UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ MTGLQ INVESTORS, LP, Plaintiff Counter Defendant - Appellee,

v. MONICA WELLINGTON, Defendant Counterclaimant - Appellant, and
THE MONICA L. WELLINGTON DECLARATION OF TRUST, Dated December 28, 2007; ALTURA VILLAGE HOMEOWNERS ASSOCIATION, Defendants,

v. J.P. MORGAN CHASE BANK, N.A.; WEINSTEIN & RILEY, P.S.; ELIZABETH V. FRIEDENSTEIN; RUSHMORE LOAN MANAGEMENT SERVICES, LLC, Counter Defendants - Appellees, and
PROFOLIO HOME MORTGAGE CORPORATION, Counter Defendant. No. 20-2000 (D.C. No. 1:17-CV-00487-KG-LF) (D. N.M.)

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### March 31, 2021 Christopher M. Wolpert Clerk of Court2 ORDER

________________ _________________ Before HARTZ , McHUGH , and CARSON , Circuit Judges.

________________ _________________ This matter is before the court on the appellant’s petition for panel rehearing and (liberally construing footnot e two of her petition) reheari ng en banc. The petition for panel rehearing is denied. Th e petition for rehearing en banc was transmitted to all of the judges of the court who are in regular active service. As no member of the panel and no judge in regular active service requested that the court be polled, that petition is also denied. On its own motion, the court has revised th e order and judgment to be consistent with an intervening clarificati on in this circuit’s law. The original order and judgment filed January 7, 2021 is he reby withdrawn and replaced by the attached order and judgment, which shall be filed as of today’s date. The tim e for filing another petition for rehearing will run in accordance with Fed. R. App. P. 40(a)(1) from the entry of the revised order and judgment, but any petition for rehearing is lim ited to the rulings in Parts III.A. and III.B of the revised order and judgmen t that appellant did not challenge in the initial petition for rehearing.

Entered for the Court

CHRISTOPHER M. WOLPERT, ClerkUNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ MTGLQ INVESTORS, LP, Plaintiff Counter Defendant - Appellee,

v. MONICA WELLINGTON, Defendant Counterclaimant - Appellant, and
THE MONICA L. WELLINGTON DECLARATION OF TRUST, Dated December 28, 2007; ALTURA VILLAGE HOMEOWNERS ASSOCIATION, Defendants,

v. J.P. MORGAN CHASE BANK, N.A.; WEINSTEIN & RILEY, P.S.; ELIZABETH V. FRIEDENSTEIN; RUSHMORE LOAN MANAGEMENT SERVICES, LLC, Counter Defendants - Appellees, and
PROFOLIO HOME MORTGAGE CORPORATION, Counter Defendant. No. 20-2000 (D.C. No. 1:17-CV-00487-KG-LF) (D. N.M.)

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### March 31, 2021 Christopher M. Wolpert Clerk of Court2 ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , McHUGH , and CARSON , Circuit Judges.

________________ _________________ Monica Wellington, appearing pro se, app eals the district court’s judgment of foreclosure and sale and ot her rulings. We affirm.
I. BACKGROUND On February 20, 2007, Wellington obta ined a mortgage loan from Profolio Home Mortgage Corporation (Profolio) for the purchase of a house in New Mexico. She executed a promissory note (Note) in fa vor of Profolio. The Note provided that if she defaulted on her payment obligations , the Note holder coul d require immediate payment in full. An allonge to the Note, also dated February 20, 2007, bears an indorsement to Ohio Savings Bank. Th e allonge also cont ains an undated indorsement in blank signed by an authori zed agent of Ohio Savings Bank. To secure the debt evid enced by the Note, Wellington execu ted and delivered a mortgage on the property to Mortgage Electronic Regi stration Systems, Inc. (MERS), solely as Profolio’s nominee. The mort gage was recorded in the Bernalillo County Clerk’s Office.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.3 Wellington’s last payment on the Note was in 2011. In January 2017, MTGLQ filed a foreclosure action in New Mexico st ate court, seeking both foreclosure on the property and a judgment agai nst Wellington personally for the unpaid principal of some $125,000 plus interest, la te charges, taxes, assessm ents, insurance, and other expenses necessary to preserve the propert y. MTGLQ attached to its complaint a copy of the Note and the allonge and alleged th at it was in possessi on of the original. MTGLQ also alleged that in 2012, MERS e rroneously filed a re lease of mortgage with the county clerk’s offi ce and soon thereafter erroneous ly assigned the mortgage, as Profolio’s nominee, to JPMorgan Chas e Bank, N.A. (JPMC). The assignment was recorded in the clerk’s offi ce. MTGLQ further alleged th at in 2016, MERS assigned the mortgage to MTGLQ. Due to the recording of the allegedly erroneous assignment to JPMC, MTGLQ named JPMC as a defendant. 1 Wellington removed the action to federa l district court and filed thirteen counterclaims under the Fair Debt Coll ection Practices Act (FDCPA) against MTGLQ, the lawyer and law firm repres enting MTGLQ, and the company servicing the loan for MTGLQ, Rushmo re Loan Management Services, LLC (Rushmore). She also sought declaratory relief against MTGLQ, JPMC, and Pr ofolio. In response to

1 MTGLQ also named three other defendant s. The district court dismissed the claim against one of them (Wellington’s unnamed spouse) and entered default judgment against the other two (a trus t to which Wellington had conveyed the property and a homeowners asso ciation). Those procedural facts are i mmaterial to our merits disposition, but we have considered them in determining that we have jurisdiction over this appeal. See part II, infra

.4 motions to dismiss her counterclaims, We llington amended them. After extensive motions practice, the district cour t dismissed Wellington’s amended FDCPA counterclaims without prejudice; denied he r motion for leave to further amend her counterclaims; dismissed her claim for decl aratory relief against MTGLQ and JPMC with prejudice; 2 entered a stipulated judgment between MTGLQ and JPMC foreclosing JPMC’s interest in the property; granted summary judgment to MTGLQ on its claims against Wellingt on; and entered a Judgment of Foreclosure and Sale, and Appointment of Special Master (Judg ment of Foreclosur e, or Judgment). Wellington appeals.
II. APPELLATE JURISDICTION Before addressing the merits of this appeal, we first consider our own jurisdiction. In the Judgment of Foreclosure, the district court stated that it retained jurisdiction over confirmation of the sale a nd, “if necessary,” “a ssisting the purchaser at the foreclosure sale, or its successor and assigns, in obtaining possession of the property” and “entering a deficiency judgme nt upon approval of the Special Master’s Report subsequent to the foreclos ure sale.” R. Vol. III at 50. The court also retained jurisdiction “for determining all other i ssues presented in this action and not specifically ruled on in this Judgment of Foreclosure.” Id. Concerned that the district court’s rete ntion of jurisdiction might affect the finality of its Judgment of Foreclosure, we ordered Wellington to file a memorandum

