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Brown v. Wells Fargo Home Mortgage

United States District Court, D. New Hampshire

May 17, 2017

Farion N. Brown and Donna Brown
v.
Wells Fargo Home Mortgage, Opinion No. 2017 DNH 094

          William C. Sheridan, Esq.

          Michael R. Stanley, Esq.

          ORDER

          Joseph N. Laplante United States District Judge

         Defendants Wells Fargo and Federal National Mortgage Association (“FNMA”) move to dismiss this action, which is duplicative of an earlier case filed by the same plaintiffs against the same defendants upon the same basis of fact and asserting all but one of the same claims.[1] Plaintiffs Fairon and Donna Brown moved to stay this action pending the outcome of plaintiffs' interlocutory appeal in the earlier-filed action. For the reasons explained below, the court denies plaintiffs' motion to stay as moot and grants defendants' motion to dismiss, substantially for the reasons set forth in defendants' supporting memorandum.

         I. Background

         On November 5, 2015, after receiving an eviction notice at their foreclosed-upon home, the Browns filed a lawsuit in Hillsborough County Superior Court. They brought claims against FNMA, who owned the Browns' mortgage, and Wells Fargo, who serviced it, for violations of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq., the Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. § 1691 et seq., Unfair, Deceptive, or Unreasonable Collection Practices Act (“UDUCPA”), N.H. Rev. Stat. Ann. § 358-C:3, and the duty of good faith and fair dealing. They sought both damages and injunctive relief -- specifically, rescission of the foreclosure sale.

         The defendants removed that case to this court and moved to dismiss. After a full round of briefing, several late-filed addenda from the plaintiffs, and a motion hearing, this court granted defendants' motion to dismiss the Browns' claims (1) challenging the validity of the foreclosure proceedings and seeking as relief rescission of the foreclosure sale, [2] (2) under the UDUCPA and the duty of good faith and fair dealing, and (3) for injunctive relief under RESPA and the ECOA. Brown v. Wells Fargo, 2016 DNH 102, 3. The Browns' claims for damages under RESPA and the ECOA remained in play. Id. That order issued on June 20, 2016. The Browns filed an interlocutory appeal challenging this court's dismissal of the Browns' claims for injunctive relief. On April 28, 2017, the Court of Appeals dismissed that appeal for lack or jurisdiction.[3]

         While the appeal was pending, the defendants initiated the eviction proceedings of which they had notified the plaintiffs in November 2015 -- the very same notice that precipitated the Browns' first action. The Browns countered by disputing the defendants' title to his property. New Hampshire law dictates that such a challenge -- a plea of title -- be filed in the superior court. N.H. Rev. Stat. Ann. § 540:17; Bank of N.Y. Mellon v. Dowgiert, 169 N.H. 200, 205 (N.H. 2016) (a plea of title is “an action or right of action, not a defense” and must be prosecuted in the superior court). Filing a plea of title operates to stay the circuit court's eviction proceedings. N.H. Rev. Stat. Ann. § 540:18.

         Presumably as their plea of title, on November 28, 2016, the Browns filed this action in the Hillsborough County Superior Court. This complaint, through factual allegations that are almost word-for-word identical to those in the Browns' first complaint, challenges the validity of the foreclosure sale and asserts claims against the same two defendants for violations of the same statutes -- RESPA, the ECOA, and New Hampshire's UDUCPA. The only substantive difference between this complaint and that in Brown I is replacement of the Browns' dismissed claim for violation of the duty of good faith and fair dealing with a claim for breach of fiduciary duty based on the foreclosure sale, which had already occurred when plaintiffs filed their Brown I complaint. In short, the basis for the Browns' challenge to defendants' title is precisely the same claims that this court dismissed as barred by N.H. Rev. Stat. Ann. § 479:25, II[4] -- their claims challenging the validity of the foreclosure.

         II. Defendants' motion to dismiss

         The plaintiffs' complaint in this new action raises three categories of claims: (1) claims challenging FNMA's foreclosure and seeking injunctive relief, which the court dismissed in its order in the earlier action; (2) claims for damages under RESPA and the ECOA, which the court allowed to proceed in the earlier action; and (3) a new claim against both defendants for breach of fiduciary duty based on the foreclosure sale. None of these categories survives defendants' motion to dismiss.

         A. Issue preclusion

         As the defendants cogently explain, issue preclusion bars the plaintiffs' claims challenging FNMA's foreclosure (counts 1 and 2). Under federal common law, which applies here, see Glob. NAPs, Inc. v. Verizon New England Inc., 603 F.3d 71, 95 (1st Cir. 2010), a previous adjudication estops the litigation of an issue if the following criteria are established:

(1) an identity of issues (that is, that the issue sought to be precluded is the same as that which was involved in the prior proceeding), (2) actuality of litigation (that is, that the point was actually litigated in the earlier proceeding), (3) finality of the earlier resolution (that is, that the issue was determined by a valid and binding final judgment or order), and (4) the centrality of the adjudication (that is, ...

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