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Bowser v. MTGLQ Investors, LP

United States District Court, D. New Hampshire

August 11, 2015

Gary Bowser and Shannon Bowser
v.
MTGLQ Investors, LP and Ocwen Loan Servicing, LLC

ORDER Opinion No. 2015 DNH 149.

LANDYA McCAFFERTY, District Judge.

In the above-captioned matter, Gary and Shannon Bowser have sued MTGLQ Investors, LP ("MTGLQ") and Ocwen Loan Servicing, LLC ("Ocwen") in nine counts, asserting various claims arising out of their unsuccessful attempt to obtain a modification of their mortgage loan. Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), and the Bowsers objected. On June 30, 2015, the court held oral argument on defendants' motion to dismiss. During the hearing, and for reasons stated from the bench, the court dismissed seven of the nine counts. The court took under advisement defendants' motion as to the remaining two counts. For the reasons that follow, the court grants defendants' motion to dismiss in full.

I. Background

A. Factual Allegations

The factual allegations are drawn from the Bowsers' complaint. In 2005, the Bowsers purchased a property in Rye, New Hampshire, obtaining title by warranty deed. To secure the loan, they executed a mortgage that provided for a loan servicer to collect payments and otherwise manage their loan obligations.[1] In 2014, the Bowsers went into arrears on the loan. Ocwen, the loan servicer, returned their May 2014 partial payment, and instructed them to apply for a loan modification.

In accordance with Ocwen's instructions, the Bowsers applied for a modification under the Home Affordable Modification Program ("HAMP") in October 2014. The Bowsers allege that Ocwen, during the application review process, improperly based its assessment of their financial capabilities on the history of the loan rather than on their existing ability to pay. The Bowsers further allege that, despite their timely response to every request from Ocwen for supporting documentation, Ocwen insisted that their modification application was incomplete. As a result, Ocwen denied the Bowsers' application.

B. Procedural Backdrop

The Bowsers filed a nine-count complaint in Rockingham County Superior Court, asserting claims for: (I) negligence; (II) negligent misrepresentation; (III) fraud; (VI) equitable estoppel; (V) promissory estoppel; (VI) breach of the covenant of good faith and fair dealing; (VII) violation of New Hampshire's consumer protection statute (N.H. Rev. Stat. Ann. ยง 358-A); (VIII) negligent infliction of emotional distress ("NIED"); and (IX) a count entitled "Standing." Defendants removed the case to this court and promptly filed a motion to dismiss as to all nine counts (doc. no. 4), arguing that the Bowsers failed to state a claim on which relief can be granted.

At the June 30, 2015 hearing on the motion to dismiss, the Bowsers' counsel consented to dismissal of Counts III, IV, VII, and IX as to both defendants, and Counts I and VIII as to MTGLQ. After hearing argument on the remaining counts, the court granted defendants' motion to dismiss Counts I and VIII as to Ocwen, and Count V as to both defendants. The court took under advisement defendants' motion to dismiss as to Counts II and VI.

II. The Legal Standard

Under Fed.R.Civ.P. 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 and 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 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.

III. Discussion

Before ruling on the remaining two counts, and for the sake of clarity, the court begins by summarizing the reasoning behind its decision to orally grant, over the Bowsers' objection, defendants' motion to dismiss Counts ...


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