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Scott Ledoux v. Jp Morgan Chase

November 20, 2012


The opinion of the court was delivered by: Joseph N. Laplante United States District Judge

Opinion No. 2012 DNH 194


Plaintiff Scott LeDoux, proceeding pro se, has brought a five-count*fn1 complaint against JP Morgan Chase, N.A. ("Chase"), the servicer of his mortgage loan; the Federal Home Loan Mortgage Corporation (more commonly known as "Freddie Mac"), the putative mortgagee; and Haughey, Philpot & Laurent, P.A., foreclosure counsel for Chase and Freddie Mac. LeDoux alleges that these three defendants have pursued foreclosure against him even though Freddie Mac does not hold the promissory note for his loan. He further alleges that all three defendants violated the New Hampshire Consumer Protection Act ("CPA"), N.H. Rev. Stat. Ann. § 358-A, and the federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1601 et seq., and that Chase both violated the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601 et seq., and committed fraud. Chase and Freddie Mac (herein referred to collectively as "defendants," a term that, for present purposes, is not intended to encompass Haughey, Philpot & Laurent) have moved to dismiss, arguing that LeDoux's second amended complaint fails to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6).

This court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 (federal question), by virtue of LeDoux's claims under various federal statutes, and 12 U.S.C. § 1452(f), which provides this court with jurisdiction over "all civil actions to which [Freddie Mac] is a party." After hearing oral argument, the court grants the motion in part and denies it in part. As explained in more detail below, LeDoux has stated plausible claims for relief under the CPA, FDCPA, and RESPA. Defendants' motion is therefore denied as to those claims.

LeDoux's claim for injunctive relief against foreclosure must, however, be dismissed. LeDoux's challenge to defendants' ability to foreclose relies primarily on an apparent error in an endorsement of the promissory note, but LeDoux may not challenge this error under New Hampshire law. Furthermore, because LeDoux has not pled "specific facts that make it reasonable to believe" that Chase "knew that [its allegedly fraudulent statement] was materially false or misleading," N. Am. Catholic Educ. Programming Found., Inc. v. Cardinale, 567 F.3d 8, 13 (1st Cir. 2009), his claim for fraud is dismissed.

I. Applicable legal standard

To survive a motion to dismiss under Rule 12(b)(6), the plaintiff's complaint must allege facts sufficient to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In ruling on such a motion, the court must accept as true all well-pleaded facts set forth in the complaint and must draw all reasonable inferences in the plaintiff's favor. See, e.g., Martino v. Forward Air, Inc., 609 F.3d 1, 2 (1st Cir. 2010). The court "may consider not only the complaint but also facts extractable from documentation annexed to or incorporated by reference in the complaint and matters susceptible to judicial notice." Rederford v. U.S. Airways, Inc., 589 F.3d 30, 35 (1st Cir. 2009). With the facts so construed, "questions of law [are] ripe for resolution at the pleadings stage." Simmons v. Galvin, 575 F.3d 24, 30 (1st Cir. 2009). The following background summary adopts that approach.

II. Background

A. Origination and ownership of LeDoux's loan

On September 2, 2003, plaintiff Scott LeDoux executed a promissory note in the amount of $275,500 in favor of Regency Mortgage Corporation. The note was secured by a mortgage on LeDoux's property in New Ipswich, New Hampshire, also executed in Regency's favor. That same day, Regency assigned the mortgage to Mortgage Electronic Registration Systems ("MERS"), "as nominee for Crescent Mortgage Services, Inc." The following day, the assignment was recorded in the Hillsborough County Registry of Deeds.*fn2 MERS, in turn, assigned the mortgage to Freddie Mac on July 30, 2010; shortly thereafter, that assignment was recorded in the Hillsborough County Registry of Deeds.*fn3

On their face, both assignments purported to transfer ownership of the note as well as the mortgage. A separate, undated note allonge, however, indorses the note to the order of Crescent Mortgage Services, Inc. (though it incorrectly identifies the date of the note as September 2, 2002, rather than September 2, 2003). On the face of the note itself, Crescent Mortgage Services, Inc. has indorsed the note in blank. LeDoux disputes that Freddie Mac currently holds the note, though he offers no suggestion as to who the actual holder might be.

B. Modification efforts and LeDoux's bankruptcy filing

At some point, Chase began servicing LeDoux's loan. On June 7, 2009, Chase informed LeDoux that he was in default as a result of his failure to make two consecutive monthly payments, and invited him to contact it.*fn4 LeDoux did so, and was told that if he "let it go" another month, he could obtain a loan modification through the federal government's Home Affordable Modification Program ("HAMP"). LeDoux, relying on this representation, continued to refrain from making his loan payments, and Chase provisionally accepted him into HAMP--contingent upon his making timely trial period payments.

