Moya v. Wells Fargo Bank, N.A. et al

Filing 21

MEMORANDUM OPINION AND ORDER by District Judge James O. Browning. (cab)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CYNTHIA MOYA, guardian ad litem,
Plaintiff,
vs.

No. CIV 18-0104 JB\JHR

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 2007AR4, 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.
MEMORANDUM OPINION AND ORDER ADOPTING
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
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”).
BACKGROUND
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.

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LAW REGARDING PRO SE PARTIES
A pro se litigant’s pleadings “are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.” Smith v. United States, 561 F.3d 1090,
1096 (10th Cir. 2009)(quoting Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005)). The Tenth Circuit explains that
if the court can reasonably read the pleadings to state a valid claim on which the
plaintiff could prevail, it should do so despite the plaintiff’s failure to cite proper
legal authority, his confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading requirements.
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.
LAW REGARDING ADVERSE POSSESSION
“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, 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, 104 P.3d 554, 557 (citation omitted).

Thus, “[a] party claiming

ownership of land by adverse possession must prove by clear and convincing evidence

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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, 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, 690 P.2d 1027, 1028.
LAW REGARDING OBJECTIONS TO PROPOSED
FINDINGS AND RECOMMENDATIONS
District courts may refer dispositive motions to a Magistrate Judge for a
recommended disposition.

See Fed. R. Civ. P. 72(b)(1) (“A magistrate judge must

promptly conduct the required proceedings when assigned, without the parties’ consent, to
hear a pretrial matter dispositive of a claim or defense . . . .”).

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, “[t]he
district judge must determine de novo any part of the magistrate judge’s disposition that has
been properly objected to. The district judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.” 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.’”
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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 (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
this circuit, theories raised for the first time in objections to the magistrate judge’s report are
deemed waived.”). 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

1

Pevehouse v. Scibana 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.

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In One Parcel, the Tenth Circuit, in accord with other Courts of A ppeals, 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 court review of a
magistrate’s factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings. The House and Senate Reports
accompanying the 1976 amendments do not expressly consider what sort of
review the district court should perform when no party objects to the magistrate’s
report. See S. Rep. No. 94-625, pp. 9-10 (1976)(hereafter Senate Report); H. R.
Rep. No. 94-1609, p. 11 (1976), U.S. Code Cong. & Admin. News 1976, p. 6162
(hereafter House Report). There is nothing in those Reports, however, that
demonstrates an intent to require the district court to give any more consideration
to the magistrate’s report than the court considers appropriate. Moreover, the
Subcommittee that drafted and held hearings on the 1976 amendments had before
it the guidelines of the Administrative Office of the United States Courts
concerning the efficient use of magistrates. Those guidelines recommended to the
district courts that “[w]here a magistrate makes a finding or ruling on a motion or
an issue, his determination should become that of the district court, unless specific
objection is filed within a reasonable time.” See Jurisdiction of United States
Magistrates, Hearings on S. 1283 before the Subcommittee on Improvements in
Judicial Machinery of the Senate Committee on the Judiciary, 94th Cong., 1st
Sess., 24 (1975)(emphasis added)(hereafter Senate Hearings). The Committee
also heard Judge Metzner of the Southern District of New York, the chairman of a
Judicial Conference Committee on the administration of the magistrate system,
testify that he personally followed that practice. See id., at 11 (“If any objections
come in, . . . I review [the record] and decide it. If no objections come in, I
merely sign the magistrate’s order.”). The Judicial Conference of the United
See 10th Cir. R. 32.1(A) (“Unpublished opinions 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 Pevehouse v. Scibana has persuasive value with respect to a material
issue, and will assist the Court in its disposition of this Memorandum Opinion and Order.

