United States District Court, D. New Hampshire
Dutton, pro se. Thomas J. Pappas, Esq.
J. McAuliffe United States District Judge
plaintiff, Joel Dutton, brings this common law fraud claim
alleging that his home mortgage loan is
“fraudulent” and “asking the court to have
[defendants] prove they are not acting in a fraudulent
manner.” Complaint (document no. 1-1) at 7-8.
Defendants move to dismiss, asserting that Dutton's
complaint fails to set forth the essential elements of a
viable claim and fails to allege fraud with sufficient
particularity. See Fed.R.Civ.P. 12(b)(6) and 9(b). Moreover,
say defendants, any action based upon an allegedly fraudulent
act or omission prior to January 18, 2016 (i.e., three years
before the date on which Dutton filed his complaint), is
barred by the applicable New Hampshire limitations period.
See N.H. Rev. Stat. Ann. (“RSA”) 504:4. Dutton
has not filed an objection to defendants' motion.
reasons discussed, defendants' motion is granted and
Dutton's complaint is dismissed, without prejudice and
with leave to file an amended complaint.
ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the court must “accept as true all well-pleaded facts
set out in the complaint and indulge all reasonable
inferences in favor of the pleader.” SEC v.
Tambone, 597 F.3d 436, 441 (1st Cir. 2010). Although the
complaint need only contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” Fed.R.Civ.P. 8(a)(2), it must allege each
of the essential elements of a viable cause of action and
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face,
” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation and internal punctuation omitted).
other words, “a plaintiff's obligation to provide
the ‘grounds' of his ‘entitlement to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). Instead, the facts alleged in the
complaint must, if credited as true, be sufficient to
“nudge [plaintiff's] claims across the line from
conceivable to plausible.” Id. at 570.
Moreover, when pleading a claim sounding in fraud, a
plaintiff “must state with particularity the
circumstances constituting fraud.” Fed.R.Civ.P. 9(b)
upon the factual allegations set forth in Dutton's
complaint, as well as the public documents submitted by
defendants, the pertinent facts are as follows. In April of
2007, Dutton (along with his wife, Kimberly, and a third
party, Ryan Roy) obtained a loan from Countrywide Home Loans
(“Countrywide”) in the original principal amount
of One Hundred Eighty Seven Thousand Two Hundred Dollars
($187, 200.00). As security for that loan, Dutton and the
other borrowers conveyed a mortgage deed to the property
located at 24 Dundee Avenue, Hooksett, New Hampshire, to
Mortgage Electronic Registration Systems, Inc.
(“MERS”), as nominee for Countrywide.
unclear whether Dutton is currently in default of his
obligations under the loan. Nor is it apparent whether MERS
(or an assignee) has taken any action against the real estate
pledged as security for that loan. It seems, however, that
Dutton no longer wishes to make payments on that loan (or
thinks that he should be legally excused from doing so).
complaint, Dutton alleges that “this is a fraudulent
loan.” Complaint (document no. 1-1) at 8. He goes on to
1. “Defendants are trying to confuse the facts to hide
such, ” id.;
2. “Specialized Loan Services says that they are
collecting on behalf of Bank of New York Mellon, ...