Bradley v. Wells Fargo Bank, N.A.

Filing 76

///ORDER granting 43 Motion to Dismiss for Failure to State a Claim; granting 51 Motion to Dismiss for Failure to State a Claim; granting 59 Motion to Dismiss; denying 66 Motion for Joinder. So Ordered by Judge Paul J. Barbadoro.(jna)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Jeffrey Bradley
v.

Civil No. 12-cv-127-PB
Opinion No. 2013 DNH 173

Wells Fargo Bank, N.A. et al.

MEMORANDUM AND ORDER
Jeffrey Bradley lost his home to foreclosure.

He has sued

his mortgage lender, two assignees of his mortgage, and two
entities involved in servicing his loan.

He challenges the

legality of the foreclosure on several grounds and seeks damages
from all of the defendants.
Bradley asserts his claims in both an amended complaint and
a proposed second amended complaint that he filed with a motion
to join additional defendants.

Two defendants named in the

amended complaint have filed answers, and the rest have filed
motions to dismiss.
joinder.

All defendants oppose the motion for

For the reasons set forth in this Memorandum and

Order, I grant the motions to dismiss and deny the motion for
joinder.

I.
A.

BACKGROUND

Factual Background1
Bradley obtained a $143,500 mortgage loan from Ameriquest

Mortgage Company in November 2004. Shortly thereafter,
Ameriquest assigned the mortgage to Wells Fargo Bank, N.A. as
trustee for an unnamed trust (“Wells Fargo Trustee”).2

Although

the first payment on the note was not due until January 1, 2005,
Bradley made payments on the loan in November and December 2004,
as well as the first required payment in January 2005.
Defendants, however, failed to give Bradley credit for any of
his payments.
Without Bradley’s knowledge, HomEq Servicing was assigned
responsibility for servicing Bradley’s loan.

On March 1, 2005,

HomEq sent Bradley a notice stating that his loan was three
months overdue.

Although Bradley’s loan called for the lender

to make homeowner’s insurance payments on his behalf from an
1

I draw the background facts from the proposed second amended
complaint (Doc. No. 66-1), which provides a somewhat more
detailed description of the relevant facts than is provided in
the amended complaint. Doc. No. 38.
2

The proposed second amended complaint alleges that the
assignment originally failed to name the assignee and that the
actual assignment was made at a later time. The complaint does
not identify the trust that benefitted from the assignment.
2

escrow account, HomEq failed to make the required payments.

In

August 2005, Bradley received a notice from his insurer stating
that his homeowner’s insurance was about to be cancelled.
Following instructions Bradley received from HomEq, Bradley paid
his insurer and deducted the payment from his September mortgage
payment.

HomEq, however, refused to credit Bradley for his

September mortgage payment.

It also failed to give him a credit

for his October payment and a double payment he attempted to
make in November.
One or more defendants instituted foreclosure proceedings
against Bradley in March 2006.3

In response, Bradley brought

suit in state court to enjoin the foreclosure.

A state court

judge dismissed the foreclosure proceedings in an order dated
January 31, 2007 “due to the cancellation of the foreclosure and
the attempt of the plaintiffs to refinance their loan.”

After

the foreclosure case was dismissed, a representative of the
defendants assured Bradley that an agreement could be reached to
resolve their dispute.4

Bradley, however, was unable to contact

3

The complaint does not identify the defendants who instituted
foreclosure proceedings.
4

Again, the complaint does not identify the defendants whose
representative allegedly made these representations.
3

the defendants to negotiate a settlement agreement.

In 2009,

Bradley spoke with a representative of HomEq and was informed
that his loan “was lost in the computer database.”

Between 2007

and 2010, defendants also sent multiple notices concerning the
loan to the wrong address.

On at least one occasion, Bradley

was unable to obtain a payoff number from Wells Fargo or any of
the other defendants.

As a result, he lost an opportunity to

refinance his loan.
On September 1, 2010, Wells Fargo Trustee assigned
Bradley’s mortgage to Wells Fargo Bank, N.A. as Trustee for a
trust created pursuant to a Pooling and Servicing Agreement
dated October 1, 2004 (“Wells Fargo PSA Trustee”).5

At around

the same time, Ocwen Loan Servicing, LLC assumed responsibility
for servicing Bradley’s loan.
A few months later, on February 8, 2011, Wells Fargo PSA
Trustee scheduled a foreclosure sale for March 9, 2011.

It

later postponed the foreclosure sale: first until April 6, 2011,
and ultimately until April 27, 2011.

