Neenan v. CitiMortgage, Inc.

Filing 12

///ORDER granting in part and denying in part 5 Motion to Dismiss for Failure to State a Claim; denying 7 Motion to Remand to State Court. The only claim remaining in the case is for conversion of personal property, Count V. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Deborah A. Neenan
v.

Civil No. 13-cv-435-JD
Opinion No. 2013 DNH 163

CitiMortgage, Inc.
O R D E R
After her home was sold in a foreclosure sale on August 27,
2013, Deborah A. Neenan filed an emergency ex parte petition for
a temporary restraining order and a verified complaint against
CitiMortgage, Inc. in state court.

On September 26, 2013, the

state court granted, in part, the petition for a temporary
restraining order to maintain the status quo pending a
preliminary hearing to be held within ten days.1

CitiMortgage

removed the case to this court on October 1, 2013.
CitiMortgage now moves to dismiss Neenan’s claims.

Neenan

objects to the motion to dismiss and also moves to remand the
case to state court for lack of subject matter jurisdiction.
CitiMortgage has filed a reply to Neenan’s objection and objects
to Neenan’s motion to remand.

1

The temporary restraining order expired no later than
October 7, 2013. See N.H. Super. Ct. R. 161(a) (now N.H. Super.
Ct. R. 48).

I.

Motion to Remand
Neenan contends that this court lacks subject matter

jurisdiction under 28 U.S.C. § 1332 because her claims do not
meet the amount in controversy requirement.2

Subject matter

jurisdiction under § 1332 requires complete diversity between the
parties and an amount in controversy that exceeds $75,000.
§ 1332(a).

When subject matter jurisdiction is challenged

following removal from state court, the removing party bears the
burden to show that federal jurisdiction exists.

Ortiz-Bonilla

v. Fed’n de Ajedrez de P.R., Inc., --- F.3d ---, 2013 WL 4457427,
at *4 (1st Cir. Aug. 21, 2013).

Therefore, while diversity of

citizenship is not challenged here, CitiMortgage must show that
the amount in controversy exceeds $75,000.
In support of the notice of removal, CitiMortgage asserted
that the jurisdictional amount was met because the fair market
value of the foreclosed property exceeded $75,000.

Neenan

contends that her claims do not challenge the validity of the
foreclosure but instead seek damages for CitiMortgage’s conduct

2

As a fall-back argument, Neenan also suggests that the
court should abstain from deciding her claims because they raise
a state law policy issue pertaining to “self-help eviction.” In
support, Neenan simply cites a 1946 Fifth Circuit case and a 1980
case from the Eastern District of Wisconsin. Neither case
supports abstention here. Further, Neenan did not allege a claim
challenging “self-help eviction.”
2

after the foreclosure.

For that reason, she contends, the fair

market value of the property is not pertinent to the amount in
controversy.
Neenan alleges claims in her complaint as follows: Count I,
Willful, Criminal Trespass; Count II, Theft of Utility Services
(RSA 539:7); Count III, Unfair & Deceptive Trade Practices (RSA
Chapter 358-A); Count IV, Wrongful Eviction: Violation of RSA
540-A:2 and 3; Count V, Conversion; Count VI, Intentional
Infliction of Emotional Distress; and Count VII, Negligent
Infliction of Emotional Distress.

She seeks injunctive relief to

prohibit CitiMortgage from “continuing to deprive the Plaintiff
of lawful possession of her real property,” “from entering onto
or into the Premises,” and to enjoin CitiMortgage from recording
the foreclosure deed.

Neenan also asks for “immediate and

interim damages” of $25,000 and reserves the right to seek
additional damages.
In support of diversity jurisdiction, CitiMortgage notes
that in addition to damages, Neenan seeks injunctive relief that
would deprive CitiMortgage of ownership of the property.

For

that reason, CitiMortgage contends, the value of the property is
part of the measure of the amount in controversy.
exclusively on the damages she seeks.

