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Atkins v. U.S. Bank National Association

United States District Court, First Circuit

January 2, 2014

G. Brandt Atkins
U.S. Bank National Association, et al. Opinion No. 2014 DNH 001

G. Brandt Atkins Thomas J. Pappas, Esq.


Paul Barbadoro Paul Barbadoro United States District Judge

This case arises from a loan obtained by G. Brandt Atkins secured by a mortgage on his home in North Hampton, New Hampshire. Atkins claims that he was forced to sell his home for an artificially low price because his lender and several associated entities unreasonably refused his request to modify his loan and improperly instituted foreclosure proceedings against him after he experienced financial difficulties.

Defendants Bank of America, N.A., Wells Fargo Bank, N.A., and U.S. Bank National Association as Trustee for the Holders of the Bear Stearns Asset-Backed Securities Trust 2004-AC2 (“U.S. Bank Trust”) jointly move for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below I grant defendants’ motion to dismiss.


On January 6, 2004, Atkins entered into a loan with Countrywide Home Loans for $611, 835. The loan was secured by a mortgage held by Mortgage Electronic Registration Systems, Inc. (“MERS”) as nominee for Countrywide and its assignees. Countrywide later assigned the loan to the Bear Stearns Asset Based Services Trust 2004-AC2, and U.S. National Bank Association was named as trustee. At a point not specified in the complaint, BAC Home Loans Servicing, a subsidiary of Bank of America, N.A., became responsible for servicing the loan.

Atkins entered into a loan modification agreement with BAC Home Loans on October 23, 2009. The modified loan had the same maturity date as the original loan. The principal due on the modified loan was listed as $467, 535.72 and the loan provided for an annual interest rate of 5.25%.

On May 17, 2010, Bank of America sent Atkins a notice of its intention to accelerate the loan based on a missed loan payment. Atkins does not take issue with the bank’s claim that he missed a payment and he admits that he stopped making payments on the loan in March 2011. A few months later, Atkins contacted Bank of America and attempted to negotiate a second loan modification. Although a bank representative told Atkins that he met the requirements for pre-approval for a loan modification under the Home Affordable Modification Program (“HAMP”), the bank ultimately refused to modify his loan. Initially, the bank explained that it had denied his request because he failed to provide sufficient supporting documentation. Ultimately, on February 22, 2013, Atkins received a letter from the bank stating that his loan was ineligible for modification because the bank “services the loan on behalf of Wells Fargo, and that said investor has not given the contractual authority” to Bank of America to modify the loan.[2]

Atkins received his first notice of foreclosure from U.S. Bank in August 2012. The foreclosure sale was postponed at least four times, with notices of foreclosure printed in the local newspapers. The final foreclosure sale, scheduled for February 13, 2013, was cancelled because Atkins had a pending Purchase and Sale Agreement on the property. Atkins ultimately sold the property for $699, 900, which was allegedly far less than its true value. Atkins claims that real estate brokers told him that the property was “tainted” by public knowledge of the foreclosure proceedings.


To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must make factual allegations 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)). A claim is facially plausible when it pleads “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement, ’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citations omitted).

In deciding a motion to dismiss, I employ a two-step approach. See Ocasio–Hernández v. Fortuño–Burset, 640 F.3d 1, 12 (1st Cir. 2011). First, I screen the complaint for statements that “merely offer legal conclusions couched as fact or threadbare recitals of the elements of a cause of action.” Id. (citations, internal quotation marks, and alterations omitted). A claim consisting of little more than “allegations that merely parrot the elements of the cause of action” may be dismissed. Id. Second, I credit as true all non-conclusory factual allegations and the reasonable inferences drawn from those allegations, and then determine if the claim is plausible. Id. The plausibility requirement “simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence” of illegal conduct. Twombly, 550 U.S. at 556. The “make-or-break standard” is that those allegations and inferences, taken as true, “must state a plausible, not a merely conceivable, case for relief.” Sepúlveda–Villarini v. Dep't of Educ., 628 F.3d 25, 29 (1st Cir. 2010); see Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level.”).


Atkins asserts that defendants are liable for damages because they violated New Hampshire’s Consumer Protection Act, breached the implied contractual covenant of good faith and fair dealing, and negligently hired, trained, ...

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