Jones et al v. Bank et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
MICHAEL J. JONES and
TAMERA A. JONES,
Plaintiffs,
v. Civ. No. 2:25-472 MLG/GJF
PIONEER BANK, ADRIANN RAGSDALE,
DEE ANN NUNEZ, and
DOVENMUEHLE MORTGAGE, INC.,
Defendants.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION ON
PLAINTIFFS’ MOTION FOR LEAVE TO FILE
SECOND AMENDED COMPLAINT AND RELATED MOTIONS1
THIS MATTER is before the Court on the Plaintiffs’ Motion for Leave to File Second
Amended Complaint Pursuant to Fed. R. Civ. P. 15(a)(2) (“Motion to Amend”) (Dkt. No. 85),
Plaintiffs’ Amended Motion for Summary Judgment (Dkt. No. 43), Defendants’ Motion to Strike
Plaintiffs’ Statement of Undisputed Material Facts and Supplemental Statement in Support of
Summary Judgment (“Motion to Strike”) (Dkt. No. 61), Pioneer Bank Defendants’ Motion to Stay
Briefing on Plaintiffs’ Motion for Leave to File Second Amended Complaint (“Motion to Stay”)
(Dkt. No. 89), and Plaintiffs’ Motion to Submit for Decision (Dkt. No. 69).
For the reasons that follow, the Court RECOMMENDS that Plaintiffs’ Motion to Amend
be GRANTED, that Plaintiffs be given fourteen days to file on the docket as their “Third Amended
Complaint” the proposed pleading attached to their Motion for Leave to Conduct Limited Early
Discovery (Dkt. No. 94-1) and currently entitled “Second Amended Complaint,” and that
1 The undersigned files this Proposed Findings and Recommended Disposition (“PFRD”) pursuant to the presiding
judge’s Order of Referral filed August 13, 2025. Dkt. No. 30.
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Defendants be given fourteen days after filing of the Third Amended Complaint to file their
answers or to otherwise respond to Plaintiffs’ Third Amended Complaint. The Court further
RECOMMENDS that Plaintiffs’ Amended Motion for Summary Judgment (Dkt. No. 43) be
DENIED WITHOUT PREJUDICE TO REFILING and that Defendants’ Motion to Strike
(Dkt. No. 61), Pioneer Bank Defendants’ Motion to Stay (Dkt. No. 89), and Plaintiffs’ Motion to
Submit for Decision (Dkt. No. 69) be DENIED AS MOOT.
I. BACKGROUND AND PROCEDURAL HISTORY
On May 20, 2025, Michael and Tamera Jones (“Plaintiffs”) filed their initial complaint
asserting a variety of state and federal causes of action, including a civil rights claim under 42
U.S.C. § 1983 and an extortion claim under 18 U.S.C. § 894, against Defendants Pioneer Bank,
Adriann Ragsdale, and Dee Ann Nunez (collectively “Pioneer Bank Defendants”).2 Dkt. No. 1.
Two weeks later, on June 13, 2025, Plaintiffs filed their First Amended Complaint, adding
Dovenmuehle Mortgage, Inc. (“DMI”) as a defendant and amending their claims. Dkt. No. 10.
Altogether, the First Amended Complaint asserted seven claims: Quiet Title, Declaratory
Judgment, violations of the Truth in Lending Act (“TILA”), violations of the Real Estate
Settlement Procedures Act (“RESPA”), violations of the Fair Debt Collection Practices Act
(“FDCPA”), fraud and misrepresentation, and unjust enrichment. Id. A month after they filed
their First Amended Complaint, Plaintiffs sought leave to amend (Dkt. No. 19 at 3), and before
the Court could resolve the motion to amend, they filed a “Second Amended Complaint” that
asserted new facts and claims. Compare Dkt. No. 10, with Dkt. No. 37. Defendants moved to
strike Plaintiffs’ “Second Amended Complaint” (Dkt. No. 37) for failure to comply with Federal
2 As the Court noted in its May 27, 2025 Order to Show Cause, Defendant Ragsdale is an attorney for Pioneer Bank
and Defendant Nunez is the senior vice president of the bank. Dkt. No. 7.
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Rule of Civil Procedure 15(a). Dkt. No. 40. In addition, Defendants moved to dismiss all of
Plaintiffs’ claims, pursuant to the Rooker-Feldman and Younger doctrines, for lack of subject
matter jurisdiction. Dkt. No. 39.
