Van Gelder v. Bank of America, N.A. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MARIA XIMENA VAN GELDER,
Plaintiff,
v. 	No. 1:26-cv-01419-KK
BANK OF AMERICA, N.A.,
NATIONSTAR MORTGAGE LLC d/b/a MR. COOPER,
SUNWEST TRUST, INC. and
DOES 1-20,
Defendants.
ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS,
AND ORDER FOR AMENDED COMPLAINT
THIS MATTER comes before the Court on pro se Plaintiff’s Amended Complaint for
Damages, Doc. 5, filed May 5, 2026, and Plaintiff’s Application to Proceed in District Court
Without Prepaying Fees or Costs, Doc. 2, filed May 5, 2026 (“Application”).
Order Granting Application to Proceed In Forma Pauperis
The statute for proceedings in forma pauperis, 28 U.S.C. § 1915(a), provides that the Court
may authorize the commencement of any suit without prepayment of fees by a person who submits
an affidavit that includes a statement of all assets the person possesses and that the person is unable
to pay such fees.
When a district court receives an application for leave to proceed in forma pauperis,
it 	should 	examine 	the 	papers 	and 	determine 	if 	the 	requirements 	of
[28 U.S.C.] § 1915(a) are satisfied. If they are, leave should be granted. Thereafter,
if the court finds that the allegations of poverty are untrue or that the action is
frivolous or malicious, it may dismiss the case[.]
Menefee v. Werholtz, 368 Fed.Appx. 879, 884 (10th Cir. 2010) (citing Ragan v. Cox, 305 F.2d 58,
60 (10th Cir. 1962). “The statute [allowing a litigant to proceed in forma pauperis] was intended
Case 1:26-cv-01419-KG-JMR Document 6 Filed 05/06/26 Page 1 of 5

2
for the benefit of those too poor to pay or give security for costs....” 	Adkins v. E.I. DuPont de
Nemours & Co., 335 U.S. 331, 344 (1948). While a litigant need not be “absolutely destitute,”
“an affidavit is sufficient which states that one cannot because of his poverty pay or give security
for the costs and still be able to provide himself and dependents with the necessities of life.” Id.
at 339.
The Court grants Plaintiff’s Application to Proceed in District Court Without Prepaying
Fees or Costs. 	Plaintiff signed an affidavit stating she is unable to pay the costs of these
proceedings and provided the following information: (i) Plaintiff's average monthly income
amount during the past 12 months is $528.00; (ii) Plaintiff’s monthly expenses total $480.00; and
(iii) Plaintiff has no cash and $0.89 in a bank accounts. The Court finds that Plaintiff is unable to
pay the costs of this proceeding because she signed an affidavit stating he is unable to pay the costs
of these proceedings and her monthly expenses are approximately equal to her low monthly
income.
Order for Amended Complaint
This case arises from Defendants’ alleged violations of mortgage servicing regulations and
debt collection practices and the foreclosure of Plaintiff’s property. See Complaint at 1-3. Plaintiff
alleges violations of federal law and seeks compensatory damages. See Complaint at 4-5.
The Court has identified a deficiency in the Amended Complaint, described below, and
orders Plaintiff to file a second amended complaint. See Lowrey v. Sandoval County Children Youth
and Families Department, 2023-WL-4560223 *2 (10th Cir. July 17, 2023) (stating: “Given a
referral for non-dispositive pretrial matters, a magistrate judge may point out deficiencies in the
complaint [and] order a litigant to show cause”) (citing 28 U.S.C. § 636(b)(1)(A) and Fed. R. Civ.
P. 72(a)).
Case 1:26-cv-01419-KG-JMR Document 6 Filed 05/06/26 Page 2 of 5

3
The Complaint fails to state claims upon which relief can be granted because the Amended
Complaint does not explain what each Defendant did, which federal law each Defendant allegedly
violated and how each Defendant violated those laws. 	See Nasious v. Two Unknown B.I.C.E.
Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007) (“a complaint
must explain what each defendant did to him or her; when [each] defendant did it; how [each]
defendant’s action harmed him or her; and, what specific legal right the plaintiff believes [each]
defendant violated”) (emphasis added). 	The allegations in the Amended Complaint refer to
“Defendants” collectively; none of the allegations clearly states what each Defendant did.
The Court orders Plaintiff to file a second amended complaint. 	The second amended
complaint 	must 	comply 	with 	the 	Federal 	and 	Local 	Rules 	of 	Civil 	Procedure. 	See
Fed. R. Civ. P. 10(b) (“A party must state its claims . . . in numbered paragraphs”).
Service on Defendants
Plaintiff is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915 which provides that
the “officers of the court shall issue and serve all process, and perform all duties in [proceedings
in forma pauperis].” 28 U.S.C. § 1915(d). The Court will not order service of a summons and the
Complaint on Defendants at this time because the Court is ordering Plaintiff to file a second
amended complaint. 	The Court will address service after Plaintiff files a second amended
complaint.
Case Management
Generally, pro se litigants are held to the same standards of professional
responsibility as trained attorneys. It is a pro se litigant’s responsibility to become
familiar with and to comply with the Federal Rules of Civil Procedure and the Local
Rules of the United States District Court for the District of New Mexico (the “Local
Rules”).
Case 1:26-cv-01419-KG-JMR Document 6 Filed 05/06/26 Page 3 of 5

4
Guide for Pro Se Litigants at 4, United States District Court, District of New Mexico (October
2022). The Local Rules, the Guide for Pro Se Litigants and a link to the Federal Rules of Civil
Procedure are available on the Court’s website: http://www.nmd.uscourts.gov.
Compliance with Rule 11
The Court reminds Plaintiff of her obligations pursuant to Rule 11 of the Federal Rules of
Civil Procedure. See Yang v. Archuleta, 525 F.3d 925, 927 n. 1 (10th Cir. 2008) (“Pro se status
does not excuse the obligation of any litigant to comply with the fundamental requirements of the
Federal Rules of Civil and Appellate Procedure.”). Rule 11(b) provides:
Representations to the Court. By presenting to the court a pleading, written
motion, or other paper--whether by signing, filing, submitting, or later advocating
it--an attorney or unrepresented party certifies that to the best of the person's
knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law
or by a nonfrivolous argument for extending, modifying, or reversing existing law
or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified,
will likely have evidentiary support after a reasonable opportunity for further
investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of information.
Fed. R. Civ. P. 11(b). Failure to comply with the requirements of Rule 11 may subject Plaintiff to
sanctions, including monetary penalties and nonmonetary directives. 	See Fed. R. Civ. P. 11(c).
IT IS ORDERED that:
(i) 	Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or
Costs, Doc. 2, filed May 5, 2026, is GRANTED.
Case 1:26-cv-01419-KG-JMR Document 6 Filed 05/06/26 Page 4 of 5

5
(ii) 	Plaintiff shall, within 21 days of entry of this Order, file a second amended
complaint. 	Failure to timely file a second amended complaint may result in
dismissal of this case.
_____________________________________
KIRTAN KHALSA
UNITED STATES MAGISTRATE JUDGE
Case 1:26-cv-01419-KG-JMR Document 6 Filed 05/06/26 Page 5 of 5