Sharp v. Deutsche Bank National Trust Company, Trustee

Filing 17

/// ORDER granting defendant's 4 Motion to Dismiss; denying plaintiff's 13 Motion to Amend. The injunction issued by Judge Abramson on August 7, 2014, is hereby dissolved. The clerk of court shall close the case. So Ordered by Judge Landya B. McCafferty.(jbw)

UNITED

STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Douglas T.

Sharp
Civil No.

V.

14-CV-369-LM

Opinion No. 2015 DNH 155
Deutsche Bank National

Trust Company/

As Trustee

For Morgan Stanley ABS
Capital Inc. Trust 2006-HE3

ORDER

In a case that has been removed from the Hillsborough
County Superior Court, Douglas Sharp seeks to enjoin Deutsche
Bank National Trust Company {"Deutsche Bank") from foreclosing
on his mortgage.
because it:

(1)

He claims that Deutsche Bank cannot foreclose
lacks the authority to do so (Count I); and (2)

breached the implied covenant of good faith and fair dealing
(Count II).

In addition, he seeks to amend his complaint to add

Wells Fargo Bank, N.A.

("Wells Fargo") as a defendant, and to

assert a claim that Wells Fargo and Deutsche Bank violated the
Real Estate Settlement Procedures Act

2601-2617.

(RESPA),

12 U.S.C.

§§

Deutsche Bank objects to Sharp's motion to amend as

futile and moves to dismiss his complaint for failure to state a
claim upon which relief can be granted.

The court heard oral

argument on Deutsche Bank's motion to dismiss on November 18,

2014.

For the reasons that follow, Sharp's motion to amend is

denied, and Deutsche Bank's motion to dismiss is granted.

I.

Background

The facts in this section are drawn from Sharp's Amended

Verified Complaint, document no. 1-1, his proposed Second
Amended Complaint, document no. 13-2, and certain documents that
are attached to those complaints or that are appropriatelyconsidered in conjunction therewith.
Bank, N.A.,

Page,

772 F.3d 63,

987 F.2d 1, 3-4

71-72

See Foley v. Wells Fargo

{1st Cir. 2014); Watterson v.

(1st Cir. 1993)

(describing documents

courts may consider when ruling on a motion to dismiss).
On December 21, 2005, plaintiff's father, Martin Sharp,^
executed a promissory note in favor of New Century Mortgage

Corporation ("New Century"), in exchange for a loan of $60,000.
On the same day that Martin executed the promissory note, Martin
and Douglas granted a mortgage to New Century to secure the
loan.

The mortgage, in turn, encumbered a property in

Goffstown, New Hampshire, that Martin and Douglas owned as joint
tenants with the right of survivorship.

^ In this order, the court refers to plaintiff as "Sharp" or
"Douglas" and refers to his father as "Martin."

Notwithstanding the fact that the promissory note
identifies Martin as the sole borrower,

see State Ct. R.

{doc.

no. 3-1) 44 of 106, the mortgage defines the term ^^Borrower" to

mean ''Martin F[.] Sharp, a single person and Douglas T. Sharp [,]
a married person," id. at 2 of 106.

In a section titled "Joint

and Several Liability; Co-signers; Successors and Assigns
Bound," the mortgage provides, in pertinent part:
Borrower covenants and agrees that Borrower's

obligations and liability shall be joint and several.
However, any Borrower who co-signs this Security
Instrument but does not execute the Note

(a "co

signer"): (a) is co-signing this Security Instrument
only to mortgage, grant and convey the co-signer's
interest in the Property under the terms of this
Security Instrument; (b) is not personally obligated
to pay the sums secured by this Security Instrument;
and (c) agrees that Lender and any other Borrower can
agree to extend, modify, forbear or make any
accommodations with regard to the terms of this
Security Instrument or the Note without the cosigner's consent.

Id. at 11 of 106.