The Court set an Omnibus Motions Hearing for January 7, 2026, ordered the parties not
to file additional motions until after the hearing, and stayed briefing on all pending motions
pending further order of the Court. Dkt. No. 76. At the hearing, the Court noted that Federal Rule
of Civil Procedure 15(a) required Plaintiffs to obtain permission from the Court or the consent of
opposing parties before amending their complaint. Dkt. No. 77 at 4. At that time, Plaintiffs
indicated their intention to move to amend their complaint in accordance with Rule 15. Id. at 4,
7.
On January 16, 2026, the undersigned filed a Proposed Findings and Recommended
Disposition (“PFRD”) recommending, among other things, that Plaintiffs’ “Second Amended
Complaint” be stricken for failure to comply with Federal Rule of Civil Procedure 15(a) and that
Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction be granted in part and
denied in part. Dkt. No. 81. In addition, the undersigned recommended that the presiding judge
lift the “litigation hold that preclude[d] the filing of additional motions and stay[ed] briefing on
pending motions (Dkt. No. 76).” Id. at 23. Before the presiding judge could address the PFRD or
lift the litigation hold, however, Plaintiffs filed the Motion to Amend at issue here. Dkt. No. 85.
Pioneer Bank Defendants filed a response in opposition (Dkt. No. 90) and, concurrently, a motion
to stay briefing on Plaintiffs’ Motion to Amend (Dkt. No. 89).
On February 23, 2026, the presiding judge adopted the PFRD, lifted the litigation hold,
and dismissed Plaintiffs’ Quiet Title (Count I), Declaratory Judgment (Count II), rescission under
TILA (Count III, in part), FDCPA (Count V), and Unjust Enrichment (Count VII) claims. Dkt.
No. 91 at 3. The Court determined that Plaintiffs’ remaining claims survived, including their claims
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for statutory damages under both TILA (Count III, in part) and RESPA (Count IV) and their claims
for fraud and misrepresentation (Count VI). Id.
Fourteen days after the Court lifted the litigation hold and adopted the PFRD, DMI
responded in opposition to Plaintiffs’ Motion to Amend. See Dkt. No. 93.
II. LEGAL STANDARD
When the time for amending a pleading as a matter of course has expired, “a party may
amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed. R.
Civ. P. 15(a). A court should “freely give leave” to amend a pleading where “justice so requires.”
Fed. R. Civ. P. 15(a)(2). Indeed, Rule 15(a)(2) aims to provide litigants “the maximum opportunity
for each claim to be decided on its merits rather than on procedural niceties.” Minter v. Prime
Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quoting Hardin v. Manitowoc–Forsythe Corp.,
691 F.2d 449, 456 (10th Cir. 1982)). “Refusing leave to amend is generally only justified upon a
showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure
to cure deficiencies by amendments previously allowed, or futility of amendment.” Frank v. U.S.
West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (citations omitted). If the movant fails to satisfy
Rule 15(a)’s “justice so requires” standard, the district court does not abuse its discretion in
denying a motion to amend. Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 990 (10th Cir. 2019)
(citation omitted).
In considering the instant Motion to Amend, the Court bears in mind that “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) (citation
omitted). In Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), the Tenth Circuit stated:
We believe that this rule means 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
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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.
Id. Even so, the Court “will not supply additional factual allegations to round out a plaintiff’s
complaint or to construct a legal theory on a plaintiff’s behalf.” Id.
III. ANALYSIS
As they forecasted at the January 7, 2026 Motions Hearing (see Dkt. No. 77 at 4, 7),
Plaintiffs filed a Motion to Amend seeking leave to further amend their complaint. Because the
Court struck the “Second Amended Complaint” that Plaintiffs improperly filed on August 27, 2025
(Dkt. No. 37), the operative complaint – unless the Court grants their Motion to Amend – is
presently Plaintiffs’ First Amended Complaint (Dkt. No. 10).