2 In her amended counterclaims, We llington did not seek relief against Profolio.5 providing a basis for appella te jurisdiction. She did so, and MTGLQ also filed a memorandum on the issue. Having reviewed the parties’ subm issions, the record, and the relevant law, we conc lude that the only matters le ft for the district court’s determination are ancillary to the Judgm ent of Foreclosure, and therefore the Judgment is final for purposes of our juri sdiction under 28 U.S.C. § 1291. As we observed in United States v. Simons , 419 F. App’x 852 (10th Cir. 2011), it “has long been established that ‘a decree of sale in a foreclosure su it, which settles all the rights of the parties and leaves nothing to be done but to make the sale and pay out the proceeds, is a final decree for the purposes of an appeal.’” Id. at 855 (quoting Grant v. Phoenix Mut. Life Ins. Co. , 106 U.S. 429, 431 (1882)). The Supreme Court explained in Whiting v. Bank of United States , 38 U.S. (13 Pet.) 6, 15 (1839), that an “original decree of foreclosur e and sale [is] final upon the merits of the controversy,” and defendants have “a right to appeal from that decree, as final upon thos e merits, as soon as it was pronounced, in order to prevent an irreparable mischief to themselves[,] . . . without and independe nt of any ulterior proceedings.” See also N.C. R.R. Co. v. Swasey , 90 U.S. 405, 409 (1874) (same, adding that “[t]he sale in such a case is the ex ecution of the decree”); Ray v. Law , 7 U.S. (3 Cranch) 179, 180 (1805) (stating that “a decree for a sale und er a mortgage[] is such a final decree as may be appealed from”). 3

3 In a split decision, the Seventh Circui t has concluded othe rwise, holding that a foreclosure judgment was not final unde r § 1291 because (1) the owner of the property retained statutory rights to rede em or reinstate the mortgage before a judicial sale; (2) if a judicial sale occurred, it would need to be confirmed in a further6 III. DISCUSSION Having established our appellate jurisdic tion, we turn to the four issues Wellington raises on appeal, c onstruing her pro se filings liberally but without acting as her advocate, see Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10th Cir. 2008). A. Real party in interes t and Article III standing Wellington first argues that because MT GLQ is not, as it claimed to be, a limited partnership but is instead an uninc orporated association, it was not a real party in interest under Federal Rule of Civil Procedure 17 and also lacked constitutional standing. MTGLQ argues that Wellington waived appellate review of this issue by not raising it before the district court. 4 We conclude th at we may review

judicial proceeding; and (3) the amount of any deficiency judgment could not be determined until the sale was held and the parties had an opportunity to contest its fairness. HSBC Bank USA, N.A. v. Townsend , 793 F.3d 771, 775-77 (7th Cir. 2015). Although similar factors are present here, we are not persuaded by the Townsend majority’s opinion because it fails to address the Supreme Court’s long-standing precedent on the issue. Indeed , the only circuit court outsi de of the Seventh Circuit that has considered Townsend sided with the dissenting opinion, which relied on that precedent, see MSCI 2007-IQ16 Granville Retail, LLC v. UHA Corp. , 660 F. App’x 459, 460 (6th Cir. 2016); see also Townsend , 793 F.3d at 784-85 (Hamilton, J., dissenting) (discussing Whiting , Swasey , Grant , and Ray ). Like the Sixth Circuit, we agree with the Townsend dissent.

4 MTGLQ also argues that Wellington waiv ed this and other issues by failing to provide a sufficient record for appe llate review. But MTGLQ overlooks that “[w]hen the appellant is pro se, the court pr epares and dockets a record on appeal.” 10th Cir. R. 10.1. And we have supplemen ted the record to remedy the omission of any necessary documents.7 this issue, but our focus is extremely narrow. To fully explain why, we must first set out the relevant procedural facts. Wellington’s argument is based on an affidavit describing MTGLQ’s organizational structure that was filed in response to the district’s court order to disclose the citizenship of MTGLQ’s limited partner a nd its general partner for purposes of determining diversity jurisdiction. See R. Vol. II at 165-66, 168 (order); Supp. R. Vol. I at 102-03 (affidavit). A ccording to the affidavit, MTGLQ is a Delaware limited partnershi p whose one general partner is MLQ, L.L.C., and its limited partner is The Goldman Sachs Group, Inc. (GSG). MLQ, L.L.C. has two members: (1) Goldman Sachs Global Holdi ngs L.L.C. and (2) GSG. Goldman Sachs Global Holdings L.L.C. has two members: (1) Goldman Sachs Holding Company LLC and (2) GSG. And the Goldman Sa chs Holding Company LLC has only one member—GSG. Because the deadline for pr etrial motions had passe d by the time MTGLQ filed the affidavit, Wellington moved to amend th e scheduling order so she could file a motion challenging whether MTGLQ was the real party in interest under Rule 17. 5 According to Wellington’s one-sentence ar gument, the affidav it revealed that MTGLQ’s “purported ‘partnersh ip’ ultimately consists of only a single party,” which

5 In relevant part, Rule 17 provides that “[a]n action must be prosecuted in the name of the real party in interest,” and, subject to exceptions not applicable here, capacity to sue is determined “by the law of the state wh ere the court is located,” Fed. R. Civ. P. 17(a), (b)(3).8 called into question MTGLQ’s legal existence as a limite d partnership. Supp. R. Vol. I at 106 n.1. The magistrate judge denied the motion to amend the scheduling order because the affidavit stated that MTGLQ consisted of a general partner and a limited partner, and that structure met a law-dictionary definition of “limited partnership.” Id. at 110-11. The magistrate judge also de termined that Welli ngton had not shown good cause to revisit the court’s previous determinations that MTGLQ had standing to enforce the Note. Id. at 110 n.1. 6 Wellington did not object to the magist rate judge’s order, but she raised the issue again in her resp onse to MTGLQ’s motion to appoint a receiver. See R. Vol. II at 191-95. There, she developed her ar gument more fully, as follows: MTGLQ ultimately consists of nothing more than a single entity—GSG—a nd therefore it is not a bona fide limited part nership under Delaware law. 7 Consequently, it is only an unincorporated association and lacks standing to sue under New Mexico law. 8

6 Those previous determinations did not involve the attack on MTGLQ’s claim to be a limited partnership but instead concluded MTGLQ ha d standing because it had attached to its complaint a copy of the Note and the allonge to the Note. See R. Vol. I at 250; id. at 327. We discuss that asp ect of standing in Part III.C.1.