A law office acting on

behalf of Wells Fargo PSA Trustee sent Bradley’s former attorney
5

Bradley alleges that the second assignment was not signed but
instead only bears the initials “CC” for Christine Carter, an
account manager for Ocwen Loan Servicing, LLC.
4

a notice that the original foreclosure sale had been postponed.
It continued to send foreclosure notices to the attorney even
after she notified defendants that she no longer represented
Bradley.

Bradley never received notice of the foreclosure,

which was completed as scheduled on April 27, 2011.

Wells Fargo

PSA Trustee purchased the property at the foreclosure sale.
On or about May 1, 2011, one of the defendants put a
padlock on the door of Bradley’s home without a writ of
possession and without giving him either notice to quit or a
notice of eviction.

On May 14, defendants or their agents threw

Bradley’s household goods into a dumpster and destroyed many of
Bradley’s personal effects, sentimental items, furniture, and
other household goods.
B.

Procedural Background
On January 27, 2012, Bradley filed a complaint in the

Rockingham County Superior Court against Wells Fargo.
3.

Doc. No.

On March 30, 2012, Wells Fargo removed the case to this

court.

On March 18, 2013, Bradley filed an amended complaint

naming Ameriquest and Ocwen as additional defendants.

Bradley

also listed Wells Fargo separately as a defendant in its
individual capacity, in its capacity as trustee of the unnamed
trust and in its capacity as trustee of the trust created by the
5

Pooling and Servicing Agreement.

Doc. No. 38.

Wells Fargo PSA

Trustee and Ocwen answered the amended complaint, but Wells
Fargo, Wells Fargo Trustee, and Ameriquest all filed motions to
dismiss for failure to state a claim.

Bradley objected to each

motion.
On September 24, 2013, Bradley filed a motion for joinder
and attached a proposed second amended complaint that named
HomEq Servicing as an additional defendant.

The proposed second

amended complaint also added additional factual allegations and
new claims for relief against the original defendants.
Nos. 66, 66-1.

Doc.

On October 8, 2013, all defendants filed

objections to the motion for joinder.

II.

STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff
must make factual allegations sufficient to “state a claim to
relief that is plausible on its face.”

Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).

A claim is facially plausible when it

pleads “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.

The plausibility standard is not akin to a
6

‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”

Id.

(citations omitted).
In deciding a motion to dismiss, I employ a two-step
approach.

See Ocasio–Hernández v. Fortuño–Burset, 640 F.3d 1,

12 (1st Cir. 2011).

First, I screen the complaint for

statements that “merely offer legal conclusions couched as fact
or threadbare recitals of the elements of a cause of action.”
Id. (citations, internal quotation marks, and alterations
omitted).

A claim consisting of little more than “allegations

that merely parrot the elements of the cause of action” may be
dismissed.

Id.

Second, I credit as true all non-conclusory

factual allegations and the reasonable inferences drawn from
those allegations, and then determine if the claim is plausible.
Id.

The plausibility requirement “simply calls for enough fact

to raise a reasonable expectation that discovery will reveal
evidence” of illegal conduct.

Twombly, 550 U.S. at 556.

The

“make-or-break standard” is that those allegations and
inferences, taken as true, “must state a plausible, not a merely
conceivable, case for relief.”

Sepúlveda–Villarini v. Dep't of

Educ., 628 F.3d 25, 29 (1st Cir. 2010); see Twombly, 550 U.S. at
555 (“Factual allegations must be enough to raise a right to
7

relief above the speculative level.”).
Federal Rule of Civil Procedure 19, governing the required
joinder of parties, “addresses situations where a lawsuit is
proceeding without a party whose interests are central to the
suit.”

Bacardí Int’l Ltd. v. V. Suarez & Co., Inc., 719 F.3d 1,

9 (1st Cir. 2013)(citing Picciotto v. Cont’l Cas. Co., 512 F.3d
9, 15 (1st Cir. 2008)).

The rule requires courts to “make

pragmatic, practical judgments that are heavily influenced by
the facts of each case.”

Id.

A party can be required to join

if, among other things, “in that person’s absence, the court
cannot accord complete relief among existing parties.”
Civ. P. 19(a)(1)(A).

Fed. R.

Joinder is thus not required under

19(a)(1)(A) if “[c]omplete relief can be afforded among those
already parties.”

Bacardí Int’l, 719 F.3d at 10.

III.

ANALYSIS

This case is procedurally complex because I must
simultaneously resolve both defendants’ motions to dismiss the
amended complaint and Bradley’s motion for joinder.