3

Neenan focuses

“‘Courts have repeatedly held that the value of the matter
in controversy is measured not by the monetary judgment which the
plaintiff may recover but by the judgment’s pecuniary
consequences to those involved in the litigation.’”

Barbosa v.

Wells Fargo Bank, N.A., 2013 WL 4056180, at *4 (D. Mass. Aug. 13,
2013) (quoting Richard C. Young & Co., Ltd. v. Leventhal, 389
F.3d 1, 3 (1st Cir. 2004) and citing 14A Charles Alan Wright, et
al., Federal Practice & Procedure

§ 3702.5 (4th ed. 2011)).

When the plaintiffs challenge the right or title to the property
following a foreclosure sale, the appropriate measure of the
amount in controversy includes the value of the property in
question.

Id.; see also Bedard v. MERS, Inc., 2011 WL 1792738,

at *3 (D.N.H. May 11, 2011).
As is noted above, CitiMortgage bears the burden of showing
that the amount in controversy, including the value of the
property, exceeds $75,000.

Barbosa, 2013 WL 4056180, at *4.

CitiMortgage has demonstrated that it bought the property at
issue in this case at the foreclosure sale on August 27, 2013,
for $220,848.68.
$75,000.
§ 1332.

Therefore, the amount in controversy exceeds

Federal subject matter jurisdiction exists under
The motion to remand is denied.

4

II.

Motion to Dismiss
CitiMortgage argues that Neenan’s claims are barred because

she did not seek to enjoin the foreclosure before it occurred.
See RSA 479:25,II.

CitiMortgage also argues that even if

Neenan’s claims are not barred by the requirements of RSA
479:25,II, they should be barred because she unreasonably delayed
filing this action.

Further, CitiMortgage contends that the

claims fail on the merits as a matter of law.

A.

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.”
(internal quotation marks omitted).
5

Id.

B.

RSA 479:25,II

Any action or right of action of a mortgagor to challenge
the validity of a foreclosure is barred unless the mortgagor
instituted a petition to enjoin the foreclosure sale before it
occurred.

RSA 479:25,II.

RSA 479:25,II, therefore, “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.”
(1985).

Murphy v. Fin. Dev. Corp., 126 N.H. 536, 540

CitiMortgage contends that Neenan’s claims are barred

because she did not institute a petition to enjoin the
foreclosure sale before it occurred.
Neenan did not address the bar under RSA 479:25,II in her
complaint or in her objection to CitiMortgage’s motion to
dismiss.
Because Neenan did not file a petition to challenge the
foreclosure sale before it occurred, she is barred from
challenging the validity of the foreclosure sale.

See Magoon v.

Fed. Nat’l Mortg. Ass’n, 2013 WL 4026894, at *1 (D.N.H. Aug. 6,
2013).

As a result, to the extent Neenan’s claims are based on a

theory that the foreclosure sale is invalid, regardless of the
stated cause of action, they must be dismissed.

6

C.

Claims

Neenan’s claims are Count I, Willful, Criminal Trespass;
Count II, Theft of Utility Services (RSA 539:7); Count III,
Unfair & Deceptive Trade Practices (RSA Ch. 358-A); Count IV,
Wrongful Eviction: Violation of RSA 540-A:2 and 3; Count V,
Conversion; Count VI, Intentional Infliction of Emotional
Distress; and Count VII, Negligent Infliction of Emotional
Distress.

In response to CitiMortgage’s motion to dismiss,

Neenan asserts that CitiMortgage should be treated as a landlord
and with her as a tenant of the property sold at the foreclosure
sale, that CitiMortgage improperly evicted her from the property,
that the foreclosure sale is not complete, that CitiMortgage
stole her property, and that CitiMortgage misinterpreted her
misrepresentation claims.

1.

Criminal Trespass, Theft of Utility Services - Counts I

and II
Criminal trespass is governed by RSA 635:2,I, and theft of
utility services is governed by RSA 539:7.

CitiMortgage asserts,

and Neenan does not dispute, that no private cause of action
exists under those statutes.