Additionally,

in a section titled

"Acceleration; Remedies," the mortgage provides that if the
borrower defaults, and the default is not cured in a timely

manner, "Lender at its option may require immediate payment in
full of all sums secured by this Security Instrument without

further demand and may invoke the STATUTORY POWER OF SALE and
any other remedies permitted by Applicable Law."
106.

Id. at 14 of

New Century has executed two documents purporting to assign
the Sharps' mortgage.

On December 28, 2005, New Century

executed a document titled "Assignment of Mortgage," which
appeared to assign the Sharps' mortgage to Deutsche Bank ("the
2005 assignment").

Id. at 24 of 106.

That document was

recorded in the Hillsborough County Registry of Deeds almost two
years later, on October 3, 2007.

On February 27, 2012, Wells

Fargo, acting as attorney-in-fact for New Century, executed a
second document purporting to assign the Sharps' mortgage to
Deutsche Bank ("the 2012 assignment").

See id. at 29 of 106.

That document was recorded in the Hillsborough County Registry
of Deeds on March 13,

2012.

In April of 2007, after the 2005 assignment was executed,
but before i t was recorded. New Century filed for bankruptcy
protection.

In 2008, the bankruptcy court ordered New Century

to convey all of its assets into a liquidating trust.
Martin Sharp died in 2009.

Sometime after Martin's death,

the complaint does not say when, Douglas stopped making mortgage

payments.

In June of 2014, Deutsche Bank sent him notice of a

foreclosure sale.

He responded by sending a letter, titled

"Request for Postponement," to Deutsche Bank's mortgage

servicer, America's Servicing Company ("ASC").
states:

The letter

I, Douglas T. Sharp, request to postpone the trustees
sale of the property located at 28 Joffre St.
Goffstown, N.H. 03102, to take place on July 24, 2014,
in order to organize legal documentation as well as
loan modification or sale of the property.

Second Am. Compl., Attach. 8 (doc. no. 13-10), at 6 of 12.

In a

letter dated eight days later and addressed to Martin, ASC
stated:

We're writing to let you know that we've received an
inquiry from Douglas Sharp on your behalf. Since we
don't have authorization to respond directly to

Douglas Sharp we will be responding to you.
We are currently reviewing the inquiry, and expect to
complete our research and provide you with the results
on or before August 04, 2012.

Id. at 7 of 12.

Four days after that, ASC wrote directly to

Douglas, explaining that he ''was able to receive certain
information for the loan but not the specific information he

requested."

As the "Request for Postponement" does not include

any request for information, it is not clear what information
Sharp requested from ASC.

Shortly thereafter. Sharp filed an action in the

Hillsborough County Superior Court seeking to enjoin the
foreclosure sale.

Subsequently, Sharp filed an amended

complaint claiming that Deutsche Bank had no authority to
foreclose on his mortgage and had violated the implied covenant
of good faith and fair dealing.

On August 7, 2014, New

Hampshire Superior Court Judge Gillian Abramson issued a

temporary injunction, enjoining Deutsche Bank from foreclosing
on Sharp's mortgage.

Deutsche Bank removed the suit to this

court thereafter, and moved to dismiss Sharp's amended complaint

for failure to state a claim upon which relief can be granted.
In September of 2014, Mari DeBlois of The Way Home, a

housing advocacy group, reported to Douglas's counsel that she
had attempted to obtain information about Martin's loan from ASC

on Douglas's behalf, but had been repeatedly rebuffed on grounds
that she was not properly authorized to receive such

information.

In February of 2015, after Deutsche Bank moved to

dismiss Sharp's amended complaint, but before the court ruled on
Deutsche Bank's motion, Sharp sent two letters to Wells Fargo,
one styled as a

"request for information" pursuant to 12 C.F.R.

§ 1024.36, the other styled as a "notice of error" pursuant to
12 C.F.R.

§

1024.35.

In his request. Sharp identified six different kinds of

information he was seeking, all related generally to the topic
of assuming Martin's status as the borrower of the loan that

Martin had received from New Century.

