People's United Bank v. Mountain Home Developers of Sunapee, LLC et al

Filing 21

///ORDER granting in part and denying in part 15 Motion to Dismiss. So Ordered by Magistrate Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

People’s United Bank
v.

Civil No. 11-cv-393-LM

Mountain Home Developers of
Sunapee, LLC; Dana Michael
Stevens, Charles Terry Finch,
Robert Flanders, Gary Williams,
Gina Williams, and Bardon Flanders

O R D E R
People’s United Bank (“PU Bank”), as mortgagee, seeks to
recover the difference between the amount it realized from a
foreclosure sale and the amount defendants (hereinafter
“Mountain Home”), as mortgagors, still owe on loans made to them
by PU Bank’s predecessor in interest, Butler Bank (“Butler”).
Mountain Home has asserted counterclaims for breach of the
fiduciary duties of good faith and due diligence (Count I),
breach of contract and/or the requirements of N.H. Rev. Stat.
Ann. (“RSA”) chapter 479 (Count II), and negligence (Count III).
Before the court is PU Bank’s motion to dismiss Mountain Home’s
counterclaims.

Mountain Home objects.

For the reasons that

follow, PU Bank’s motion to dismiss is granted in part and
denied in part.

The Legal Standard
A motion to dismiss for “failure to state a claim upon
which relief can be granted,” Fed. R. Civ. P. 12(b)(6), requires
the court to conduct a limited inquiry, focusing not on “whether
a plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims.”
Rhodes, 416 U.S. 232, 236 (1974).

Scheuer v.

That is, the complaint “must

contain ‘enough facts to raise a reasonable expectation that
discovery will reveal evidence’ supporting the claims.”

Fantini

v. Salem State Coll., 557 F.3d 22, 26 (1st Cir. 2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
When considering a motion to dismiss under Rule 12(b)(6), a
trial court “accept[s] as true all well-pled facts in the
complaint and draw[s] all reasonable inferences in favor of
plaintiffs.”

Plumbers’ Union Local No. 12 Pension Fund v.

Nomura Asset Acceptance Corp., 632 F.3d 762, 771 (1st Cir. 2011)
(quoting SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010)).
But, “naked assertions devoid of further factual enhancement
need not be accepted.”

Plumbers’ Union, 632 F.3d at 771 (1st

Cir. 2011) (quoting Maldonado v. Fontanes, 568 F.3d 263, 266
(1st Cir. 2009)).

Moreover, “[a] pleading that offers ‘labels

and conclusions’ or ‘a formulaic recitation of the elements of a
cause of action will not do.’”

United Auto., Aero., Agric.

Implement Workers of Am. Int’l Union v. Fortuño, 633 F.3d 37, 41
2

(1st Cir. 2011) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009)).
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.”
633 F.3d at 40 (citation omitted).

United Auto. Workers,

On the other hand, a Rule

12(b)(6) motion should be granted if “the facts, evaluated in
[a] plaintiff-friendly manner, [do not] contain enough meat to
support a reasonable expectation that an actionable claim may
exist.”

Andrew Robinson Int’l, Inc. v. Hartford Fire Ins. Co.,

547 F.3d 48, 51 (1st Cir. 2008) (citations omitted).

That is,

“[i]f the factual allegations in the complaint are too meager,
vague, or conclusory to remove the possibility of relief from
the realm of mere conjecture, the complaint is open to
dismissal.”

Plumbers’ Union, 632 F.3d at 771 (citation

omitted).
Background
Except as otherwise indicated, the following facts are
drawn from Mountain Home’s counterclaim.

See Plumbers’ Union,

632 F.3d at 771.
Mountain Home sought to develop a tract of land in Sunapee,
New Hampshire, by building high-end duplexes.

To finance the

project, Mountain Home received two loans from Butler and gave

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two promissory notes in return.

Later, Mountain Home entered

into a forbearance agreement with Butler that may have involved
a third promissory note.
On January 25, 2011, after it had succeeded to Butler’s
interests, PU Bank informed Mountain Home of its intent to
foreclose on the property securing the notes due to Mountain
Home’s failure to repay the loans.

