United States District Court, D. New Hampshire
Castleberry, pro se
Boyd, pro se
D. Christensen, Esq.
Timothy Ryan Demarco, Esq.
N. Laplante United States District Judge
mortgage-based action, plaintiffs Glenda Castleberry and Leah
Boyd, proceeding pro se, again seek to enjoin the foreclosure on
property in Somersworth, New Hampshire. They sued the
mortgage-holder and servicer of the mortgage secured by that
property, Wells Fargo Bank, N.A.,  in Strafford County Superior
Court. Wells Fargo removed the action to this court,
See 28 U.S.C. § 1441, which has jurisdiction
under 28 U.S.C. § 1332 (diversity).
court draws the following facts from the complaint and from
documents sufficiently referenced therein, construing them in
the plaintiffs' favor. See Martino v. Forward Air,
Inc., 609 F.3d 1, 2 (1st Cir. 2010) (The court must
“accept as true all well-pleaded facts in the complaint
and make all reasonable inferences in plaintiff's
favor.”); Rederford v. U.S. Airways, Inc., 589
F.3d 30, 35 (1st Cir. 2009) (The court “may consider
not only the complaint but also facts extractable from
documentation annexed to or incorporated by reference in the
complaint and matters susceptible to judicial
notice.”). It also draws on the facts set forth in its
order dismissing an action filed by Boyd in 2016 to prevent
foreclosure on the same property. Boyd, 2016 DNH 156,
purchased a four-unit house in Somersworth in August, 2009.
Boyd, 2. Castleberry took out the mortgage and
signed the accompanying note. Id. After the mortgage
and the warranty deed conveying the property to her were
recorded with the Strafford County Registry of Deeds,
Castleberry conveyed the property to herself and Boyd, her
daughter, through a warranty deed. Id. Boyd resided
in one of the property's units; Castleberry rented out
the other three units. Id.
point prior to Boyd's 2016 action, some of those tenants
stopped paying rent and, lacking funds to make mortgage
payments, Castleberry defaulted. Wells Fargo initiated
foreclosure proceedings. Boyd filed that action seeking to
quiet title and to enjoin the foreclosure sale so that she
could obtain rent withheld by the tenants, which she would
use to make mortgage payments. Id. at 4. Concluding
that Boyd may have lacked standing to challenge the
foreclosure's validity as a non-party to the mortgage
agreement, see Fed. R. Civ. P. 12(b)(1), and that,
in any event, she failed to state a claim upon which it could
grant relief, see id. 12(b)(6), the court granted
Wells Fargo's motion to dismiss that action. Boyd,
2016 DNH 156, 4-7.
months later, Boyd and Castleberry together filed this action
seeking to enjoin Wells Fargo's renewed foreclosure
proceedings. Plaintiffs allege that, due to the tenants'
nonpayment, Castleberry fell behind on the
mortgage. After the court dismissed Boyd's
previous action, they contacted the defendant in an effort to
obtain a loan modification. They allege that they “have
not been given enough time to do the loan modification,
” that Wells Fargo “keep[s] switching [them]
around and saying [it is] doing something but [Castleberry
and Boyd] just get the runaround when [they] ask for answers,
” and that “the only reason [the loan
modification] has not gone through is because [Wells Fargo]
keep[s] telling [them] they need more documents or something
else.” Much as Boyd did through her last action,
they seek an injunction preventing Wells Fargo from
foreclosing so that they have time to: (1) evict non-paying
tenants and/or get their tenants to pay rent, (2) obtain
Social Security Income benefits for Boyd, and (3) “have
a judge decide who really even owns the
home” in light of the post-mortgage warranty
deed conveying the property to both Castleberry and Boyd.
Fargo removed the case to this court and now moves to dismiss
the complaint, arguing that the plaintiffs fail to state a
cognizable claim for relief. See Fed. R. Civ. P. 12(b)(6).
Boyd filed a brief objection,  to the effect that she could
“prove property rights are that of Leah Boyd's,
” but that she “need[s] Wells Fargo to speak and
cooperate with [her] to resolve this matter . . .
.” The court held oral argument on Wells
Fargo's motion on October 26, 2017 and afforded the
plaintiffs an opportunity to articulate any further
objections at that time.
court may dismiss a complaint under Rule 12(b)(6) if
the plaintiffs have not alleged facts sufficient to
“state a claim to relief” by pleading
“factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Even construing the
plaintiffs' pro se complaint liberally, see Erickson
v. Pardus, 551 U.S. 89, 94 (2007), the court concludes
that they have not done so here.
their complaint generously, the plaintiffs attempt to bring a
claim for breach of the covenant of good faith and fair
dealing. That is, they allege that they have sought a loan
modification and that Wells Fargo is failing to cooperate in
the loan modification process. But the plaintiffs allege that
Castleberry defaulted on the loan. And “New Hampshire
imposes no duty to forebear from foreclosure in the face of
default.” Frangos v. Bank of Am., N.A., No.
13-CV-472-PB, 2014 WL 3699490, at *4 (D.N.H. July 24, 2014).
As this court has explained faced with similar allegations,
“the covenant of good faith and fair dealing in a loan
agreement cannot be used to require the lender to modify or
restructure the loan.” Moore v. Mortg. Elec.
Registration Sys., Inc., 848 F.Supp.2d 107, 130 (D.N.H.
2012). Though the plaintiffs' frustration at their
perceived inability to obtain a direct answer or consistent
information from the defendant concerning its willingness to
modify the loan is understandable,  the plaintiffs have not,
therefore, stated a claim for relief through those
court has previously noted, Boyd's attempt to establish
her ownership of the property “may amount to a petition
to quiet title to the property.” Boyd, 2016
DNH 156, 5. Through such an action, a plaintiff
“essentially seeks a declaratory judgment from the
court regarding the parties' land interests.”
Porter v. Coco,154 N.H. 353, 357 (2006). The
plaintiffs raise an identical issue in this action, alleging
that “it's not clear if [Boyd] in fact has the
right to take the house free of Wells Fargo because they put
her on the deed not the mortgage, ” as a result of
which they “need time to go to court to have a judge
decide who really even owns the home.”As the court
previously explained, “[w]hile the deed conveying the
property to Castleberry and Boyd may well give Boyd an
interest in the property, any such interest was subject to
the pre-existing mortgage and its conditions, which included
the possibility of foreclosure in ...