United States District Court, D. New Hampshire
Dan S. Murray, Plaintiff.
The Bank of New York Mellon, F/K/A The Bank of New York, as Trustee for the Certificate-Holders of CWABS, Inc. Asset-Backed Certificate Series 2004-11, Defendant. Opinion No. 2016 DNH 064
J. McAULIFFE, District Judge.
plaintiff, Dan S. Murray, originally filed this action in
state court, seeking to invalidate the foreclosure deed to
his home and to enjoin any further possessory actions against
him. Defendant, The Bank of New York Mellon
("BNYM"), timely removed the action, invoking this
court's diversity jurisdiction. See 28 U.S.C. §§ 1332,
1441, and 1446. Pending before the court are plaintiff's
motion to remand this matter to state court, as well as
defendant's motion to dismiss all of plaintiff's
claims. Defendant has objected to plaintiff's motion to
remand. Plaintiff, however, has not objected (or otherwise
responded) to defendant's motion to dismiss.
reasons discussed, plaintiff's motion to remand is
denied, and defendant's motion to dismiss is granted.
litigation arises out of the foreclosure of a mortgage deed
to plaintiff's home in Dover, New Hampshire (the
"Property"). Accepting the allegations of the
plaintiff's complaint as true - as the court must at this
juncture - and based upon the undisputed documents of record,
the relevant facts are as follows. In October of 2004,
plaintiff executed a promissory note in the amount of $379,
500.00, payable to Full Spectrum Lending, Inc. As security
for that loan, plaintiff conveyed a mortgage deed to the
Property to Mortgage Electronic Registration Systems, Inc.,
as nominee for Full Spectrum Lending, its successors and
assigns (the "Mortgage Deed").
point in 2009, plaintiff defaulted on the promissory note.
Subsequently, the Mortgage Deed was assigned to BNYM. Then,
in August of 2014, BNYM conducted a foreclosure sale of the
Property, at which it was the high bidder. Eventually, in a
separate state court proceeding, BNYM obtained a writ of
possession. Plaintiff then filed this action, seeking to
invalidate the foreclosure deed and to enjoin any eviction
Plaintiff's Motion to Remand.
moves to remand this proceeding to state court on grounds
that defendant's removal was improper. In support of that
motion, plaintiff points to various alleged deficiencies in
the Notice of Removal (document no. 1). For example, he says,
"defendant's Notice of Removal should be denied
because the defendant has not yet filed an appearance in this
action; either in the Strafford Superior Court or in this
Court." Motion to Remand (document no. 5) at 1.
Alternatively, plaintiff asserts that defendant's counsel
signed the Notice of Removal as a representative of his
employer/law firm, rather than in his capacity as counsel to
plaintiff's arguments has merit. Defendant properly
removed the action to this court, and the court has subject
matter jurisdiction over the parties' dispute pursuant to
28 U.S.C. § 1332. Accordingly, plaintiff's motion to
remand is denied.
Defendant's Motion to Dismiss.
noted above, plaintiff filed this action seeking to
invalidate the foreclosure deed and to enjoin any actions to
evict him from the Property. In support of those efforts, he
asserts that BNYM lacks standing to evict him because it
never took legal title to the Property. See Exhibit B to
plaintiff's state court complaint (document no. 1-1) at 8
(asserting that BNYM has failed to establish that it is
"the bona fide owner of the property from which [it]
seeks to evict" him). Specifically, plaintiff asserts
that BNYM's "failure to record a foreclosure deed in
compliance with RSA 479:26 renders its foreclosure deed
invalid." Id. at 11. And, says plaintiff,
"[a]bsent a valid foreclosure deed, [BNYM] has no right
to evict [him] or anyone else from the property."
is mistaken. Even if the foreclosure deed and/or accompanying
affidavit were defective, plaintiff lacks standing to
challenge the validity of BNYM's title to the Property.
As this court (Laplante, C.J.), recently explained, a
mortgagor, like plaintiff, cannot challenge alleged
deficiencies in a foreclosure deed (or the foreclosure
As an initial matter, the court cannot accept the premise on
which [plaintiff's] deed-related claims rest: that a
defaulted mortgagor whose property has been sold at
foreclosure has an enforceable interest in the recording of
the foreclosure deed. It is true that "[t]itle to the
foreclosed premises [does] not pass to the purchaser until
the time of the recording of the deed and affidavit."
N.H. Rev. Stat. Ann. § 479:26, III. The New Hampshire Supreme
Court has held, though, that "this rule does not change
the fact that the debtor possessed neither a legal nor an
equitable interest in the property once the auctioneer's
hammer fell and the memorandum of sale was signed."
Barrows v. Boles, 141 N.H. 382, 393 (1996) (internal
alterations and quotation marks ...