At the time of the

foreclosure, Mountain Home had improved the property by
constructing a building that housed two 2,000-square-foot
condominium units, by paving more than 1,000 feet of roadways,
and by installing underground electrical lines to some lots.
In preparation for the foreclosure sale, PU Bank retained
an appraiser, MRA, Inc. (“MRA”).

PU Bank asked MRA to appraise

the property in two ways, as a development of duplex
condominiums, and as a development of single-family homes.

MRA

performed only the first appraisal, but noted that under the
second approach, the property’s appraised value would have been
higher.

Mountain Home does not allege the value MRA placed on

the property or how much more the property would have been worth
if used for single-family homes.

Mountain Home does, however,

allege that when it received a copy of the MRA appraisal, on a
date it does not include in its factual allegations (but
apparently before the foreclosure sale), it informed PU Bank
that it disputed the value MRA placed on the property.
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With

regard to the sale itself, PU Bank posted notice of the sale in
The Union Leader, but, according to Mountain Home, did not post
notice “in a newspaper within Sullivan County,” Def.’s First Am.
Answer & Countercls. (hereinafter “Answer”) (doc. no. 12) ¶ 65.
Mountain Home does not further define the phrase “within
Sullivan county.”
On May 4, 2011, PU Bank conducted a foreclosure sale, and
in so doing, relied on the property value set forth in MRA’s
appraisal.

The property was sold, to a buyer Mountain Home does

not identify, for $650,000.

According to PU Bank’s complaint,

as of the first week of August 2011, i.e., three months after
the foreclosure sale, Mountain Home still owed $678,997.17 in
unpaid principal, $85,001.72 in accrued interest, $4,737.09 in
late fees, and $87,594.19 in fees and expenses PU Bank incurred
to collect from Mountain Home.
26.

See Compl. (doc. no. 1) ¶¶ 23-

In its Answer, Mountain Home does not dispute that some

amount of unpaid principal and interest remained after the sale,
but only denies the accuracy of the amounts alleged in PU Bank’s
complaint.

See Answer ¶¶ 23-24.

Based on the foregoing, Mountain Home asserts that PU Bank
is liable for: (1) breach of fiduciary duty, because it failed
to conduct the foreclosure sale with good faith and due
diligence; (2) breach of contract, because it failed to provide
notice of the sale in accordance with RSA 479:25, I; and (3)
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negligence, because it “obtain[ed] an appraisal that it knew or
should have known [to be] undervalued and incomplete,” Answer
(doc. no. 12) ¶ 87.
Discussion
PU Bank moves to dismiss all three of Mountain Home’s
counterclaims.

It argues that: (1) all three are barred by RSA

479:25, II; (2) Count I must be dismissed because Mountain Home
has not alleged the elements of bad faith; and (3) Count III
must be dismissed because the negligence claim stated therein
duplicates the claim for breach of fiduciary duty stated in
Count I.

Mountain Home disagrees, categorically.

The court

considers each of Mountain Home’s three claims in turn.
A. Count I
In Count I of its counterclaim, Mountain Home asserts that
PU Bank breached its fiduciary duties of good faith and due
diligence by failing to: (1) obtain a full and accurate
appraisal of the property; (2) advertise the auction in a manner
that would attract a suitable collection of bidders; (3) set a
sufficient strike price; and (4) purchase the property when the
auction failed to meet or exceed a sufficient strike price.

PU

Bank argues that Count I should be dismissed because the claims
stated therein are based on conduct that Mountain Home knew
about before the sale, and RSA 479:25, II, provides that claims
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based on such conduct are barred if they are not brought in the
superior court in an action to enjoin the sale.

PU Bank also

argues that Mountain Home has not alleged facts sufficient to
establish bad faith, which is necessary to establish breach of
the fiduciary duty of good faith.

PU Bank does not, however,

challenge Mountain Home’s allegations concerning its claim for
breach of the fiduciary duty of due diligence.

Mountain Home

contends that Count I is not barred by RSA 479:25, II, because:
(1) it had three years to file its claims, under RSA 508:4; (2)
PU Bank misreads RSA 479:25, II; (3) PU Bank’s argument is
foreclosed by Murphy v. Financial Development Corp., 126 N.H.
536 (1985).
This case involves the interplay between two partially
overlapping sets of duties owed to a mortgagor by a mortgagee
conducting a foreclosure sale.