Presumably as a result of

a typographical error in Sharp's request for information. Wells
Fargo construed i t as a request for the identity of the owner of
the mortgage loan, and provided only that information.

In his notice of error. Sharp asserted that ASC;

(1)

violated 12 C.F.R. § 1024.35(b)(7) by telling him that he was
not entitled to receive infonnation about his father's

loan and

telling DeBlois that she was not properly authorized to receive
information about Martin's loan; and

(2)

violated 12 C.F.R.

§

1024.35(b)(11) by telling DeBlois that she was not properly
authorized to receive information about Martin's loan.

Wells

Fargo responded to Sharp's notice of error by sending him a
four-page letter explaining its decision not to provide him with
information about his father's

loan.

Based upon the foregoing. Sharp now moves to amend his
complaint to:

(1) add Wells Fargo as a defendant; and (2) add a

claim for damages under RESPA against Wells Fargo and Deutsche
Bank arising from the responses he received to his request for
information and his notice of error.

II.

Discussion

The court begins with Sharp's motion to amend and then
turns to Deutsche Bank's motion to dismiss.

A. Motion to Amend

1. The Legal Standard

Because the time for Sharp to file a motion to amend as of

right under Rule 15(a)(1) of the Federal Rules of Civil

Procedure has run, the court's disposition of his motion falls

under Rule 15(a)(2).

Rule 15(a)(2) provides that a party who is

no longer able to amend the complaint as of right may amend only
with the court's leave, and that "[t]he court should freely give

leave when justice so requires."

Fed. R.

Civ. P. 15(a)(2).

Because the proposed amendment seeks to add a new party,

"the

motion is technically governed by Rule 21, which provides that
^the court may at any time, on just terms, add or drop a party.
.

.

."

Garcia v.

F.R.D. 160,

165

Pancho Villa's of Huntington Vill.,

(E.D.N.Y.

2010)

(citations omitted).

Inc.,

268

"However,

the same standard of liberality applies under either [Rule 15(a)
or 2 1 ] I d .

(internal quotation marks omitted).

The court may deny a motion to amend "for any adequate

reason apparent from the record," including futility of the
proposed amendment.

Todisco v. Verizon Commc'ns,

95, 98 (1st Cir. 2007)
30 F.3d 251, 253

Inc., 497 F.3d

(quoting Resolution Trust Corp. v. Gold,

(1st Cir. 1994)).

"In assessing futility,

the

district court must apply the standard which applies to motions
to dismiss under Fed. R.

Towing & Transp. Co.,

Civ.

P.

12(b)(6)."

443 F.3d 122, 126

Adorno v.

(1st Cir.

Crowley

2006).

Under Rule 12(b)(6), the court must accept the factual

allegations in the complaint as true,

construe reasonable

inferences in the plaintiff's favor, and "determine whether the

factual allegations in the plaintiff's complaint set forth a
plausible claim upon which relief may be granted."

Foley, 772

F.3d at 71 (citations and internal quotation marks omitted).

A

claim is facially plausible ''when the plaintiff pleads factual
content that allows

the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged."
Ashcroft V.

Iqbal,

556 U.S. 662,

678

(2009).

Analyzing

plausibility is "a context-specific task" in which the court
relies on its "judicial experience and common sense."

Id. at

679.

2. Analysis

In the RESPA claim that Sharp seeks to add to his

complaint, he asserts that Wells Fargo and Deutsche Bank:

(1)

failed to provide him with the documentation he asked for in his
request for information, in violation of 12 C.F.R. §
1024.36(d)(1); and (2)

failed to correct the mistakes he

identified in his notice of error or provide an adequate

explanation of their belief that no mistake had been made, in
violation of 12 C.F.R. § 1024,35(e)(1)(i).

Deutsche Bank argues

that Sharp's motion to amend should be denied on grounds of

futility because Sharp lacks standing to bring the claim he
seeks to assert.
Bank,

Sharp lacks standing, according to Deutsche

because he was not a

borrower on the loan that was secured

by the mortgage that he and his father granted to New Century.
The court agrees.

