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Alexander v. Fay Servicing, LLC

United States District Court, D. New Hampshire

May 15, 2018

Connie Alexander
v.
Fay Servicing, LLC

          Connie Alexander, pro se

          Richard C. Demerle, Esq.

          ORDER

          JOSEPH A. DICLERICO, JR. UNITED STATES DISTRICT JUDGE

         Connie Alexander, proceeding pro se, brought suit in state court to enjoin the foreclosure sale of her home by Fay Servicing, LLC. Fay Servicing removed the case to this court, and now moves to dismiss the complaint. Alexander did not file a response.

         Standard of Review

         In considering a motion to dismiss, the court accepts all well-pleaded facts as true, disregarding mere legal conclusions, and resolves reasonable inferences in the plaintiff's favor. Galvin v. U.S. Bank, N.A., 852 F.3d 146, 155 (1st Cir. 2017). Taken in that light, to avoid dismissal, the complaint must state sufficient facts to support a plausible claim for relief. In re Curran, 855 F.3d 19, 25 (1st Cir. 2017). The plausibility standard is satisfied if the factual allegations in the complaint "are sufficient to support the reasonable inference that the defendant is liable." In re Fidelity ERISA Float Litig., 829 F.3d 55, 59 (1st Cir. 2016) (internal quotation marks omitted). The complaint need not include "a high degree of factual specificity" but "must contain more than a rote recital of the elements of a cause of action." Carcia-Catalan v. United States, 734 F.3d 100, 103 (1st Cir. 2013) (internal quotation marks omitted).

         Background

         Alexander provided few facts in her pro se complaint. She filed an emergency motion to stay the foreclosure sale of her property, which also provided little information. In support of its objection to Alexander's emergency motion, Fay Servicing argued that because of Alexander's bankruptcy discharge it could not seek payment of the debt.[1] The court denied Alexander's emergency motion to stay the foreclosure sale.

         Alexander moved for reconsideration, stating only, "Pis Review Evidence attached." She submitted copies of three letters from Fay Servicing, which document Alexander's efforts to be approved for reinstatement and modification of her loan after her bankruptcy discharge. She also submitted a list of "Fay Servicing Contact Phone Calls" and her own statement to support her motion. The motion for reconsideration was denied.

         The documents that have been submitted by Alexander and Fay Servicing are considered for purposes of the motion to dismiss. The background facts are those provided in the order denying the emergency motion with additional facts from the documents submitted by Alexander in support of her motion for reconsideration and documents submitted by Fay Servicing.

         In 2004, Alexander borrowed $124, 720.00 to buy property on Vista Ridge Drive in Londonderry, New Hampshire. Her loan was secured by a mortgage on the property. In 2016, Alexander's note and mortgage were assigned to Wilmington Savings Fund Society, FSB, dba Christiana Trust, as trustee for BCAT 2015-14BTT. Fay Servicing is the servicer for the mortgage and note. Alexander defaulted on her mortgage payments, and Fay Servicing started foreclosure proceedings.

         Alexander contacted Fay Servicing to apply for a modification of her mortgage. When the terms were presented, she realized that she could not make the payments that were required. She later attempted to apply for a second modification, while the foreclosure proceedings were in progress, without success.

         On February 28, 2017, Alexander filed for bankruptcy protection under Chapter 7. In re Alexander, 17-10251-JMD (Bankr. D.N.H. Feb. 28, 2017). Alexander listed Wilmington Savings Bank as a creditor and stated that the property at Vista Ridge Drive secured Wilmington Savings Bank's claim. The bankruptcy court granted Alexander a discharge on May 31, 2017. Doc. 6-2. The bankruptcy case was closed on June 9, 2017, and Alexander received a discharge.

         The letters that Alexander appended to her motion for reconsideration show that she continued to contact Fay Servicing after receiving the bankruptcy discharge to apply for modification of her loan and mortgage. The letters show several failed attempts at loan modification. On March 21, 2018, Fay Servicing sent Alexander a letter that ...


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