Russell v. Emigrant Residential, LLC

          John Harold McCann, Esq. Michael P. Robinson, Esq. Charles A. Russell, Esq.

          ORDER

          Joseph DiClerico, Jr. United States District Judge

         Charles A. Russell, as the administrator of the estate of Kathleen Skworzinski, and Matthew Skworzinski, filed a complaint against Emigrant Residential, LLC in state court to enjoin the foreclosure sale of property owned by the estate and Matthew Skworzinski.^[1] Emigrant removed the case to this court. Emigrant now moves to dismiss, and the plaintiffs object.

         Standard of Review

         In considering 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).

         The plaintiffs' objection does not comply with Local Rule 2.3(a) and Appendix A to the Local Rules, Supplemental Rules for Electronic Case Filing, 2.3(a). For that reason, the plaintiffs were directed to refile the objection by April 7, 2017. The plaintiffs failed to refile the objection.

         The court may impose sanctions for a failure to comply with the local rules. LR 1.3(a). The court may also excuse a failure to comply. LR 1.3(b). In light of the outcome in this case, the court excuses counsel's failure to comply with the local rules and has considered the objection.

         Background

         With the motion to dismiss, Emigrant provided a copy of the mortgage and a document showing the assignment of the mortgage. The plaintiffs do not object to those documents or dispute their contents.

         In 2008, Kathleen Skwozinski, and her son, Matthew Skwozinski, Jr., executed a promissory note to Emigrant Mortgage Company, Inc. for a loan of $50, 000 that is secured by a mortgage on their property at 440 Gold Street, Manchester, New Hampshire. Emigrant Mortgage assigned the mortgage to Emigrant Residential, LLC in 2011.

         The Skwozinskis have defaulted on their payment obligations since 2011. A foreclosure sale of the property was scheduled for February 22, 2017.

         On February 17, 2017, the plaintiffs filed two complaints on forms provided by the state court, seeking to enjoin the foreclosure sale. In describing why he is asking the court to enjoin the foreclosure sale, Russell states:

State of N.H. is owed over $62, 000 for nursing care bills. Estate will have insufficient asets [sic] remaining to make little, if any payment, on that bill. Emigrant is owed about $70, 000. Property listed and assessed at two to three times amount owed to Emigrant. Risk of any loss by Emigrant is low given those facts.

         Matthew Skwozinski adds that he is a half owner of the house and that his retirement funds are tied up in the house. The plaintiffs further state that they want to have the foreclosure sale enjoined so that they can proceed with a private sale of the property. The ...