Beginning in December 2009, LeDoux made five timely trial payments of $2,170 via Western Union. Nonetheless, the following April, Chase informed LeDoux that it was unable to offer him a modification under HAMP, ostensibly because his monthly housing expenses did not meet program guidelines. In that same letter, Chase told LeDoux that he would "be hearing from us regarding the other programs we have available for you very soon."

Chase did in fact contact LeDoux via telephone, telling him that he could apply for its "other programs" through its website. LeDoux did so, and a short while later, one Shannon Jones, a Chase "relationship manager," contacted LeDoux to guide him through Chase's "special in house process." Not long thereafter, however, Chase sent LeDoux a letter informing him that it intended to commence foreclosure. In response, LeDoux contacted Jones, who told him to ignore the letter and assured him that he was still being considered for a modification or other program.

Notwithstanding this assurance, Chase, acting through Haughey, Philpot & Laurent, scheduled a foreclosure sale of LeDoux's property for September 8, 2010. As that date approached, LeDoux spoke with Jones repeatedly; Jones repeatedly told LeDoux that the foreclosure had been cancelled and that he was still under consideration for a modification. Again, despite Jones's representations, the sale was not, in fact, cancelled.

LeDoux filed for Chapter 13 bankruptcy on September 7, 2010, in an effort to stave off the then-imminent foreclosure sale. See In re LeDoux, No. 10-13850-JMD (Bkrtcy. D.N.H. Sept. 7, 2010). Roughly two months later, Haughey, Philpot & Laurent, acting on Chase's behalf, filed a proof of claim in the bankruptcy case, alleging that Chase held a secured claim for $277,087.23. The proof of claim attached LeDoux's mortgage, the aforementioned assignments, and the indorsed note and allonge. LeDoux objected to Chase's claim, and subsequently converted his bankruptcy to a Chapter 7 bankruptcy and was granted a discharge.

After his bankruptcy filing, but before the discharge, LeDoux continued to work with Chase's bankruptcy department in the hope of obtaining some sort of relief. He again applied for a modification through Chase's website. After additional exchanges, on February 9, 2011, Chase notified LeDoux that he was ineligible for any Chase modification programs (including HAMP), and informed him that he might be eligible for some other foreclosure alternative, such as a short sale or deed-in-lieu of foreclosure. In a subsequent letter on April 19, 2011, Chase informed LeDoux that "the investor of your loan (the Federal Home Loan Mortgage Corporation, or Freddie Mac) does not participate in any of Chase's alternative modification programs," and again suggested that he pursue other foreclosure alternatives.

On May 4, 2012, Chase contacted LeDoux to provide him information regarding "homeownership counseling services." The letter also stated that "[w]hile the loan remains in default, a field representative may visit the property to conduct an inspection, and an inspection fee may be assessed to the loan, if permitted by your loan documents or applicable law." Several weeks later, Haughey, Philpot & Laurent notified LeDoux that Chase had retained it to commence foreclosure. The next month, Chase again invited LeDoux to apply for a modification.

C. Ledoux's "qualified written request"

On November 8, 2010, roughly two months after filing for bankruptcy, LeDoux sent Chase a letter that purported to be a qualified written request under the Real Estate Settlement Procedures Act. See 12 U.S.C. § 2605(e). The letter accused Chase of "engag[ing] in unfair, deceptive and possibly fraudulent practices which cannot be explained away as simple paperwork issues, computerized record problems, or incompetence on the part of low level employees . . . for the singular purpose of acquiring MY HOME through foreclosure." In substance, the letter repeated many of the allegations related above, and also accused Chase of misrepresenting the amount due on the loan; refusing to accept LeDoux's payments; and applying his trial period payments to "one set of books" while "pil[ing] up charges, fees and arrearages to use against ME on another set of books." LeDoux informed Chase that he was disputing the debt's validity, and requested "clear and readable copies of all pertinent information regarding [the] loan," as well as numerous documents related to the loan (including a number of documents unrelated to the servicing of the loan, such as "[a]ll electronic transfers, assignments, sales of my note, mortgage, deed or other security instrument"). It also demanded "a detailed answer" to over 100 questions spanning nine topical areas.

Chase acknowledged receipt of LeDoux's letter ten days later, and another two months after that it sent a response to the letter to LeDoux's bankruptcy attorney. Chase's response enclosed a detailed transaction history for the period from January 2009 through January 2011; escrow account disclosure statements; and copies of the mortgage, several other origination-related documents, and the note (but not the allonge that Chase had submitted to the bankruptcy court). "Any information or document requested but ...

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