United States District Court, D. New Hampshire
Charles A. Russell, Administrator of the Estate of Kathleen Skwozinski, and Matthew Skwozinski
Emigrant Residential, LLC Opinion No. 2017 DNH 069
Harold McCann, Esq. Michael P. Robinson, Esq. Charles A.
DiClerico, Jr. United States District Judge
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. Emigrant removed the case to this court.
Emigrant now moves to dismiss, and the plaintiffs object.
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).
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.
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.
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.
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.
Skwozinskis have defaulted on their payment obligations since
2011. A foreclosure sale of the property was scheduled for
February 22, 2017.
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.
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 ...