United States District Court, D. New Hampshire
Kenneth A. Kalar and Janet M. Kalar
Bank of America Home Loans and Carrington Mortgage Services Opinion No. 2017 DNH 074
McCafferty District Judge.
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.
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.
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
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).
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.
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
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)).
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.
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).
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.
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.
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 ...