The claim that plaintiff seeks to add is based upon several
different provisions in RESPA's regulations.

Those provisions

describe the duties owed by mortgage loan servicers to
"borrowers."

12 C.F.R.

§§ 1024.35 (e) (1) (i)

& 1024.36(d)(1).

RESPA itself also speaks of the duties owed by loan servicers to
borrowers.

See^

e.g.,

12 U.S.C.

§§ 2605(e)(1)(A)

& (2).

And,

when those duties are breached, RESPA establishes that a
violator is liable to a

borrower.

See 12 U.S.C.

§ 2605(f).

The

statute and the regulations on which Sharp bases his claim speak
of duties owed by mortgage loan servicers to borrowers but say

nothing about duties owed to mortgagors.
regulations define the term "borrower."

Neither RESPA nor its
While a statutoiry

definition of the term "borrower" would certainly make it easier

for the court to determine whether Sharp has standing to bring a
RESPA claim, there is ample judicial authority on that point.
In a

recent case out of the Eastern District of California,

the court construed the RESPA provisions at issue here.
V. Wells Fargo Bank N.A.,

2011 WL 2118889

No.

CIV 2:ll-cv-0401-GEB-JFM

(PS),

(E.D. Cal. May 27, 2011), report and

recommendation adopted by 2011 WL 2785492

2011).

Singh

(E.D. Cal. July 11,

In Singh, the plaintiff and his wife owned a parcel of

10

real property as joint tenants.

Id. at *1.

The plaintiff's

wife was the sole borrower on a loan that was secured by a

mortgage on the couple's property, and the mortgage listed both

the plaintiff and his wife as borrowers.

See id.

The plaintiff

sued the mortgagee in multiple counts, including one under
RESPA.

See id. at *2.

Magistrate Judge Moulds recommended

dismissal of the RESPA claim for failure to satisfy Rule 8(a)(1)
of the Federal Rules of Civil Procedure.

See id.

a t *3.

He

also addressed the plaintiff's RESPA claim substantively.
id.

See

After pointing out that the complaint suggested that i t

might have been brought under either 12 U.S.C. § 2605 or 12
U.S.C.

§ 2607, he had this to say:

Regardless of the particular section [of RESPA]
identified by plaintiff, the RESPA claim must fail
because he is not a

borrower on the loan.

See,

e.g.,

Wilson V. JPMorgan Chase Bank, N.A., [No. CIV. 2:09863 WBS GGH,] 2010 WL 2574032 (E.D. Cal. [June 25,]

2010).
Insofar as plaintiff contends there were RESPA
violations at the time of the origination of the loan,
plaintiff lacks standing as he did not sign the

Promissory Note.
See id.
To the extent plaintiff
argues that he submitted a QWR [qualified written
request] to Wells Fargo, Wells Fargo only had the duty
to respond to QWRs sent "from the borrower"—in this
case, [the plaintiff's wife].
Wells Fargo was under
no obligation to respond to any requests sent by
plaintiff.
See 12 U.S.C. § 2605(e)(1)(A).

Id. at *4.

Based upon the foregoing,

the court determined that

the plaintiff's RESPA claim failed as a matter of law.

11

See id.

Wilson involved a RESPA claim against a mortgage loan
servicer for failing to respond to the plaintiff's request for
information pursuant to 12 C.F.R, § 1024.36.

2574032, at *9.

See 2010 WL

In Wilson, the plaintiff and her husband

mortgaged a property they owned jointly to secure a loan that
was made to the plaintiff's husband alone.

See id. at *1.

The

plaintiff's RESPA claim was based upon a qualified written
request {"QWR") 2 she submitted to the lender and the mortgage
loan servicer.

See id.

At some point before the plaintiff

filed suit her husband died.

