Beaudette v. Bank of America, Inc.

Filing 14

///ORDER granting 12 Motion to Dismiss. Clerk of court shall enter judgment accordingly and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Steven J. Beaudette
v.

Civil No. 11-cv-569-JD
Opinion No. 2012 DNH 015

Bank of America, Inc.
O R D E R
Steven J. Beaudette, proceeding pro se, filed suit against
Bank of America, Inc. in state court, alleging that Bank of
America improperly initiated foreclosure proceedings while a loan
modification was in progress.1

Bank of America removed the case

to this court based on diversity jurisdiction, 28 U.S.C. § 1332,
and now moves to dismiss.

Beaudette failed to file a response to

either motion within the time allowed.
When a party moves to dismiss a complaint under Federal Rule
of Civil Procedure 12(b)(6), the court proceeds in a two-step
process.

Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 10 (1st

Cir. 2011).

First, the court separates the factual allegations

from the legal conclusions stated in the complaint.

Id.

Second,

the court accepts the factual allegations as true and determines

1

Bank of America’s motion to substitute parties was granted,
making Bank of America, N.A. and Bank of America Corporation the
defendant parties.

whether the facts state a plausible claim for relief.

Id.

A

plausible claim means that the facts permit a reasonable
inference that the defendant is liable for the claim that is
alleged.

Id.

Although pro se complaints are construed

liberally, the complaint must satisfy the same standard.

See

Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011); Rockwell v.
Cape Cod Hosp., 26 F.3d 254, 260 (1st Cir. 1994).
Beaudette alleges that he had a mortgage held by Bank of
America on his home in Dover, New Hampshire.

He further alleges

that on September 28, 2011, “[t]hey entered into a loan
modification.”

He also alleges, however, that “said modification

gave the Plaintiff until 10/13/2011 to send all Doc’s [sic]
requested.”

Therefore, Beaudette’s allegations are construed to

mean that Bank of America sent him an application for a loan
modification that required him to send the required documents to
Bank of America by October 13, 2011.
While the application was pending, Beaudette alleges, Bank
of America began foreclosure proceedings on the property.
Beaudette states that he received a letter, dated October 5,
2011, from attorneys for Bank of America “to facilitate
foreclosure.”

Beaudette concludes by stating that Bank of

America’s “actions were the cause of said abusive and mental
anguish.”
2

Bank of America interprets Beaudette’s claim as intentional
infliction of emotional distress.

Because Beaudette did not

respond to the motion, he has not challenged that interpretation
of his claim.

Intentional infliction of emotional distress is a

reasonable interpretation of Beaudette’s claim of “abusive and
mental anguish.”
“In order to make out a claim for intentional infliction of
emotional distress, a plaintiff must allege that a defendant by
extreme and outrageous conduct, intentionally or recklessly
caused severe emotional distress to another.”

Tessier v.

Rockefeller, 162 N.H. 324, --- A.2d ---, 2011 WL 4133840, at *11
(N.H. Sept. 15, 2011) (internal quotation marks omitted).
Extreme and outrageous conduct, for purposes of a claim for
intentional infliction of emotional distress, must be “‘so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.’”
Id. (quoting Mikell v. School Admin. Unit No. 33, 158 N.H. 723,
729 (2009)).
Beaudette provides few facts to support his claim.

He

alleges that Bank of America sent him an application for a loan
modification for his home mortgage and at the same time proceeded
with foreclosure proceedings against him.
3

The only conduct

Beaudette alleges is that Bank of America sent him the
application and then Bank of America’s lawyers sent him a letter
about facilitating foreclosure proceedings.

Beaudette does not

allege what happened with respect to either the loan modification
or the foreclosure and provides no detail about the “abusive and
mental anguish” he experienced.
Generally, courts have not found that banks’ activities in
obtaining mortgages that result in foreclosure meet the high
standard required to state a claim for intentional infliction of
emotional distress.

See, e.g., Cervantes v. Countrywide Home

Loans, Inc., 656 F.3d 1034, 1046 (9th Cir. 2011); Brown v. First
Nationwide Mortg., 206 Fed. Appx. 436, 443 (6th Cir. 2006);
Sharpe v. Select Portfolio Servs., Inc., 2012 WL 70836, at *2 (D.
Ariz. Jan. 10, 2012); Setzer v. Richards, 2012 WL 32943, at *8
(W.D. Tex. Jan. 5, 2012); Jozlin v. U.S. Bank Nat’l Ass’n, 2012
WL 12760, at *5 (E.D. Mich. Jan. 4, 2012).

Beaudette has not

alleged facts in this case that provide any basis for his claim.

4

Conclusion
For the foregoing reasons, the defendant’s motion to dismiss
(document no. 12) is granted.
The clerk of court shall enter judgment accordingly and
close the case.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
January 18, 2012

cc:

Steven J. Beaudette, pro se
Christopher J. Somma, Esquire

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