McGrenaghan v. Federal National Mortgage Association
///ORDER granting 17 defendant's Motion for Summary Judgment. So Ordered by Judge Steven J. McAuliffe.(lat)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Case No. 15-cv-271-SM
Opinion No. 2016 DNH 183
Federal National Mortgage
Association a/k/a Fannie Mae,
O R D E R
The court’s order dated December 10, 2015 (document no. 11)
resolved all issues pending in this case save one.
factual background is discussed in that order and need not be
It is sufficient to note that the court
liberally construed plaintiff’s complaint and concluded that, at
least arguably, it asserts a breach of contract claim with
respect to whether plaintiff was provided with adequate notice
of default and/or afforded 30 days in which to cure, as
(allegedly) required by the Note and the Mortgage.
defendant now moves for summary judgment on that sole remaining
It is undisputed that the requisite notice of default, and
an opportunity to cure, were timely given to plaintiff’s former
husband, who was the only person obligated on the Note.
Plaintiff did not execute the Note and was not personally
obligated to repay it.
Consequently, the terms of the Note did
not provide her with any contractual entitlement to notice of
her former husband’s default.
Plaintiff did, however, execute the Mortgage and, by so
doing, she pledged her interest in the family home as security
for her husband’s obligations under the Note.
And, for purposes
of enumerating the parties’ respective rights and obligations,
the Mortgage defines plaintiff as a “Borrower.”
(document no. 6-3) at 1 (definitions).
See also id. at para. 13
(specifically contemplating the situation in which only one
person is obligated on the Note, but multiple parties execute
the security instrument).
The Mortgage also provides that
“Notice to any one Borrower shall constitute notice to all
Borrowers unless applicable law expressly requires otherwise.”
Id. at para. 15; see also Order dated December 10, 2015, at 11
Given the undisputed facts of record, it is plain that
plaintiff received all notice to which she was entitled.
she does not argue that any “applicable law” supersedes the
provisions of the loan documents and requires that she receive
personal notice of her former husband’s default and an
opportunity to cure.
And, with respect to the Mortgage, its
unambiguous terms provide that plaintiff is deemed to have
received notice of her former husband’s default and an
opportunity to cure once that information was properly and
timely provided to him.
See Mortgage, at paras. 15 and 22. 1
To the extent plaintiff asserts that she (or her former
husband) was entitled to a new notice of default and/or a
renewed opportunity to cure after the original foreclosure was
cancelled but before it was subsequently rescheduled, this court
has specifically held that mortgagors are not entitled to such
duplicate notices and/or repeated opportunities to bring
defaulted loan obligations current.
See Galvin v. EMC Mortg.
Corp., No. 12-cv-320-JL, 2013 WL 1386614, at *6 (D.N.H. April 4,
2013) (construing language in a mortgage deed that is
substantially similar to the language at issue here).
Mortgage, at para. 22 (“If the default is not cured on or before
the date specified in the notice, Lender at its option may
require immediate payment in full of all sums secured by the
Parenthetically, the court notes that there is no dispute
that plaintiff had actual notice that the loan was in default
and was given the opportunity to bring the loan current (and
thereby avoid foreclosure). Her breach of contract claim is
more precisely targeted - she asserts that she did not receive
the type of notice she says the loan documents require.
Security Instrument without further demand and may invoke the
Statutory Power of Sale and any other remedies permitted by
Applicable Law.”) (emphasis supplied).
There are no genuinely disputed issues of material fact and
for the reasons stated, as well as those advanced by defendant
in its legal memoranda (document nos. 17-1 and 22), it is clear
that defendant is entitled to judgment as a matter of law on the
sole remaining claim in plaintiff’s complaint.
Given the facts
of record, the arguable breach of contract claim identified by
the court is not viable.
Defendant’s motion for summary judgment (document no. 17)
The Clerk shall enter judgment in accordance with
this order and close the case.
Steven J. McAuliffe
United States District Judge
October 17, 2016
Craig N. Salomon, Esq.
Kyle P. Griffin, Esq.
Thomas J. Pappas, Esq.
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