7 Wellington argued that Delaware law requires two or more persons for a valid partnership. See Del. Code Ann. tit. 6, § 15-202(a), (b).

8 See Blue Canyon Well Ass’n v. Jevne , 410 P.3d 251, 255 (N.M. Ct. App. 2017) (explaining that unincorporated asso ciations have no lega l existence and may not bring suit unless they comply w ith certain statutory requirements).9 The district court treated the argument as a motion to reconsider the magistrate judge’s ruling that MTGLQ was a limited partnership and declined to address it because Wellington had not complied with pr ocedural rules regarding the filing of motions. See id. at 226. With this background, we turn to the question at hand—may we review Wellington’s appellate argument that MTGL Q is not a bona fide limited partnership and therefore lacks standing under New Me xico law? MTGLQ argues that we may not, because Wellington did not file object ions to the magist rate judge’s order denying her motion to amend the scheduling order. 9 We agree that Wellington did not file objections to the magistrate judge’s order. 10 But as we recently clarified, that

9 By operation of local rule, when this case was removed to federal court, a “pre-trial” magistrate judge was automa tically designated “to preside over all non-dispositive pre-trial matters.” D.N.M.LR-Civ. 73.1(a). The motion to amend involved a non-dispositive pret rial matter that magist rate judges may “hear and determine” when designated to do so unde r 28 U.S.C. § 636(b)(1)(A). Section 636(b)(1)(A) provides that “[a] judge of the court may rec onsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law.” To obtain review by the district judge, Wellington needed to “serve and file object ions to the order within 14 days after being served with a copy.” Fed. R. Civ. P. 72(a).

10 In reaching this conclusion, we r ecognize that Wellington’s response to MTGLQ’s motion to appoint a receiver, where she developed her argument that MTGLQ is not a bona fide limited partners hip under Delaware law, was filed within 14 days of the magistrate judge’s order denying the moti on to amend the scheduling order. Thus, her response might be construed as a timely objection to the order. But D.N.M.LR-Civ 73.1(a) provi des that “[o]bjections to a non-dispositive pre-trial matter decided by a pre-trial Magistrate Judge will follow the procedures and requirements set forth in D.N.M.LR-Civ 7.3, 7.4 and 7.5,” which govern the filing of motions, and Wellington’s response to the motion to appoint a receiver was not a motion. Hence, we understand the district court’s procedural re fusal to reconsider the magistrate judge’s dete rmination regarding MTGLQ’s business status as based on10 failure amounts only to waiver subj ect to our “firm waiver rule.” See Sinclair Wyo. Refin. Co. v. A & B Builders, Ltd. , ___ F.3d ___, Nos. 19-8042 & 19-8053, 2021 WL 672247, at *22-23 (10t h Cir. Feb. 22, 2021) (resolving intra-circuit conflict whether failure to object to magistrate judge’s ruling on a non-dispositive matter constitutes waiver subject to firm waiver rule or jurisdictional bar to appellate review, and holding that “the firm waiver rule applies when a party fails to object to a magistrate judge’s non-dispositive ruling under Rule 72(a)”). “Under the firm waiver rule, a party w ho fails to make a timely objection to the magistrate judge’s ruli ng waives appellate review of both factual and legal questions.” Id. at 22 n.23 (brackets and internal quotation marks omitted). Our firm waiver rule does not apply where “a pro se litigant has not been informed of the time period for objecting and the conseque nces of failing to object.” Morales-Fernandez
v. INS , 418 F.3d 1116, 1119 (10th Cir. 2005). Here, the magistrate judge’s order denying Wellington’s motion to amend the scheduling order did not provide this information regarding objections. Accordingl y, the firm waiver rule does not bar our consideration of Wellington’s argument.

Wellington’s failure to separa tely file objections to the order denying the motion to amend the scheduling order. We see no abus e of discretion in the court’s decision to do so, even though Wellington represented herself. See McInnis v. Fairfield Cmtys., Inc. , 458 F.3d 1129, 1147 (10th Ci r. 2006) (“We review a dist rict court’s application of its local rules for abuse of discretion.”); Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005) (“[P]ro se parties [must] follow the same rules of procedure that govern other litigants.” (internal quotation marks omitted)).11 But Wellington faces a separate proce dural hurdle—new-theory waiver on appeal. In this court, We llington contends that MTGLQ is not a bona fide limited partnership because, after di gging through its structural layers, there is only one entity involved—GSG—and “one single party cannot constitute a pa rtnership.” Aplt. Opening Br. at 18. Her sole support is that the formation of a partnership under Delaware law requires “the association of 2 or more persons,” Del. Code. Ann. tit. 6, § 15-202(a), and “a common obligation to share losses as well as profits,” Ramone v. Lang , No. 1592-N, 2006 WL 4762877, at *12 (Del. Ch. Apr. 3, 2006) (unpublished) (internal quotation marks omitted). Wellington did not present this Delaware-law theo ry in her one-sentence argument to the magistrate judge, which did not rely on any legal authority. Wellington only advanced her Delaware-law theory in response to MTGLQ’s motion to appoint a receiver, but the district court declined to consider this argument because Wellington did not properly present it. See supra note 10. Consequently, this improperly-presented theory does not alter a pplication of our rule that we generally do not consider new theories raised on appeal for th e first time. See, e.g. , United States v. Leffler , 942 F.3d 1192, 1196 (10th Cir. 2019) (discussing new-theory waiver rule); Impact Energy Re s., LLC v. Salazar , 693 F.3d 1239, 1246 n.3 (10th Cir. 2012) (per curiam) (explaining that fa ilure to raise issue at appr opriate time in the district court waives appellate review). Wellington’s failure to prope rly raise her Delaware-law theory in the district court amounts to forfeiture, so sh e could seek plain-error review. See Richison v.12 Ernest Grp., Inc. , 634 F.3d 1123, 1128 (10th Cir. 2011) (explaining that forfeiture occurs if a “theory simply wa sn’t raised before the distri ct court” and is subject to review for plain error). But to do that she had to “identif y plain error as the standard of review in [her] opening brief and . . . provide a defense of that standard’s application.” Platt v. Winnebago Indus., Inc. , 960 F.3d 1264, 1273 (10th Cir. 2020). In the discussion of this issue in her opening brie f, Wellington provides only a one-sentence reference to plain erro r. Assuming that meets the first Platt requirement, it does not meet the second, becau se it targets the district court’s refusal to address the issue, not the magistrate judge’s ruling. See Aplt. Opening Br. at 17 (“Wellington submits it was plain error for the trial court to dodg e the issue instead of actually ruling on it.”). And we have f ound no abuse of discretion in the district court’s ruling. See supra note 10. Accordingly, her “failure to argue for plain error and its application on appeal . . . marks the end of the road for [her Delaware-law argument].” Richison , 634 F.3d at 1131. 11 What remains is the undeveloped argument Wellington raised before the magi strate judge and the magistrate judge’s ruling—that MTGLQ’s structure met a la w-dictionary definition of a limited partnership as consis ting of one general partner and one limited partner. Wellington has not shown this ruling was error, nor do we see any.

