United States District Court, D. New Hampshire
JOSEPH A. DiCLERICO, Jr., District Judge.
Walter Steele brought suit in state court, seeking an injunction against Deutsche Bank National Trust Company to stop foreclosure proceedings against Steele's home and bringing three claims for damages. Deutsche Bank removed the case to this court. After an initial misstep that resulted in default being entered against it, Deutsche Bank filed a motion to dismiss. Steele asked for an extension of time to respond because the parties were discussing a mortgage modification, and the request was granted. The parties did not file a status report by November 24, 2014, as they were required to do, and Steele did not file a response to the motion to dismiss.
Standard of Review
In considering a motion pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must "determine whether the factual allegations in the plaintiff's complaint set forth a plausible claim upon which relief may be granted." Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014) (internal quotation marks omitted). The properly pleaded factual allegations in the complaint are accepted as true. Id . Statements that merely provide legal conclusions or the bare elements of a cause of action, without supporting facts, are not properly pleaded allegations and must be ignored. Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012).
The background information is provided in accordance with the Rule 12(b)(6) standard.
The operative complaint is Steele's verified ex parte petition to enjoin the foreclosure sale of his home and complaint for damages. The state court granted Steele's request for temporary ex parte relief on August 1, 2014, and temporarily enjoined the foreclosure sale of his home. A hearing was scheduled in state court for August 11, 2014, but the case was removed to this court on August 8, 2014.
In state court, Steele sought an injunction based on the Home Affordable Modification Program ("HAMP") and argued that it would cause him irreparable harm to lose his home. He brought three claims for damages: Breach of Contract, Count I; Negligent Misrepresentation, Count II; and Breach of the Covenant of Good Faith and Fair Dealing, Count III. Steele alleged few facts to support his claims, and those are summarized here.
The property subject to foreclosure by Deutsche Bank is Steele's primary home. As recently as the middle of July, 2014, "[w]hile in the process of gathering the documents to proceed with pursuit of the modification, " Steele received a call from a representative of Deutsche Bank "and got the run around.'" Soon after, Steele "was told that someone may be interested in buying the home on a short sale." Steele is "sick and elderly and it would be an extreme hardship to lose the property that he occupies."
In support of the breach of contract claim, Steele alleges that Deutsche Bank has not produced the "original note, " that "the photocopy is endorsed in blank, " and that Deutsche Bank "is not even a holder.'" Steele states, generally, that "[t]he parties have entered into an agreement regarding financing pursuant to the terms of their mortgage, and an original mortgage agreement and other contracts." Steele alleges that Deutsche Bank "was required to follow the federal and New Hampshire underwriting and closing requirements." Steele contends that Deutsche Bank breached the agreement by failing to recognize and credit payments, by "failing to perform, " by failing to honor "verbal promises, " and by moving toward foreclosure after promising not to foreclose.
Steele alleges negligent misrepresentation based on Deutsche Bank's "duty to be honest and provide truthful representations." Steele contends that Deutsche Bank breached its duty by misleading Steele and by failing to adequately communicate with him. He contends that Deutsche Bank promised to provide an accounting and promised to identify the location of the note and other documents but failed to do so.
Deutsche Bank moves to dismiss the claims on the grounds that they are inadequately pleaded and fail to state viable causes of action. Steele did not object or ...