Fryer v. B of A et al

Filing 16

///ORDER denying 13 Amended Motion to Permanently Enjoin Foreclosure; granting 15 Motion to Dismiss to the extent that the case is dismissed because the plaintiff lacks standing to bring claims against the defendant. Clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla) Modified on 7/16/2015 to add: Court concludes that PHH is the only defendant. (dae).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Stephen Fryer, Sr.
v.

Civil No. 15-cv-106-JD
Opinion No. 2015 DNH 137

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 a foreclosure sale and to modify the
mortgage loan on the property.
the action to this court.1

PHH Mortgage Corporation removed

The court previously granted PHH’s

motion to dismiss the claims, without prejudice to Fryer to file
an amended complaint by June 1, 2015, alleging actionable
claims.

On June 1, Fryer filed an amended motion for a

permanent injunction against PHH.

In response, PHH moved to

strike or dismiss the amended motion.

Fryer did not respond to

the motion to dismiss or strike the motion.
The court instructed Fryer in the previous order that if he
filed an amended complaint he should clarify whether he intended
to bring claims against only PHH or whether he intended to
allege claims against any other defendant.

In the amended

PHH represents that its correct name is PHH Mortgage
Corporation.
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motion for an injunction, Fryer names only PHH as the defendant.
The court, therefore, concludes that PHH is the only defendant.
Discussion
PHH contends that the amended motion for a permanent
injunction should be struck because it is not an amended
complaint and because “it reads more like a motion for
reconsideration than anything else.”

Because Fryer is pro se,

the title of his pleading will not be deemed to preclude its
filing.

Whether the motion states a cognizable claim is

determined in the context of Federal Rule of Civil Procedure
12(b)(6), not Rule 12(h).
To avoid dismissal under Rule 12(b)(6), a plaintiff “must
set forth sufficient factual matter to state a claim for relief
that is plausible on its face.”

Lister v. Bank of Am., N.A.,

--- F. 3d ---, 2015 WL 3635282, at *2 (1st Cir. June 12, 2015).
In assessing the complaint, the court “accept[s] as true all
well-pled facts in the complaint and draw[s] all reasonable
inferences in [the plaintiff’s] favor.”
F.3d 48, 53 (1st Cir. 2014).

Lydon v. Local 103, 770

Conclusory legal allegations are

not credited in determining the sufficiency of the complaint.
Cardigan Mountain School v. N.H. Ins. Co., 787 F.3d 82, 84 (1st
Cir. 2015).

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In the previous order that granted PHH’s motion to dismiss,
the court summarized the allegations Fryer made, which were
presented on a printed complaint form, and the history of the
case up to that time.

Fryer had alleged that Elaine and Ronald

Rondeau, his parents-in-law, entered into a mortgage on their
property at 6 Kevin Lane in Jaffrey, New Hampshire, in 2003, and
that the mortgage loan was modified in 2005 and 2011.

As

grounds for enjoining the foreclosure sale of the property,
Fryer stated that PHH had not acted responsibly or fairly.

The

court granted PHH’s motion to dismiss because Fryer had not
alleged facts showing that he had standing to challenge the
foreclosure sale of the property and because his allegations did
not allege any recognizable claim.
Fryer alleges in the amended motion that certain documents
submitted with the motion show that he is a party to the
mortgage and that he owns the mortgaged property.

He also

alleges that issues with the mortgage have been going on for
years, that he and the “ERC Trust” have made payments to PHH,
and that the mortgage was never reinstated, which lead to the
foreclosure proceedings.

Fryer contends that the mortgage is

“in trouble due to negligence and unfair practices create [sic]
by the Defendant itself.”

PHH contends that the amended motion

fails to state a claim because Fryer lacks standing to challenge

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the foreclosure proceedings, because the Rondeaus did not comply
with the terms of the 2011 mortgage modification, and because
the purported conveyance of the property to Fryer without
consideration was a fraudulent conveyance.
As the court explained in the prior order, in order to
challenge PHH’s actions under the mortgage agreement and the
subsequent mortgage modification agreements, Fryer must be a
party to those agreements or a third-party beneficiary of them.
See Brooks v. Trustees of Dartmouth College, 161 N.H. 685, 697
(2011).

Fryer was not a party to the mortgage or to the

subsequent modification agreements, and the documents he
submitted with the amended motion do not show otherwise.2
Instead, Fryer asserts that he owns the mortgaged property and
has made payments for the Rondeaus to reinstate the mortgage.
PHH contends that because the Rondeaus conveyed the property to
Fryer by a quitclaim deed without consideration, the conveyance
was fraudulent as the mortgage was delinquent at the time of the
conveyance.

The documents Fryer submitted are a letter to him from PHH,
dated May 28, 2015, that notified him that the foreclosure sale
was postponed and referenced documents for a loan modification,
a quitclaim deed from the Rondeaus to Fryer and his wife, and a
tax assessment document listing the Fryers as owners of the
property.
2

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A third-party beneficiary of an agreement is a non-party
who may sue to enforce the agreement because the parties to the
agreement intended him to have that right.
697.

Brooks, 161 N.H. at

“A third-party beneficiary relationship exists if:

(1)

the contract calls for a performance by the promisor, which will
satisfy some obligation owned by the promissee to the third
party; or (2) the contract is so expressed as to give the
promisor reason to know that a benefit to a third party is
contemplated by the promissee as one of the motivating causes of
his making the contract.”

Id.

“Ordinarily a person’s

entitlement to sue to enforce a contract to which she’s not a
party must be expressed in the contract rather than implied.”
Id. at 698.
Fryer is not mentioned in the mortgage agreement or the
subsequent loan modification agreements.

Nothing in those

agreements suggest that Fryer was intended to be a third-party
beneficiary.

Further, although the Rondeaus had signed the

quitclaim deed to Fryer before they signed the second
modification agreement in 2011, the 2011 modification agreement
does not state that Fryer owned the mortgaged property or
include Fryer as a party.
Under these circumstances, the amended motion along with
the documents of record show that Fryer is neither a party to

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the mortgage agreements nor a third-party beneficiary of them.
Therefore, Fryer lacks standing to seek an injunction to stop
PHH from foreclosing pursuant to the terms of the mortgage
agreements.

Fryer has not stated any new claim or made

allegations to support a cognizable claim in the amended motion.
Conclusion
For the foregoing reasons, the defendant’s motion to strike
or dismiss (document no. 15) is granted to the extent that the
case is dismissed because the plaintiff lacks standing to bring
claims against the defendant.

The plaintiff’s amended motion

(document no. 13) is denied.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.

__________________________
Joseph DiClerico, Jr.
United States District Judge
July 16, 2015
cc:

Stephen F. Fryer, pro se
John S. McNicholas, Esq.
Walter H. Porr, Jr., Esq.

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