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Weeks v. Five Brothers Mortgage Services & Securing, Inc.

United States District Court, District of New Hampshire

April 10, 2014

Melissa Weeks and Daniel Rouille
v.
Five Brothers Mortgage Services & Securing, Inc. and U.S. Bank National Association Opinion No. 2013 DNH 068

Donna-Marie Cote, Esq.

Michael J. Lambert, Esq.

ORDER

JOSEPH A. DICLERICO, JR. UNITED STATES DISTRICT JUDGE.

Melissa Weeks and Daniel Rouille brought suit in state court against Five Brothers Mortgage Services & Securing, Inc. (“Five Brothers”) and U.S. Bank National Association (“U.S. Bank”), alleging claims that arose from U.S. Bank’s involvement in the foreclosure of the plaintiffs’ house and the defendants’ taking and disposal of the plaintiffs’ personal property. The defendants removed the case to this court and move to dismiss Count I of the complaint, which alleges various “statutory violations.” The plaintiffs object.

Background

On or about September 17, 2008, Melissa Weeks and Daniel Rouille (“plaintiffs”) entered into a loan with U.S. Bank, which was secured by a mortgage on their house at 244 West Rosemont Avenue in Manchester, New Hampshire (“Manchester House”). After obtaining the loan, the plaintiffs made their monthly mortgage payments as scheduled for a period of time.

At some point, U.S. Bank informed the plaintiffs that their most recent payment was seventy dollars short of the required amount. U.S. Bank explained that the property taxes on the Manchester House had increased and there were insufficient funds in the plaintiffs’ escrow account to cover the additional taxes. U.S. Bank told the plaintiffs that it would not accept any payment unless it included the additional seventy dollars.

The plaintiffs and U.S. Bank began discussing a “partial payment plan, ” where the plaintiffs would agree to make “half-payments” and U.S. Bank would assist them in obtaining a mortgage modification agreement. At some point, the plaintiffs encountered “health issues” and “were forced to temporarily stay in an apartment in Pittsfield, New Hampshire” (“Pittsfield Apartment”). Despite staying at the Pittsfield Apartment, the plaintiffs left all of their possessions in the Manchester House, and continued to pay for the utilities at the house.

While staying at the Pittsfield Apartment, the plaintiffs corresponded with U.S. Bank regarding resolution of the additional charges and a possible modification agreement. Eventually, U.S. Bank refused to enter into a modification agreement with the plaintiffs, and instead increased the amount due for the monthly mortgage payments in order to recoup the money that the plaintiffs had not paid while making “half-payments.”[1]

On August 10, 2010, U.S. Bank purchased the Manchester House at a foreclosure auction.[2] U.S. Bank recorded the foreclosure deed, which was dated November 29, 2010, with the Hillsborough County Registry of Deeds on December 7, 2010. The plaintiffs allege that they did not know at the time that the house had been auctioned off or that U.S. Bank was the purchaser, and that U.S. Bank led them to believe that they still owned the house after the date of the auction.

On May 1, 2011, the Hillsborough County Sheriff, on behalf of U.S. Bank, “completed abode service” of an eviction notice at the Manchester House. The eviction notice required the plaintiffs to vacate the house on or before June 10, 2011. On June 22, 2011, the Hillsborough County Sheriff “completed abode service” of a landlord/tenant writ at the house. The writ required the plaintiffs to file an appearance in a landlord/tenant action initiated by U.S. Bank on or before June 30, 2011. The plaintiffs allege that they never received the eviction notice or the writ because they were staying at the Pittsfield Apartment during this time.

On or about July 2-4, 2011, Five Brothers, which was hired by U.S. Bank, entered the Manchester House without the plaintiffs’ permission. On July 6, 2011, the plaintiffs spoke with U.S. Bank about why Five Brothers had entered the house without their consent. The plaintiffs allege that U.S. Bank told them that the plaintiffs held the deed to the house, that Five Brothers was “securing the property, ” and that “no one would enter” the house. Despite U.S. Bank’s representations, that same day, Five Brothers entered the house and began removing the plaintiffs’ possessions.

During the July 6 conversation, U.S. Bank also told the plaintiffs that they had until the following day, July 7, 2011, to sign the modification paperwork. The plaintiffs faxed the signed paperwork to U.S. Bank on July 7.

On July 8, 2011, the plaintiffs received a notice that they had defaulted in the landlord/tenant action for failure to file an appearance. The notice indicated that a writ of possession would issue on July 11, 2011. The plaintiffs filed a motion on July 11 asking the court to strike the default, arguing that they had not received any documents ...


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