United States District Court, D. New Hampshire
DiClerico, Jr., United States District Judge
Fox and Ralph Wass brought suit in state court to enjoin the
foreclosure sale of their home in Goffstown, New Hampshire.
Ocwen Loan Servicing, LLC and HSBC Bank USA, N.A., as
trustee, removed the case and have moved to dismiss. The
considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the court must determine whether the
plaintiff has alleged sufficient facts to support a plausible
claim for relief. In re Curran, 855 F.3d 19, 25 (1st
Cir. 2017). The court accepts the properly pleaded facts as
true and takes inferences from the facts in the light most
favorable to the non-moving party. O'Shea v. UPS
Retirement Plan, 837 F.3d 67, 77 (1st Cir. 2016).
Conclusory allegations and mere statements of the elements of
a cause of action are not sufficient to avoid dismissal.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
a motion to dismiss under Rule 12(b)(6) is decided based on
the allegations in the complaint, along with documents
appended to the complaint. See Fed.R.Civ.P. 12(d);
Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). An
exception to that rule allows the court to consider documents
that are referenced in the complaint and documents that are
central to the plaintiffs' claims. Claudio-De Leon v.
Sistema Univ. Ana G. Mendez, 775 F.3d 41, 46 (1st Cir.
2014). The court may also consider official public documents
and matters that are subject to judicial notice. Haley v.
City of Boston, 657 F.3d 39, 46 (1st Cir. 2011).
Wass bought the Goffstown property by warranty deed on June
27, 2006. They granted a mortgage on the Goffstown property
to Option One Mortgage Corporation in the amount of $236,
000, and the mortgage was recorded on July 24,
allege that Option One sold its mortgage servicing business,
along with all of its mortgages, to American Home Mortgage
Servicing Inc. on April 30, 2008. Option One then changed its
name to Sand Canyon Corporation in October of 2008 and did
not hold any mortgages by 2009. Sand Canyon purported to
assign the plaintiffs' mortgage to HSBC in April of 2010,
and the assignment was recorded on April 28, 2010.
Wass allege that the assignment of their mortgage from Sand
Canyon to HSBC in 2010 failed because the mortgage had been
sold to American Home Mortgage Servicing in April of 2008. As
a result of the sale, Sand Canyon did not own their mortgage
at the time of the purported assignment to HSBC in 2010.
of 2010, Fox and Wass filed for bankruptcy protection under
Chapter 13. In re Gail M. Fox and Ralph K. Wass, Case
No. 10-12175-JMD (Bankr. D.N.H. May 16, 2010). In their
bankruptcy schedules dated May 10, 2010, Fox and Wass listed
American Home Mortgage Servicing, Inc. as the holder of a
claim on the Goffstown property in the amount of $275,
141.68. HSBC filed a proof of claim on the property as a
secured creditor in June of 2010, with the amount of
arrearage listed as $18, 760.32 and the amount of the secured
claim listed as $279, 133.60. American Home Mortgage
Servicing was listed as the entity to receive notices and
the terms of their plan, Fox and Wass were to pay $733.00
each month for forty-five months, which would total $32,
985.00, to cover debts owed, including arrearages owed to
“HSBC/American Home Mortgage Servicing.” Their
regularly scheduled ongoing payments to “HSBC
Bank/American Home Mortgage Servicing” were to be paid
outside of the plan. Their plan was confirmed on August 2,
Wass did not make the regular mortgage payments after filing
their bankruptcy petition, causing a post-petition arrearage
to accrue. In response to HSBC's motion to lift the stay
to allow HSBC to pursue its remedies under the mortgage, Fox
and Wass entered a stipulation with HSBC to pay the
post-petition arrearage. The plan was amended accordingly. On
December 4, 2012, the bankruptcy trustee reported that Fox
and Wass had met the requirements for discharge, and they
were granted discharges the next day. The case was closed on
January 2, 2013.
filed a second bankruptcy petition under Chapter 13 on June
14, 2013. HSBC filed a notice of appearance in the case on
June 24, 2013. In his plan, Wass stated that the Goffstown
property had a mortgage that was not current with the
mortgagee listed as HSBC. The plan was confirmed on August 8,
2013, and listed HSCB as a secured creditor with a mortgage
on the Goffstown property. The plan was modified on September
23, 2015, and still showed that the HSBC mortgage was not
current. The trustee moved to dismiss the case because Wass
had not made the payments required under the plan. The case
was dismissed on July 8, 2016.
April of 2017, Fox and Wass filed suit against Ocwen and HSBC
in state court to enjoin the foreclosure sale of the property
and seeking the costs of the suit under RSA 361-C:2. Fox and
Wass asked to postpone the foreclosure until the defendants
provided the “‘wet signature' mortgage
documents” to prove that the mortgage being foreclosed
is the mortgage that Fox and Wass signed. They also alleged
that “the temporary injunction will provide time to
resolve the issue of ...