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Dutton v. Bank of America

United States District Court, D. New Hampshire

June 14, 2019

Joel Dutton, Plaintiff
v.
Bank of America, Bank of America, N.A., and Bank of New York Mellon, Defendants

          Joel Dutton, pro se. Thomas J. Pappas, Esq.

          ORDER

          Steven J. McAuliffe United States District Judge

         Pro se 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.

         For the reasons discussed, defendants' motion is granted and Dutton's complaint is dismissed, without prejudice and with leave to file an amended complaint.

         Standard of Review

         When 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).

         In 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) (emphasis supplied).

         Factual Background

         Based 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.

         It is 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).

         In his complaint, Dutton alleges that “this is a fraudulent loan.” Complaint (document no. 1-1) at 8. He goes on to claim that:

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, ...

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