Burke, III v. Wells Fargo Bank. N.A., Trustee

Filing 9

///ORDER granting 5 Motion to Dismiss. The dismissal is, however, without prejudice. In his complaint, Burke sought leave to amend to include additional claims and/or defendants pending further discovery as justice so requi res. It is not clear why Burke failed to include these allegations in his original complaint. However, as Burke is pro se, the court grants him the leave he has requested. Accordingly, on or before January 16, 2015, Burke shall file an amended complaint or the court will dismiss this case with prejudice. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

John C. Burke, III
v.

Civil No. 14-cv-326-LM
Opinion No. 2014 DNH 252

Wells Fargo Bank, N.A.,
as Trustee on behalf of the
holders of Harborview Mortgage
Loan Pass-Through Certificates
2006-12

O R D E R
Wells Fargo Bank, N.A., as Trustee on behalf of the holders
of Harborview Mortgage Loan Pass-Through Certificates 2006-12
(“Wells Fargo”), foreclosed on the Derry, New Hampshire property
(the “property”) of John C. Burke, III.

Burke, acting pro se,

filed suit in state court seeking to enjoin Wells Fargo from
proceeding with a possessory action on the property.

After

removing the suit to this court, Wells Fargo filed a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
Burke filed no response.

For the reasons set forth below, the

motion to dismiss is granted.
Legal Standard
Ruling on 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.”
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

When considering

such a motion, 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)
(en banc)).

To survive a Rule 12(b)(6) motion, a complaint

“must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”
González-Maldonado v. MMM Healthcare, Inc., 693 F.3d 244, 247
(1st Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
The court construes Burke’s complaint liberally because he
is proceeding pro se.

See Erikson v. Pardus, 551 U.S. 89, 94

(2007) (per curiam).

“However, pro se status does not insulate

a party from complying with procedural and substantive law.
Even under a liberal construction, the complaint must adequately
allege the elements of a claim with the requisite supporting
facts.”

Chiras v. Associated Credit Servs., Inc., 12-10871-TSH,

2012 WL 3025093, at *1 n.1 (D. Mass. July 23, 2012) (citing

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Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997)
(citations and internal quotation marks omitted)).
Factual Background
In October of 2006, Mortgage Electronic Registration
Systems, Inc., as nominee for Countrywide Bank, N.A., issued a
mortgage to John and Derika Burke, secured by the property.

The

record suggests that the mortgage was subsequently conveyed to
Wells Fargo.

In February of 2013, Wells Fargo sold the property

to itself at a public foreclosure sale.
Approximately a year later, Wells Fargo recorded the
foreclosure deed in the Rockingham County Registry of Deeds,
along with an affidavit, as required by New Hampshire law.
N.H. Rev. Stat. Ann. (“RSA”) 479:26.

See

Both the foreclosure deed

and the affidavit were executed by Select Portfolio Servicing,
Inc. (“Select Portfolio”), Wells Fargo’s attorney-in-fact.
The foreclosure deed and accompanying affidavit both
referenced a power of attorney “recorded herewith,” purportedly
authorizing Select Portfolio to take certain actions on behalf
of Wells Fargo.

However, a power of attorney was not included

with the foreclosure deed or the affidavit.
Burke brought this action in state court alleging that
Wells Fargo violated RSA 479:26, and acted in a deceptive and
unfair manner in violation of the New Hampshire Consumer

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Protection Act, RSA 358-A et seq. (“CPA”), by referencing but
failing to record the power of attorney.

Burke seeks a

declaration that the foreclosure deed is invalid, and he asks
that the court enjoin the pending possessory action.
Discussion
Wells Fargo is correct that New Hampshire law did not
require it to record a power of attorney with the foreclosure
deed.

Rather, “New Hampshire law provides that a power of

attorney may be recorded . . . but [it] does not require
recording.”

Calef v. Citibank, N.A., No. 11-cv-526-JL, 2013 WL

653951, at *5 (D.N.H. Feb. 21, 2013) (emphasis added) (citations
and internal quotation marks omitted); see also RSA 477:9 (a
power of attorney “may be recorded as required for a deed . . .
.”) (emphasis added).

Thus, Wells Fargo’s failure to record a

power of attorney with the foreclosure deed and accompanying
affidavit did not violate RSA 479:26, nor did it render the
foreclosure deed invalid.
Because Burke has failed to plead an actionable violation
of 479:26, his claim under the CPA must also fail.

The CPA

prohibits the use of “any unfair method of competition or any
unfair or deceptive act or practice in the conduct of any trade
or commerce within [the State of New Hampshire].”

RSA 358-A:2.

Because Burke has not demonstrated that Wells Fargo was under

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any legal obligation to file a power of attorney with the
foreclosure deed or the affidavit, Burke cannot show that Wells
Fargo acted in an unfair or deceptive manner.

Thus, there are

no grounds on which the court could enjoin the possessory
action, and Wells Fargo is entitled to dismissal of Burke’s CPA
claim.
Conclusion
For the foregoing reasons, Wells Fargo’s unopposed motion
to dismiss (doc. no. 5) is granted.
however, without prejudice.

The court’s dismissal is,

In his complaint, Burke sought

leave to amend to “include additional claims and/or defendants
pending further discovery as justice so requires.”
doc. no. 1.4 at 3.

Complaint,

It is not clear why Burke failed to include

these allegations in his original complaint.

However, as Burke

is pro se, the court grants him the leave he has requested.
Accordingly, on or before January 16, 2015, Burke shall file an
amended complaint or the court will dismiss this case with
prejudice.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
December 16, 2014
cc:
John C. Burke, III
Nathan R. Fennessy, Esq.

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