United States District Court, D. New Hampshire
Christopher C. Chesley
PNC Bank, N.A No. 2015 DNH 129
LANDYA McCAFFERTY, District Judge.
This case involves a foreclosure dispute between the plaintiff mortgagor, Christopher C. Chesley, and the defendant mortgagee, PNC Bank, N.A. ("PNC"). PNC has filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The court held a hearing on this matter on June 25, 2015. For the reasons that follow, PNC's motion to dismiss is granted in part and denied in part.
I. Loan History
In 2004, Mr. Chesley executed a promissory note in the amount of $140, 189.00. In exchange, Mr. Chesley granted a mortgage on his home, located in Webster, New Hampshire, to National City Mortgage Co. ("National City"). According to the complaint, National City may have subsequently sold the loan to a trust administered by Ginnie Mae.
In any event, beginning in 2012, Mr. Chesley experienced a series of unfortunate hardships which caused him to miss his mortgage payments. First, his home (on which the mortgage had been granted) was destroyed by fire. Next, according to the complaint, Mr. Chesley was forced to close down his food concession business when he received a bomb threat. And finally, he suffered injuries in a work-related motor vehicle accident.
After Mr. Chesley's missed payments, he applied for a loan modification with PNC. He also filed for personal bankruptcy protection, naming PNC as one of his secured creditors. During this period of time, Mr. Chesley began making $1, 100.00 monthly payments on his mortgage to PNC, which was less than the amount owed. PNC accepted these payments, which Mr. Chesley alleges is evidence that his loan modification application had been approved. Mr. Chesley alleges that once he emerged from bankruptcy, however, PNC refused to continue accepting his reduced monthly payments.
II. Foreclosure and Prior Legal Proceedings
The record suggests that PNC scheduled a foreclosure sale for June 10, 2013, at 2:00 p.m. That morning, Mr. Chesley sought an ex parte injunction (the "Ex Parte Action") barring the foreclosure in the Merrimack County Superior Court (the "Superior Court"). His petition initiating the Ex Parte Action is date stamped June 10, 2013, at 10:38 a.m. See Pl's Obj. to Def.'s Mot. to Dismiss, Ex. D (doc. no. 10-5). The next day, unaware that the foreclosure sale had already occurred on June 10, the Superior Court (Smukler, J.) entered a temporary injunction. Almost a year later, on May 27, 2014, a different justice of the Superior Court (McNamara, J.) dissolved the injunction on the grounds that it was moot because the foreclosure sale had already occurred. The Superior Court's May 27, 2014 order, however, noted that Mr. Chesley could still bring a claim for wrongful foreclosure. Id. at Ex. E. In August of 2014, some fourteen months after the sale, PNC filed the foreclosure deed in the Merrimack County Registry of Deeds.
Mr. Chesley initiated this action in the Superior Court on November 24, 2014. Mr. Chesley's complaint asserts four claims:
(1) PNC wrongfully foreclosed because it did not hold legal title to the mortgage; (2) PNC wrongfully foreclosed because it did not possess an original "blue-ink" copy of the note; (3) PNC failed to timely record the foreclosure deed; and (4) PNC granted a loan modification, but then breached the modification agreement by refusing to continue accepting Mr. Chesley's $1, 100.00 monthly payments. PNC removed the case to this court, and has now filed the instant motion to dismiss.
Under Rule 12(b)(6), the court must accept the factual allegations in the complaint as true, construe reasonable inferences in the plaintiff's favor, and "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) (citations omitted) (internal quotation marks omitted). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 ...