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Speake v. Bank of New York Mellon

United States District Court, D. New Hampshire

April 17, 2017

Jack T. Speake
v.
The Bank of New York Mellon f/k/a Bank of New York, as Trustee of the CWALT, Inc. Alternative Loan Trust 2006-6CB, Mortgage Pass-Through Certificates Series 2006-6CB Opinion No. 2017 DNH 076

          Jack T. Speake, pro se

          Michael P. Trainor, Esq.

          Mary Ellen Manganelli, Esq.

          ORDER

          Joseph DiClerico, Jr. United States District Judge

         Jack T. Speake, proceeding pro se, filed a petition in state court to enjoin The Bank of New York Mellon, as trustee, of the CWALT, Inc. Alternative Loan Trust 2006-6CB, Mortgage Pass-Through Certificates Series 2006-6CB (“Bank”) from foreclosing on his property and seeking damages. The state court denied Speake's request for an ex parte temporary restraining order. The Bank removed the case to this court and moved to dismiss. Speak was granted an extension of time to file a response to the motion to dismiss but failed to do so.

         Standard of Review

         In considering a motion under Rule 12(b)(6), the court takes the factual allegations in the complaint as true and draws reasonable inferences from those facts in favor of the plaintiff's claims. Sanders v. Phoenix Ins. Co., 843 F.3d 37, 42 (1st Cir. 2016). Based on the properly pleaded facts, the court determines whether the plaintiff has stated “a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible if the facts as pleaded, taken in the context of the complaint and in light of “judicial experience and common sense, ” allow the court to draw “the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

         In addition to the properly pleaded allegations in the complaint, the court may consider documents that the plaintiff filed with the complaint. See Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011). In this case, Speake filed the mortgage and the note, along with other documents, with his complaint. Those documents are considered for purposes of the Bank's motion to dismiss.

         Background[1]

         In the petition, Speake alleges that he and his wife took title to property at 33 Route 4A, Wilmot, New Hampshire, in April of 2006. Speake alleges that they obtained a loan of $215, 300.00, which was secured by the property and that “[o]n information and belief [he] allegedly executed a Promissory Note (the ‘Note') and Mortgage on the Property securing the Note (the ‘Mortgage') with [Countrywide Home Loan, Inc. (‘CWHL')].” He also states: “The Note and Mortgage/Notice to Cancel Rescission and HUD-1 Settlement Agreement were ever [sic] returned to the Speake's after CWHL Settlement agent left the Speake's kitchen.”

         In the Speakes' mortgage, MERS was the nominee for the lender, Countrywide Home Loans, Inc., and was named as the mortgagee. MERS assigned the mortgage to BAC Home Loans Servicing, LP on September 15, 2010, and the assignment was recorded on September 16, 2010, in the Merrimack County Registry of Deeds. Bank of America, N.A., as successor by merger to BAC Home Loans Servicing, LP assigned the mortgage to the Bank on June 11, 2011, and the assignment was recorded on June 14, 2011. A second assignment from Bank of America, N.A. as successor by merger to BAC Home Loans Servicing, LP, dated December 22, 2011, was recorded on December 23, 2011.

         Speake contends that the mortgage that is recorded in the registry was fraudulently notarized by a justice of the peace and that any documents the Bank might produce would be forgeries. He alleges that CWHL has never provided evidence of a note or mortgage. He further alleges that he mailed a “Notice to Rescind” on May 20, 2015, and that the notice is recorded in the registry of deeds.

         Beginning in 2008, the Speakes attempted to have their loan modified, without success. Speake alleges that they have been fighting to stop foreclosures since 2010.

         Apparently, there was a foreclosure scheduled on the property for March 14, 2016, which was cancelled. Thereafter, Speake had communications with Select Portfolio Services, Inc. Speake alleges misconduct by Select Portfolio Services, real estate websites, and the Bank, pertaining to representations about a foreclosure that had not happened.

         A foreclosure of the property was scheduled for November 8, 2016. Speake states that he did not receive notice of the planned foreclosure. On November 8, 2016, Speake filed the petition in state court, seeking, among other things, an ex parte temporary restraining order to stop the foreclosure sale. The ...


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