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Ingress v. McKenney

United States District Court, D. New Hampshire

October 28, 2014

Jeanne-Louise Ingress
v.
Daniel McKenney, John G. Stumpf, Timothy J. Sloan, James M. Strother, Paul D. Lambert, John Connolly, Kevin Geaney, Rachelle Willard, Steven Ablitt, Jessica A. Babine, Stephen Stewart, Eric Houser, Lynn Killkelley, Martha R. Crocker, and Edwin W. Kelly Opinion No. 2014 DNH 228.

ORDER

LANDYA McCAFFERTY, District Judge.

This case arises out of the foreclosure of a mortgage and an eviction action initiated by the successful bidder at the ensuing foreclosure sale. Jeanne-Louise Ingress, proceeding pro se, has sued 15 defendants, including the president of a mortgage company and several bankers, lawyers, and judicial officers and employees. Five defendants have yet to be served. The ten who have been served have moved to dismiss. Before the court are motions to dismiss filed by: (1) Daniel McKenney; (2) Martha Crocker, Edwin Kelly, and Lynn Killkelley; (3) Jessica Babine, Eric Houser, and Stephen Stewart; and (4) Timothy Sloan, James Strother, and John Stumpf. All four motions are unopposed. For the reasons that follow, all four motions to dismiss are granted.

Background

This section begins by drawing on Judge Barbadoro's order in Ingress v. Merrimack Mortgage Co., No. 11-cv-373-PB, 2012 WL 405499 (D.N.H. Feb. 8, 2012), a case that arose from the foreclosure that preceded the eviction action that gives rise to most of the claims in this case.

In September of 2005, Ingress borrowed about $200, 000 from Merrimack Mortgage Company ("Merrimack"). Id. at *1. To secure her repayment, she mortgaged a property in Wilton, New Hampshire ("the property"). See id. Merrimack sold the mortgage and transferred the right to service it. See id. Ingress stopped making payments on the mortgage in late 2008 or early 2009. See id. In March of 2009, Wells Fargo Bank, N.A. ("WFB"), the successor mortgagee, began foreclosure proceedings. See id.

Ingress brought an action in the Merrimack County Superior Court in an effort to head off foreclosure. See id. That action was dismissed. See id. at *2. At the foreclosure sale, WFB purchased the property and, on September 7, 2011, it filed a foreclosure deed in the Hillsborough County Registry of Deeds, see Compl., Attch. 1 (doc. no. 1-2), at 31 of 86.

After Ingress's state-court action was dismissed, but before the foreclosure sale, Ingress filed No. 11-cv-373-PB, naming as defendants the parties she had sued unsuccessfully in her state-court action, including Merrimack, plus one other. See Ingress, 2012 WL 405499, at *12. The same day she filed No. 11-cv-373-PB, she also filed a quiet-title action in state court against the defendants in her federal case. See id. That action was dismissed with prejudice, on grounds of res judicata. See id. Judge Barbadoro, in turn, dismissed Ingress's claims on grounds of res judicata. See id. at *5.

Because Ingress did not vacate the property after the foreclosure sale, WFB served her with an eviction notice. See Compl., Attach. 1 (doc. no. 1-1), at 61 of 90. Because Ingress did not quit the property in response to the eviction notice, WFB filed a Landlord and Tenant Writ against her in New Hampshire's 9th Circuit Court, Milford District Division. See id. at 64-65 of 90. On February 24, 2014, Presiding Justice Martha Crocker ruled in WFB's favor, ordering that a Writ of Possession in favor of WFB would issue. See Compl., Attach. 1 (doc. no. 1-2), at 7 of 86. Simultaneously, Judge Crocker dismissed what appears to have been a counterclaim that Ingress filed in WFB's eviction action that includes much of the material included in her complaint in this case. See id. at 12-16 of 86 ("civil action" asserting common law claim, filed by Ingress in WFB's eviction action); see also id. at 26 of 86 (endorsed order dismissing Ingress's "civil action").

After Judge Crocker ruled against her, Ingress filed a timely notice of intent to appeal Judge Crocker' decision to the New Hampshire Supreme Court ("NHSC"). See Compl., Attach 1 (doc. no. 1-2), at 9 of 86. Within the time limit for filing a Notice of Mandatory Appeal pursuant to Rule 7 of the Rules of the Supreme Court of the State of New Hampshire ("Supreme Court Rules"), Ingress filed a petition for original jurisdiction, pursuant to Rule 11 of the Supreme Court Rules, but did not file a Rule 7 appeal from Judge Crocker's decision. See Compl., Attach. 1 (doc. no. 1-1), at 1-37 of 90. On May 20, 2014, Ingress filed this action. Thereafter, the NHSC denied Ingress's Rule 11 petition. See Def.'s Mot. to Dismiss, Ex. H (doc. no. 13-9).

As noted, four groups of defendants have moved to dismiss Ingress's claims against them. In the section that follows, the court considers each of the four motions to dismiss.

Discussion

A. McKenney (doc. no. 7)

McKenney is the president of Merrimack. In Count 1 of her complaint, Ingress claims that McKenney is liable to her for "using [her] signature to create the funds, for creating double bookkeeping entries to defraud [her] of [her] property and for securitizing moneys created by [her] signature." Compl. (doc. no. 1) 7. This claim is based upon McKenney's conduct during Merrimack's tenure as mortgagee, which ended no later than March of 2009, when WFB initiated foreclosure proceedings. In a summary of her claims, Ingress states that "the commencement of the wrong and harm began September 7, 2011 when the wrongdoers filed a fraudulent foreclosure action against [her]." In light of the court's obligation "to construe the pleadings liberally in favor of [a] pro se party, " Ingress, 2012 WL 405499, at *3 (citing Ayala Serrano v. Lebron Gonzales , 909 F.2d 8, 15 (1st Cir. 1990); Estelle v. Gamble , 429 U.S. 97, 106 (1976)), the court notes that September 7, 2011, is the date on which WFB filed its foreclosure deed, although it commenced foreclosure proceedings in March of 2009. Thus, the court construes Ingress's complaint as claiming that the conduct giving rise to this suit commenced in March of 2009, when WBF initiated foreclosure proceedings. Id . In document no. 7, McKenney moves to dismiss Ingress's claim against him on the following grounds: (1) lack of subject-matter jurisdiction, see Fed.R.Civ.P. 12(b)(1); (2) res judicata and collateral estoppel; and (3) failure to state a claim on which relief can be granted, see Fed.R.Civ.P. 12(b)(6). McKenney's first argument is dispositive.

In her complaint, Ingress does not indicate any basis for invoking this court's subject-matter jurisdiction over her claim against McKenney. Because the theory of liability she identifies is common-law fraud, the only basis for subject-matter jurisdiction that may be reasonably inferred from the complaint is diversity of citizenship. See 28 U.S.C. ยง 1332(a)(1) (granting district courts original jurisdiction over civil actions between citizens of different states where the amount in controversy exceeds $75, 000). "[T]he party invoking federal court jurisdiction bears the burden of demonstrating that the court has subject-matter jurisdiction over the case." Milford-Bennington R.R. Co. v. Pan Am Rys., Inc. , 695 F.3d 175, 178 (1st Cir. 2012) (citing Amoche v. Guar. Trust Life Ins. Co. , 556 F.3d 41, 48 (1st Cir. 2009)). Ingress's complaint says nothing about McKenney's ...


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