Mottram v. Wells Fargo Bank, N.A.

          Darrin M. Mottram J. Patrick Kennedy, Esq.

          MEMORANDUM ORDER

          JOSEPH N. LAPLANTE, UNITED STATES DISTRICT JUDGE.

         This is plaintiff Darrin Mottram's third civil action filed to prevent defendant Wells Fargo Bank's foreclosure on property in Derry, New Hampshire, that secured Mottram's mortgage loan. His prior actions attempting to enjoin the foreclosure having been dismissed, Mottram now seeks to recover through a variety of statutory and common-law claims, some of which he has previously litigated.

         By dint of his claim brought under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., the court has subject-matter jurisdiction over this matter under 28 U.S.C. §§ 1331 (federal question) and 1367 (supplemental jurisdiction). Wells Fargo moved to dismiss Mottram's complaint, arguing that his FDCPA claim is precluded by res judicata and that Mottram has not pleaded facts in support of all of his claims. See Fed.R.Civ.P. 12(b)(6). After the court held a hearing on that motion, which Mottram did not attend, Mottram moved to withdraw his complaint. Because Wells Fargo has neither answered the complaint nor moved for summary judgment, Mottram is entitled to withdraw his complaint without leave of court. Fed.R.Civ.P. 41(a)(1)(A)(i). The court therefore construes Mottram's motion as a notice of dismissal and dismisses the case.^[1]

         I. Background

         This is Mottram's third civil action brought to prevent or to challenge Wells Fargo's foreclosure on his home in Derry, New Hampshire. This action also follows four petitions for bankruptcy protection filed by Mottram within the last four years.

         Mottram petitioned for bankruptcy relief under Chapter 7 of the Bankruptcy Code in 2013, and received a discharge under 11 U.S.C. § 727. In re Mottram, No. 13-11901-BAH (Bankr. D.N.H., Nov. 8, 2013) (order granting discharge). He filed a second and third petition for bankruptcy relief in August 2015 and September 2016, each under Chapter 13. Mottram's failure to file necessary documents resulted in the dismissal of both petitions.

         During that same time period, Mottram also filed two foreclosure-related actions in this court. In his first action, filed in November 2015, Mottram alleged “that Wells Fargo (1) discriminated against him because he is disabled, (2) violated the Real Estate Settlement Procedures Act (“RESPA”) by failing to disclose certain information about his loan, and (3) breached the covenant of good faith and fair dealing by declining to modify his loan.” Mottram v. Wells Fargo Bank, N.A., 2016 DNH 46, 1. Judge Barbadoro dismissed Mottram's complaint for failure to state a claim as a matter of law, but granted Mottram leave to amend his complaint with respect to his disability claims. Id. at 13. Mottram did file an amended complaint, but the court dismissed it on Wells Fargo's unopposed motion. Mottram v. Wells Fargo Bank, N.A., No. 15-cv-470 (D.N.H. June 2, 2016).

         In December 2016, Mottram filed a second civil complaint in this court, alleging violations of RESPA and the implied covenant of good faith and fair dealing based on Wells Fargo's failure to grant him a loan modification and its initiation of foreclosure proceedings despite a pending application for modification. Judge Barbadoro granted Wells Fargo's motion to dismiss that complaint as well.

         While Mottram's second civil action was pending, he filed a fourth petition for bankruptcy relief on February 21, 2017. The Bankruptcy Court dismissed that action upon the Trustee's motion on April 17, 2017. It also barred Mottram “from filing any Chapter 13 Bankruptcy Petition in the District of New Hampshire until April 14, 2018.”^[2]

         Several months later, on October 27, 2017, Mottram filed this action. The defendant moved to dismiss the complaint. The court scheduled oral argument on this motion to, among other things, afford Mottram an opportunity to object to the defendants' motions in a substantive manner, which his written objections failed to do. Mottram failed to appear at the scheduled hearing. He subsequently moved to continue the hearing, representing to the court that an illness caused his absence. The court scheduled a new hearing on defendant's motion. Mottram then moved to withdraw his complaint and informed the court that he would not attend the newly scheduled hearing.

         II. Analysis

         A. Plaintiff's voluntary dismissal

         “[T]he plaintiff may dismiss an action without a court order by filing . . . a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment . . . .” Fed.R.Civ.P. 41(a)(1)(A)(i). Wells Fargo has neither answered nor moved for summary judgment, permitting Mottram to dismiss his action voluntarily. And he appears to desire to do so. After the scheduled oral argument on defendant's motion to dismiss, which Mottram did not attend, and before the rescheduled hearing, which ...