United States District Court, D. New Hampshire
Teri A. Marquis
JPMorgan Chase Bank, N.A. Opinion No. 2016 DNH 111
DiClerico, Jr. United States District Judge
Marquis, proceeding pro se, brought suit in state court to
enjoin the foreclosure sale of her home by JPMorgan Chase
Bank, N.A. JPMorgan removed the case to this court and now
moves to dismiss the case. Marquis did not file a response to
the motion to dismiss.
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).
2014, Marquis filed a complaint in state court to enjoin the
foreclosure sale on her home that was scheduled for May 19,
2014. After the state court issued a temporary injunction,
JPMorgan removed the case to this court and moved to dismiss.
The court granted the motion to dismiss, and judgment was
entered on August 8, 2014. See Marquis v. JPMorgan
Chase Bank N.A., 14-cv-251-JL. Marquis did not
file an appeal.
alleged in her complaint in that action that her ex-husband
had been ordered to make the mortgage payments but had
stopped without her knowledge. Marquis tried to communicate
with JPMorgan about the mortgage but was unsuccessful because
she was not a party to the note. She also tried to have her
ex-husband sign an authorization form to allow her to work
with JPMorgan, but he would not do that. Marquis stated that
the issue with her ex-husband was scheduled to be addressed
in Laconia Family Court in May of 2014.
also represented that she had the financial means to
refinance the home. She asserted that it was "not fair
or equitable for the defendant to foreclose because [she had]
access to funds to cure the arrearage and the defendant
[would] not discuss loss mitigation options with [her]
despite the fact that she is on the deed and a party to the
did not state a specific claim in that case but simply sought
to enjoin the foreclosure sale. The court and JPMorgan
construed Marquis's allegations to raise a claim for
breach of the implied covenant of good faith and fair
dealing. The court expressed sympathy for Marquis's
plight but explained that her claim for breach of the implied
covenant of good faith and fair dealing was not cognizable
and granted the motion to dismiss.
April 19, 2016, Marquis again filed a complaint in state
court to enjoin the foreclosure sale of her home. She alleged
that the home was going into foreclosure because of her
divorce and her ex-husband's failure to make the mortgage
payments as he had been ordered to do. She further alleged
that she had been working with JPMorgan's counsel for six
months and that she had "presented" a check to
JPMorgan for $43, 000 on April 12, 2016, to cover the
mortgage arrearage. Marquis provided a copy of the check with
her complaint. She stated that JPMorgan had not gotten back
to her about the mortgage arrearage.
state court granted Marquis's ex parte request to
temporarily enjoin the foreclosure sale. JP Morgan then
removed the case to this court.
moves to dismiss the complaint on the grounds that
Marquis's claim is barred by res judicata, based on her
2014 action, and that she fails to state a claim for ...