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States, which supported the de novo standard of review eventually incorporated in
§ 636(b)(1)(C), opined that in most instances no party would object to the
magistrate’s recommendation, and the litigation would terminate with the judge’s
adoption of the magistrate’s report. See Senate Hearings, at 35, 37. Congress
apparently assumed, therefore, that any party who was dissatisfied for any reason
with the magistrate’s report would file objections, and those objections would
trigger district court review. There is no indication that Congress, in enacting
§ 636(b)(1)(C), intended to require a district judge to review a magistrate’s report
to which no objections are filed. It did not preclude treating the failure to object
as a procedural default, waiving the right to further consideration of any sort. We
thus find nothing in the statute or the legislative history that convinces us that
Congress intended to forbid a rule such as the one adopted by the Sixth Circuit.
Thomas v. Arn, 474 U.S. at 150-52 (emphasis in original)(footnotes omitted).
The Tenth Circuit has also noted, “however, that ‘[t]he waiver rule as a procedural bar
need not be applied when the interests of justice so dictate.’” One Parcel, 73 F.3d at 1060
(quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)(“We join those circuits
that have declined to apply the waiver rule to a pro se litigant’s failure to object when the
magistrate’s order does not apprise the pro se litigant of the consequences of a failure to object to
findings and recommendations.” (citations omitted)). Cf. Thomas v. Arn, 474 U.S. at 154
(noting that, while “[a]ny party that desires plenary consideration by the Article III judge of
any issue need only ask,” a failure to object “does not preclude further review by the district
judge, sua sponte or at the request of a party, under a de novo or any other standard”). In One
Parcel, the Tenth Circuit noted that the district judge had decided sua sponte to conduct a de
novo review despite the objections’ lack of specificity, but the Tenth Circuit held that it would
deem the issues waived on appeal, because it would advance the interests underlying the
waiver rule. See 73 F.3d at 1060-61 (citing cases from other circuits where district courts
elected to address merits despite potential application of waiver rule, but Circuit Courts opted to
enforce waiver rule). Where a party files timely and specific objections to the magistrate
judge’s proposed findings and recommendation, on “dispositive motions, the statute calls for

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a de novo determination, not a de novo hearing.” United States v. Raddatz, 447 U.S. 667,
674 (1980).
“[I]n providing for a ‘de novo determination’ rather than de novo hearing, Congress
intended to permit whatever reliance a district judge, in the exercise of sound judicial
discretion, chose to place on a magistrate’s proposed findings and recommendations.” United
States v. Raddatz, 447 U.S. at 676 (quoting 28 U.S.C. § 636(b) and citing Mathews v.
Weber, 423 U.S. 261, 275 (1976)). The Tenth Circuit requires a “district court to consider
relevant evidence of record and not merely review the magistrate judge’s recommendation”
when conducting a de novo review of a party’s timely, specific objections to the magistrate’s
report. In re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). “When objections are made to the
magistrate’s factual findings based on conflicting testimony or evidence . . . the district
court must, at a minimum, listen to a tape recording or read a transcript of the evidentiary
hearing.” Gee v. Estes, 829 F.2d 1005, 1008-09 (10th Cir. 1987).
A district court must “clearly indicate that it is conducting a de novo determination”
when a party objects to the Magistrate Judge’s report “based upon conflicting evidence or
testimony.” Gee v. Estes, 829 F.2d at 1009. On the other hand, a district court fails to meet the
requirements of 28 U.S.C. § 636(b)(1) when it indicates that it gave “considerable deference to
the magistrate’s order.” Ocelot Oil Corp. v. Sparro Indus., 847 F.2d 1458, 1464 (10th Cir.
1988). A district court need not, however, “make any specific findings; the district court
must merely conduct a de novo review of the record.” Garcia v. City of Albuquerque, 232
F.3d 760, 766 (10th Cir. 2000). “[T]he district court is presumed to know that de novo
review is required. Consequently, a brief order expressly stating the court conducted de novo
review is sufficient.” Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir. 1996)(citing In re

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Griego, 64 F.3d at 583-84). “[E]xpress references to de novo review in its order must be
taken to mean it properly considered the pertinent portions of the record, absent some clear
indication otherwise.” Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d 722, 724 (10th
Cir. 1993). The Tenth Circuit has previously held that a district court properly conducted a de
novo review of a party’s evidentiary objections when the district court’s “terse” order contained
one sentence for each of the party’s “substantive claims” and did “not mention his procedural
challenges to the jurisdiction of the magistrate to hear the motion.”
Albuquerque, 232 F.3d at 766.

Garcia v. City of

The Tenth Circuit has explained that brief district court

orders that “merely repeat[] the language of § 636(b)(1) to indicate its compliance” are
sufficient to demonstrate that the district court conducted a de novo review:
It is common practice among district judges in this circuit to make such a
statement and adopt the magistrate judges’ recommended dispositions when they
find that magistrate judges have dealt with the issues fully and accurately and that
they could add little of value to that analysis. We cannot interpret the district
court’s statement as establishing that it failed to perform the required de novo
review.
In re Griego, 64 F.3d at 584.
Notably, because “Congress intended to permit whatever reliance a district judge, in the
exercise of sound judicial discretion, chose to place on a magistrate’s proposed findings and
recommendations,” United States v. Raddatz, 447 U.S. at 676 (emphasis omitted), a district court
“may accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate,” 28 U.S.C. § 636(b)(1). See Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d
at 724-25 (holding that the district court’s adoption of the Magistrate Judge’s “particular
reasonable-hour

estimates”

is

consistent

with

the

de

novo

determination

that

28 U.S.C. § 636(b)(1) and United States v. Raddatz require).
Where no party objects to the Magistrate Judge’s proposed findings and

