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Martin v. Wells Fargo Bank, N.A.

United States District Court, D. New Hampshire

April 21, 2016

Michael Martin and Julie Martin
v.
Wells Fargo Bank, N.A. and North American Savings Bank, FSB Opinion No. 2016 DNH 084

          ORDER

          LANDYA McCAFFERTY, District Judge.

         Michael 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.[1] 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.

         Standard of Review

         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 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 omitted)).

         Where, as here, written instruments are provided as exhibits to a pleading, the exhibits are "part of the pleading for all purposes."[2] 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 citation omitted).

         Background

         On 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 Hampshire.

         The 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.

         On 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.

         Discussion

         The 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 all claims.[3]

         As with 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.

         The 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 ...


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