United States District Court, D. New Hampshire
James E. Gehrke
Specialized Loan Servicing, LLC Opinion No. 2017 DNH 075
McCAFFERTY UNITED STATES DISTRICT JUDGE.
Gehrke, proceeding pro se, brings suit against Specialized
Loan Servicing, LLC (“Specialized Loan”),
alleging claims arising out of Specialized Loan's efforts
to foreclose on his home. Gehrke originally filed his lawsuit
in superior court and Specialized Loan removed it to this
court. Specialized Loan moves to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6). Gehrke objects.
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
Gehrke is proceeding pro se, the court is obliged to construe
his 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)).
October 10, 2006, Gehrke executed a promissory note in favor
of Countrywide Home Loans, Inc. (“Countrywide”),
in exchange for a loan of $180, 000. That same day, Gehrke
and Phyllis Buco granted a mortgage on their home to
Countrywide to secure Gehrke's loan, with Mortgage
Electronic Registrations Systems, Inc. (“MERS”)
as the mortgagee in its capacity as nominee for Countrywide.
On June 29, 2011, MERS assigned the mortgage to Bank of New
York Mellon (“Bank of New York”).
April 14, 2014, Gehrke instituted a voluntary Chapter 7
bankruptcy proceeding in the United States Bankruptcy Court
for the District of New Hampshire. See In re James E.
Gehrke, Bk. No. 14-10746-JMD (Bankr. D.N.H. 2014).
Gehrke listed his home as the only real property in which he
held an interest on his Bankruptcy Schedule A. See
doc. no. 6-3. Gehrke identified Specialized Loan as his only
secured creditor, stating that Specialized Loan held a
“First Mortgage” on his home that originated in
24, 2014, Bank of New York filed a “motion for relief
from automatic stay.” See doc. no. 6-4. In the
motion, Bank of New York stated that it held Gehrke and
Buco's mortgage, and that the mortgage was
“modified by a Loan Modification Agreement on August
27, 2009.” Id. at 3. The motion further
Movant desires relief from the automatic stay under 11 U.S.C.
§362(d), as the Respondent has failed to make the
Pre-Petition payments for September 20010 [sic] through
September 2011 at the rate of $1, 674.74 per month and
October 1, 2011 through September 20012 [sic] at the rate of
$1, 601.26 per month, and October 2012 through September 2013
at the rate of $1, 607.50 per month and October 2013 through
April 1, 2014 at the rate of $1, 667.68 per month for a
pre-petition mortgage arrearage of $71, 950.50 plus
reasonable attorney's fees of $550.00 for filing this
motion and court costs of $176.00. That the Respondent is in
default under the terms, conditions, and covenants of the
mortgage and the total Pre-petition arrears are $72, 676.50.
Id. at 3-4. Gehrke did not object to the motion.
See doc. no. 6-5 at 4. On July 16, 2014, the
bankruptcy court granted Bank of New York's motion.
See doc. no. 1-2 at 8.
brought this action in superior court on November 11, 2016.
In his complaint, Gehrke states: “November 2010 I tried
to get a mortgage modification. They refused me, then I found
a mortgage modification agreement that I have never
signed, dated August 27th, 2009, and says I signed allegedly
September 24th 2009.” Doc. no. 1-2 at 1. Gehrke alleges
that “the foreclosure sale of my home is based on a
forged document, ” which he explains is the loan
modification agreement. Id. at 2. He further alleges
that “the mortgage is full of fraudulent papers”
and states that he wants “to find out who owns the
mortgage and to work out a resolution to make
payments.” Id. Gehrke also includes with his
complaint a copy of the signature page of his loan
modification agreement, with handwritten remarks stating
“forged notorization [sic] paper” and an arrow
pointing to the Notary's signature. Id. at
Loan moves to dismiss the complaint, arguing that it fails to
state a plausible claim for relief. Gehrke objects, stating
simply that “we would like a modification to stay in
our home.” Doc. no. 7 at 1. He includes with his
objection a handwritten letter, in which he states that he
entered into a 30-year mortgage agreement with a company
called Ideal Mortgage for a $100, 000 ...