United States District Court, D. New Hampshire
A. DiClerico, Jr. United States District Judge
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.
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 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,
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.
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
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
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.
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.
Motion to Dismiss
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) ...