Judge Shubb dismissed the RESPA

claim this way:
P l a i n t i f f ' s RESPA claims must f a i l because she

explicitly alleges that she was "not a borrower of the
loan."
Under RESPA, a servicer only has the duty to
respond to QWRs sent "from the borrower," and
accordingly defendant was under no obligation to
respond to plaintiff's QWR. See 12 U.S.C. §
2605(e)(1)(A).
Accordingly, plaintiff cannot recover
for defendant's failure to respond to her improper
QWR.

Id.

(citation to the record omitted).

Here, while Sharp points out that he was named as a
borrower in the mortgage, he does not allege that he was a
borrower on the loan and,
bear his signature.

indeed,

the promissory note does not

Thus, with regard to his relationship to

2 "Qualified written request" is a statutory term for an
inquiry from a borrower to a mortgage loan servicer.
See 12
U.S.C.

§ 2605(e)(1)(B).

12

the loan that was secured by the mortgage on his property, Sharp

stands in the same position as the plaintiffs in Singh and
Wilson.

Sharp has identified no judicial authority running

counter to Singh and Wilson, and the court has been unable to

locate any.

Accordingly, the court concludes that Sharp lacks

standing to assert a claim under 12 U.S.C. § 2605(f) based upon

Wells Fargo's responses to his request for information and his
notice of error.^

Because he lacks standing, his motion to amend

must be denied on grounds of futility.
The court notes, however, that while plaintiff's RESPA
claim arises under 12 U.S.C.

§ 2605(f)

and i t s related

regulations, i.e., 12 C.F.R. §§ 1024.35 & 1024.36, his reply
brief directs the court's attention to another regulation that.

3 At first blush. Sharp's argument for standing based upon
his being listed as a borrower in the mortgage has some appeal.
But the appeal is eroded by the mortgage itself, which
distinguishes between mortgagors such as Martin, who assume an
obligation to repay a loan by executing a promissory note, and
mortgagors such as Douglas, who do not.
Given that Martin
executed the note on the same day that he and Douglas executed
the mortgage, one could reasonably infer that Martin and Douglas
made a conscious decision to protect Douglas from personal

liability on the note. By extending various rights and
protections to "borrowers" rather than "mortgagors" in RESPA,
Congress appears to have limited the coverage of the provisions
of RESPA on which Sharp bases his claim to the subset of
mortgagors who, like Martin, both pledged security and faced
personal liability for the repayment of a loan.
Under that view
of RESPA, forgoing the protections of that statute is the price
a mortgagor pays for avoiding personal liability on a note.

13

in his view, establishes his standing.

That regulation

provides:
(a)

Reasonable policies and procedures.

A

servicer shall maintain policies and procedures that
are reasonably designed to achieve the objectives set
forth in paragraph (b) of this section.
(b) Objectives—(1) Accessing and providing timely
and accurate information.
The policies and procedures
required by paragraph (a) of this section shall be
reasonably designed to ensure that the servicer can:

(vi) Upon notification of the death of a
borrower, promptly identify and facilitate
commvinication with the successor in interest of the

deceased borrower with respect to the property secured
by the deceased borrower's mortgage loan.
12 C.F.R. § 1024.38 (emphasis in original).

For the purposes of

§ 1024.38, Sharp qualifies as a successor in interest to Martin.
See Consumer Fin. Prot. Bureau, Bulletin 2013-12,

Implementation

Guidance for Certain Mortgage Servicing Rules, 2013 WL 9001249,
at n.7 (2013).

Notwithstanding his failure to cite §

1024.38(b)(iv) in his Second Amended Complaint, Sharp argues
that he "is protected by, and entitled to enforce, this
regulation."

Pl.'s Reply Br.

(doc. no. 16) 4.

The court does

not agree.

Nothing in § 1024.38 suggests that RESPA creates a private
right of action to enforce that rule.

14

And,

indeed,

i t does not.

