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Londong v. Deutsche Bank National Trust Co.

United States District Court, D. New Hampshire

August 30, 2017

Raymond Londong
v.
Deutsche Bank National Trust Company, as Trustee Opinion No. 2017 DNH 168

          Raymond Londong, pro se

          Kevin P. Polansky, Esq.

          ORDER

          JOSEPH DICLERICO, JR. UNITED STATES DISTRICT JUDGE.

         Raymond 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 response.[1]

         Standard of Review

         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).

         For 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).

         Background

         In his 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.

         Deutsche Bank provided additional information in its answer and attached documents. Londong has not disputed the authenticity of the documents provided by Deutsche Bank.

         In a 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.”

         On May 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, 2015.

         The 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.

         Deutsche 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 ...


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