1:26-cv-01419•Van Gelder v. Bank of America, N.A. et al
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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
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