Plaintiffs insist that their Motion to Amend is filed “in good faith, in strict compliance with
the Court’s guidance, and for the purpose of conforming the pleadings to newly discovered
evidence and narrowing the claims to those properly within the Court’s jurisdiction.” Dkt. No. 85
at 1. In support, Plaintiffs identify their “newly discovered evidence” as (1) a “notarized affidavit
of Joseph Esquivel and supporting exhibits identifying unresolved gaps in enforcement authority,
custodial possession, servicing transfers, and the payment stream[;]” (2) “[d]ocumentary evidence
of conflicting asserted interests, including a Solis Partners LLC / John Lipman mineral-related
UCC lien recorded against the property[;]” and (3) “[e]vidence of servicing and ownership changes
involving Pioneer Bank and Dovenmuehle Mortgage, Inc., occurring without proper notice to
Plaintiffs.” Id. at 3. Plaintiffs explain that the purpose of their proposed amended complaint is to
reduce rather than expand the scope of the parties’ dispute, and they insist that Defendants will not
suffer prejudice, as discovery has not yet commenced and the case remains in an early procedural
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posture. Id. at 4. Finally, Plaintiffs assert that the proposed amended complaint pleads viable
claims supported by factual allegations and evidence. Id.
Pioneer Bank Defendants respond in opposition to Plaintiffs’ Motion to Amend, though
not to its substance. Dkt. No. 90. They argue that Plaintiffs’ Motion to Amend is not yet ripe for
consideration because, at least at the time of its filing, the Court had not yet resolved the issue of
which complaint was the operative one, as between the First Amended Complaint and the proposed
second amended complaint. Id. at 2. Pioneer Bank Defendants further contend that they would
suffer prejudice if forced to respond to a motion that could prove to be moot. Id. Concurrently with
their response in opposition to Plaintiffs’ Motion to Amend, Pioneer Bank Defendants filed Motion
to Stay. Dkt. No. 89. As in their response to the Motion to Amend, Pioneer Bank Defendants
contend that Plaintiffs’ Motion to Amend is premature, as the Court had not yet determined
whether the Second Amended Complaint would be stricken. Id. at 1.
Plaintiffs filed a reply in support of their Motion to Amend, suggesting that the Court had
“procedural options” notwithstanding the outstanding issue of which complaint is the operative
one: (1) to conditionally grant leave to Plaintiffs to file their proposed second amended complaint
to become effective upon the presiding judge’s entry of an order on the then-pending PFRD; or (2)
to hold in abeyance Plaintiffs’ Motion to Amend. Dkt. No. 92 at 2. Plaintiffs further contend that
granting them leave to amend their complaint will not cause undue prejudice to Defendants. Id. at
3. In that regard, they insist that the proposed amended pleading is intended to narrow and clarify
their claims, to align them to the jurisdictional limitations, and to identify evidence supporting
their theories. Id.
Notably, Plaintiffs did not attach their proposed amended complaint to their Motion to
Amend as required by this District’s Local Rule 15.1. Instead, for unknown reasons, Plaintiffs filed
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their proposed second amended complaint a month later, on March 9, 2026, in conjunction with a
separate, unrelated motion: their Motion for Leave to Conduct Limited Early Discovery. See Dkt.
No. 94-1. Having compared the now-operative First Amended Complaint (Dkt. No. 10) to the
proposed amended complaint (Dkt. No. 94-1), the Court observes that the latter streamlines
Plaintiffs’ claims and includes only the three claims that survived Defendants’ subject matter
jurisdiction challenge: (1) a RESPA claim for actual/statutory damages (now Count I); (2) a TILA
claim for actual/statutory damages (now Count II); and (3) a claim for fraud and misrepresentation
under state law (now Count III). See Dkt. No. 94-1. Conversely, the proposed amended complaint
omits Plaintiffs’ previously-asserted Quiet Title, Declaratory Judgment, rescission under TILA,
FDCPA, and Unjust Enrichment claims, which the Court dismissed. Id. In addition, the proposed
amended complaint asserts additional factual allegations in support of the three surviving claims,
including some allegations that Plaintiffs purport they discovered in August 2025, after the filing
of their First Amended Complaint. See Dkt. No. 94-1 at 4; Dkt. No. 10 (First Amended Complaint,
filed June 13, 2025).
