United States District Court, D. New Hampshire
Rolling Green at Whip-Poor-Will Condominium Townhouse Unit Owners Association, et al
Bank of America, et al Oinion No. 2016 DNH 044
MEMORANDUM AND ORDER
BARBADORO, District Judge.
case involves an attempt by a condominium association to
recover for damages it suffered after frozen pipes burst in a
vacant condominium unit. The condominium association has sued
Bank of America ("BOA"), the mortgagee for the
vacant unit, and Safeguard Properties, a company BOA hired to
oversee the property. BOA has responded with a motion to
dismiss for failure to state a claim. For the reasons that
follow, I deny BOA's motion.
2010, Maria Caporicci purchased a unit ("the Unit")
in the Rolling Green at Whip-Poor-Will Condominium in Hudson,
NH. Doc. No. 1-1 at 5. Caporicci granted a
mortgage secured by the Unit to the Mortgage Electronic
Registration System, Inc., which later assigned it to BOA.
Id. at 6.
February 2013, Caporicci died, leaving the Unit vacant.
Id . The mortgage loan soon went into default and in
September 2013, Rolling Green formally terminated the
Unit's "common area privileges, " which
included access to running water. Id . Several
months later, by May 2014, BOA retained Safeguard Properties
("Safeguard") to "monitor" and
"exercise... authority and control over" the vacant
Unit "on [the bank's] behalf, " although BOA
had not yet initiated foreclosure proceedings. Id.
at 7, 11. Safeguard posted a notice on the Unit stating that
it was monitoring the Unit at the request of the
"mortgagee." Id. at 7.
in 2014, Rolling Green became concerned that the Unit would
be left unheated over the winter, creating a risk that the
pipes would burst and cause damage to nearby units.
Id. at 4. On November 24, 2014, it sent a letter to
BOA's attorney expressing its concerns and asking BOA to
turn on the heat and winterize the Unit immediately.
Id . The letter also stated that BOA would be held
responsible for any damage caused by its negligence, and
reminded BOA that its common area privileges had been
same day, November 24, 2014, Rolling Green also wrote to
Caporicci's estate, requesting permission to take
"custody and control" of the Unit until BOA
foreclosed. Id . The administrator of
Caporicci's estate agreed, and a copy of the estate's
authorization of custody and control was sent to BOA and
Safeguard. Id. at 8. About a week later, on December
3, 2014, Rolling Green members entered the Unit and found
that the heat was turned off but the water remained on.
Id . Rolling Green drained the water lines and
attempted to turn the heat on, but discovered an issue that
prevented them from doing so. Id . It then notified
BOA's attorney that a plumber needed to be called to turn
on the heat. Id . Later that month, on December 12,
2014, Safeguard employees entered the Unit, changed the
locks, and turned the water on - but failed to fix or turn on
the heat. Id . Safeguard did not notify Rolling
Green of its actions. Id.
later, on January 9, 2015, the pipes burst in the Unit.
Id. at 9. Rolling Green's property management
company received a call from the owner of a neighboring unit
complaining that water was flooding into his condo.
Id . The company went to the Unit, but had to cut
the locks to gain entry. Id . Upon arrival, they
discovered that the water had been turned on and the water
lines had frozen and ruptured, causing the flooding.
Id . The boiler in the building had also cracked and
exploded, and the floor in the Unit was sagging. Id
. Making matters worse, the pipes serving the building's
shared sprinkler system failed soon after, and the system was
rendered inoperable. Id . The Hudson Fire Department
later examined the damage and concluded that the building
might collapse. Id . As a result, the other unit
owners in the building had to be temporarily relocated.
Green bore the cost of the repairs to the sprinkler system
and the common areas, receiving an estimate of $83, 800 for
the sprinkler alone. Id . Rolling Green informed
Safeguard of the damage, and although Safeguard initially
indicated that it would send a crew to estimate the damages,
it never got back to Rolling Green. Id. at 10. BOA,
meanwhile, refused to accept a deed in lieu of foreclosure
from Caporicci's estate. Id . Instead, it
scheduled a foreclosure sale for September 1, 2015, but left
the repair costs to Rolling Green. Id. at 10-11.
September 23, 2015, Rolling Green brought suit for
negligence, trespass, and conversion against BOA and
Safeguard in a New Hampshire state court. BOA removed the
case to this court, and responded with the present motion to
dismiss for failure to state a claim under Rule 12(b)(6).
Safeguard filed an answer and has not joined in BOA's
motion to dismiss.
STANDARD OF REVIEW
survive a Rule 12(b)(6) motion, a plaintiff must allege
sufficient facts to "state a claim to relief that is
plausible on its face." Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is facially
plausible if it provides "factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged." Id .
This plausibility standard "asks for more than a sheer
possibility that a defendant has acted unlawfully, "
id., but "simply calls for enough fact to raise a
reasonable expectation that discovery will reveal
evidence" of wrongdoing. Twombly, 550 U.S. at
employ a two-step approach in deciding a Rule 12(b)(6)
motion. See Ocasio-Hernandez v. Fortuno-Burset, 640
F.3d 1, 12 (1st Cir. 2011). First, I screen the complaint for
statements that "merely offer legal conclusions couched
as fact or threadbare recitals of the elements of a cause of
action." Id . (citations, internal punctuation,
and alterations omitted). I then accept as true all
non-conclusory factual ...