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Marquis v. JPMorgan Chase Bank, N.A.

United States District Court, D. New Hampshire

July 6, 2016

Teri A. Marquis
v.
JPMorgan Chase Bank, N.A. Opinion No. 2016 DNH 111

          ORDER

          Joseph DiClerico, Jr. United States District Judge

         Teri A. 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.

         Standard of Review

         A 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).

         Background

         In 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.

         Marquis 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.

         Marquis 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 mortgage."

         Marquis 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.

         On 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.

         The state court granted Marquis's ex parte request to temporarily enjoin the foreclosure sale. JP Morgan then removed the case to this court.

         Discussion

         JPMorgan 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 ...


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