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Faiella v. Green Tree Servicing LLC

United States District Court, D. New Hampshire

February 14, 2017

Ralph Faiella
v.
Green Tree Servicing LLC and Federal National Mortgage Association Opinion No. 2017 DNH 026

          Amy B. Hackett, Esq., David Himelfarb, Esq., William C. Sheridan, Esq.

          ORDER

          Joseph A. DiClerico, Jr. United States District Judge

         ORDER Ralph Faiella brought a title action in state court against Federal National Mortgage Association (“Fannie Mae”) and Green Tree Servicing LLC, now known as Ditech Financial LLC (“Ditech”), which was removed to this court. After a dispute arose about what claim remained to be decided against Fannie Mae, the court allowed Faiella to file an amended complaint. Ditech moves to strike, or in the alternative to dismiss, the claims against it in the amended complaint. Fannie Mae moves to dismiss Counts I, IV, V, and VI.

         Factual Background[1]

         In 2007, Ralph Faiella obtained a loan secured by a mortgage on a condominium property in Plaistow, New Hampshire. The note, which was originally payable to Bank of America, N.A. (see doc. no. 43-2 at 1), was subsequently assigned to Fannie Mae.

         In 2015, Faiella fell behind on his mortgage payments. On September 16, 2015, foreclosure counsel for Fannie Mae sent Faiella a letter notifying him that a foreclosure sale on the property had been scheduled for October 16, 2015.[2] Around the same time, Ditech, who serviced the loan on Fannie Mae's behalf, sent Faiella a letter requesting that he contact them to obtain the correct reinstatement amount for his loan. Faiella spoke with a Ditech representative to arrange a payment that would bring his account up to date.

         In response to this conversation, Faiella sent a check to Ditech on September 17, 2015 covering the unpaid debt through September and the October payment. Ditech, however, returned Faiella's check with a letter requesting that Faiella contact it to determine the correct reinstatement amount. Faiella then called the same Ditech representative, and the representative informed him that the amount of his check was correct but that the payment was rejected because it was not a cashier's check. Several days before the scheduled foreclosure, Faiella sent Ditech a cashier's check for the amount that Ditech's representative confirmed would bring his account current.

         Notwithstanding Faiella's payment, Fannie Mae foreclosed on the property as scheduled. After the foreclosure, Faiella received a letter from Ditech returning the second check and informing him that the amount of the check was not enough to reinstate his account. At this time, the Ditech representative with whom Faiella had spoken told him that she did not know the correct reinstatement amount for his loan.

         Procedural Background

         Faiella filed a title action in state court, arguing, among other things, that Fannie Mae and Ditech had wrongfully foreclosed on his residence. The defendants removed the title action to this court, and Faiella then amended his complaint as a matter of right, asserting a single claim for wrongful foreclosure against Ditech and Fannie Mae. Ditech then moved to dismiss the wrongful foreclosure claim against it, arguing that it was not a foreclosing party. The court granted Ditech's motion to dismiss on June 23, 2016. See Doc. No. 20.

         On August 29, 2016, the court granted Faiella leave to amend his complaint “to add damages claims against Fannie Mae.” Doc. No. 32 at 4. Faiella then filed his Second Amended Complaint on October 12, 2016. That complaint alleged statutory claims against Ditech and Fannie Mae under the Truth in Lending Act (“TILA”), the Fair Debt Collection Practices Act (“FDCPA”), New Hampshire's Unfair, Deceptive, or Unreasonable Collection Practices Act (“UDUCPA”), New Hampshire's Consumer Protection Act (“CPA”), and common law claims for deceit and negligent misrepresentation.

         Discussion

         Ditech moves to strike the claims against it, arguing that those claims constitute an improper amendment of Faiella's complaint. Ditech also moves in the alternative to dismiss the claims. In addition, Fannie Mae moves to dismiss the statutory claims against it, arguing that Faiella has not properly alleged claims under the cited statutes. Faiella objects to both motions.

         Standard of Review

         A motion to dismiss is reviewed under Federal Rule of Civil Procedure 12(b)(6), which addresses whether the complaint states a claim on which relief may be granted. Lister v. Bank of Am., N.A., 790 F.3d 20, 23 (1st Cir. 2015). In conducting this review, the court “accept[s] as true all well-pled facts alleged in the complaint and draw[s] all reasonable inferences in the plaintiff's favor.” Yershov v. Gannett Satellite Info. Network, Inc., 820 F.3d 482, 485 (1st Cir. 2016). “A plaintiff's allegations are sufficient to overcome a Rule 12(b)(6) motion if they contain ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 (2007)).

         I. Ditech's Motion

         Ditech moves to strike Faiella's Second Amended Complaint, arguing that it is an improper amendment of a pleading under Federal Rule of Civil Procedure 15(a) and also moves to dismiss the claims against it. Faiella's objection simply incorporates “the arguments raised in Plaintiff's Motion to Dismiss, previously filed as well as Plaintiff's Motion for Clarification which will be filed on or before December 18, 2016.” The motion to which Faiella refers is not relevant to the issues raised in Fannie Mae's motion, and Faiella never filed the “motion for clarification” to which he refers. Therefore, Faiella provides no substantive argument to oppose Ditech's motion.

         Once the time for filing an amended complaint as a matter of right has passed, as is the case here, a plaintiff must seek the opposing party's consent or leave of the court to amend the complaint. Fed. R. Civ. P. 15(a)(2). The court granted Faiella a limited opportunity to amend his complaint to “assert[] . . . damages claims against Fannie Mae.” Doc. no. 32 at 4. Faiella did not seek leave to add claims against Ditech, and no such opportunity was granted.

         Therefore, the claims alleged in the second amended complaint against Ditech do not comply with the procedural rules. The claims against Ditech in Counts I-VI are ...


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