See, e.g., Snierson v. Scruton, 145

N.H. 73, 79 (2000); Marquay v. Eno, 139 N.H. 708, 715-16 (1995).
Therefore, Counts I and II are dismissed.
7

2.

Violation of RSA 358-A - Count III

Neenan alleges that CitiMortgage violated New Hampshire’s
Consumer Protection Act, RSA 358-A, because “[t]he Defendant’s
acts constitute unfair and deceptive acts or practices prohibited
by RSA 358-A:2.”

Compl. ¶ 30.

She has not alleged any facts to

support the bare conclusory statement, which dooms the claim
under the Rule 12(b)(6) standard.

See Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009).
In addition, CitiMortgage moves to dismiss on the ground
that it is exempt from RSA 358-A because it is subject to the
jurisdiction of the bank commissioner.

See RSA 358-A:3; Monzione

v. U.S. Bank, N.A., 2013 WL 310013, at *3 (D.N.H. Jan. 25, 2013).
Neenan does not dispute CitiMortgage’s immunity and does not
pursue her claim under RSA 358-A in her objection to the motion
to dismiss.

3.

Wrongful Eviction - Count IV

Neenan alleges in Count IV that CitiMortgage wrongfully
evicted her in violation of RSA 540-A:2 and 540-A:3.
CitiMortgage moves to dismiss on the ground that it was not and
is not Neenan’s landlord.

In her objection to the motion to

dismiss, Neenan asserts that CitiMortgage “exercised dominion and
control” over her property and should be treated as a landlord
8

under RSA 540-A:2 and that CitiMortgage impermissibly exercised
self-help eviction.

a.

Chapter 540-A - Landlord-Tenant

In support of her claim that CitiMortgage wrongfully evicted
her in violation of RSA 540-A:2 and RSA 540-A:3, Neenan relies on
Case v. St. Mary’s Bank, 164 N.H. 649, 655 (2013),
Four Realty, LLC, 164 N.H. 570 (2013).

Evans v. J

In Case, the plaintiff

was a tenant in a building owned by a landlord who had financed
the purchase of the property through two mortgages from St.
Mary’s Bank.

Id., 164 N.H. at 651.

The bank conducted a

foreclosure sale of the property, which was stayed by the
landlord’s bankruptcy filing.

Id. at 652.

The building became

uninhabitable due to lack of upkeep; the city prohibited
occupancy, and the tenant could no longer live in his apartment.
Id.

The bank then sold the property at a foreclosure sale.

Id.

When the tenant returned to his apartment after the sale, the
door was open and many of his possessions were missing.

Id.

The

New Hampshire Supreme Court rejected the plaintiff’s claims
against the bank, holding that the bank was not the owner of the
property and not a landlord, within the meaning of RSA 540-A:1.
Id. at 657-58.

9

In this case, no landlord-tenant relationship existed
between Neenan and CitiMortgage before the foreclosure sale.
Neenan has not alleged facts to support a theory that
CitiMortgage was or is her landlord within the meaning of RSA
540-A:1.

Neither the analysis nor the holding in Case supports

Neenan’s claims here.
Neenan’s reliance on Evans v. J Four Realty, LLC, 164 N.H.
570 (2013), is misplaced for the same reasons.

Unlike the

plaintiff in Evans, Neenan has not alleged facts to show that she
was a tenant in the property sold at the foreclosure sale.

In

Evans, the plaintiff was a tenant of the property prior to the
foreclosure sale and became a tenant at sufferance after the
sale.

Id. at 576.

The buyer at the foreclosure sale was deemed

not to be a landlord within the meaning of RSA chapter 540-A
because the plaintiff’s prior lease was with the prior owner.
Id.

Neenan has not alleged grounds to support a persuasive

theory of wrongful eviction in the circumstances of this case.

b.

Impermissible Self-Help Eviction

Although Neenan argues a theory of impermissible self-help
eviction in her objection to CitiMortgage’s motion to dismiss,
she did not allege that claim in her complaint.