Bradley has

also increased the complexity of the case by suing Wells Fargo
as distinct defendants in its corporate capacity, as trustee of
an unnamed trust, and as Wells Fargo PSA Trustee.
8

I address

this complexity by first addressing the motions to dismiss the
amended complaint and then resolving the motion for joinder.

In

resolving both motions, I will assume for purposes of analysis
that Wells Fargo can be treated as a distinct defendant for each
capacity in which it has been sued.
A.

Motions to Dismiss
Bradley focuses his claims in the amended complaint on the

foreclosure of the mortgage and his eviction following the
foreclosure.

The proper targets for these claims are Wells

Fargo PSA Trustee, the entity that allegedly oversaw the
foreclosure and eviction, and Ocwen, the loan servicer when the
foreclosure and eviction occurred.

The amended complaint does

not allege that any of the other defendants had any involvement
in either the foreclosure or the eviction.

Accordingly, the

amended complaint is defective to the extent that it seeks to
hold these defendants liable for harm resulting from either the
foreclosure or the eviction.6

See Gikas v. JPMorgan Chase Bank,

N.A., 2013 DNH 057, 11 (finding that when defendants did not
participate in foreclosure, “it is difficult to see how
6

In dismissing these claims, I take no position on Wells
Fargo’s contention that its liability as Wells Fargo PSA Trustee
is limited to any recovery that Bradley is able to obtain from
trust assets.
9

[plaintiff] could possibly recover” from them for any alleged
wrongs visited upon him during the foreclosure).
The only other claim that Bradley presents in the amended
complaint is a claim that one or more of the defendants are
liable because a lender who was willing to refinance Bradley’s
mortgage loan “was unable to get a payoff amount from Wells
Fargo or any of the named defendants and [as a result]
plaintiffs’ loan refinance opportunity was lost.”

Doc. No. 38.

The amended complaint, however, alleges no additional facts
whatsoever about the request for a payoff - no date, no year, or
general time frame, and no party.
with no facts to support it.
viable claim for relief.
B.

This is a threadbare recital

Therefore, it too fails to state a

See Ocasio-Hernandez, 640 F.3d at 12.

Bradley’s Second Amended Complaint and Proposed
Joinder of Parties
On September 24, 2013, Bradley filed a motion to join HomEq

Servicing as a defendant pursuant to Rule 19(a)(1)(A), and
attached a proposed second amended complaint to his motion.7
7

Bradley also seeks permission to sue “Unknown agents” who, he
explains, are “those individuals or entities employed by,
contracted with, or otherwise utilized by one or more of the
other named defendants.” Bradley does not identify any specific
actions by these agents that would lead the court to believe
that it cannot accord complete relief among the existing
parties. Fed. R. Civ. P. 19(a)(1)(A). Accordingly, I decline
10

HomEq serviced the loan prior to 2010, at which point Ocwen took
over.

By ceasing servicing the loan in 2010, HomEq was not

involved in any of the foreclosure proceedings, and all claims
from the original complaint would fail against it for the same
reasons that the claims cannot succeed against Wells Fargo
Trustee, Wells Fargo, and Ameriquest.

I will consider the other

claims against HomEq below in my discussion of the applicability
of the new claims to all defendants.
1.

Validity of the Assignment

Bradley has pleaded additional facts in the proposed second
amended complaint to support his claim that the foreclosure was
invalid because the assignments on which it was based are
defective.

These new allegations do not lead to a viable claim

against HomEq because Bradley does not allege that it was
involved in the foreclosure.

The new facts are also

insufficient to support claims against Ameriquest, Wells Fargo,
or Wells Fargo Trustee.

Wells Fargo PSA Trustee and Ocwen have

not challenged the viability of the foreclosure claims in the
amended complaint.

Therefore, no purpose would be served in

allowing Bradley to file a second amended complaint merely to
his request to join the unnamed agents as defendants.
11

assert new facts against defendants who have not challenged the
sufficiency of the amended complaint.
2.

RESPA Claims

Count V of the second amended complaint includes a claim
under the Real Estate Settlement Procedures Act, (“RESPA”), for
failing to notify Bradley of a transfer of loan servicers,
impermissibly charging late fees during the transfer period, and
failing to pay Bradley’s insurance premiums, as required by
their contract.

12 U.S.C. §§ 2605(b-d),(g).

These allegations

include actions taken by HomEq in 2005 when it treated his
payments as late payments, failed to make timely insurance
payments, and failed to properly credit his payments to his
account balance.

Bradley also claims that in August 2010, HomEq

and Ocwen failed to provide notice of the transfer of servicing
of his loan.

