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Gehrke v. Specialized Loan Servicing, LLC

United States District Court, D. New Hampshire

April 14, 2017

James E. Gehrke
v.
Specialized Loan Servicing, LLC Opinion No. 2017 DNH 075

          ORDER

          LANDYA McCAFFERTY UNITED STATES DISTRICT JUDGE.

         James 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.

         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 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)).

         Background[1]

         On 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”).

         On 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 “10/2006.” Id.

         On June 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 stated:

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.

         Gehrke 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.[2] Id. at 5.

         Discussion

         Specialized 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 ...


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