As a result, she

has not alleged facts to support a claim of wrongful self-help
10

eviction.

See RSA 540:12; Evans, 164 N.H. at 577-78; Greelish v.

Wood, 154 N.H. 521, 527 (2006).

4.

Conversion - Count V

In support of her conversion claim, Neenan alleges that
CitiMortgage “wrongfully took possession of the Plaintiff’s
personal property with an improper purpose” and “wrongfully took
possession of the Plaintiff’s Premises with an improper purpose.”
CitiMortgage moves to dismiss on the grounds it owns the
“Premises” and that the conversion claim fails as to her personal
property because she had abandoned that property when she did not
remove it and did not notify CitiMortgage that she did not intend
to abandon the property.
Neenan alleges that the Premises were “allegedly” sold at a
foreclosure sale on August 27, 2013, and that the locks were
changed on August 30.

She alleges that between August 20 and

September 6, 2013, she made several unsuccessful “attempts to
regain possession of her Premises by telephoning the Defendant
[CitiMortgage].”

Compl. ¶ 11.

On September 6, 2013,

CitiMortgage allowed her to enter the Premises, and she found
that the utilities had been terminated and “tagged” as if the
Premises was being winterized and that the Premises was reported
as vacant to her insurance company.
11

Neenan further alleges that “[a]t all relevant times [she]
had personal property at the Premises and resided there.”
¶ 14.

Compl.

She states that she “returned home from work on Friday,

September 20, 2013 to find that all of her personal belongings
had been removed from the Premises.”

Compl. ¶ 17.

CitiMortgage

told Neenan on September 23 that her personal property had been
taken to the “local Waste Management site.”

Compl. ¶ 19.

Neenan

has been unable to find her personal property.
“An action for conversion is based on the defendant’s
exercise of dominion or control over goods which is inconsistent
with the rights of the person entitled to immediate possession.”
Rinden v. Hicks, 119 N.H. 811, 813 (1979); Riggs v. Peschong,
2009 WL 604369, at *3 (D.N.H. Mar. 5, 2009).

The party asserting

conversion bears the burden of showing her right to property and
that the defendant’s actions were unlawful.
65 F.3d 986, 991 (1st Cir. 1995).

Marcucci v. Hardy,

Abandonment or apparent

abandonment is a complete defense to conversion.

Rinden, 119

N.H. at 813.

a.

Premises

Neenan argues that CitiMortgage had not become the owner of
the Premises when she filed her complaint because it had not
recorded the foreclosure deed and because the state court
12

injunction precludes recording the deed.3

As CitiMortgage points

out, Neenan lost both equitable and legal interest in the
Premises when CitiMortgage bought the property at the foreclosure
sale on August 27, 2013.4
(1996).

Barrows v. Boles, 141 N.H. 382, 393

Although legal title to property sold at a foreclosure

sale does not pass to the purchaser until the deed and affidavit
are recorded, RSA 479:26, that requirement does not affect the
former mortgagor’s interest in the foreclosed property.
141 N.H. at 393.

Barrows,

Therefore, Neenan lost her interest in the

Premises at the foreclosure sale and has not alleged facts to
show that she had any right to the Premises after the sale.

b.

Personal Property

Neenan alleges that CitiMortgage is liable in conversion for
the loss of her personal property.

CitiMortgage contends that

Neenan abandoned the personal property left in the Premises and
failed to notify CitiMortgage that she did not intend to abandon
the property.

Under New Hampshire law, however, “abandonment

3

As noted above and by CitiMortgage in its reply, the state
court injunction expired in early October of 2013.
4

The operation of bankruptcy law discussed in In re Beeman,
235 F.R. 519, 524 (Bankr. D.N.H. 1999), has no effect here when
no petition in bankruptcy has been filed. See In re Carbonneau,
499 B.R. 166, 171 (Bankr. D.N.H. 2013).
13

requires ‘both the intent to abandon the [chattel] and an overt
act of abandonment.’”

