United States District Court, D. New Hampshire
A. Mathews, Esq.
Michael R. Stanley, Esq.
McCafferty United States District Judge.
Brian and Nancy Mader, initially proceeding pro se, filed a
complaint to enjoin foreclosure of their property in New
Hampshire Superior Court, Rockingham County. The superior
court enjoined the foreclosure sale and scheduled a hearing.
Before the date of the hearing, defendant Wells Fargo Bank,
N.A. (“Wells Fargo”) removed the action to this
court and now moves to dismiss the Maders' amended
complaint. The Maders, now represented by counsel, object.
Federal Rule of Civil Procedure 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 in the
plaintiff's complaint 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) (citations
and internal 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).
and Nancy Mader are residents and mortgagors of a property
located at 47 Blossom Road in Windham, New Hampshire (the
“property”). On March 9, 2006, the Maders
executed a promissory note in favor of World Savings Bank,
FSB (“WSB”), in exchange for a $543, 750.00 loan.
The Maders granted a first priority mortgage on the property
to WSB to secure the loan (the “mortgage”). Doc.
no. 5-3. Wells Fargo is the successor-by-merger to
WSB. See Foley, 772 F.3d at 68 n.2.
2007, the Maders began experiencing financial difficulties.
Their financial situation improved somewhat in 2010, and the
Maders were approved for a loan modification. Unfortunately,
Mr. Mader was laid off shortly thereafter, and the Maders
began having difficulties making their mortgage payments
under the modification agreement.
14, 2013, the Maders submitted a voluntary petition for
Chapter 13 bankruptcy. Doc. no. 13-2 at 2. On June
20, 2014, the Maders voluntarily converted their bankruptcy
to a Chapter 7 case. Id. at 7. On February 13, 2015,
the Maders received a discharge of their personal liability
on the debt under 11 U.S.C. § 727, but the
mortgage remained a valid lien on the property. See
Id. at 11.
2016, the Maders sought a loan modification from Wells Fargo,
sending a letter of hardship and a set of complete financial
records. Wells Fargo requested and re-requested documents
from the Maders related to their modification application.
The Maders allege that Wells Fargo “misled the [Maders]
about the status of their modification request.” Doc.
no. 11 at ¶ 15. Wells Fargo “discouraged the
[Maders] from seeking legal counsel to address this
issue.” Id. at ¶ 16. Wells Fargo also
“falsely informed the [Maders] that the modification
would not affect their credit.” Id. at ¶
18. “The [Maders] only agreed to this modification with
the knowledge that it would not affect their credit.”
Id. at ¶ 33. Eventually, Wells Fargo denied the
Maders' request for a modification.
point, Wells Fargo informed the Maders that it intended to
foreclose on the property and that it had scheduled a
foreclosure sale for July 7, 2016. On June 22, 2016, the
Maders, initially proceeding pro se, filed a complaint
against Wells Fargo in state court to enjoin foreclosure of
the property. The superior court issued a preliminary ex
parte order to enjoin Wells Fargo from foreclosing on
the property and scheduled a hearing for July 11, 2016.
before the scheduled hearing, Wells Fargo removed the case to
this court and subsequently moved to dismiss the Maders'
complaint for failure to state a claim. Doc. no. 5.
The Maders, now represented by counsel, did not object to
Wells Fargo's motion to dismiss, but instead moved for
leave to amend their original complaint. Doc. no. 8.
The court granted the Maders' motion to amend and denied,
without prejudice, Wells Fargo's motion to dismiss as
moot. Doc. no. 10.
Maders filed their amended complaint (doc. no. 11),
alleging seven separate claims: (I) negligence; (II)
negligent misrepresentation; (III) breach of the covenant of
good faith and fair dealing; (IV) violation of the New
Hampshire Consumer Protection Act (“CPA”), N.H.
Rev. Stat. Ann. § 358-A; (V) negligent infliction of
emotional distress (“NIED”); (VI) violation of
the Real Estate Settlement Procedures Act
(“RESPA”), 12 U.S.C. § 2605(k); and
(VII) lack of standing to foreclose. Wells Fargo now ...