United States District Court, D. New Hampshire
A. Mathews, Esq.
D. Christensen, Esq.
Michael R. Stanley, Esq.
K. Johnstone United States Magistrate Judge.
action removed from state court, the plaintiff, Bridget
Gasparik, alleges that Federal National Mortgage Association
(“Fannie Mae”) violated state and federal law
when it foreclosed upon a home in Danbury, New Hampshire.
Doc. no. 13. Fannie Mae moves to dismiss this action under
Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim. Doc. no. 14. The plaintiff objects. Doc. no. 15. For
the following reasons, Fannie Mae's motion is granted.
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 . . . 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
and quotation marks 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.
scope of the court's analysis on a Rule 12(b)(6) motion
is generally limited to “facts and documents that are
part of or incorporated into the complaint . . .”
GE Mobile Water, Inc. v. Red Desert Reclamation,
LLC, 6 F.Supp.3d 195, 199 (D.N.H. 2014) (quoting
Rivera v. Centro Medico de Turabo, Inc., 575 F.3d,
10, 15 (1st Cir. 2009)); see also Fed.R.Civ.P. 12(d). As an
exception to this rule, the First Circuit permits trial
courts to consider “documents the authenticity of which
are not disputed by the parties; official public records;
documents central to plaintiff's claim; and documents
sufficiently referred to in the complaint” without
converting a motion to dismiss into one for summary judgment.
Id. (brackets omitted) (quoting Rivera, 565 F.3d at
the factual allegations set forth in the plaintiff's
complaint as true, the relevant facts are as follows.
31, 2006, the plaintiff's father, Philip Catalano,
executed a promissory note in the amount of $208, 050.00 to
First Call Mortgage Company, Inc. (“First Call”).
Doc. no. 2-2. Catalano alone signed the note. Id. at
3. The note secured a mortgage on the property central to
this case, located at 440 Route 4, Danbury, New Hampshire.
Doc. no. 2-3. Catalano, the plaintiff, and Rudy Gasparik are
named as mortgagors, and all three signed the mortgage.
Id. at 2, 14. First Call is named as the lender, and
the Mortgage Electronic Registration Systems, Inc.
(“MERS”) is named as mortgagee as a nominee for
First Call's successors and assigns. Id. at 2.
The mortgage was recorded with the Merrimack County Registry
of Deeds on August 2, 2006. Id. at 2. On March 20,
2009, MERS assigned the mortgage to Fannie Mae. Doc. no. 2-4,
at 2. This assignment was recorded with the Merrimack County
Registry of Deeds on March 26, 2009.
who is elderly, resides on the property. The plaintiff is
responsible for his care. The plaintiff was also responsible
for paying the mortgage on the property, but fell behind on
these payments. Once the mortgage was in default, Fannie Mae
commenced foreclosure proceedings and scheduled a foreclosure
sale. The plaintiff reached out to Fannie Mae seeking a
resolution short of foreclosure. Fannie Mae indicated that
the plaintiff needed to pay the full amount in arrears in
order to cancel the foreclosure sale. The plaintiff indicated
that she would not be able to make any such payment until
after the scheduled date for the foreclosure sale, but
offered to pay the full arrearage at that time. Fannie Mae
refused to postpone the foreclosure sale. The plaintiff
offered to make a payment via credit card, which Fannie Mae
March 14, 2016, the plaintiff filed a petition in state court
seeking, inter alia, an ex parte order restraining Fannie Mae
from foreclosing on the property. Doc. no. 6, at 27. The
state court denied the plaintiff's petition on an ex
parte basis and scheduled a hearing for March 22, 2016.
Id. at 19. Following the hearing, the state court
preliminarily enjoined Fannie Mae from conducting the
foreclosure sale. Id. at 16. On April 14, 2016,
Fannie Mae removed this matter to this court, see doc. no. 1,
and moved to dismiss for failure to state a claim, doc. no.
2. The plaintiff moved to amend, doc. no. 10, which the court
granted over Fannie Mae's objection. Fannie Mae
thereafter filed the present motion, seeking the dismissal of
the plaintiff's amended complaint.
plaintiff's amended complaint is comprised of seven
counts. Counts I, II, and V, hereinafter the “state
tort claims, ” respectively allege negligence,
negligent misrepresentation, and negligent infliction of
emotional distress. Count III alleges a breach of the
covenant of good faith and fair dealing. Count IV alleges a
violation of the New Hampshire Consumer Protection Act, N.H.
Rev. Stat. Ann (“RSA”) § 358-A. Count VI
alleges a violation of the Real Estate Settlement Procedure
Act (“RESPA”), 12 U.S.C. § 2601, et seq.
Finally, Count VII addresses Fannie Mae's legal standing
to foreclose on the property.
Mae moves to dismiss the amended complaint in its entirety.
First, Fannie Mae argues that the state tort claims are
barred by the economic loss doctrine. Next, Fannie Mae
contends that it has not violated the covenant of good faith
and fair dealing both because it had no duty to delay the
foreclosure in order to give the plaintiff time to seek loss
mitigation and because no such violation can be premised
solely upon the fact that it was exercising its bargained-for
right to foreclose. Third, Fannie Mae contends that it is
exempt from the CPA and, alternatively, that the plaintiff
has not alleged any conduct that could sustain a CPA claim.
Similarly, Fannie Mae argues that the plaintiff is not a
borrower as defined by RESPA and that she has failed to
allege any pecuniary harm arising from a purported RESPA
violation. Lastly, Fannie Mae contends that the plaintiff is
barred by RSA § 479:25 from raising her standing claim.
The plaintiff objects to these arguments on various grounds.
State Tort Claims
court turns first to the plaintiff's state tort claims.
As noted, Fannie Mae's primary argument is that these
claims are barred by ...