Dionne et al v. Federal National Mortgage Association et al

Filing 11

ORDER denying without prejudice 5 Motion to Dismiss. The Dionnes are granted leave to file an amended version of the Verified Petition within thirty (30) days of the date hereof. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jason S. Dionne and Denise C. Dionne
v.

Civil No. 15-cv-056-LM
Opinion No. 2015 DNH 086

Federal National Mortgage Association
and JPMorgan Chase Bank, N.A.
O R D E R
The plaintiffs, Jason Dionne and Denise Dionne, sought
relief in the Hillsborough County Superior Court following the
foreclosure sale of their home by the defendants, Federal
National Mortgage Association (“FNMA”) and JPMorgan Chase Bank,
N.A. (“Chase” and together with FNMA, the “Defendants”).

The

Dionnes filed a document captioned “Verified Petition for ExParte Order Voiding Foreclosure Ab Initio or Alternatively to
Enjoin Recordation of Foreclosure Deed and/or for Leave of Court
to File Lis Pendens” (the “Verified Petition”).
After the Superior Court issued an ex parte preliminary
injunction enjoining the Defendants from recording the
foreclosure deed, but before the date of a scheduled hearing on
the matter, the Defendants removed the action to this court.
The Defendants have now filed a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6).

For the reasons that

follow, the court denies the Defendants’ motion to dismiss

without prejudice, and grants the Dionnes leave to amend the
Verified Petition.
Factual Background
The court will briefly rehearse the operative facts as set
forth in the Verified Petition and in the exhibits attached
thereto.

See Fed. R. Civ. P. 10(c) (“A copy of a written

instrument that is an exhibit to a pleading is a part of the
pleading for all purposes.”).
The subject property, located in Pelham, New Hampshire, has
been in the Dionne family since 1976.
no. 1-1) ¶¶ 8, 12.

Verified Petition (doc.

Pursuant to a 2006 loan agreement, the

Defendants held a mortgage on the property.

On August 12, 2014,

Ms. Dionne received a letter from Chase indicating that a
foreclosure sale had been scheduled for October 1, 2014.
15; see also Ex. 1.

Id. ¶

Immediately thereafter, the Dionnes applied

for a loan modification, and Chase acknowledged receipt of the
application by letter dated August 27, 2014.
Ex. 2.

Id. ¶ 16; see also

For reasons that are unclear, the October 1 foreclosure

sale did not occur.

Id. ¶ 17.

In October and November of 2014, the Dionnes submitted the
financial paperwork that Chase had requested in connection with
the loan modification, but were repeatedly informed that Chase
had not received the necessary materials.

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Id. ¶¶ 18-21; see

also Exs. 3, 4.

On November 18, 2014, before a decision was

reached on the loan modification, the Dionnes received a letter
from an attorney indicating that the Defendants had authorized
another foreclosure sale.

Id. ¶¶ 22-23; see also Ex. 5.

The

Dionnes contacted Chase, and were assured that a foreclosure
sale would not occur during the pendency of the application.
Id. ¶ 23.
Several weeks later, the Dionnes received another letter
from the same attorney, indicating that a foreclosure sale had
been scheduled for January 12, 2015, despite Chase’s assurances
that a foreclosure sale would not occur during the pendency of
the application for a loan modification.
6.

Id. ¶ 24; see also Ex.

The foreclosure sale took place as scheduled, and the

property was sold.

Id. ¶ 26; see also Ex. 7.

The Dionnes filed the Verified Petition in the Hillsborough
County Superior Court shortly after the foreclosure sale.

The

Dionnes alleged that they had relied to their detriment on
Chase’s promise that the Defendants would not foreclose during
the pendency of the loan modification application, and they
alleged that the Defendants violated federal consumer protection
law by foreclosing during that period.

After the Superior Court

granted an ex parte preliminary injunction barring the recording
of the foreclosure deed, but before the Superior Court had an
opportunity to hold a scheduled hearing on the matter, the
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Defendants removed the proceedings to this court, and have now
moved to dismiss the Verified Petition.
Discussion
The Defendants seek dismissal on various legal and factual
grounds.

In opposing dismissal, however, the Dionnes write:

Defendants’ argument for dismissal is premature
inasmuch as no complaint is presently before the
court. Plaintiffs’ pleading in issue was filed in
state court as an ex parte preliminary injunction
seeking temporary relief pending [a] hearing on the
merits of the ex parte hearing. Said pleading was not
accompanied by a separate complaint at the time, but
its filing was contingent on the outcome of the
hearing on the merits of the ex parte hearing. . . .
Plaintiffs hereby move that their ex parte motion be
further allowed pending the filing of a complaint to
preserve the status quo until the court issues a
decision on the merits of the action.
See Pls.’ Objection to Defs.’ Mot. to Dismiss (doc. no. 6) ¶¶ 12.

Though not overtly phrased as such, the court construes this

pleading as a motion for leave to amend the Verified Petition.
Federal Rule of Civil Procedure 15 states that a “court
should freely give leave [to amend a pleading] when justice so
requires.”

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

The trial courts are not

to “mindlessly grant every request for leave to amend,” and
leave is “appropriately denied when, inter alia, the request is
characterized by undue delay, bad faith, futility, [or] the
absence of due diligence on the movant’s part.”

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Manning v. Bos.

Med. Ctr. Corp., 725 F.3d 34, 60-61 (1st Cir. 2013) (citations
omitted) (internal quotation marks omitted).
In the court’s view, under these circumstances, justice
requires that the Dionnes be permitted to file an amended
pleading setting forth their allegations against the Defendants.
This is particularly true given that the Verified Petition was
submitted to the Hillsborough County Superior Court for the
express purpose of obtaining immediate, ex parte relief
following the foreclosure sale.
Conclusion
For the foregoing reasons, the Dionnes are granted leave to
file an amended version of the Verified Petition within thirty
(30) days of the date hereof.

The Defendants’ motion to dismiss

(doc. no. 5) is denied without prejudice, and may be refiled in
response to the amended Verified Petition.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
April 23, 2015
cc:

David E. Buckley, Esq.
Nathan Reed Fennessy, Esq.

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