11 Although “we have left open the door fo r a criminal defendant to argue error in an opening brief and then allege plain er ror in a reply brief after the Government asserts waiver,” Leffler , 942 F.3d at 1198, we have not opened that door for civil litigants. But even if we were to do so, Wellington’s re ply brief does not identify plain error as the standard of review for this issue or argue for its application on appeal.13 Wellington contends that we may review MTGLQ’s business status as a matter of Article III standing because “constitutiona l standing is a jurisdictional matter that must be addressed even if rais ed for the first time on appeal,” First Am. Title Ins. Co. v. Nw. Title Ins. Agency , 906 F.3d 884, 889 (10th Cir. 2018). We reject this contention. A constitutional “standing challenge is not pr operly raised in connection with real party in interest analysis under Rule 17(a).” K-B Trucking Co. v. Riss Int’l Corp. , 763 F.2d 1148, 1154 n.7 ( 10th Cir. 1985). “Using the term ‘standing’ to designate real-party-in-intere st issues tempts courts to apply standing principles outside the context in whic h they were developed.” FDIC v. Bachman , 894 F.2d 1233, 1236 (10th Cir. 1990). “Even if standing juri sprudence is helpful by analogy in resolving real-party-in-inte rest issues, this does not conve rt real party in interest into a nonwaivable issue of s ubject matter jurisdiction.” Id. Hence, lacking an independent duty to satisfy ourselves, as a jurisdictional matter , that MTGLQ is a bona fide limited partnership, we n eed not look beyond the limited argument Wellington presented to the ma gistrate judge and the magi strate judge’s handling of that argument. B. Magistrate Judge ord ers concerning discovery Wellington’s second issue c oncerns the magistrate j udge’s orders (1) denying her motion to compel initia l disclosures, (2) imposi ng monetary sanctions under Federal Rule of Civil Procedure 37(a)(5 )(B) against Wellington for filing untimely motions to compel response s to interrogatories, and (3) granting MTGLQ’s motion for a protective order. MTGLQ contends that because Wellington did not file14 objections to any of those or ders with the district cour t, she has waived appellate review of them. Wellington’s failure to object to these non-di spositive rulings is indeed subject to our firm waiver rule. See Sinclair Wyo. Refin. Co. , 2021 WL 672247, at *22-23. But b ecause none of the challenge d orders informed Wellington of the time period for objecting or the cons equences of failing to do so, the firm waiver rule does not apply. See Morales-Fernandez , 418 F.3d at 1119. We review these discovery rulings for an abuse of discretion. See Punt v. Kelly
Servs. , 862 F.3d 1040, 1047 (10th Cir. 2017) (motion to compel discovery); LaFleur v. Teen Help , 342 F.3d 1145, 1152 (10th Cir. 2003) (protective orders regarding depositions); Lancaster v. Indep. Sch. Dist. No. 5 , 149 F.3d 1228, 1236 (10th Cir. 1998) (Rule 37 sanctions). “An abuse of discretion occurs when a judicial determination is arbitrary, capricious or whimsical, and we will not overturn a discretionary judgment by the trial court where it falls with in the bounds of permissible choice in the circumstances.” Punt , 862 F.3d at 1047 (brackets and internal quotation marks omitted).
1. Initial disclosures Wellington filed a motion to compel MT GLQ to disclose names and contact information of known witnesses and a co mputation of damage s, as required by Federal Rule of Civil Pro cedure 26(a), claiming MTGLQ had failed to do so by the court-ordered deadline. In the alternative, she sought ev identiary exclusion of any undisclosed witnesses and damage comput ations under Federal Rule of Civil Procedure 37(c). She also asked the court to sanction MTGLQ at least $100. In its15 response, MTGLQ disclosed names and c ontact information of five potential witnesses, all of whom worked for its loan servicer, Ru shmore, stating it intended to call one of those witnesses to testify. In her reply, Wellington asked the court to strike allegations from the complaint re garding MERS’s assignment of the Note because none of the witnesses MTGL Q identified were MERS employees. The magistrate judge granted the moti on in part (apparently based on her conclusion that disclosure s MTGLQ provided to Wellingt on prior to her motion to compel were insufficient), but otherwise concluded that the issues Wellington raised were moot. The magistrate judge de termined that MTGLQ satisfied the initial-disclosure requirements through a comb ination of the complaint, a Joint Status Report, an email to Wellington, and its response to the motion to compel. Although the witness disclosure did not include telephone numbers, th e magistrate judge ordered MTGLQ’s counsel to notify Welli ngton within seven days if counsel represented any of them (so Wellington c ould contact them through counsel) or otherwise to provide their telephone numb ers. The magistrate judge rejected Wellington’s argument that MTGLQ’s counse l did not sign the disclosure documents, finding that each of the docum ents containing the disclosu res was in fact signed. Because ample time remained in the discovery period, the magistrate judge concluded that any delay in providing the disclosures wa s harmless and therefore declined to exclude the in formation from the case. Fi nally, the magistrate judge declined to impose a monetary sanction on MTGLQ because Wellington, as a pro se party, was “not entitled to attorney’s fees.” Su pp. R. Vol. I at 94.16 Wellington complains the magistrate j udge erred in deeming adequate the manner in which MTGLQ complied with th e initial-disclosure requirement. She contends that Rule 26(a) contemplates the disclosures being made in one written document, and that the magistrate judge made three “unprecedented” determinations—that allegations in the co mplaint can constitute a computation of damages, that signatures on other documen ts can satisfy Rule 26(a)’s signature requirement, and that a witness’s telephon e number need not be disclosed if the witness is represented by co unsel. Aplt. Opening Br. at 23-25. But she cites no authority for these contentions, a nd we therefore reject them. Wellington claims MTGLQ provided on ly the amount of damages, not an actual computation. But this argumen t overlooks an attachment to MTGLQ’s response to the motion to compel that item ized damages, which the magistrate judge considered in ruling that MTGLQ had provided an adequate computation of damages. 12 Wellington also faults the magistrate judge’s refusal to impose monetary or evidentiary sanctions. She as serts that by the time the ma gistrate judge ruled on the motion to compel, 120 of the 180 days for discovery had passed, and MTGLQ showed neither substantial justification for its failure to make the disclosures by the court’s initial-disclosures deadline (August 3, 2018) nor harmlessness. See Fed. R.

