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Simmons v. Wells Fargo Bank, N.A.

United States District Court, D. New Hampshire

August 11, 2015

Daniel Simmons,
v.
Wells Fargo Bank, N.A

ORDER Opinion No. 2015 DNH 156

LANDYA McCAFFERTY, District Judge.

In a case that has been removed from the New Hampshire Superior Court, Daniel Simmons, proceeding pro se, seeks to enjoin Wells Fargo Bank, N.A. ("Wells Fargo") from selling his home at a foreclosure sale and also seeks damages. Simmons claims that he is entitled to relief because Wells Fargo breached the implied covenant of good faith and fair dealing by starting to foreclose on his mortgage (Count I), and violated federal mortgage-servicing regulations promulgated under the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. ยงยง 2601-2617 (Count II). Before the court is Wells Fargo's motion to dismiss for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). Simmons has not responded. For the reasons that follow, Wells Fargo's motion to dismiss is granted.

I. The Legal Standard

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) (citation 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 U.S. 662, 678 (2009). Analyzing plausibility is "a context-specific task" in which the court relies on its "judicial experience and common sense." Id. at 679.

Because Simmons is proceeding pro se, the court is obliged to construe his complaint liberally. See Erikson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal citations omitted) ("a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers"). However, "pro se status does not insulate a party from complying with procedural and substantive law. Even under a liberal construction, the complaint must adequately allege the elements of a claim with the requisite supporting facts." Chiras v. Associated Credit Servs., Inc., 12-10871-TSH, 2012 WL 3025093, at *1 n.1 (D. Mass. July 23, 2012) (quoting Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997) (internal citation and quotation marks omitted)).

II. Background

The facts in this section are drawn from "the complaint, the documents attached to the complaint, and relevant public records." See Foley, 772 F.3d at 68 (citing Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)).

In 2005, Simmons and his wife, who is not a party to this action, received a loan from American Home Mortgage ("AHM") and executed a promissory note in favor of AHM. To secure repayment of the loan, the Simmonses gave a mortgage to Mortgage Electronic Registration Systems, Inc. ("MERS"). That mortgage provides, in relevant part:

9. Grounds for Acceleration of Debt.
(a) Default. Lender may, except as limited by regulations issued by the Secretary, in the case of payment defaults, require immediate payment in full of all sums secured by this Security Instrument if:
(i) Borrower defaults by failing to pay in full any monthly payment required by this Security Instrument prior to or on the due date of the next monthly payment
....
18. Foreclosure Procedure. If Lender requires immediate payment in full under paragraph 9, Lender may invoke the STATUTORY POWER OF SALE and any other remedies permitted by applicable law.

Addendum to Mot. to Dismiss (doc. no. 6) 8, 11 of 13 (emphasis omitted). At some point, MERS assigned ...


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