By statute, a mortgagee is

required to provide notice of a foreclosure sale to the public
in a specified manner, see RSA 479:25, I.

In addition, notice

must be served on the mortgagor:
Notice of the sale as served on or mailed to the
mortgagor shall include the following language:
“You are hereby notified that you have a right to
petition the superior court for the county in which
the mortgaged premises are situated, with service
upon the mortgagee, and upon such bond as the court
may require, to enjoin the scheduled foreclosure
sale.” Failure to institute such petition and
complete service upon the foreclosing party, or his
agent, conducting the sale prior to sale shall
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thereafter bar any action or right of action of the
mortgagor based on the validity of the foreclosure.1
RSA 479:25, II.
Duties are also imposed on a mortgagee by the common law,
as described in Murphy.

In that case, the New Hampshire Supreme

Court noted the “mortgagee’s dual rule as seller and potential
buyer at the foreclosure sale, and . . . the conflicting
interests involved,” 126 N.H. at 541 (citing Wheeler v.
Slocinski, 82 N.H. 211, 214 (1926)), and then held that “[i]n
his role as a seller, the mortgagee’s duty of good faith and due
diligence is essentially that of a fiduciary,” id.

More

specifically:
A mortgagee . . . must exert every reasonable
effort to obtain “a fair and reasonable price under
the circumstances,” Reconstruction Finance Corp. v.
Faulkner, 101 N.H. 352, 361 (1958), even to the
extent, if necessary, of adjourning the sale or of
establishing “an upset price below which he will not
accept any offer.” Lakes Region Fin. Corp. v. Goodhue
Boat Yard, Inc., 118 N.H. [103,] 107 [(1978)].
What constitutes a fair price, or whether the
mortgagee must establish an upset price, adjourn the
sale, or make other reasonable efforts to assure a
fair price, depends on the circumstances of each case.
Inadequacy of price alone is not sufficient to
demonstrate bad faith unless the price is so low as to
shock the judicial conscience. Mueller v. Simmons,
634 S.W.2d 533, 536 (Mo. App. 1982); Rife v. Woolfolk,
1

The court presumes that by using the phrase “validity of
the foreclosure,” the legislature intended to denote both the
validity of a foreclosure and the validity of the resulting
foreclosure sale.
8

289 S.E.2d 220, 223 (W. Va. 1982); Travelers Indem.
Co. v. Heim, 352 N.W.2d 921, 923–24 ([Neb.] 1984).
Id. (parallel citation omitted).
In Murphy, mortgagors sued their mortgagees, who were also
the successful bidders at the foreclosure sale.
539.

See 126 N.H. at

The mortgagors claimed that the mortgagees violated their

fiduciary duties by purchasing the subject property at a price
substantially below its fair-market value.

See id.

The

mortgagees moved to dismiss, arguing that the mortgagors’ claims
were barred by RSA 479:25, II.

See id. at 539-40.

The New

Hampshire Supreme Court disagreed:
If we were to construe this provision as the
[mortgagees] urge us to do, it would prevent a
mortgagor from challenging the validity of a sale in a
case where the only claimed unfairness or illegality
occurred during the sale itself — unless the mortgagor
had petitioned for an injunction before any grounds
existed on which the injunction could be granted. We
will not construe a statute so as to produce such an
illogical and unjust result. State v. Howland, 125
N.H. 497, 500, 484 A.2d 1076, 1078 (1984).
The only reasonable construction of the language
in RSA 479:25, II relied upon by the [mortgagees] is
that it bars any action based on facts which the
mortgagor knew or should have known soon enough to
reasonably permit the filing of a petition prior to
the sale.
Murphy, 126 N.H. at 540.
PU Bank characterizes Count I as being based on its alleged
failures to properly advertise the foreclosure sale and to
obtain a proper appraisal in anticipation of that sale.
9

In PU

Bank’s view, those are both facts that Mountain Home knew, or
should have known, prior to the sale, thus obligating it to
bring a pre-sale petition to enjoin the sale or lose its right
to contest its validity.

