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Burke v. Wells Fargo Bank, N.A.

United States District Court, D. New Hampshire

May 5, 2015

John C. Burke, III
v.
Wells Fargo Bank, N.A., as Trustee on behalf of the holders of Harborview Mortgage Loan Pass-Through Certificates 2006-12 Opinion No. 2015 DNH 091

ORDER

LANDYA McCAFFERTY, District Judge.

The above-captioned matter involves a foreclosure dispute between the plaintiff, John C. Burke, III, and the defendant, Wells Fargo Bank, N.A. ("Wells Fargo"). Wells Fargo has filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, Wells Fargo's motion is granted, and the case is dismissed with prejudice.

Background

I. Factual Allegations[1]

Pursuant to a 2006 loan agreement, Mr. Burke granted a mortgage on his home in Derry, New Hampshire to Mortgage Electronic Registration Systems, Inc. ("MERS").[2] At some point after 2006, MERS assigned the mortgage to Bank of America. Then, on March 7, 2012, Bank of America assigned it to Wells Fargo.

After Mr. Burke defaulted on the loan agreement, Wells Fargo foreclosed on the property and sold it to itself at a public auction in February of 2013. Approximately a year later, Wells Fargo recorded the foreclosure deed in the Rockingham County Registry of Deeds, along with an affidavit, as required by New Hampshire law. See N.H. Rev. Stat. Ann. § 479:26(I).

Both the foreclosure deed and the accompanying affidavit were executed by Select Portfolio Servicing, Inc. ("Select Portfolio"), which the documents describe as Wells Fargo's attorney-in-fact. The foreclosure deed and the affidavit both reference a power of attorney "recorded herewith."

Mr. Burke lodges what seem to be contradictory allegations with respect to the referenced power of attorney. In paragraphs five and seven of his Amended Complaint, Mr. Burke alleges that no power of attorney was filed with the foreclosure deed or the affidavit. Then, in paragraph nine, he alleges that "notwithstanding [his previous] factual allegations, " a power of attorney authorizing Select Portfolio to act on Wells Fargo's behalf was filed with the Registry of Deeds on the two pages immediately preceding the foreclosure deed.

Mr. Burke lodges a second allegation regarding the power of attorney. He alleges that, at the time Bank of America conveyed the mortgage to Wells Fargo, Select Portfolio was serving as attorney-in-fact for both entities.

Based on these allegations - the purported failure to file a referenced power of attorney, and the fact that Select Portfolio engaged in "simultaneous co-representation of successive title-holders" - Mr. Burke alleges in his Amended Complaint that he was irreparably harmed. The Amended Complaint asserts claims for: (1) wrongful foreclosure; (2) plea of title and wrongful commencement of eviction proceedings; (3) violation of New Hampshire consumer protection law, N.H. Rev. Stat. Ann. § 358-A; (4) breach of the implied covenant of good faith and fair dealing; and (5) fraud.

II. Procedural Backdrop

Mr. Burke originally brought this suit in the Rockingham County Superior Court in June of 2014, seeking to invalidate the foreclosure and to enjoin a separate eviction proceeding that Wells Fargo had commenced. Wells Fargo then removed the suit to this court based on diversity jurisdiction.

In a prior order dated December 16, 2014, this court dismissed Mr. Burke's complaint, but did so without prejudice because Mr. Burke was proceeding pro se, and because he had sought leave to "include additional claims and/or defendants." The court granted Mr. Burke time to file an amended ...


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