As the Consumer Financial Protection Bureau explained in its
official interpretation of § 1024.38;
Ultimately, the Bureau agrees with the commenters that
allowing a private right of action for the provisions
that set forth general servicing policies, procedures,
and requirements would create significant litigation
risk.

.

.

.

The Bureau believes that supervision and enforcement
by the Bureau and other Federal regulators for
compliance with and violations of § 1024.38
respectively, would provide robust consumer protection
without subjecting servicers to the same litigation
risk and concomitant compliance costs as civil
liability for asserted violations of § 1024,38. . . .

Therefore, the Bureau is restructuring the final rule
so that it neither provides private liability for
violations of § 1024.38 nor contains a

safe harbor

limiting liability to situations where there is a
pattern or practice of violations.
Mortgage Servicing Rules Under the Real Estate Settlement
Procedures Act {Regulation X),

(Feb. 14, 2013).

78 Fed. Reg. 10696, 10778-79

Based upon the foregoing,

the court is

compelled to conclude that while Sharp is protected by

§ 1024.38(b)(iv), he has no private right of action against
defendants to enforce that rule.

Moreover, Sharp's status as a

successor in interest for the purposes of § 1024.38 does not
make him a borrower for the purposes of §§ 1024.35 and 1024.36.
For all of these reasons. Sharp's motion to amend must be
denied.

15

B. Motion to Dismiss

Sharp claims that Deutsche Bank lacks the authority to
foreclose on his mortgage {Count I), and that i t violated the
covenant of good faith and fair dealing (Count II).
Bank moves to dismiss both counts for failure

upon which relief may be granted.

Deutsche

to state a

claim

The court addresses each

count in turn.

1. Count I

- Authority to Foreclose

Sharp first claims that Deutsche Bank lacks the authority
to foreclose because i t cannot demonstrate that i t

i s an

assignee of his mortgage, as required by N.H. Rev. Stat. Ann.

(^^RSA") § 479:25.

That is so, Sharp contends, because neither

the 2005 assignment nor the 2012 assignment was legally
effective.

He argues that the 2005 assignment is invalid

because it was not recorded until after New Century had filed
for bankruptcy.

He argues that the 2012 assignment is invalid

because i t was neither executed nor recorded until a f t e r New

Century filed for bankruptcy.'^

Deutsche Bank contends that Sharp

^ At the November 18th hearing. Sharp suggested that the
assignment document was invalid.
However, he did not dispute
the validity of the document in his complaint, and has not
sought leave to amend his complaint to include such a claim.
Thus, any such allegation is deemed waived.
See Iverson v. City
of Bos.,

452 F.3d 94,

103

(1st Cir. 2006).

16

has failed to state a claim because there is no requirement that

an assignment be recorded.

Sharp is correct that the power of sale incorporated into a
mortgage may be exercised only by "the mortgagee or his
assignee."

RSA 479:25.

In his complaint, Sharp alleges that

New Century assigned his mortgage to Deutsche Bank in 2005, and

he attached a copy of the 2005 assignment to his complaint.
Thus, according to the complaint, Deutsche Bank was the

assignee.

Pursuant to RSA 479:25, therefore, Deutsche Bank had

the authority to exercise the power of sale in the mortgage.
Sharp argues that Deutsche Bank lacked the authority to
foreclose due to its untimely recording of the assignment.
However, a recent decision from New Hampshire Superior Court

Judge Marguerite Wageling holds that "[n]othing in RSA 479:25
requires the mortgagee [to]

record the mortgage or assignment of

the mortgage in order to trigger the statutory power of sale."
Fuller V.

Fed. Nat'l Mortg. Ass'n,

No.

218-2011-cv-00668,

2012

N.H, Super. LEXIS 55, at *9 (N.H. Super. Ct. Oct. 2, 2012).
Sharp has identified no authority to the contrary.

Under New

Hampshire law, an assignee of a mortgage therefore has the right
to exercise the statutory power of sale without the assignment
having been recorded.

