United States District Court, D. New Hampshire
Gregory McNutt, et al.
Wells Fargo Bank, N.A., et al. Opinion No. 2017 DNH 067
A. Mathews, Esq.
Christopher J. Valente, Esq.
MEMORANDUM AND ORDER
K. Johnstone United States Magistrate Judge
amended complaint, the plaintiffs, Gregory and Sara McNutt,
allege that Wells Fargo Bank, N.A. and America's
Servicing Company (“Wells Fargo”) violated federal
and state law with regard to a balloon payment due on the
maturity date of the plaintiffs' modified mortgage. Doc.
no. 7. Wells Fargo moves to dismiss under Federal
Rule of Civil Procedure (“Rule”) 12(b)(6) for
failure to state a claim. Doc. no. 9. The plaintiffs
object. Doc. no. 10. For the following reasons,
Wells Fargo's motion is granted in part and denied in
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 15).
the factual allegations set forth in the amended complaint as
true, the relevant facts are as follows.
August 23, 2010, the plaintiffs entered into a loan
modification with Wells Fargo. The loan modification
agreement included the following language: “If on
October 01, 2035, (the ‘Maturity Date') Borrower
still owes amounts under the Note and Security Instrument, as
amended by this Agreement, Borrower will pay those amounts in
full on the Maturity Date.” Amend. Compl. (doc. no.
7) ¶ 16; doc. no. 1-1, at 10. The
modification agreement did not estimate or calculate what any
such payment might be. Prior to entering into the
modification, Wells Fargo confirmed to the plaintiffs by
e-mail that there would be no balloon payment under the
modification. Relying on this representation, the plaintiffs
entered into the modification agreement.
February 16, 2016, the plaintiffs received a letter from
Wells Fargo with the subject line: “Important
clarification about your mortgage account . . . .” Doc.
no. 1-1, at 16. In this letter, Wells Fargo
indicated for the first time that there would be a balloon
payment in the amount of $109, 439.97 due and owing under the
loan modification on the maturity date. The letter attributed
the omission of this balloon payment from the modification
agreement to a “clerical error.” Doc. no.
1-1, at 16. On May 2, 2016, the plaintiffs received
a second letter from Wells Fargo, which indicated that the
balloon payment was being added under the language in the
modification agreement quoted above.
letters made reference to an April 30, 2010 telephone
conversation between Gregory McNutt and a Wells Fargo
representative. The letters suggest that this representative
indicated during this conversation that there would be an
interest-accruing balloon payment due and payable as of the
maturity date. This telephone conversation never occurred.
plaintiffs have made every payment under the modification
agreement in full and on time. They bring this action
alleging violations of state and federal law.
plaintiffs' amended complaint is comprised of seven
counts. Count I is captioned “Equitable
Considerations.” Count II alleges fraud in the
inducement. Count III alleges breach of the covenant of good
faith and fair dealing. Counts IV and V respectively allege
state-law negligent misrepresentation and negligence
(“state tort claims”). Count VI alleges
violations of the New Hampshire Consumer Protection Act
(“CPA”), N.H. Rev. Stat. Ann. § 358-A.
Finally, Count VII alleges violations of the Real Estate
Settlement Procedure Act (“RESPA”), 12 U.S.C.
Fargo moves to dismiss the amended complaint in its entirety.
The plaintiffs concede that Wells Fargo is exempt from the
CPA and seek to voluntarily dismiss Count VI. This request is
granted and Count VI is dismissed with
prejudice. The plaintiffs otherwise object to Wells
court turns first to the plaintiffs' claim for
“equitable considerations.” In their amended
complaint, the plaintiffs generally allege that Wells Fargo
acted inequitably, stating that Wells Fargo's actions are
“unconscionable” and that the plaintiffs
“should be allowed to pay their mortgage pursuant to
the document they signed.” Amend. Compl. ¶¶
20, 26 (doc. no. 7). In their objection to the
motion to dismiss, the plaintiffs contend that this count
should survive because it is “included as a plea . . .
for equitable relief even if other causes of action plead[ed]
by the Plaintiffs fail.” Doc. no. 9, at 2.
Neither of these documents identifies a specific claim in
equity that the plaintiffs wish to pursue against Wells
Fargo. Indeed, the plaintiffs have failed to ...