12 Although Wellington c ontests the method by which MTGLQ calculated damages, that is not germane to whethe r the magistrate judge’s decision on the motion to compel was an abuse of discretion.17 Civ. P. 37(c)(1) (providing that a party who fails to disclose info rmation or a witness as required by Rule 26(a) may not use that information or witness to supply evidence “unless the failure was substan tially justified or is harmle ss”). However, despite any failure MTGLQ may have made on these fronts, the magist rate judge reasoned that the delay in disclosure was harmless b ecause there remained sufficient time for discovery, which was scheduled to close on Fe bruary 1, 2019. Wellington’s contrary contention focuses on the amount of time rema ining when the magistrate judge ruled on December 6, 2018. This fails to a ppreciate that by August 31, 2018, when MTGLQ filed its response to her motion to compel, Wellington possessed all the documents the magistrate judge treated as satisfying Rule 26(a), which left her five full months of discovery. 13 In sum, the magistrate judge’s ruling was within the bounds of permissible choice in the circumstances. 2. Monetary sanctions Wellington filed motions to compel interrogatory responses from both MTGLQ and JPMC, each of whom had provi ded responses with objections. The magistrate denied each motion as untimely under D.N.M.LR-Civ 26.6 and declined to

13 Wellington points out that the magistrate judge did not rule on her request to strike certain allegations from the complain t. But in denying reconsideration of her ruling, the magistrate judge explained that Wellington made this request in her reply to the motion to compel , which was improper. See R. Vol. II at 185.18 allow an extension of time. 14 See Supp. R. Vol. I at 88-90, 95-98. The magistrate judge determined that Welli ngton had not shown either good cause for failing to comply with the deadline or that an injustice would occur unless the deadline was waived. Pursuant to Federal Rule of Ci vil Procedure 37(a)(5)(B), the magistrate judge ordered Wellington to pay reasonable expenses, incl uding attorney’s fees, that MTGLQ and JPMC had incurred in responding to the motions. Wellington sought reconsider ation based on Rule 37(a)(5)(B)’s provision that a court may not award expenses incurred in opposing a motion to compel discovery “if the motion was substantia lly justified.” The magist rate judge rejected this argument because she denied th e motions to compel because they were untimely, not on their merits, and Wellington failed to provide any explana tion why the untimely motions were substan tially justified. See R. Vol. II at 217-18, 221-22. Wellington claims the magistra te judge erred by focusing the substantial-justification inquiry on untim eliness. She argues that the proper consideration is whether her motions were substantially justified on the merits. For this proposition she relies on Pierce v. Underwood , 487 U.S. 552 (1988), which explained that “substantially justified” as used in a fe e-shifting statute (28 U.S.C. § 2412(d)(1)(A)) means “justified in substan ce or in the main—that is, justified to a degree that could satisf y a reasonable person.” Id. at 565 (internal quotation marks

