United States District Court, D. New Hampshire
Raymond Londong, pro se
P. Polansky, Esq.
DICLERICO, JR. UNITED STATES DISTRICT JUDGE.
Londong, proceeding pro se, filed a plea of title action in
state court to prevent Deutsche Bank from evicting him from
his home following a foreclosure sale. Deutsche Bank removed
the case to this court. Londong filed an amended complaint in
which he alleged claims that the foreclosure sale was
improper because Deutsche Bank did not send the required
notice and that Deutsche Bank breached the implied duty of
good faith and fair dealing. Deutsche Bank moves for judgment
on the pleadings. Londong did not file a
motion for judgment on the pleadings under Federal Rule
of Civil Procedure 12(c) is reviewed under the standard
used for motions under Rule 12(b)(6). HSBC Realty Credit
Corp. v. O'Neill, 745 F.3d 564, 570 (1st Cir. 2014).
In that review, the court accepts all well-pleaded facts as
true and resolves reasonable inferences in the
plaintiff's favor. O'Shea v. UPS Retirement
Plan, 837 F.3d 67, 77 (1st Cir. 2016). To survive a
motion under Rule 12(b)(6), the complaint must state
sufficient facts to support a plausible claim for relief.
In re Curran, 855 F.3d 19, 25 (1st Cir. 2017).
purposes of a motion to dismiss and a motion for judgment on
the pleadings, the court generally is limited to the
allegations in the complaint. Fed.R.Civ.P. 12(d). The court,
however, may consider documents and materials whose
authenticity is not disputed that are submitted with the
complaint, referred to in the complaint, or submitted with
the answer to the complaint. Curran v. Cousins, 509
F.3d 36, 44 (1st Cir. 2007).
amended complaint, Londong alleges that after he began having
financial troubles he contacted the servicing agent to seek a
modification of the mortgage but was not successful. He then
received a letter from Bank of America notifying him that a
foreclosure sale would be conducted with a lost note
affidavit. He further alleges that he heard nothing further
about the foreclosure until he was approached by a real
estate agent who claimed to be working for Deutsche Bank.
Bank provided additional information in its answer and
attached documents. Londong has not disputed the authenticity
of the documents provided by Deutsche Bank.
letter dated April 20, 2015, Susan Cody of Korde and
Associates, P.C., notified Londong that her office
represented the servicer for Deutsche Bank National Trust
Company, as Trustee, which was the holder of Londong's
mortgage. She stated that Londong's mortgage account was
delinquent, that the indebtedness was accelerated, and that
the balance was then due. Cody also notified Londong that
“it is the Intention of the Holder to foreclose said
Mortgage under the Power of Sale for breach of the conditions
of the loan documents.”
29, 2015, Cody sent Londong a notice of foreclosure sale to
be held on July 1, 2015. The notice was sent by certified
mail. Londong signed the receipt for the delivery on June 8,
foreclosure sale was held on July 1, 2015. A foreclosure deed
was issued to Deutsche Bank for the property on September 2,
2015, and the deed was recorded on February 11, 2016. Filed
with the foreclosure deed is an affidavit by Cody which
documents that notice of the foreclosure was sent to Londong,
and others, and that notices of the foreclosure sale were
published in the Union Leader on three dates.
Bank brought a possessory action against Londong in state
court in August of 2016, and in response Londong filed a plea
of title action, which ...