United States District Court, D. New Hampshire
McCAFFERTY, District Judge.
and Julie Martin, proceeding pro se, brought suit in state
court against Wells Fargo Bank, N.A. ("Wells
Fargo") and North American Savings Bank, FSB
("NASB"), alleging claims that arose from
defendants' conduct in handling the Martins'
promissory note and mortgage and in attempting to foreclose
on their home. The case was removed to this court on October
30, 2015. The court granted Wells Fargo's motion to
dismiss the complaint without prejudice to the Martins'
opportunity to file an amended complaint setting forth facts
sufficient to state plausible claims against Wells
Fargo. See doc. no. 11. The Martins filed an
amended complaint (doc. no. 12), and Wells Fargo moves to
dismiss (doc. no. 16). The Martins object. For the reasons
that follow, Wells Fargo's motion to dismiss is granted.
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.
the Martins are proceeding pro se, the court is obliged to
construe their 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
as here, written instruments are provided as exhibits to a
pleading, the exhibits are "part of the pleading for all
purposes." Fed.R.Civ.P. 10(c); see also
Trans-Spec Truck Serv. v. Caterpillar, Inc., 524
F.3d 315, 321 (1st Cir. 2008). When "a written
instrument contradicts allegations in the complaint to which
it is attached, the exhibit trumps the allegations."
Clorox Co. P.R. v. Proctor & Gamble Commercial Co.,
228 F.3d 24, 32 (1st Cir. 2000) (internal quotation marks and
November 25, 2009, Michael Martin executed a promissory note
in favor of NASB, in exchange for a loan of $217, 979. That
same date, Michael and Julie Martin granted a mortgage to
NASB to secure the loan. The mortgage encumbered the
Martins' home at 79 Ford Farm Road in Milton, New
mortgage states that Mortgage Electronic Registration
Systems, Inc. ("MERS") is the mortgagee as nominee
for the lender, NASB. On November 2, 2012, MERS, acting as
nominee for NASB, assigned the mortgage to Wells Fargo.
September 10, 2015, the law firm of Bendett & McHugh, acting
on Wells Fargo's behalf, sent the Martins a notice of
foreclosure, informing them that a foreclosure auction would
occur on November 4, 2015. Before the scheduled date of the
foreclosure auction, the Martins brought this action.
Martins assert three claims against Wells Fargo in their
amended complaint: Wrongful Foreclosure (Count I);
Intentional Infliction of Emotional Distress (Count II); and
Declaratory Relief (Count III). Wells Fargo moves to dismiss
the Martins' claims alleged against Wells Fargo in the
original complaint, the claims in the amended complaint are
based on the allegation that Wells Fargo does not have the
legal authority to foreclose on the Martins' home. As the
court laid out in detail in its previous order, however, the
mortgage expressly grants MERS (solely as nominee for Lender
and Lender's successors and assigns) the power of sale
and "the right to foreclose and sell the Property; and
to take any action required of Lender." The mortgage
assignment, which was recorded on November 2, 2012, states
that MERS, as nominee for NASB, its successors and assigns,
conveys the mortgage to Wells Fargo. Thus, the mortgage
authorizes MERS to act on behalf of the noteholder, and MERS
assigned the mortgage to Wells Fargo.
Martins argue that, despite the assignment of the mortgage,
Wells Fargo does not have the authority to foreclose for two
reasons. First, they contend that Wells Fargo does not hold
the note, and cannot foreclose without holding both the note
and the mortgage. As the court explained in its previous
order, however, regardless of whether Wells Fargo holds the
note, the plain language of the mortgage gives the holder of
the mortgage "the authority, as agent of the noteholder,
to exercise the power of sale." Bergeron v. N.Y.
Cmty. Bank, 168 N.H. 63, 71 (N.H. 2015) (noting that if
the language of the mortgage establishes an agency
relationship between the assignee of MERS and the holder of
the note, the assignee of MERS has ...