14 The local rule requires a party served with objections to interrogatories to file any motion to compel w ithin twenty-one days of service of the objections and permits the court to change that period for good cause.19 omitted). The magistrate judge relied on Pierce ’s interpretation in determining that Wellington’s motions were not substantially justified becau se they were untimely and there was no reason to excu se the untimeliness. Bu t Wellington’s reading of Pierce is otherwise in correct, because Pierce did not involve whether an untimely motion can nevertheless be substan tially justified if, but for th e untimeliness, a reasonable person would consider its mer its justified in substance. Clearly, an untimely motion to compel discovery whose untimeliness is not entitled to be excused is not “substantially justified” under Pierce ’s interpretation of that term. The magistrate judge properly focused on untimeliness of the motions, not whether they were substantially justified on the merits.
3. Protective order Federal Rule of Civil Pr ocedure 33(b)(5) requires that “[t]he person who makes the answers [to interr ogatories] must sign them, and the attorney who objects must sign any objections.” Wellington notified MTGLQ’s counsel, Elizabeth Friedenstein, that she intende d to take Friedenstein’s personal deposition because she was the sole signatory witness on MTGLQ’ s answer to Wellingt on’s first set of interrogatories and Friedenstein had receive d, and apparently was the custodian of, the mortgage documents. Friedenstein repl ied that she would not sit for a personal deposition, but Wellington served her w ith a deposition notice anyway. MTGLQ then moved for a protective order relieving Friedenstein of any duty to attend or respond to the deposition. The magistra te judge granted MT GLQ’s motion, finding that, consistent with Rule 33(b)(5), Friedenstein ha d signed the objections, and a20 verification signed by a Rushmore employ ee, Michael Bennett, on MTGLQ’s behalf, satisfied the rule’s ve rification requirement. See Supp. R. Vol. I at 100. The magistrate judge refused to allow the deposition to proceed on the basis that Friedenstein was the custodian of the mort gage documents because that implicated only the assignments of the Note and the mortgage, and the court had already ruled that Wellington lacked standing to challe nge those and had di smissed her claims against Friedenstein. See id. The magistrate judge also pointed out that Friedenstein held the Note solely as MT GLQ’s agent or bailee for pur poses of the litigation. See id. n.1. Wellington contends that Rule 33(b )(5) requires the person providing the answers to interrogatories to “sign the actual answer ing document” and, under Rule 33(b)(3), “do so under oath.” Aplt. Opening Br. at 29 (emphasis omitted). We agree, but we also agree wi th the magistrate judge th at this was done here. Friedenstein’s signature a ppears after the last respons e to the interrogatories, indicates that the responses were “submitted by” her, and is unverified. Supp. R. Vol. II at 80-81 (capitalization omitted). The next page contains an exhibit list, and the following page is Bennett’s signed veri fication stating that MTGLQ authorized him to verify the responses on its be half and that MTGLQ’s employees had assembled the responses with counsel’s assistance. The ve rification is part of the “actual answering document.” We theref ore see no abuse of discretion in the magistrate judge’s finding that Friedenstein’s unverified signature pertains only to the objections (and hence did not make Frie denstein into a depos able witness), and21 that Bennett’s signed verification meets the rule’s requirements that the answering party provide a verified signature. Wellington faults the ma gistrate judge’s finding that the deposition would focus only on her dismissed c ounterclaims and affirmative defenses. But she has not identified any other topics, and merely holding the Note and mortgage documents as MTGLQ’s agent or bailee for litigation purpos es did not convert Friedenstein into a witness who may be deposed. Under th ese circumstances, we see no abuse of discretion in granting the protective order. C. Judgment in favor of MTGLQ We perceive two arguments in Wellingt on’s third issue: (1) MTGLQ never established standing u nder New Mexico law to enforce the Note or to foreclose and (2) the district court should have excluded an affidavi t MTGLQ submitted in support of its motion for summary judgment. We address these arguments in order. 1. Standing under New Mexico law Wellington argues that MTGLQ lacked standing under New Mexico law to enforce the Note and foreclose on the prope rty because it did not demonstrate a right to do either. We disagree. The district court addressed standing to enforce the Note in an order denying Wellington’s motion to dismiss MTGLQ’s co mplaint under Federal Rule of Civil Procedure 12(b)(6). See R. Vol. I at 248-52. When it later granted summary judgment to MTGLQ, the court considered it undisputed that MTGLQ was the holder of the Note and therefore entitled to judgment on its claims against Wellington22 personally. See R. Vol. II at 212. Thus, whether this standing issu e is framed in terms of the district court’s refusal to dismiss MTGLQ’s complaint or its grant of summary judgment, our review is de novo. See Rivero v. Bd. of Re gents of Univ. of
N.M. , 950 F.3d 754, 758 (10th Cir. 2020) (summary judgment); Albers v. Bd. of Cnty.
Comm’rs , 771 F.3d 697, 70 0 (10th Cir. 2014) (Rule 12(b)(6)). In New Mexico, “a company claiming to be a mortgage holder must produce proof that it was entitled to enforce th e underlying promissory note prior to the commencement of the foreclosure action by, for example, attaching a note containing an undated indorsement to the initial complaint.” Deutsche Bank Nat’l Tr. Co. v. Johnston , 369 P.3d 1046, 1054 (N.M. 2016). Th e district court determined that MTGLQ met this burden by attaching a copy of the Note and the allonge to its complaint. The court further explained th at because the most recent indorsement on the allonge was in blank, MTGLQ was the holder of the Note and therefore entitled to enforce it as bearer paper. See N.M. Stat. Ann. § 55-3-205( b) (“If an indorsement is made by the holder of an instrument and it is not a special i ndorsement, it is a ‘blank indorsement’. When in dorsed in blank, an inst rument becomes payable to bearer and may be negotia ted by transfer of possess ion alone until specifically indorsed.”). Finally, the court ruled that because Wellington faile d to raise a genuine issue regarding the authentic ity of the Note and the allonge, a copy of those documents was admissible under Federal Rule of Evidence 1003, which provides that “[a] duplicate is admissible to the same extent as th e original unless a genuine23 question is raised about the or iginal’s authenticity or the circumstances make it unfair to admit the duplicate.” 15 Before us, Wellington argues that MTGLQ was required to produce the original Note. In support, she relies on Miller v. Deutsche Bank National Trust Co. (In re Miller) , 666 F.3d 1255 (10th Cir. 2012). A lthough we fail to see where she raised this issue in the district court, In re Miller is readily distinguishable. There, a bank that held a copy of a note indorsed in blank argued that a Colorado statute concerning qualified holders pe rmitted it to foreclose without presenting an original note to a public trustee. Id. at 1264-65. We rejected th at argument because there was no evidence that the bank or its attorneys had complied or intended to comply with certain statutory requirements. See id. at 1265. In so doing, we did not craft a rule or imply that an original promissory note is required to foreclose under Colorado law, much less New Mexico law, which applies here. Relatedly, Wellington argues that we should vacate the Judgment of Foreclosure because the district court di d not comply with D.N.M.LR-Civ. 58.1. That rule sets out steps the di strict court is to take when a final judgment is based on a negotiable instrument: “The instrument mu st be . . . filed as an exhibit upon entry of judgment; merged into the judgment and marked as merged; a nd marked with the docket number of the action.” Id. (bullet points omitted). Wellington also contends

