Magoon et al v. Federal National Mortgage Association

Filing 9

///ORDER granting 5 Motion to Dismiss for Failure to State a Claim. Clerk to enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Karen M. Magoon and
Brian Magoon
v.

Civil No. 13-cv-250-JD

Federal National
Mortgage Association
O R D E R
Karen and Brian Magoon, proceeding pro se, brought an action
in state court, captioned “Plea of Title,” challenging the
foreclosure sale of their home by Federal National Mortgage
Association (“FNMA”).

FNMA removed the case to this court based

on diversity jurisdiction.

FNMA moves to dismiss the case.

The

Magoons object.

Standard of Review
Federal Rule of Civil Procedure 12(b)(6) allows a defendant
to move to dismiss on the ground that the plaintiff’s complaint
fails to state a claim on which relief can be granted.

In

assessing a complaint for purposes of a motion to dismiss, the
court “separate[s] the factual allegations from the conclusory
statements in order to analyze whether the former, if taken as
true, set forth a plausible, not merely conceivable, case for
relief.”

Juarez v. Select Portfolio Servicing, Inc., 708 F.3d

269, 276 (1st Cir. 2013) (internal quotation marks omitted).

“If

the facts alleged in [the complaint] allow the court to draw the
reasonable inference that the defendants are liable for the
misconduct alleged, the claim has facial plausibility.”

Id.

(internal quotation marks omitted).

Background
The Magoons state in the “Plea of Title” that FNMA “alleges”
that it foreclosed on their home as part of an eviction
proceeding against them.

The eviction proceeding “has been bound

over to Superior Court after title issues were raised at the
district Court [sic] level.”

The Magoons state that FNMA was

obligated in the eviction proceeding to show that “it has legal
standing . . . pursuant to RSA 540:12.”
The Magoons allege that the foreclosure deed on the property
that was their home has been recorded in the Rockingham County
Registry of Deeds.

They challenge the foreclosure deed on the

ground that there is “confusion as to who the true owner in
interest of the mortgage debt really was.”

Discussion
The “Plea of Title” is brought pursuant to RSA 479, II-a,
pertaining to challenges to “the form of notice, manner of giving
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notice, [and] the conduct of the foreclosure sale.”

FNMA moves

to dismiss the action on the ground that under RSA 479, II,
actions “based on the validity of the foreclosure” are barred
unless the mortgagor brought a petition to enjoin the foreclosure
before the sale occurred.

In response, the Magoons repeat the

allegations in their complaint and assert that FNMA did not
establish that it was the owner of the property, pursuant to RSA
540:12, for purposes of the foreclosure.
RSA 540:12 provides for possessory action by an owner, a
lessor, or a purchaser at a mortgage foreclosure sale.
Fargo Bank v. Schultz, 164 N.H. 608, 610-11 (2013).

See Wells

RSA 479:25

provides procedures required for a foreclosure sale, a time limit
for bringing claims to challenge the notice or conduct of the
foreclosure sale, and a bar to actions challenging the validity
of a foreclosure sale unless a petition to enjoin the sale was
filed.
RSA 479:25, II “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.”
Fin. Dev’t Corp., 126 N.H. 536, 540 (1985).

Murphy v.

Claims based on the

alleged invalidity of an assignment of the mortgage are barred by
RSA 479:25, II unless the plaintiff petitioned to enjoin the

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foreclosure sale.

Calef v. Citibank, N.A., 2013 WL 653951, at *4

(D.N.H. Feb. 21, 3013).
The Magoons do not allege or assert that they filed a
petition to enjoin the foreclosure before the sale occurred as is
required by RSA 479:25, II.

A petition filed before the

foreclosure sale is a prerequisite to challenging the validity of
the foreclosure.

Therefore, their “Plea of Title” is barred.

Conclusion
For the foregoing reasons, the defendant’s motion to dismiss
(document no. 5) is granted.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
August 6, 2013
cc:

Alexander G. Henlin, Esquire
Brian Magoon, pro se
Karen M. Magoon, pro se

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