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Johnson v. Shields

United States District Court, D. New Hampshire

July 19, 2016

Eugene and Christine Johnson
v.
Joan Shields and Bank of America Opinion No. 2016 DNH 117

          Christine Johnson, pro se

          Eugene Johnson, pro se

          Thomas J. Pappas, Esq.

          John P. Sherman, Esq.

          ORDER

          JOSEPH DICLERICO, JR. UNITED STATES DISTRICT JUDGE

         Eugene and Christine Johnson, proceeding pro se, brought suit in state court against Joan Shields and Bank of America, N.A. after Bank of America attempted to repossess a sailboat that the Johnsons bought with Shields.[1] The purchase was financed through a loan from Bank of America. The Johnsons brought claims of misrepresentation and breach of contract against Shields and sought an injunction against Bank of America to prevent repossession of the boat. Bank of America defaulted. Shields filed an answer and counterclaim.

         On April 26, 2016, the state court granted the Johnsons a ten-day injunction against Bank of America to prevent repossession of the boat. The court held a hearing on the injunction on May 5, 2016, and the Johnsons, Shields, and Bank of America signed an agreement to address certain issues in the case. The court approved the agreement and set a status conference for July 5, 2016.

         Under the agreement, BOA was required to identify the arrearages on the mortgage within ten business days of May 5. The Johnsons and Shields were ordered to split the amount equally and to forward their shares to counsel for BOA within ten business days after receiving notice of the amount owed. The boat was to remain in storage at Rye Harbor. The Johnsons and Shields were ordered to list the boat for sale within ten business days of May 5. The Johnsons and Shields were also ordered to share all expenses incurred for the boat. Based on that agreement, Bank of America’s motion to set aside default and vacate the ex parte injunction was granted.

         Bank of America removed the case to this court on June 2, 2016, and moves to dismiss the claim seeking an injunction on the ground that the Johnsons have failed to allege a plausible basis for enjoining the Bank from repossessing the boat. Neither the Johnsons nor Shields filed 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[2]

         The Johnsons provide few facts to support the claims in the complaint. In support of the motion to dismiss, Bank of America adds information from the loan and security agreement on the boat and the mortgage. Those documents may be considered for purposes of the motion to dismiss because the complaint, along with the Johnsons’ motion for injunctive relief in state court, references financing of the boat through Bank of America. See Freeman v. Town of Hudson, 714 F.3d 29, 36 (1st Cir. 2013).

         The Johnsons and Shields bought a thirty-eight foot sailboat in March of 2007, with a $100, 000 loan through Bank of America. The Johnsons expected Shields to pay part of the financing costs and expenses for the boat. In the fall of 2015, Shields ...


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