Fourteen days after the Court entered its Order Adopting PFRD in which it, among other
things, granted Defendants’ Motion to Strike Second Amended Complaint and lifted the litigation
hold, DMI filed its response in opposition to Plaintiffs’ Motion to Amend. See Dkt. No. 93. In that
response, DMI urges the Court to deny Plaintiffs’ Motion to Amend for two reasons: (1) because
the Motion was filed during the Court’s stay of briefing; and (2) because, despite its title, the
proposed amended complaint would constitute Plaintiffs’ third amended complaint. Id. at 2. DMI
notes that, in addition to their newly-proposed amendment, Plaintiffs have already filed three other
versions of their complaint, including an initial complaint, a First Amended Complaint, and a
procedurally-improper Second Amended Complaint. Id. at 1–2. Thus, in DMI’s view, Plaintiffs
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have already enjoyed ample opportunity to refine their allegations in these previous iterations of
their complaint. Id. at 3. DMI further contends that the filing of numerous complaints has
prejudiced Defendants by causing them to incur attorney fees from litigating the propriety of
Plaintiffs’ filings. Id. at 3–4. DMI represents that “[a]lthough Plaintiffs did not include a copy of
the Second Amended Complaint with their Motion, they have circulated a proposed [s]econd
[a]mended [c]omplaint that includes claims for violations of R[E]SPA, Regulation X, TILA, and
for fraud/negligence.” Id. at 2. And in a separate filing, DMI observes that this proposed second
amended complaint was attached to Plaintiffs’ Motion to Conduct Limited Early Discovery. Dkt.
No. 95 at 2. DMI does not address the substance of Plaintiffs’ proposed amended complaint,
however, or suggest that allowing Plaintiffs to amend would be futile. Instead, DMI limits its
arguments to the timing of Motion to Amend and the numerosity of Plaintiffs’ amendments.
After DMI responded in opposition to their Motion to Amend, Plaintiffs filed a second
reply in support of their Motion See Dkt. No. 97. Although they suggest that DMI’s response was
filed “outside the response sequence,” Plaintiffs explain that they do not object to the Court’s
consideration of the response, so long as the Court does not penalize Plaintiffs for failing to
respond or for filing of a second reply. Id. at 4. Plaintiffs emphasize that their improperly-filed
“Second Amended Complaint” was stricken by the Court, such that the instant proposed amended
complaint would amount to only the third operative complaint rather than the fourth. Id. at 3. In
addition, Plaintiffs characterize their proposed amended complaint as a “conforming amendment,”
suggesting that it conforms to the Court’s February 23, 2026 Order Adopting PFRD. Id. Noting
that DMI’s arguments are directed at timing and amendment history, Plaintiffs insist that DMI fails
to demonstrate that they will suffer actual prejudice if Plaintiffs are permitted to file their proposed
amended pleading.
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Exercising its broad discretion in weighing the applicable factors, including futility, undue
delay, prejudice, bad faith, and repeated failure on prior amendments to cure a pleading’s defects,
the Court recommends that Plaintiffs be granted leave to amend. Defendants do not suggest that
the proposed amendment is futile. Nor do they argue that Plaintiffs’ Motion to Amend was unduly
delayed. Rather, they assert that the Motion came too early – before the presiding judge could
address the PFRD’s recommendation as to the operative complaint. And notably, the Court has
not yet established a deadline for the parties to move to amend their pleadings. While Defendants
claim to have suffered prejudice on account of multiple amended complaints, the Court observes
that they have not yet answered Plaintiffs’ First Amended Complaint, which minimizes any such
prejudice. In addition, discovery has not yet begun, and the Court has not imposed pretrial
deadlines or set trial. The Court discerns no unfair obstacle to Defendants defending against the
same claims that survived Defendants’ jurisdictional challenges, despite those claims being
packaged in an amended pleading that is supported by additional factual allegations. Relatedly,
given that Plaintiffs have streamlined the proposed amended complaint to include only those
claims over which the Court has determined that it has jurisdiction, the Court discerns no bad faith.
Finally, although Plaintiffs have amended once before, the Court cannot say that they failed to cure
deficiencies in earlier versions of the complaint, particularly where Plaintiffs’ proposed amended
complaint includes at least some new factual allegations that Plaintiffs purportedly discovered after
the filing of the currently-operative complaint.
The Court cautions Plaintiffs that this PFRD should not be understood as an invitation to
repeatedly amend their pleadings at their every whim thereby creating a moving target of claims.
Indeed, the Court must consider, in deciding whether to allow this and any future requests for
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amendment, whether Plaintiffs have failed to cure deficiencies with previously allowed
amendments and whether permitting the amendment will prejudice Defendants.
Because the undersigned concludes that, on balance, the relevant factors weigh in favor of
granting Plaintiffs leave to file the proposed amended complaint filed on the Docket at 94-1, the
undersigned RECOMMENDS that the Court grant Plaintiffs’ Motion to Amend. To avoid
confusion with the improperly-filed “Second Amended Complaint” (Dkt. No. 37), the Court
RECOMMENDS that Plaintiffs be directed to file their new amended pleading, within fourteen
days, as their “Third Amended Complaint.” The Court further RECOMMENDS that Defendants
be ordered to answer or otherwise respond to Plaintiffs’ Third Amended Complaint within fourteen
(14) days of its filing.