Foley v. Town of Lee, 871 F. Supp. 2d 39,

56 (D.N.H. 2012) (quoting New Hampshire v. Elementis Chem., Inc.,
152 N.H. 794, 802-03 (2005)).
In response, Neenan states that she did not abandon her
property because she was living at the Premises at the time of
the foreclosure sale and continued to live there “but for being
locked out of her own home.”

Despite that statement, it appears

from the allegations in the complaint that Neenan left the
Premises on or before August 20 and did not return to the
Premises until CitiMortgage gave her access on September 6.

When

Neenan returned to the Premises on September 6, she found that
the utilities had been turned off and that the Premises had been
reported as vacant to her insurance company.
left personal possessions there.

Nevertheless, she

When Neenan visited two weeks

later on September 20, she discovered that her personal property
had been removed.5

CitiMortgage does not suggest that it gave

Neenan notice that her personal property would be removed from
the Premises.

5

Neenan says that she “returned home from work” that day,
although her allegations indicate that she had not lived at the
Premises since August 20.
14

Although CitiMortgage’s defense of abandonment may
ultimately prevail, the claim of conversion of personal property
cannot be resolved on the pleadings.

Taking the facts alleged in

the complaint in the light most favorable to Neenan, it is not
clear that Neenan both intended to abandon the property left at
the Premises and that she took an overt act of abandonment.
Foley, 871 F. Supp. 2d at 56.

See

Therefore, the claim cannot be

dismissed at this stage of the proceedings.

5.

Emotional Distress - Counts VI and VII

CitiMortgage moves to dismiss Neenan’s claims for negligent
and intentional infliction of emotional distress on the grounds
that she has not alleged the essential elements of either claim.
In support of negligent infliction of emotional distress, Neenan
states:

“The Defendant did commit the above-referenced acts

negligently. [] As a direct and proximate cause of the
Defendant’s acts, the Plaintiff has suffered weight-loss,
anxiety, vomiting, sleeplessness, crying, embarrassment,
confusion, depression, pain, anger, confusion and pain.”
¶¶ 43 & 44.

Compl.

Her intentional infliction of emotional distress

claim is the same except that it alleges that CitiMortgage acted
“intentionally”.

In her objection, Neenan simply lists the

elements of a claim of negligent infliction of emotional
15

distress, without discussion or factual analysis, states that she
has alleged the “necessary elements,” and asserts that a claim of
intentional infliction of emotional distress raises a “question
of fact.”
To avoid dismissal under Rule 12(b)(6), a plaintiff must
allege facts to support the claim.

She “must articulate ‘more

than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.’”

Edlow v. RBW, LLC,

688 F.3d 26, 31 (1st Cir. 2012) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
Neenan does not allege what CitiMortgage did negligently or
intentionally that caused her emotional distress.

See Tessier v.

Rockefeller, 162 N.H. 324, 342 (2011) (elements of negligent
infliction of emotional distress); id. at 341 (elements of
intentional infliction of emotional distress).

In addition, with

respect to her intentional infliction of emotional distress
claim, Neenan fails to provide any facts that would support a
claim of extreme or outrageous conduct.

Id.

Because Neenan’s

allegations in the complaint provide only conclusory repetition
of the elements of the causes of action, albeit with some facts
about the injuries she claims, she has not sufficiently alleged
claims for infliction of emotional distress to avoid dismissal.

16

Conclusion
For the foregoing reasons, the plaintiff’s motion to remand
(document no. 7) is denied.

The defendant’s motion to dismiss

(document no. 5) is granted as to Counts I, II, III, IV, V - as
to conversion of the Premises, VI, and VII.

The motion is denied

as to that part of Count V alleging conversion of personal
property.

The only claim remaining in the case is for conversion

of personal property.

SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
November 26, 2013
cc:

William J. Amann, Esquire
Katherine Ann Guarino, Esquire
Alexander G. Henlin, Esquire
John A. Houlihan, Esquire

17