Thus, the timing of Deutsche Bank's

recording of the assignment has no bearing on its status as an

17

assignee or its authority to foreclose.

Accordingly, the

factual allegations underpinning Count I do not "set forth a

plausible claim upon which relief may be granted."
F.3d at 71.

For that reason,

Count I

Foley, 772

is dismissed.

2. Count II - Good Faith and Fair Dealing

Sharp claims that Deutsche Bank breached the covenant of
good faith and fair dealing implied in his mortgage agreement by
"refus[ing]

to deal with, or even acknowledge, Mr. Douglas

Sharp, and refus[ing]

sale."

to voluntarily postpone the foreclosure

Notice of Removal, Attach. 1 (doc. no. 1-1) K 34.

Deutsche Bank responds that exercising its bargained-for right
to foreclose following default does not amount to a breach of
the covenant of good faith and fair dealing.

The court agrees.

In New Hampshire, every agreement includes "an implied

covenant that the parties will act in good faith and fairly with
one another."

Birch Broad.,

N.H. 192, 198 (2010)

Capitol Broad. Corp.,

161

(citing Livingston v. 18 Mile Point Drive,

Ltd., 158 N.H. 619, 624
Court has

Inc. v.

(2009)).

The New Hampshire Supreme

observed t h a t :

there is not merely one rule of implied good-faith
duty, but a series of doctrines, each of which serves
a different function.
The various implied good-faith
obligations fall into three general categories: (1)
contract formation;

(2)

termination of at-will

employment agreements; and (3) limitation of
discretion in contractual performance.

18

Id.

{citations omitted).

Like many similarly situated

plaintiffs, Sharp understands his claim to fall within the third
category of cases described in Birch, which involves limits on

the discretion a party may exercise when performing its
contractual obligations.

See Rouleau v. U.S. Bank, N.A., No.

14-CV-568-JL, 2015 WL 1757104, at *3

(D.N.H. Apr. 17, 2015);

Moore v. Mortq. Elec. Registration Sys.,

107, 127 (D.N.H. 2012) .

Inc.,

848 F. Supp. 2d

The function of that category ''is to

prohibit behavior inconsistent with the parties' agreed-upon
common purpose and justified expectations as well as with common
standards of decency, fairness and reasonableness."

Birch

Broad., Inc. v. Capitol Broad. Corp., 161 N.H. 192, 198

(2010)

(citing Livingston v. 18 Mile Point Drive, Ltd., 158 N.H. 619,
624

(2009)).

Here, the mortgage expressly provides that, in the event
Sharp defaults on the mortgage, Deutsche Bank may exercise the
statutory power of sale.

State Ct. R.

(doc. no. 3-1) 14 of 106.

Thus, Deutsche Bank's exercise of that right is consistent with
the parties'

"agreed-upon common purpose and justified

expectations .

.

.

Id.

As such, i t cannot serve as the

basis for a claim for breach of the implied covenant of good

faith and fair dealing.

S^ Rouleau, 2015 WL 1757104, at *5 ("a

party does not breach the duty of good faith and fair dealing

19

simply by invoking a specific, limited right that is expressly
granted by an enforceable contract"); see also Moore,
Supp. 2d at 129

848 F.

("the mere fact that some or all of the

defendants exercised their contractual right to foreclose on the
Moores after they defaulted on their mortgage payments does not
amount to a breach of the implied covenant")

omitted).

(citations

Accordingly, Count II does not state a claim on which

relief can be granted.

III.

Conclusion

For the reasons detailed above. Sharp's motion to amend,
document no. 13,

is denied, and Deutsche Bank's motion to

dismiss, document no. 4, is granted.

The injunction issued by

Judge Gillian Abramson on August 7, 2014 is hereby dissolved.
The clerk of

the court shall close the case.

SO ORDERED.

Landya tMcGaMerty

United StaH^s District Judge

August 11,

cc:

2015

Stephanie Anne Bray, Esq.
Michael R. Stanley, Esq.

20