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Lath v. Pennymac Loan Services LLC

United States District Court, D. New Hampshire

June 4, 2019

Sanjeev Lath
PennyMac Loan Services LLC



         Pro se plaintiff Sanjeev Lath filed this suit for a declaratory judgment (Count 1) and state claims of conversion (Counts 2 and 5), trespass (Count 3), and unjust enrichment (Count 4). Defendant PennyMac Loan Services LLC filed a motion to dismiss Counts 1, 2, and 3. Doc. 15. Lath opposes dismissal. PennyMac's motion has been referred to the undersigned magistrate judge for a report and recommendation. As discussed below, the court recommends that the district judge grant the motion in part and deny it in part.

         Standard of Review

         A. Judgment on the Pleadings

         Because PennyMac filed its answer before filing the motion to dismiss, the motion to dismiss is construed as a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). See e.g., Weeks v. Five Bros. Mortg. Servs. & Securing, Inc., 2014 WL 1379335, at *3 (D.N.H. April 9, 2014). Rule 12(c) implicates the pleadings as a whole, as opposed to merely the complaint as in a Rule 12(b)(6) motion. Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54-55 (1st Cir. 2006). Thus, to the extent the facts alleged in the answer do not contradict the facts in the complaint, the court may consider them. Goodman v. Williams, 287 F.Supp.2d 160, 161 (D.N.H. 2003).

         When a motion for a judgment on the pleadings is used to attack the plausibility of a complaint, the motion is evaluated under the same standard as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Diaz-Nieves v. United States, 858 F.3d 678, 689 (1st Cir. 2017); Grajales v. P.R. Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012). Judgment on the pleadings, therefore, is appropriate if the facts from the pleadings, taken in the light most favorable to the nonmovant, fail to allege a plausible entitlement to relief. Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-58 (2007)). The court, however, disregards conclusory allegations. Manning v. Boston Med. Ctr. Corp., 725 F.3d 34, 43 (1st Cir. 2013). The complaint must allege “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 Twombly, 550 U.S. at 556).

         B. Facts and Documents Outside the Pleadings

         Lath filed 54 exhibits with his objection to PennyMac's motion. When evaluating a motion for judgment on the pleadings, “[t]he court may supplement the facts contained in the pleadings by considering documents fairly incorporated therein and facts susceptible to judicial notice.” R.G. Fin. Corp. v. Vergara-Nuñez, 446 F.3d 178, 182 (1st Cir. 2006). The court may also consider “documents the authenticity of which are not disputed by the parties, ” official public records, documents central to the plaintiff's claim, and documents sufficiently referred to in the complaint. Watterson v. Page, 987 F.2d 1, 3-4; see also Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007).

         Generally, the exhibits Lath attached to his objection do not meet that standard or are not relevant to PennyMac's motion. Having reviewed the exhibits, the court has found that only one exhibit, doc. no. 16-25, Exhibit 25, which is a photograph of the abandonment notice that Lath alleges PennyMac posted to the door of his condominium unit, is both relevant to the issues before the court and warrants consideration under Watterson.


         Lath owned a condominium unit in a “secured building” in Manchester, New Hampshire. Doc. 8 (“Compl.”) ¶¶ 10, 29, 39. He alleges that PennyMac was the mortgagee[1] on the unit between 2015 and 2017. Id. ¶ 2.

         On February 2, 2017, Lath applied for a “Certificate of Compliance” under the Housing Code of the City of Manchester (“Housing Code”)[2] to rent out the unit. Id. ¶ 10.[3] The unit was inspected the same day.

         On February 17, 2017, a violation notice was issued. Lath's unit was found in violation of Housing Code §§ 150.050 (smoke and fire damage to interior surfaces), 150.084 (plumbing fixtures in need of repair), 150.088 (missing kitchen appliances), and 150.090 (missing smoke and carbon monoxide detector). Doc. 8-1, Compl. Exh. 1. A reinspection was scheduled for April 12, 2017.

         On July 27, 2017, [4] with his apartment still not in compliance with the Housing Code, Lath rented his unit to Peter Fiasconaro. However, on July 30, Manchester removed Fiasconaro “and imposed a health code violation” on the unit. Compl. ¶ 16. The city Health Department issued an abatement letter to Lath on August 4, 2017. The abatement letter stated as follows:

         Dear Mr. Lath:

You are hereby notified that a condition . . . has been identified and is existent on the premises at [Lath's condominium unit] in the form of a broken sewer pipe(s) and resultant discharge of effluent into [the unit below] and potentially other units. This was determined during a site visit on July 31, 2017 and similar notice was given to the occupant of the unit at the time of the visit.
You are hereby ordered to abate the nuisance caused as a result of the violation, through repair of faulty plumbing, obtaining a valid plumbing permit as required by the City of Manchester Planning and Community Development Department. . . . Until the violation is corrected and per the statute, no person shall occupy the dwelling, unless for the purposes of abating the violation.
. . .
Additionally, per discussion with City of Manchester Planning and Community Development Department, a Certificate of Compliance may be required when renting ...

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