For the latter allegation, he claims that in

August 2010, HomEq sent notice to his prior lawyers that he
never received.
Claims under RESPA are subject to a three-year statute of
limitations for claims brought under 12 U.S.C. § 2605.
U.S.C. § 2614.

12

As each of these claims began to run, at the

12

latest, in August 2010, they are each barred by the statute.8
See Da Silva v. U.S. Bank, N.A., 885 F. Supp.2d 500, 504-05 (D.
Mass. Aug. 8, 2012).

The RESPA claims would thus be futile

against all defendants.
3.

Fraud and Fraudulent Misrepresentation

Count VI alleges fraud and fraudulent misrepresentation
relating to the January 2007 Superior Court conference, in which
defendant’s counsel misrepresented to Bradley that he “would be
able to work things out” by calling a certain phone number.
Bradley further claims that in 2009, HomEq misrepresented that
8

Bradley does not argue in response to defendant’s statute of
limitations arguments that his claims relate back to the filing
of his original complaint. Fed. R. Civ. P. 15(c). One RESPA
claim, the August 2010 claim for failure to provide notice of
change of service, would not be barred by the statute of
limitations if found to relate back. However, this claim does
not arise “out of the conduct, transaction, or occurrence set
out – or attempted to be set out – in the original pleading.”
Id. at 15(c)(1)(B). The original complaint, as discussed above,
surrounds the foreclosure, with additional pleaded facts
concerning assignments and a failure to provide a pay-off
amount. This conduct is vastly different than an alleged
failure to provide notice of a transfer of servicers – one of
whom was not even mentioned in the original complaint.
Bradley’s fraud claim fails to relate back for similar reasons.
Should it relate back, the only fraud claim that would not be
barred involves the second amended complaint’s allegation that
HomEq, in 2009, misrepresented that Bradley’s loan was not in
the database – conduct that was never mentioned in the original
complaint. Thus, Bradley’s claims do not relate back to the
filing of his original complaint.
13

his loan was not in HomEq’s database, and more generally that
defendants fraudulently stated that he would be able to modify
the loan when they did not in good faith intend to consider him
for a modification.
Under New Hampshire law, a personal action must be brought
within three years of “the act or omission complained of,” or
within three years of when the act or omission was discovered or
“in the exercise of reasonable diligence should have [been]
discovered.”

N.H. Rev. Stat. Ann. § 508:4, I (statute of

limitations for personal actions).

The limitations period on

these claims expired, at the latest, in 2012.

Because they were

only asserted in September 2013, the claims are barred by the
statute of limitations, and therefore futile.

See Moore v.

Mortg. Elec. Registration Sys., Inc., 848 F. Supp. 2d 107, 12122 (D.N.H. 2012).
4.

Breach of the Duty of Good Faith and Fair Dealing

Count VII claims a breach of the duty of good faith and
fair dealing.

Here Bradley argues that the mortgage contract

afforded defendants discretion, and that they abused that
discretion by transferring servicers without proper notice and
by failing to credit Bradley’s 2005 loan payments.

The three

year New Hampshire statute of limitations applies to actions in
14

contract as well as tort, unless the claim is otherwise limited
by a particular statute.

N.H. Rev. Stat. Ann. § 508:1; 4, I.

As discussed above, each of these allegations would also be
futile by failing to fall within the state’s three year statute
of limitations.
Each of Bradley’s additional claims would be futile, and
the new parties that he seeks to join are unnecessary for this
court to afford complete relief for his claims surrounding the
foreclosure and defendants Ocwen’s and/or the Wells Fargo PSA
Trustee’s actions subsequent to foreclosing.

For the reasons

discussed above, I deny Bradley’s motion to join additional
parties and counts to this litigation.

IV.

Doc. No. 66.

CONCLUSION

For the reasons set forth above, I grant Wells Fargo’s
motion to dismiss, Doc. No. 43, Ameriquest’s motion to dismiss,
Doc. No. 51, Wells Fargo Trustee’s motion to dismiss, Doc. No.
59, and I deny Bradley’s motion for joinder, Doc. No. 66.9

9

Because I deny Bradley’s motion to join, I need not decide the
validity of the motion to strike brought by Ocwen, Wells Fargo,
Wells Fargo Trustee, and Wells Fargo PSA Trustee. Doc. No. 71.
15

SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
December 18, 2013
cc:

Ruth A. Hall, Esq.
Terrie L. Harman, Esq.
Christopher J. Fischer, Esq.
William Philpot, Jr., Esq.
John S. McNicholas, Esq.

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