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recommended disposition, the Court has, as a matter of course and in the interests of
justice, reviewed the magistrate judge’s recommendations. In Pablo v. Soc. Sec. Admin., No.
CIV 11-0132, 2013 WL 1010401 (D.N.M. February 27, 2013)(Browning, J.), the Plaintiff
failed to respond to the magistrate judge’s proposed findings and recommended disposition,
and thus waived his right to appeal the recommendations, but the Court nevertheless
conducted a review. See 2013 WL 1010401, at *1, *4.

The Court generally does not,

however, “review the PF&RD de novo, because the parties have not objected thereto, but
rather review[s] the recommendations to determine whether they are clearly erroneous,
arbitrary, obviously contrary to law, or an abuse of discretion.” 2013 WL 1010401, at *4. The
Court, thus, does not determine independently what it would do if the issues had come before
the Court first, when there is no objection, but rather adopts the proposed findings and
recommended disposition where “‘the Court cannot say that the Magistrate Judge’s
recommendation . . . is clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
discretion.’” Pablo v. Soc. Sec. Admin., 2013 WL 1010401, at *3 (footnote and internal
brackets omitted)(quoting Workheiser v. City of Clovis, No. CIV 12-0485, 2012 WL
6846401, at *3 (D.N.M. December 28, 2012)(Browning, J.). See Alexandre v. Astrue, No.
CIV 11-0384, 2013 WL 1010439, at *4 (D.N.M. February 27, 2013)(Browning, J.)(“The
Court rather reviewed the findings and recommendations . . . to determine if they are clearly
erroneous, arbitrary, obviously contrary to law, or an abuse of discretion. The Court determines
that they are not, and will therefore adopt the PFRD.”); Trujillo v. Soc. Sec. Admin., No. CIV
12-1125, 2013 WL 1009050, at *5 (D.N.M. February 28, 2013)(Browning, J.)(adopting the
proposed findings and conclusions, and noting: “The Court did not review the ARD de novo,
because Trujillo has not objected to it, but rather reviewed the . . . findings and

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recommendation to determine if they are clearly erroneous, arbitrary, obviously contrary to
law, or an abuse of discretion, which they are not.”). This review, which is deferential to
the Magistrate Judge’s work when there is no objection, nonetheless provides some review in
the interest of justice, and seems more consistent with the waiver rule’s intent than no review
at all or a full-fledged review. Accordingly, the Court considers this standard of review
appropriate.

See Thomas v. Arn, 474 U.S. at 151 (“There is nothing in those Reports,

however, that demonstrates an intent to require the district court to give any more consideration
to the magistrate’s report than the court considers appropriate.”). The Court is reluctant to
have no review at all if its name is signed the bottom of the order adopting the Magistrate
Judge’s proposed findings and recommendations.
ANALYSIS
The Court has carefully reviewed the PFRD and the Defendants’ Motion to Dismiss. The
Court did not review the PFRD de novo, because the parties have not objected to the PFRD, but,
rather, reviewed Magistrate Judge Ritter’s PFRD to determine if it is clearly erroneous, arbitrary,
obviously contrary to law, or an abuse of discretion. See Alexandre v. Astrue, 2013 WL
1010439, at *4.

The Court concludes that the PFRD is not clearly erroneous, arbitrary,

obviously contrary to law, or an abuse of discretion. Rather, taking all facts stated in the
Complaint as true, Plaintiff has failed to adequately plead the elements of adverse possession
under New Mexico law. Accordingly, the Court agrees that the Court should dismiss the
Complaint.
IT IS ORDERED that the Defendants Wells Fargo Bank, N.A., and Select Portfolio
Servicing, Inc.’s Motion to Dismiss, filed February 7, 2018 (Doc. 4), is granted. This case is

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dismissed with prejudice. The requests in the Plaintiff’s Letter from Moya, to the Court, dated
June 6, 2018, filed June 7, 2018 (Doc. 19), are denied as moot.

_______________________________
UNITED STATES DISTRICT JUDGE

Parties and counsel:
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

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