Mountain Home points out, correctly,

that Count I also alleges that PU Bank breached its fiduciary
duties by failing to set a sufficient strike price and by
failing to purchase the property when the bidding did not reach
a sufficient level.

Those facts, obviously, could not have been

known to Mountain Home before the sale.

Consequently, RSA

479:25, II, does not bar Count I.
The fact that Count I is based on both pre-sale conduct and
conduct at the sale raises an interesting legal question, i.e.,
whether a mortgagor is precluded from supporting his or her
claim for breach of fiduciary duty by proving pre-sale conduct.
While there does not appear to be a New Hampshire case in which
the state supreme court has directly addressed that question,
indications are that pre-sale conduct may be used to support a
claim for breach of fiduciary duty.
For example, in Murphy, in the context of determining that
the mortgagees violated their duty of due diligence, the court
observed that while the mortgagees “did comply with the
statutory requirements of notice of the foreclosure sale, these
efforts were not sufficient in this case to demonstrate due
diligence,” 126 N.H. at 543 (emphasis in the original).
10

The

court went on to describe the notice given of both the
originally scheduled sale and its postponement to a later date.
See id.

As the court concluded: “That these efforts to

advertise were ineffective is evidenced by the fact that no one,
other than the [mortgagees], appeared at the sale to bid on the
property.”

Id.

Similarly, in First New Hampshire Mortgage

Corp. v. Green, which also involved a claim for breach of the
duty of due diligence, the New Hampshire Supreme Court upheld
the trial court’s determination that “the manner in which the
plaintiff advertised this parcel actually discouraged potential
bidders,” 139 N.H. 321, 324 (1995), based on “evidence showing
that the advertisements misrepresented the advantageous location
of the . . . property,” id.

Based on Murphy and First NH

Mortgage, it does not appear that RSA 479:25, II, provides any
basis for excising PU Bank’s pre-sale conduct from Count I.
As noted, PU Bank also argues that Count I should be
dismissed because Mountain Home has not alleged the elements of
bad faith.

Mountain Home contends that, under the liberal

pleading standards of the Federal Rules of Civil Procedure
(“Federal Rules”), it has adequately stated a claim.

The court

does not agree.
Regarding what constitutes bad faith, the New Hampshire
Supreme Court has explained:

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We first note that “[t]he duties of good faith
and due diligence are distinct . . . . One may be
observed and not the other, and any inquiry as to
their breach calls for a separate consideration of
each.” Wheeler v. Slocinski, 82 N.H. at 213. In
order “to constitute bad faith there must be an
intentional disregard of duty or a purpose to injure.”
Id. at 214.
Murphy, 126 N.H. at 541-42 (parallel citations omitted).

In

Murphy, the mortgagees: (1) provided minimal public notice of
the foreclosure sale, which had been postponed from an earlier
date, see id. at 543; (2) purchased the property themselves at a
sale with no other bidders present, see id. at 539; (3) bought
the property for an amount equal to the amount owed by the
mortgagors, $27,000, see id.; (4) should have realized that the
mortgagors’ “equity in the property was at least $19,000,” id.
at 542; and (5) sold the property for $38,000 two days after
purchasing it for $27,000, see id. at 539.

Despite all that,

the court ruled that “[t]here [was] insufficient evidence in the
record to support the master’s finding that the [mortgagees]
acted in bad faith in failing to obtain a fair price for the
[mortgagors’] property.”

Id. at 542.

Based on Murphy, it is evident that Mountain Home has
failed to state a claim for breach of the fiduciary duty of good
faith.

In Murphy, the mortgagees purchased the property and

made a large quick profit.

Thus, they plainly benefitted from

having no one to bid against at the foreclosure sale.
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Here,

Mountain Home makes no allegations concerning the bidding at the
sale or who ultimately purchased the property.2

Thus, there is

no foundation in Mountain Home’s factual allegations to support
a reasonable inference that PU Bank intentionally breached its
duty to properly advertise the sale, in an effort to keep
potential bidders away.

More importantly, the harm in Murphy

was that the mortgagees sold the property at the foreclosure
sale (to themselves) for a price that insured that they would be
made whole, but did not protect the mortgagors’ equity in the
property.

