United States District Court, D. New Hampshire
John E. LaFratta
Select Portfolio Servicing, Inc. Opinion No. 2017 DNH 007
E. LaFratta, pro se William P. Breen, Esq.
DiClerico, Jr. United States District Judge
LaFratta, who is proceeding pro se, brought suit in state
court against Select Portfolio Servicing, Inc.
(“SPS”). SPS removed the case to this court and
has moved to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6). LaFratta did not respond to the
motion to dismiss.
considering a motions under Rule 12(b)(6), the court takes
the factual allegations in the complaint as true and draws
reasonable inferences from those facts in favor of the
plaintiff's claims. Sanders v. Phoenix Ins. Co.,
843 F.3d 37, 42 (1st Cir. 2016). 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). A claim is plausible if the facts as
pleaded, taken in the context of the complaint and in light
of “judicial experience and common sense, ” allow
the court to draw “the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
complaint, LaFratta alleges that that SPS is a debt
collector, that SPS received his mortgage payments owed to
J.P. Morgan Chase Bank, that he contacted SPS more than 60
times to pay his debt owed to J.P. Morgan Chase Bank, and
that SPS refused his payments. LaFratta seeks $500, 000 in
damages. SPS moves to dismiss the complaint on the grounds
that LaFratta has not alleged sufficient facts to support a
cause of action and that to the extent LaFratta intended to
bring a breach of contract claim, it fails. Because LaFratta
did not respond to the motion to dismiss, he has not provided
any insight into what claim or claims he intended to bring in
New Hampshire law, a breach of contract claim requires a
valid and enforceable contract between the parties and a
breach of the contract by the defendant. Mudge v. Bank of
Am., N.A., 2015 WL 1287476, at *2 (D.N.H. Mar. 25,
2015). The few facts that LaFratta alleges in his complaint
do not suggest a contract between LaFratta and SPS. According
to the complaint, his mortgage was with J.P. Morgan Chase
Bank, not SPS. LaFratta does not allege that he had entered
any agreement with SPS or that SPS owed him a contractual
circumstances, mortgage servicers may have certain statutory
duties and obligations. See, e.g., Gasparik v. Fed.
Nat'l Mortg. Ass'n, 2016 WL7015672, at *6
(D.N.H. Dec. 1, 2016); Dionne v. Fed. Nat'l Mortg.
Ass'n, 2016 WL 6892465, at *4-*5 (D.N.H. Nov. 21,
2016); Hamilton v. Fed. Home Loan Mortg. Corp., 2014
WL 4594733, at *20 (D. Me. Sept. 15, 2014). A mortgage
servicer's actions might also support state law causes of
action. See, e.g., Leon v. Ocwen Servicing, 2016 WL
4575314, at *3 (D. Mass. Sept. 1, 2016); Saade v.
Pennymac Loan Servs., LLC, 2016 WL 4582083, at *7 (D.
Mass.Aug. 31, 2016).
however, has not raised statutory or common law claims and
has not alleged facts to support any such claims. Therefore,
LaFratta has not alleged a claim on which relief may be
foregoing reasons, the defendant's motion to dismiss
(document no. 3) is granted. The complaint is
clerk of court shall enter judgment accordingly ...