United States District Court, District of New Hampshire
Thomas J. Pappas, Esq. Peter S. Wright, Jr., Esq.
Joseph A. DiClerico, Jr., United States District Judge
Joseph Castagnaro brought a petition in state court to enjoin the foreclosure sale of his home by Bank of New York Mellon ("BNYM"). The state court enjoined the foreclosure proceeding, and BNYM removed the case to this court. Castagnaro filed an amended complaint. BNYM moves to dismiss the amended complaint, and Castagnaro objects.
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).
With its motion to dismiss, BNYM submitted copies of Castagnaro's note, the mortgage, and two assignments of the mortgage. When the moving party presents matters outside the pleadings to support a motion to dismiss, the court must either exclude those matters or convert the motion to one for summary judgment. Fed.R.Civ.P. 12(d). An exception to Rule 12(d) exists "for documents the authenticity of which [is] not disputed by the parties; for official public records; for documents central to the plaintiffs' claim; or for documents sufficiently referred to in the complaint." Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009) (internal quotation marks omitted). In addition, the court may consider documents that are susceptible to judicial notice. Jorge v. Rumsfeld, 404 F.3d 556, 559 (1st Cir. 2005).
With his objection, Castagnaro also filed the note and the two assignments of the mortgage, as well as a purported copy of a note with a different endorsement, a notice of the foreclosure sale, and a "Purported copy of allonge to promissory note." The documents attached to BNYM's motion to dismiss and Castagnaro's objection are central to Castagnaro's claim against BNYM. Therefore, the additional documents submitted by the parties may be considered without converting the motion to one for summary judgment.
Joseph Castagnaro bought property at 40 Mountain Drive in Gilford, New Hampshire, with a mortgage and a promissory note both dated April 24, 2007. The mortgage states that Mortgage Electronic Registration Systems, Inc. ("MERS") is the mortgagee as nominee for the lender, Regency Mortgage Corporation ("Regency") .
On December 3, 2010, MERS, acting as nominee for Regency, assigned the mortgage to BAC Home Loans Servicing, LP ("BAC"). The assignment was signed by Mark Lamper, who is listed on the assignment as the "Assistant Secretary" of MERS.
On February 18, 2011, BAC, acting as nominee for Regency, assigned the mortgage to BNYM. Mark Lamper also signed the second assignment, as "Attorney In Fact" for BAC.
With regard to the note, Castagnaro alleges that it "appears to have three endorsements." Compl. 5 13. He claims that the first endorsement assigns the note from Regency to American Residential Mortgage ("American Residential"), and the second endorsement assigns the note from American Residential to Countrywide Bank, FSB ("Countrywide Bank"). He also alleges that "[t]he third endorsement, which appears on a photocopy of an allonge which is not attached to any note, purports to create an assignment in blank from Countrywide Bank, FSB." Id. at 5 16. With its motion to dismiss, BNYM attached one copy of the note, which contains the second endorsement and the attached allonge. See Ex. A to Mot. to Dismiss (document no. 13-2).
At some point, Castagnaro stopped making his monthly mortgage payments. On August 9, 2013, Castagnaro received a notice of foreclosure sale from BNYM. The notice was attached to a letter from Lamper.
The foreclosure sale was scheduled for September 16, 2013. Castagnaro obtained an order in state court on September 12, enjoining the foreclosure. BNYM then removed the case to this ...