126 N.H. at 543.

Here, Mountain Home does not allege

that PU Bank was made whole by the price it received at the
auction, and does not deny PU Bank’s allegations that unpaid
principal and interest remained after it collected the proceeds
of the sale.

On the facts alleged or admitted by Mountain Home,

both PU Bank and Mountain Home were left holding the bag when
the property sold for only $650,000.

Thus, on the facts

alleged, there is no logical basis for an assertion that PU Bank
acted with an intent to injury Mountain Home; both emerged from
the foreclosure sale in the hole.
2

That is, unlike the

Mountain Home’s assertion that PU Bank failed in its
“obligation to purchase the property when the auction failed to
meet or exceed a sufficient strike price,” Answer (doc. no. 12)
¶ 73(d), seems to suggest that some party other than PU Bank
purchased the property, but that assertion could also be read,
at least somewhat plausibly, as alleging that PU Bank did
purchase the property but breached its duty by purchasing it for
an amount less than a sufficient strike price.
13

mortgagees in Murphy and First NH Mortgage, both of whom
purchased the foreclosed properties at beneficial prices, PB
Bank is not alleged to have benefitted in any way from the
purportedly low price it received for the property.
Mountain Home attempts to stave off dismissal of the badfaith portion of Count I by pointing out that it has alleged
that PU Bank: (1) accepted a price so low as to shock the
judicial conscience; (2) failed to obtain a full and accurate
appraisal; and (3) failed to set a sufficient strike price.
There are two problems with Mountain Home’s argument.

First,

the conduct Mountain Home points to might support a claim that
PU Bank failed to exercise due diligence, but it simply does not
rise to the level of “an intentional disregard of duty or a
purpose to injure,” Murphy, 126 N.H. at 542 (citation omitted).
Finally, Mountain Home gives no reason, much less a plausible
one, why PU Bank would want to low-ball the value of the
property or accept a price for it that was less than the amount
it believed it was owed by Mountain Home.
Beyond that, the court observes that while Mountain Home
describes the valuation PU Bank obtained from MRA as too low, it
does so in a conclusory way, without alleging either of the two
key facts: (1) the value MRA assigned to the property; and (2)
the correct property value.

Thus, there is no factual frame of

reference from which it would even be possible to determine
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whether the $650,000 realized from the auction was either too
little or, more importantly, so little as to shock the judicial
conscience.

See United Auto. Workers, 633 F.3d at 41 (requiring

a complaint to offer more than labels or conclusions).
In sum, to the extent that Count I asserts a claim that PU
Bank breached its fiduciary duty of good faith, that claim is
dismissed.

While the court harbors doubts that Mountain Home

could state a claim for breach of the duty of good faith,
dismissal of that portion of Count I is without prejudice.

In

any event, Count I also includes a claim that PU Bank breached
its fiduciary duty of due diligence.

That portion of Count I

remains fully in play, as it is not barred by RSA 479:25, II,
for the reasons explained above, and PU Bank has mounted no
other argument against it.
B. Count II
In Count II of its counterclaim, Mountain Home asserts that
PU Bank breached the parties’ mortgage agreements by failing to
give public notice of the foreclosure sale in the manner
required by RSA 479:25, I.

PU Bank argues that it is entitled

to dismissal of Count II because Mountain Home did not petition
the superior court to enjoin the sale, as required by RSA
479:25, II.

Mountain Home objects, contending that it “could

not have known that the deficient notice by [PU Bank] negatively

15

affected the sale price until the foreclosure sale was actually
conducted,” Def.’s Obj. (doc. no. 16), at 6.

The court is not

persuaded.
RSA 479:25, I, requires that notice of a foreclosure “sale
shall be published once a week for 3 successive weeks in some
newspaper of general circulation within the town or county in
which the property is situated.”

In its counterclaim, Mountain

Home alleges: “On information and belief, [PU Bank] failed to
post notice in a newspaper within Sullivan County.
notice was only posted through The Union Leader.”

Instead,
Answer (doc.

no. 12) ¶ 65.
Unlike Count I, Count II is based exclusively on PU Bank’s
alleged failure to follow the statutory notice requirements.
Thus, the only thing Mountain Home challenges is the validity of
the foreclosure.

