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Moore v. United States Department of Agriculture

United States District Court, D. New Hampshire

January 10, 2019

Roxanne Moore
v.
United States Department of Agriculture

          Roxanne Moore, pro se

          Michael. T. McCormack, Esq.

          ORDER

          Joseph A. DiClerico, Jr. United States District Judge

         Roxanne Moore, proceeding pro se, filed suit against the United States Department of Agriculture (the “USDA”) seeking an injunction to prevent a foreclosure sale on her home located at 8 Half Moon Lane, Kingston, New Hampshire (the “Half Moon Property”). The USDA moves for summary judgment. Moore did not file a response.

         Standard of Review

         Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A genuine issue of material fact only exists if a reasonable factfinder . . . could resolve the dispute in that party's favor.” Town of Westport v. Monsanto Co., 877 F.3d 58, 64-65 (1st Cir. 2017) (internal quotation marks omitted). The court must take the facts and draw all reasonable inferences in the light most favorable to the nonmoving party. McGunigle v. City of Quincy, 835 F.3d 192, 202 (1st Cir. 2016).

         Background

         As is noted above, Moore did not file a response to the USDA's motion for summary judgment. In this district, when a party does not file an opposition to a motion for summary judgment, all properly supported facts in the moving party's memorandum are deemed admitted. LR 56.1(b). Therefore, the facts presented by the USDA in support of the motion for summary judgment are deemed to be admitted by Moore.

         Moore granted the USDA a 30-year mortgage on the Half Moon Property on August 31, 1988, in the amount of $95, 000.00. Moore has not made a voluntary payment on the mortgage since January 7, 2013. The mortgage is in default and, as of November 6, 2018, had a total amount due of $128, 428.75, including $42, 709.89 in fees and interest.

         Based on the materials Moore filed with her complaint, the USDA has sent Moore notices that she was in arrears on her mortgage payments, granted her a two-year moratorium on payments that expired in October 2015, addressed her mortgage subsidy agreement, and, finally, sent notices of planned foreclosure. Moore responded to at least some of the notices asking for information and explaining her difficult circumstances. After receiving notice of a foreclosure sale of the Half Moon Property scheduled for February 20, 2018, Moore filed a “Complaint to Enjoin Foreclosure Sale” in state court on February 20, 2018. The USDA removed the case to this court a week later, on February 27, 2018.

         Discussion

         The USDA argues that Moore cannot succeed in her suit to enjoin the foreclosure sale because Moore's mortgage is in default. It further argues that, under the default provision in the mortgage agreement, it has the right to foreclose on and sell the property. Therefore, the USDA argues, it has the legal right to foreclose on the property.

         The mortgage agreement provides in pertinent part:

SHOULD DEFAULT occur in the performance or discharge of any obligation in this instrument or secured by this instrument, . . . the Government, at its option, with or without notice, may . . . (d) ...

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