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Gasparik v. Federal National Mortgage Association

United States District Court, D. New Hampshire

December 1, 2016

Bridget Gasparik
v.
Federal National Mortgage Association Opinion No. 2016 DNH 215

          Keith A. Mathews, Esq.

          David D. Christensen, Esq.

          Michael R. Stanley, Esq.

          ORDER

          Andrea K. Johnstone United States Magistrate Judge.

         In an 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.

         Standard of Review

         Under 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.

         The 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 15).

         Background

         Accepting the factual allegations set forth in the plaintiff's complaint as true, the relevant facts are as follows.

         On July 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.[1]

         Catalano, 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 also refused.

         On 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.

         Discussion

         The 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.

         Fannie 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.

         I. State Tort Claims

         The court turns first to the plaintiff's state tort claims. As noted, Fannie Mae's primary argument is that these claims are barred by ...


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