United States District Court, D. New Hampshire
Jack T. Speake
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
T. Speake, pro se
Michael P. Trainor, Esq.
Ellen Manganelli, Esq.
DiClerico, Jr. United States District Judge
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
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).
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.
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.”
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.
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.
in 2008, the Speakes attempted to have their loan modified,
without success. Speake alleges that they have been fighting
to stop foreclosures since 2010.
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.
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 ...