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Winnett v. Jp Morgan Chase

United States District Court, First Circuit

July 29, 2013

Janice M. Winnett,
J.P. Morgan Chase and Federal National Mortgage Association.


JOSEPH A. DiCLERICO, Jr., District Judge.

Janice M. Winnett, who is proceeding pro se, filed a petition in state court seeking a temporary restraining order and an injunction to prevent J.P. Morgan Chase and Federal National Mortgage Association from conducting a foreclosure sale of her home. The defendants removed the case to this court on March 6, 2013, and Winnett filed an amended complaint here. The defendants now move to dismiss her amended complaint. Winnett did not respond to the motion.

Standard of Review

Federal Rule of Civil Procedure 12(b)(6) allows a defendant to move to dismiss on the ground that the plaintiff's complaint fails to state a claim on which relief can be granted. In assessing a complaint for purposes of a motion to dismiss, the court "separate[s] the factual allegations from the conclusory statements in order to analyze whether the former, if taken as true, set forth a plausible, not merely conceivable, case for relief." Juarez v. Select Portfolio Servicing, Inc. , 708 F.3d 269, 276 (1st Cir. 2013) (internal quotation marks omitted). "If the facts alleged in [the complaint] allow the court to draw the reasonable inference that the defendants are liable for the misconduct alleged, the claim has facial plausibility." Id . (internal quotation marks omitted).


In her amended complaint, Janice Winnett alleged that she co-owned and resided in a home in Milford, New Hampshire, with her three minor children. When the complaint was filed, Brian J. Winnett, Janice's husband, owned the house with Janice but was excluded from the home under the terms of a Final Order of Protection issued by the New Hampshire Family Division Court. Janice and Brian were in the process of divorce when Janice filed suit, and the divorce is now final.

On June 24, 2005, Brian Winnett signed a note to Beacon Mortgage Company, LLC, for a loan of $210, 000. Brian and Janice both executed the mortgage on their home to secure the loan. The mortgage was then assigned to other entities, eventually being held by J.P. Morgan Chase which assigned the mortgage to the Federal National Mortgage Association ("FNMA"). FNMA is the current holder of the note and the mortgage, and J.P. Morgan Chase is the "agent and servicer" for FNMA.

During the divorce proceedings, Janice and Brian were ordered to each pay half of the monthly mortgage payments. Brian did not make his share of the payments. Janice learned through Brian's disclosures to the Family Division Court that he had not made mortgage payments since August of 2012. Janice could not communicate with Brian because of the terms of the Domestic Violence Protection Order. Janice alleges that J.P. Morgan Chase would not accept payments from her to make up the deficiency.

When the complaint was filed, FNMA was pursuing foreclosure on the home. The foreclosure sale was scheduled for February 28, 2013, but was enjoined by the state court before the action was removed to this court. Janice alleged that she was employed and was willing to make full monthly payments on the mortgage. She also alleged that she was pursuing a contempt order against Brian to force him to make his share of the payments. Janice alleged that FNMA refused to communicate with her about the mortgage or to allow her to exercise her right to reinstatement before foreclosure.

The Winnetts' divorce became final in May of 2013. Under the terms of the final divorce decree, Janice was awarded all right, title, and interest in the home and was solely responsible for paying the mortgage, taxes, and insurance on the property. Brian was required to quitclaim his interest in the property, but he remained "responsible for the payment of the lien on the home that is owed to Attorney Mooney and shall indemnify and hold Janice harmless thereon."

The defendants, through their counsel, offered Janice an opportunity to assume the loan from Brian and make the loan current. They provided the paperwork for the changes and gave Janice additional time to submit the completed paperwork. As of the date of the motion to dismiss, June 28, 2013, Janice had not applied to assume the loan and was not responding to inquiries. Janice also did not file a response to the motion to dismiss.


Janice Winnett brings breach of contract and breach of the implied covenant of good faith and fair dealing claims and asks the court to enjoin the foreclosure proceedings. The defendants move to dismiss Winnett's claims on the grounds that they have not breached the terms of the mortgage and have not breached the implied covenant of good faith and fair dealing.[1] In support of their motion, the defendants rely on and filed additional documents, including the note, the mortgage, an agreement reached between them and Winnett after the action was removed from state court, and a reinstatement quote and related paperwork that they provided to Winnett on May 24, 2013. Based on those documents, the defendants argue that they provided Winnett with the reinstatement opportunity that she contends the mortgage required.

Generally, a motion to dismiss is decided on the wellpleaded allegations in the complaint. Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 231 (1st Cir. 2013). In addition, however, the court may consider any documents attached to the complaint, documents incorporated into the complaint by reference, and documents outside the pleadings that are undisputed, central to the plaintiff's claims, and sufficiently referred to in the complaint. Id .; Giragosian v. Ryan , 547 F.3d 59, 65 (1st Cir. 2008). When a motion to dismiss is based on extrinsic materials that are not undisputed or sufficiently related to the ...

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