Fryer v. B of A et al

Filing 12

///ORDER granting, without prejudice 9 Motion to Dismiss for Failure to State a Claim. Motion is granted, without prejudice to filing an amended complaint. Plaintiff is granted an opportunity to file an amended complaint on or before June 1, 2015. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Stephen Fryer, Sr.
v.

Civil No. 15-cv-106-JD
Opinion No. 2015 DNH 095

B of A and PHH Mortgage Services

O R D E R
Stephen Fryer, Sr., proceeding pro se, brought suit in
state court to stop the foreclosure sale of property mortgaged
by his late father-in-law and his mother-in-law and to modify
the mortgage loan on the property.

PHH Mortgage Corporation

removed the action to this court and now moves to dismiss the
claims against it pursuant to Federal Rule of Civil Procedure
12(b)(6).1

Fryer did not respond to the motion to dismiss.
Standard of Review

Under Rule 12(b)(6), the court “accept[s] as true all wellpled facts in the complaint and draw[s] all reasonable
inferences in [the plaintiff’s] favor” to determine whether the
complaint states a “plausible claim.”

Lydon v. Local 103, Int’l

Bhd. of Elec. Workers, 770 F.3d 48, 53 (1st Cir. 2014).

The

PHH represents that its correct name is PHH Mortgage
Corporation. The other defendant is named only as “B of A.” No
appearance has been filed on behalf of B of A, and the record
does not show whether B of A has been served.
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plausibility standard requires more than conclusory statements,
“a formulaic recitation of the elements of the cause of action,”
and “naked assertions” without “factual enhancement.”
v. Iqbal, 556 U.S. 662, 678 (2009).

Ashcroft

A claim is plausible if the

factual allegations in the complaint, taken as true, “allow[]
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”

Id.

Background
Fryer’s complaint, filed in state court, is a completed
form titled “Complaint to Enjoin Foreclosure Sale.”

On the

form, Fryer identifies the location of the property subject to
foreclosure as 6 Kevin Lane, Jaffrey, New Hampshire, 03452.

He

states that the foreclosure sale was scheduled for February 25,
2015.

Fryer also describes efforts he made to keep current on

the mortgage obligations and to work out a payment arrangement
with the defendant.
The mortgage on the property at 6 Kevin Lane in Jaffrey was
signed on April 25, 2003, by Elaine and Ronald Rondeau, who are
Fryer’s parents-in-law, and the lender was Fleet Bank.

The

mortgage loan was modified by agreements signed by Ronald and
Elaine Rondeau in 2005 and 2011.

The mortgage was assigned

several times, most recently from Federal National Mortgage
Association to PHH Mortgage Corporation.
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In the space on the complaint form for giving the reasons
for the court to enjoin the foreclosure sale, Fryer states that
“PHH and B of A have not acted responsibly or fairly.”

He

further states that PHH and B of A ignored hundreds of attempts
to contact them; that Ronald Rondeau, his wife’s father and the
mortgagor, died on November 1, 2013; that PHH and B of A refused
payments and all contact; that Fryer and his family have
invested $200,000 in improving the property; and the “mortgage
has not ammortized.”

To support an ex parte injunction, Fryer

explained that without the house his family would be homeless,
that the attorney for the defendant refused all contact, and
that “this is a predatory action and the Plaintiff has suffered
for 11 yrs at the hand of PHH.”
The state court temporarily enjoined the foreclosure sale
that was scheduled in February, and Fryer was ordered to
complete service on PHH by March 30, 2015.
to this court on March 26, 2015.

PHH removed the case

On April 2, 2015, Fryer moved

to enjoin the foreclosure sale that was scheduled for that day.
Because of the circumstances, a deputy clerk contacted the law
firm representing PHH and spoke to Chris Heffernan at the firm
about the motion to enjoin the foreclosure sale.

Heffernan

represented that the foreclosure sale had been rescheduled to
June 2, 2015, but that notice had not yet been provided to

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Fryer.

Based on those representations, the court terminated the

motion to enjoin the foreclosure sale as moot.
Discussion
PHH moves to dismiss all claims against it on the grounds
that Fryer lacks standing to bring claims based on the mortgage
because he is not a party to the mortgage.

To the extent Fryer

intended to allege that PHH breached the terms of the mortgage
or breached subsequent mortgage modification agreements, Fryer
lacks standing to bring those claims because he does not allege
facts to show that he is a party to the mortgage or a thirdparty beneficiary of the mortgage.

See Brooks v. Trustees of

Dartmouth College, 161 N.H. 685, 900-01 (2011).

Fryer’s

statements on the complaint form do not allege any recognizable
claim.

Therefore, PHH’s motion to dismiss is granted.

At this early stage of the case, however, and in light of
Fryer’s pro se status, it is appropriate to give him an
opportunity to file an amended complaint to state actionable
claims, if any can be alleged.

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

Juarez v. Select Portfolio Servicing, Inc., 708 F.3d 269, 281
(1st Cir. 2013).

If Fryer does choose to file an amended

complaint, he should clarify whether his claim or claims are
brought against PHH alone or whether he also intends to allege

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claims against another defendant.

He must also allege

sufficient facts to support his claims.
Conclusion
For the foregoing reasons, the defendant’s motion to
dismiss (document no. 9) is granted, without prejudice to filing
an amended complaint.
The plaintiff is granted an opportunity to file an amended
complaint on or before June 1, 2015.

If an amended complaint is

not filed within the time allowed, the court will enter judgment
and close the case.
SO ORDERED.

__________________________
Joseph DiClerico, Jr.
United States District Judge
May 11, 2015
cc:

Stephen F. Fryer, pro se
John S. McNicholas, Esq.

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