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Poor v. U.S. Bank National Association

United States District Court, D. New Hampshire

April 12, 2017

Shawn Poor
v.
U.S. Bank National Association, Trustee Opinion No. 2017 DNH 073

          ORDER

          Joseph A. DiClerico, Jr. United States District Judge

         Shawn Poor brings suit to enjoin U.S. Bank National Association (“U.S. Bank”) from foreclosing on his house. U.S. Bank moves to dismiss, arguing that Poor has failed to state a claim. Poor objects.

         U.S. Bank also moves for an order declaring that a temporary restraining order that the state court issued before this case was removed has expired. Poor did not object to this motion.

         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.” Miller v. Town of Wenham, 833 F.3d 46, 51 (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.'” Yershov v. Gannett Satellite Info. Network, Inc., 820 F.3d 482, 485 (1st Cir. 2016) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 (2007)).

         Background

         In 1995, Poor obtained a loan secured by a mortgage on a property located in Newton, New Hampshire. Poor's mortgage was assigned to U.S. Bank as trustee for the Structured Asset Investment Loan Trust, Mortgage Pass-through Certificates, Series 2005-8. On December 6, 2016, counsel for U.S. Bank notified Poor that U.S. Bank had scheduled a foreclosure sale of the property.

         Five days before the scheduled foreclosure sale, Poor brought suit in state court, seeking an ex parte temporary restraining order and a preliminary injunction to stop the foreclosure sale. The state court granted Poor's request for an ex parte temporary restraining order. In that order, the state court required Poor to serve the summons and complaint on U.S. Bank. The summons notified U.S. Bank that the state court had scheduled a hearing on Poor's request for injunctive relief.

         U.S. Bank did not appear for that hearing because, it contends, Poor did not complete service on it. On the day of the hearing, the state court issued an order noting that U.S. Bank had “not yet received formal service” and holding that the injunction “will remain in effect.” U.S. Bank then removed the action to this court on February 16, 2017, on the basis of diversity jurisdiction.

         Discussion

          U.S. Bank moves to dismiss Poor's complaint, arguing that Poor has failed to (1) identify any cause of action entitling him to relief and (2) allege any wrongful conduct on U.S. Bank's part that could support a cause of action. In response, Poor contends that he has alleged a viable equitable claim and appears to challenge this court's jurisdiction to hear this suit.

         In addition, U.S. Bank moves for an order declaring that the ex parte temporary restraining order that the state court issued has expired. Poor did not file an objection to this motion.

         I. Motion to Dismiss

          Poor contends that U.S. Bank's motion to dismiss must be denied because (1) U.S. Bank improperly removed the case to this court and (2) ...


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