As to Pioneer Bank Defendants’ Motion to Stay Briefing, in which they argue that
Plaintiffs’ Motion to Amend was filed prematurely because the Court had not yet determined
whether Plaintiffs’ Second Amended Complaint should be stricken (Dkt. No. 89), that motion was
rendered moot by the Court’s striking of the Second Amended Complaint (see Dkt. No. 91). The
Court therefore RECOMMENDS Defendants’ Motion to Stay Briefing be DENIED AS MOOT.
The undersigned acknowledges that permitting Plaintiffs to amend their complaint, as
recommended herein, will have collateral consequences for other motions pending before the
Court. On September 17, 2025, while Plaintiffs’ First Amended Complaint was the operative
complaint and before the Court dismissed certain claims pursuant to Rooker-Feldman, Plaintiffs
filed an Amended Motion for Summary Judgment. See Dkt. No. 43. Separately, they filed their
“Statement of Undisputed Material Facts” pursuant to Federal Rule of Civil Procedure 56 (Dkt.
No. 57), and their “Supplemental Statement in Support of Summary Judgment” in which they
sought “to place additional authenticated evidence into the summary-judgment record” (Dkt. No.
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58). In response, Pioneer Bank Defendants filed a Motion to Strike Plaintiffs’ statements of fact
(Dkt. No. 61), and Plaintiffs filed a Motion to Submit for Decision (Dkt. No. 69). Significantly,
Plaintiffs’ Amended Motion for Summary Judgment and corresponding statements of fact (Dkt.
Nos. 57, 58) were targeted to the claims asserted in the First Amended Complaint, some of which
have now been dismissed and others of which, if the Court permits amendment, will be supported
by additional factual allegations. As a result, the Court RECOMMENDS that Plaintiffs’ Amended
Motion for Summary Judgment (Dkt. No. 43) and Defendants’ Motion to Strike Plaintiffs’
Statement of Undisputed Material Facts and Supplemental Statement in Support of Summary
Judgment (Dkt. No. 61) be DENIED WITHOUT PREJUDICE to the parties filing dispositive
motions anew after Plaintiffs’ Third Amended Complaint is filed and answered, and perhaps after
the parties have engaged in discovery.
Finally, in their Motion to Submit for Decision (Dkt. No. 69), Plaintiffs argue that
Defendants have not produced evidence to rebut their claims and suggest that their summary
judgment motion is ready “for immediate decision.” Dkt. No. 69 at 1. Having determined that
Plaintiffs’ Amended Motion for Summary Judgment (Dkt. No. 43) should be denied without
prejudice to refiling, the Court RECOMMENDS that Plaintiffs’ Motion to Submit for Decision
(Dkt. No. 69) be DENIED AS MOOT.
IV. CONCLUSION
For the reasons stated above, the Court RECOMMENDS that:
1. Plaintiffs’ Motion for Leave to File Second Amended Complaint Pursuant to Fed.
R. Civ. P. 15(a)(2) be GRANTED, that Plaintiffs be given fourteen days to file on
the docket their Third Amended Complaint, and that Defendants be given fourteen
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days following the filing of the Third Amended Complaint to file their answers or
to otherwise respond to Plaintiffs’ Third Amended Complaint;
2. Plaintiffs’ Amended Motion for Summary Judgment (Dkt. No. 43) be DENIED
WITHOUT PREJUDICE TO REFILING; and
3. Defendants’ Motion to Strike Plaintiffs’ Statement of Undisputed Material Facts
and Supplemental Statement in Support of Summary Judgment (Dkt. No. 61),
Pioneer Bank Defendants’ Motion to Stay Briefing on Plaintiffs’ Motion for Leave
to File Second Amended Complaint (Dkt. No. 89), and Plaintiffs’ Motion to Submit
for Decision (Dkt. No. 69) be DENIED AS MOOT.
SO RECOMMENDED.
THE PARTIES ARE NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy of
these Proposed Findings and Recommended Disposition they may file written objections with
the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any
objections with the Clerk of the District Court within the fourteen-day period if that
party wants to have appellate review of the proposed findings and recommended
disposition. If no objections are filed, no appellate review will be allowed.
_______________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
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