United States District Court, D. New Hampshire
Angell, pro se.
Michael P. Robinson, Esq.
DiClerico, Jr. United States District Judge.
Angell, who is proceeding pro se, brought suit in state court
seeking to enjoin the foreclosure sale of his home by Pacific
Union Financial, LLC. Pacific Union removed the case, and
Angell’s motion to remand has been denied. Pacific
Union moves to dismiss the complaint, and Angell objects.
motion to dismiss for failure to state a claim is governed by
Federal Rule of Civil Procedure 12(b)(6). In
considering a motion under Rule 12(b)(6), the court assumes
the truth of the properly pleaded facts and takes all
reasonable inferences from those facts that support the
plaintiff’s claims. Mulero-Carrillo v.
Roman-Hernandez, 790 F.3d 99, 104 (1st Cir. 2015). Based
on the properly pleaded facts, the court determines whether
the plaintiff has stated “a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
filed a form complaint in state court titled “Complaint
to Enjoin Foreclosure Sale.” Angell asked the court to
enjoin the foreclosure sale of his home, then scheduled for
May 20, 2016. The property is located at 29A Lund Drive,
Hudson, New Hampshire.
acknowledged in the complaint that his mortgage is in
default. He alleged that he was involved in a divorce, filed
by his wife, Sarah Hill, in November of 2015. Because of a no
contact order in the divorce proceeding and Angell’s
bail conditions, he could not discuss arrangements for paying
the mortgage with Hill. In December of 2015, as part of the
divorce proceeding, Hill was required to pay 50% of the
current bills, including the mortgage. Angell alleged that
Hill did not comply with the payment order, which resulted in
default on the mortgage and the scheduled foreclosure sale.
complaint, Angell alleged that he was “willing, able,
and ready to bring the mortgage out of foreclosure by either
loan modification or paying the past due balance in
full.” He also alleged, however, that “due to the
current divorce matter, this may not happen until after the
auction on the property has been held.” He asked the
state court to enjoin the foreclosure sale for ninety days
after the final divorce hearing to allow him time to
reinstate the mortgage with funds that were then frozen due
to the divorce proceeding.
has not moved to amend the complaint. In his objection to the
motion to dismiss, however, he provides additional factual
background about his efforts to resolve the mortgage default
with Pacific Union. He also states that the divorce
proceeding has ended with a reconciliation between Angell and
Hill and that he would like to pay the amount required to
reinstate the mortgage but has not been able to do so because
Pacific Union has not provided him with the required payment
Union has represented to the court that the foreclosure sale
was cancelled “in order to allow exploration of loss
mitigation efforts.” Pacific Union also represents that
the foreclosure sale has not been rescheduled.
complaint, Angell seeks to enjoin the foreclosure sale of his
home. The foreclosure sale has been cancelled and has not
been rescheduled. Therefore, at ...