15 In the district court, Wellington ar gued that the Note was not authentic because it contained redacti ons and two extraneous swirl marks in the upper margin. Wellington does not raise th ese arguments on appeal.24 these requirements indicate the original Note was required in this case. We are not persuaded. District courts have discretion in the application of their local rules, see McInnis v. Fairfield Cmtys., Inc. , 458 F.3d 1129, 1147 (10t h Cir. 2006), so we will not void the Judgment of Foreclosure simply because the Note wa s not filed as an exhibit to it or marked as Rule 58.1 requi res. And although Rule 58.1 might require production of an original negotiable instru ment, it says nothing about whether a copy whose authenticity is unsucce ssfully challenged is suffic ient evidence of standing under New Mexico law. As for standing to foreclose, We llington argues that MTGLQ did not demonstrate it was a successo r in interest to the mort gage because it provided no evidence supporting its allega tions that the mortgage ha d been erroneously assigned to JPMC and later properly assigned to MT GLQ. But regardless of any uncertainty about the assignment, MTGLQ had the right to foreclose the mort gage because it had established a right to enforce the note. See Flagstar Bank, FSB v. Licha , 356 P.3d 1102, 1107, 1110 (N.M. App. 2015) (explaini ng that the holder of a note may enforce it, and “the right to foreclos e the mortgage automatically follows the right to enforce the note”), abrogated on other grou nds as recognized in PNC Mortg. v. Romero , 377 P.3d 461, 466-67 (N.M. App. 2016). We therefore reject Wellington’s argument.
2. Bennett affidavit In support of its motion for summ ary judgment, MTGLQ submitted an affidavit from Rushmore employee Michael Bennett. Bennett stated under penalty of perjury that MTGLQ possessed the origin al Note and was the assignee of the25 mortgage, that Wellington was in default, and that she owed MTGLQ approximately $200,000. See R. Vol. II at 26-27. In support of the amount owed, Bennett attached a copy of MTGLQ’s business records showing principal balance, interest owed, and various fees and charges. In opposing summary judg ment, Wellington argued that Bennett’s affidavit should be excluded because MTGLQ ne ver disclosed Bennett as a witness, the business records attached to the af fidavit were only a summary that was inadmissible hearsay, and MTGLQ faile d to supply the underlying records. The district court rejected these arguments. See id. at 205-11. The court determined that the failure to disclose Bennett as a pot ential witness was harmless because (1) Bennett had verified MTGLQ’s responses to Wellingt on’s first set of interrogatories; (2) Wellington did not follow through on deposing an MTGLQ representative; and (3) Well ington had not demonstrated bad faith or willfulness on MTGLQ’s part. The court further concluded th at the statements in the affidavit were admissible under the business-records exception to the hearsay rule, see Fed. R. Evid. 803(6), because (1) Welli ngton provided no evidence contradicting Bennett’s statement that he was the attorney-in-fact for MTGLQ; (2) although Bennett worked for Rushmore, he was famili ar with MTGLQ’s business re cords through the regular performance of his job, he stated that he had personally examined them, and Rushmore necessarily incor porates MTGLQ’s business reco rds into its own business records in order to service loans and mortgages; and (3) the records otherwise met all the requirements of the business-records exception.26 Wellington now complains that the dist rict court made MTGLQ’s arguments for it. While that appears true, it is equally the case that “[w]hen an issue or claim is properly before the court, the court is not limited to the partic ular legal theories advanced by the parties, but rather reta ins the independent power to identify and apply the proper construc tion of governing law,” Kamen v. Kemper Fin. Servs.,
Inc. , 500 U.S. 90, 99 (1991). Wellington also reiterates the arguments she advanced in the district court. But we agree w ith the district cour t’s analysis of the admissibility of Bennett’s af fidavit. We therefore re ject Wellington’s appellate arguments and uphold the district court’s ru ling on the affidavit for substantially the same reasons the dist rict court provided. D. Wellington’s claims Wellington also challenges the district court’s dismissal with prejudice of her first amended claim for declaratory relief against MTGLQ and JPMC and its denial of her motion for leave to file second am ended FDCPA counterclaims as futile. We begin with the dismissal of he r claim for declaratory relief. Wellington sought a declaration that ne ither MTGLQ nor JPMC had any right against her or the property because neither had received a legitimate assignment of the mortgage and MTGLQ had never received a legitimate assignment of the Note. This claim is now moot in light of (1) the stipulated judgment JPMC and MTGLQ entered, in which JPMC disclaimed any ri ght to the property; and (2) our conclusion that the district court properly determined MTGLQ had the right to enforce the Note as a holder, which gave MTGLQ the right to foreclose on the mortgage regardless of27 any irregularities in the assignment of th e mortgage. Under these circumstances, reversal and remand on Wellingt on’s claim for declaratory re lief would be ineffective because any success on that claim is now foreclosed. See Miller ex rel. S.M. v. Bd. of Educ. of Albuquer que Pub. Schs. , 565 F.3d 1232, 1251 (10t h Cir. 2009) (explaining that the “inability to grant effective relief . . . renders [an] issue moot” (internal quotation marks omitted)). We next turn to the district court’s de nial of Wellington’s motion for leave to file a second amended complain t. Typically, we review th e denial of leave to amend for abuse of discretion, but wh ere, as here, the denial is based on a determination that amendment would be futile, we review de novo the legal basis for the finding of futility. Id. at 1249. The district court dismissed Wellington’ s first amended FDCPA counterclaims without prejudice because she fa iled to allege facts plausi bly suggesting that any of the defendants named in those claims (M TGLQ, its law firm, one of the firm’s attorneys, and Rushmore) was a debt collector within the meaning of the FDCPA. In denying her motion for leave to file second amended counterc laims, the district court determined that although Wellington ha d now adequately alleged that the counterclaim defendants were debt collect ors, allowing amendment of her FDCPA claims was futile on othe r grounds. We agree. In her first counterclaim, Wellington s ought damages against MTGLQ, its law firm, and the firm’s a ttorney for filing the in personam claim against Wellington in New Mexico even though she resided in Ca lifornia and MTGLQ’s complaint failed to28 allege that she signed the Note in New Me xico. Her theory was that venue on the in
personam claim was governed by 15 U.S.C. § 1692i(a)(2), which permits a debt collector to bring a legal action to collect on a debt from a consumer “only in the judicial district or similar legal entity —(A) in which [the] consumer signed the contract sued upon; or (B) in which [the] consumer resi des at the commencement of the action.” The district court denied leave to amend this counterclaim because Wellington did not allege th at she signed the Note outside of New Mexico. Wellington maintains that sh e alleged as much, and ar guably, she is correct.
See Supp. R. Vol. I at 67, ¶ 13 (alleging that “n either of [the locations for venue described in § 1692i(a)(2)] are/ were New Mexico”). But th is counterclaim fails for another reason, and we may affirm for any reason supported by the record, even if the district court did not rely on it, Safe Streets All. v. Hickenlooper , 859 F.3d 865, 878-79 (10th Cir. 2017). Section 1692i(a)(2) provides that its venue provisions apply only if an action is “not described in” § 1692i(a)(1). In turn, § 1692i(a)(1) desc ribes a legal action brought by a debt collector “to enforce an interest in real property securing the consumer’s obligation.” In th at case, the debt collector may bring the action “only in a judicial district or similar legal entity in which such real property is located.” Id. Because MTGLQ brought this action not only to collect personally against Wellington but also to enfo rce the mortgage, § 1692i(a)(1 ) required MTGLQ to bring it in New Mexico. See Suesz v. Med-1 Sols., LLC , 757 F.3d 636, 639 (7th Cir. 2014) (en banc) (explaining that “[i]f real estate is security fo r the loan, the suit must be29 brought where the property is located” pur suant to § 1692i(a)(1), and § 1692i(a)(2) does not apply where “the debt sued on is secured by real estate”). For this reason, we uphold the district court’ s denial of leave to file the proposed amended first counterclaim. In counterclaims two, f our, six, eight, nine, elev en, twelve, and thirteen, Wellington alleged violati ons of the FDCPA’s prohib ition on the use of “false, deceptive, or misleading repres entation[s] or means in c onnection with the collection of any debt,” § 1692e. But these countercl aims alleged various misrepresentations that, under the law of the case, were not misr epresentations at all: (1) allegations in MTGLQ’s complaint concerni ng the authenticity of the Note and the mortgage attached to the comp laint, the mortgage’s assignment history, 16 MTGLQ’s right to payment on the Note, and the indorsements on the allonge; (2) allegedly “derogatory statements” Rushmore made to credit reporting agencies based on MTGLQ’s “baseless” claims against her, Supp. R. Vol. I at 75-76, ¶¶ 66, 68; (3) recording in the county clerk’s office of a notice that this action was pending, which, Wellington alleged, was a false communication to the general public that MTGLQ had a “legitimate claim against We llington and the property,” id. at 76-77, ¶ 73; and (4) letters Rushmore sent claiming Wellington owed MT GLQ on the Note despite