That the alleged invalidity of the foreclosure

resulted in damages that became measurable only after the sale,
when the highest bid was too low to satisfy Mountain Home, is of
no moment.

The bar imposed by RSA 479:25, II, is intended to

require the correction of pre-sale defects before a sale takes
place.

A mortgagor who lets such a defect pass, hoping that it

will not harm the sale price, assumes the risk that the defect
will have such an effect.

The purpose of the statute is to make

sure that a proper sale takes place the first time, not to give
mortgagors a trump card they can play after a sale price proves
16

to be unsatisfactory.

Because Mountain Home knew or should have

known of the allegedly insufficient notice before the sale, it
was obligated to petition the superior court before the sale, or
lose its right to bring a claim based on RSA 479:25, I.
Mountain Home did not petition the superior court to enjoin the
sale.

Thus, PU Bank is entitled to dismissal of Count II of

Mountain Home’s counterclaim, with prejudice.

See Murphy, 126

N.H. at 540 (“RSA 479:25 . . . bars any action based on facts
which the mortgagor knew or should have known soon enough to
reasonably permit the filing of a petition prior to the sale”).
In addition, it is far from clear that Mountain Home has
even stated a claim that the notice given by PU Bank violated
the statutory requirement.

RSA 479:25, I, prescribes

publication in “some newspaper of general circulation within the
town or county in which the property is situated.”

The statute

does not require notice in a newspaper published within the town
or county in which the property is situated, but, rather, notice
in a newspaper generally circulated in the requisite town or
county.

Mountain Home alleges that PU Bank published notice in

The Union Leader.

But, it does not allege that The Union Leader

is not a newspaper of general circulation within Sunapee, New
Hampshire, or Sullivan County.

For that reason, as well, PU

Bank is entitled to dismissal of Count II.

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C. Count III
In Count III of its counterclaim, Mountain Home asserts
that PU Bank is liable for negligence because it owed Mountain
Home a duty to protect its equity and failed to do so by
obtaining, and then relying on, an incomplete appraisal that
undervalued the property.

PU Bank argues that it is entitled to

dismissal because: (1) Mountain Home knew about the appraisal
before the sale, thus obligating it to raise any objection to PU
Bank’s reliance on that appraisal before the sale, pursuant to
RSA 479:25, II; and (2) the negligence claim duplicates the
claim for breach of fiduciary duty stated in Count I.

As with

Count II, Mountain Home contends that it could not have known
that the improper appraisal would negatively affect the sale
price until after the sale had been conducted.

It further

argues that under the Federal Rules, it is permitted to plead in
the alternative.
Unlike PU Bank, the court is not troubled by Mountain
Home’s strategy of pleading in the alternative.

On the other

hand, the court agrees with PU Bank that Count III is barred by
RSA 479:25, II, for the same reasons that Count II is barred.
In its counterclaim, Mountain Home alleges that it received a
copy of the appraisal and informed PU Bank of its belief that
the property value in the appraisal was too low.

Knowing that

PU Bank would use the property value in the appraisal to inform
18

the way it conducted the auction, Mountain Home was on notice of
the possibility that PU Bank’s reliance on the appraisal might
result in an invalid sale.

Yet, rather than going to court to

enjoin the sale until PU Bank obtained an accurate appraisal,
Mountain Home bided its time.

Because it had a remedy available

to it, that by its statutory terms expired when the sale was
conducted, Mountain Home is barred from bringing a stand-alone
negligence claim based solely upon PU Bank’s reliance on the MRA
appraisal.

Accordingly, PU Bank is entitled to dismissal of

Count III, with prejudice.

See Murphy, 126 N.H. at 540.
Conclusion

For the reasons described above, PU Bank’s motion to
dismiss, document no. 15, is granted in part and denied in part.
Specifically: (1) the due-diligence claim in Count I remains;
(2) the good-faith claim in Count I is dismissed, but without
prejudice to Mountain Home’s filing an amended counterclaim; (3)
Counts II and III are both dismissed, with prejudice.
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge

March 12, 2012

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cc:

Conrad WP Cascadden, Esq.
Michael Brendan Doherty, Esq.
Paul R. Kfoury, Sr., Esq.
Daniel P. Luker, Esq.

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