United States District Court, D. New Hampshire
Darrin M. Mottram
Wells Fargo Bank, N.A.
M. Mottram J. Patrick Kennedy, Esq.
N. LAPLANTE, UNITED STATES DISTRICT JUDGE.
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.
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
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
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.
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).
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.
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,
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
Plaintiff's voluntary dismissal
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 ...