaching its conclusion that, “because Ms. Hukill’s
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attempted service by mail was not accepted by an authorized person, it did not substantially
comply with the statute and was invalid,” Hukill v. Okla. Native Am. Domestic Violence Coal.,
452 F.3d at 802, relied on Okla. Stat. tit. § 2004(C)(2)(c), which provides: “[A]cceptance or
refusal by any officer or by any employee of the registered office or principal place of business
who is authorized to or who regularly receives certified mail shall constitute acceptance or
refusal by the party addressed.” Okla. Stat. tit. § 2004(C)(2)(c).
Based on rule § 1-004(G), Martinez should have served an officer, agent or authorized
person. See N.M. Rules Ann. § 1-004(G). Martinez focuses too exclusively on rule 1-004(E),
which states:
Service may be made 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, writ or other process. Service by mail or
commercial courier service shall be complete on the date the receipt is signed as
provided by this subparagraph. For purposes of this rule “signs” includes the
electronic representation of a signature.
N.M. Rules Ann. 1-004(E)(3). Martinez reads this literally: if he mails the Summons and
Complaint to Shellpoint Mortgage, service is complete and valid. Rule 1-004(E) governs only
the method of service. Rule 1-004(G)(1)(a) governs upon whom service must be made: “Service
may be made upon . . . a limited liability company . . . by serving a copy of the process to an
officer, a managing or a general agent or to any other agent authorized by appointment, by law or
by this rule to receive service of process.” N.M. Rules Ann. 1-004(G)(1)(a). Thus, while
Martinez is correct that he can use rule 1-004(E), and mail the Summons and Complaint, he still
has to serve the right person. If the addressee is a registered agent, Martinez may use mail to
serve to that person. See N.M. Rules Ann. 1-004(G)(1)(a). Martinez also is correct that he does
not have to serve a registered agent, but if he does not serve a registered agent, he still has to
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serve “an officer, a managing or a general agent.” N.M. Rules Ann. 1-004(G)(1)(a). Martinez’
focus on rule 1-004(E) without also considering all rule 1-004(G) makes the service here invalid.
New Penn Financial, LLC maintains a registered agent for service of process, as N.M.
Stat. Ann. § 53-17-11 requires. See Search Information, at 1; N.M. Stat. Ann. § 53-17-11. The
registered agent has an address in New Mexico. See Trinkley Aff. ¶ 10 at 3 (“Shellpoint
appointed its current agent for service of process in the State of New Mexico, Corporation
Service Company, on June 19, 2015.”); Search Information, at 1 (“Registered Agent
Information: Name: Corporation Service Company; Physical Address: 123 East Marcy St., Suite
101, Santa Fe, New Mexico 87501”). To comply with rule 1.004(G), Martinez could have
mailed the summons and complaint to the registered agent. See N.M. Rules § 1-004(G). The
Court thus grants the Motion to Quash.
II.
MARTINEZ DID NOT OBTAIN A CLERK’S ENTRY OF DEFAULT.
The Court could not properly grant the Judgment Motion because of the invalid service.
Martinez also did not obtain a Clerk’s entry of default before seeking a default judgment. See
Watkins v. Donnelly, 551 F. App’x at 958. The default process is a two-step process, and the
first step is entry of default. See Fed. R. Civ. P. 55(a)(“When a party against whom a judgment
for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown
by affidavit or otherwise, the clerk must enter the party’s default.”). It would not be proper for
the Court to grant a default judgment. See Watkins v. Donnelly, 551 F. App’x at 958 (“Entry of
default by the clerk is a necessary prerequisite that must be performed before a district court is
permitted to issue a default judgment.”). Martinez concedes this point. See Tr. at 5:13-15
(Gonzales). The Court accordingly denies the Judgment Motion.
IT IS ORDERED that (i) Plaintiff’s Judgment Motion, filed February 21, 2018
- 24 -
(Doc. 15), is denied, and (ii) Defendant Shellpoint Mortgage’s Motion to Quash, filed August 20,
2018 (Doc. 52), is granted.
________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Eric N. Ortiz
Joseph C. Gonzales
Eric Ortiz Law
Albuquerque, New Mexico
Attorneys for the Plaintiff
Chris R. Marques
Justin Bert Breen
Keleher & McLeod, P.A.
Albuquerque, New Mexico
Attorneys for the Defendant Citimortgage, Inc.
--and-Mark C. Willis
Kutak Rock LLP
Denver, Colorado
--and-Matthew W. Park
Lewis Roca Rothergerber Christie LLP
Las Vegas, NV
--and-Richard L. Alvidrez
Miller Stratvert PA
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Albuquerque, New Mexico
--and-Ryan M Walters
Lewis Roca Rothergerber Christie LLP
Albuquerque, New Mexico
Attorneys for the Defendant Ditech Financial, LLC
--and-Eraina Marie Edwards
Rose L. Brand & Associates, P.C.
Albuquerque, New Mexico
Attorney for the Defendant Shellpoint Mortgage Servicing
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