Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kalar v. Bank of America Home Loans and Carrington Mortgage Services

United States District Court, D. New Hampshire

April 14, 2017

Kenneth A. Kalar and Janet M. Kalar
v.
Bank of America Home Loans and Carrington Mortgage Services Opinion No. 2017 DNH 074

          ORDER

          Landya McCafferty District Judge.

         Kenneth and Janet Kalar, proceeding pro se, bring suit against Bank of America Home Loans (“Bank of America”) and Carrington Mortgage Services (“Carrington”), alleging that Carrington falsely reported to credit agencies a debt that had been discharged in bankruptcy, thereby harming the Kalars' credit rating. The Kalars also allege that Bank of America contributed to the harm by transferring servicing of the debt to Carrington during the pendency of their bankruptcy action and without notice to them.

         The court begins with a summary of the procedural history. In an order dated June 27, 2016, the court granted defendants' motion to dismiss the Kalars' original complaint “without prejudice to the Kalars' ability to file an amended complaint setting forth facts sufficient to state plausible claims against defendants.” Doc. no. 12 at 8. The Kalars filed their amended complaint (doc. no. 13), and defendants again moved to dismiss, asserting that the amended complaint fails to adequately state a claim for relief (doc. no. 16).

         While defendants' motion to dismiss was pending, the Kalars filed two motions in an effort to add a new claim to their amended complaint. First, the Kalars filed a “motion of intent to file additional claim” (doc. no. 22), in which they assert that they recently learned of new information giving rise to an additional claim against Bank of America. The Kalars next filed a “motion to add an additional claim against Bank of America.” Doc. no. 24. In the second motion, the Kalars allege the basis for the additional claim: that Bank of America provided false information to Federal Savings Bank sometime between July and October 2016.[1]

         In light of the Kalars' pro se status, the court construes their first motion (doc. no. 22) as a motion for leave to file an addendum to their amended complaint. The court grants that motion and construes the Kalars' second motion (doc. no. 24) as the addendum to their amended complaint. See, e.g., Collymore v. McLaughlin, No. 16-cv-10568-LTS, 2016 WL 6645764, at *1 n.1 (D. Mass. Nov. 8, 2016) (construing pro se plaintiff's additional filing as a supplement to his complaint for purposes of defendant's motion to dismiss).

         As defendants filed the motion to dismiss the amended complaint before the Kalars filed the addendum to that complaint, the court will address only the amended complaint in this order.

         Standard of Review

         Under 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 in the plaintiff's complaint 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 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).

         Because the Kalars are proceeding pro se, the court is obliged to construe their complaint liberally. See Erikson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal citations omitted) (“a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers”). However, “pro se status does not insulate a party from complying with procedural and substantive law. Even under a liberal construction, the complaint must adequately allege the elements of a claim with the requisite supporting facts.” Chiras v. Associated Credit Servs., Inc., No. 12-10871-TSH, 2012 WL 3025093, at *1 n.1 (D. Mass. July 23, 2012) (quoting Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997) (internal citation and quotation marks omitted)).

         Background[2]

On May 4, 2006, Kenneth and Janet Kalar executed a promissory note in favor of Countrywide Home Loans, Inc. (“Countrywide”), in exchange for a loan of $57, 500. That same day, the Kalars granted a mortgage on their home to Countrywide to secure the loan, with Mortgage Electronic Registration Systems, Inc. (“MERS”) as the mortgagee in its capacity as nominee for Countrywide. It appears that prior to the May 4, 2006 note and mortgage, the Kalars had previously executed a separate promissory note and granted another mortgage on their home. The court will therefore refer to the note and mortgage dated May 4, 2006, as the “second note” and the “second mortgage, ” respectively.

         On October 13, 2010, the Kalars instituted a voluntary Chapter 13 bankruptcy proceeding in the United States Bankruptcy Court for the District of New Hampshire. See In re Kenneth and Janet Kalar, Bk. No. 10-14397-JMD (Bankr. D.N.H. 2010). On January 18, 2011, the bankruptcy court granted the Kalars' motion to deem the second mortgage unsecured. In the order granting that motion, the court stated that the second mortgage would be deemed void upon the Kalars' completion of their Chapter 13 plan and the court's issuance of a discharge under 11 U.S.C. § 1328(a).

         Prior to the Kalars' bankruptcy filing, Bank of America was the loan servicer on the second mortgage. Sometime in September or October 2011, after the bankruptcy court deemed the second mortgage unsecured but prior to the Kalars completing their bankruptcy plan, Bank of America transferred servicing responsibilities on the second mortgage to Carrington. Both Bank of America and Carrington claim to have sent the Kalars letters in October 2011 informing them of the transfer. The Kalars did not receive either letter.

         The Kalars completed their Chapter 13 plan and on November 5, 2013, the bankruptcy court granted them a discharge. The bankruptcy case was closed on January 14, 2014. On April 25, 2014, MERS recorded in the Strafford Country Registry of Deeds a release of the second mortgage and any liability for the Kalars on the second note. On June 12, 2014, MERS sent a copy of the release to the Kalars, with a cover letter confirming the release.

         On October 16, 2015, the Kalars obtained a copy of Janet's credit report. The report allegedly shows that after the bankruptcy court discharged the second mortgage, Carrington reported to credit reporting agencies that the Kalars had missed and/or still owed payments relating to the second mortgage. The report also shows that Bank of America transferred servicing rights of the second ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.