16 Neither the district court nor this panel has addressed whether MTGLQ’s allegations regarding the mortgage’s as signment history were inaccurate. But because we have affirmed the district court’s determ ination that the mortgage followed the Note, those allegations did no t, as Wellington alleged in her ninth counterclaim, misrepresent “t he character and legal status of the debt claim,” Supp. R. Vol. I at 74, ¶ 57.30 neither Rushmore nor MTGLQ having “any legitimate claim against Wellington,” id. at 78, ¶ 78. Because the factual premise for these c ounterclaims fails, they are now moot, see Miller ex rel. S.M. , 565 F.3d at 1251, and we need not address the reasons the district court gave for denying leave to amend them. Wellington’s third counter claim invoked § 1692f(1), which prohibits a debt collector from collecting or attempting to collect “any amount (including interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement cr eating the debt or permitted by law.” Wellington alleged that the complaint’s request for taxes, assessments, insurance, and other expenses, plus 5.75% interest, violated § 1692f(1 ) because the Note does not provide for such amounts. The district c ourt denied leave to file this proposed amended counterclaim because the Note e xpressly provided that the interest rate before and after default was 5.75%, and that in the case of default, the holder could require Wellington to immediately pay outs tanding principal and interest and could recover “costs and expenses in enforcing [t he] Note,” R. Vol. I at 28. Wellington argues only that the Note did not provide for collection of these amounts. That argument is frivolous; the Note expressly authorizes collection of those amounts. In her fifth counterclaim, Wellington alle ged that the law firm and its attorney falsely represented in the complaint th at MTGLQ had notified Wellington of the default and demanded payment, in violation of § 1692e. Th e district court considered the amendment futile because the allegation was inconsiste nt with an allegation in Wellington’s proposed amended thirteenth c ounterclaim that Rushmore contacted her31 on MTGLQ’s behalf about de fault and mitigation options . Wellington essentially argues that she could plead in the altern ative, but given the allegation in the thirteenth counterclaim, the allegations of the fifth counterclaim were not entitled to any presumption of truth. Th erefore, the district court di d not abuse its discretion in denying leave to file this counterclaim. Wellington’s seventh count erclaim alleged viola tions of § 1692e and § 1692g(b) against the law fi rm and its attorney. Secti on 1692g(a)(3) requires a debt collector to send a consumer notice that she has 30 days to dispute the debt. If the consumer contests the debt in writing w ithin the 30-day period, § 1692g(b) requires the debt collector to cease collection until it sends verification of the debt to the consumer. Wellington alleged that a notic e attached to the complaint violated § 1692g(b) and was a § 1692e misrepresentation because the notice informed Wellington that although she had 30 days to dispute the validity of MTGLQ’s debt claim, collections efforts could commen ce immediately. The district court considered the amended counterclaim futile because Wellington did not allege that she attempted to obtain verification of the de bt or that defendants failed to provide verification or to cease coll ection until providing verificati on. Wellington argues that whether she requested verification is immaterial to wh ether there was a misrepresentation. We disagree. By its plain terms, § 1692g(b) requires only that a debt collector cease collection efforts afte r a consumer makes a timely request for verification. See § 1692g(b) (“Collection activities and communications that do not otherwise violate this subcha pter may continue during th e 30-day period referred to32 in subsection (a) unless the consumer has no tified the debt collect or in writing that the debt, or any portion of the debt, is di sputed or that the consumer requests the name and address of the original credito r.”). The proposed amendment of this counterclaim was not only futile, it was frivolous. In her tenth counterclaim, Wellington alleged a violation of § 1692e based on the fact that MTGLQ named her “unknown spouse” as a defendant and served him with a summons. She claimed this “cau sed consternation a nd marital discord between Wellington and her husband,” Supp. R. Vol. I at 75, ¶ 61, because the property was always Wellington ’s separate property unde r California law, and the law firm and its attorney knew this or s hould have known this. The district court denied leave to file this counterclaim be cause Wellington lacked standing to sue on her spouse’s behalf. Wellington argues that the court erre d because she alleged that she sustained damages from this alleged misr epresentation. Even so, we think this counterclaim fails for a more fundamental reason. In nami ng the spouse, MTGLQ alleged that he “may claim an interest in the subject Pr operty by reason of Marriage.” R. Vol. I at 24. It was not a misreprese ntation to allege that Wellington’s spouse might claim an interest in the property by virtue of the marr iage regardless of whether he could do so successfully . Lacking a misrepresenta tion, allowing amendment of this counterclaim would have been futile. Finally, Wellington faults the district court for not explaining why further amendment would be futile because she coul d have easily corrected any deficiencies in her proposed second amended complaint. However, the requirement to explain33 why further amendment would be futile app lies where a district court dismisses a pro se litigant’s compla int for failure to state a claim. See Kay v. Bemis , 500 F.3d 1214, 1217 (10th Cir. 2007) (“Dismissa l of a pro se complaint for failure to stat e a claim is proper only where it is obvious that the plai ntiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.”). Here, the district court did not dismiss Wellingt on’s proposed second amended complaint but only denied her leave to file it, and nothing in the district court’s order suggests that Wellington could not try again. Accordingly, the court was not required to explain why further amendment would be futile.
IV. CONCLUSION For the foregoing reasons, we affirm in all respects.

Entered for the Court
Carolyn B. McHugh Circuit Judge