Boyd v. Wells Fargo Bank, N.A.

Filing 7

///ORDER granting 5 Motion to Dismiss for Failure to State a Claim. The clerk shall enter judgment accordingly and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Leah Boyd
v.

Civil No. 16-cv-131-JL
Opinion No. 2016 DNH 156

Wells Fargo Bank, N.A. d/b/a/
Wells Fargo Mortgage
SUMMARY ORDER
In this mortgage-related action, a third party to the
mortgage challenges the foreclosure on her home in Somersworth,
New Hampshire.

Plaintiff Leah Boyd, proceeding pro se, sued the

mortgage-holder and servicer of the mortgage secured by her
home, Wells Fargo Bank, N.A., doing business as Wells Fargo
Mortgage, in Strafford County Superior Court.

The defendant

removed the action to this court, see 28 U.S.C. § 1441, which
has jurisdiction under 28 U.S.C. § 1332 (diversity).
The following facts, construed in Boyd’s favor, are drawn
from her complaint and documents sufficiently referenced
therein.

See, e.g., Martino v. Forward Air, Inc., 609 F.3d 1, 2

(1st Cir. 2010) (The court must “accept as true all well-pleaded
facts in the complaint and make all reasonable inferences in
plaintiff's favor.”); Rederford v. U.S. Airways, Inc., 589 F.3d
30, 35 (1st Cir. 2009) (The court “may consider not only the
complaint but also facts extractable from documentation annexed
to or incorporated by reference in the complaint and matters

susceptible to judicial notice.”).

Boyd and her mother, Glenda

Castleberry, purchased the four-unit house in question in
August, 2009.

To obtain more favorable financing terms, and in

light of the status of Boyd’s credit at the time, Castleberry
alone took out the mortgage on the house and signed the
accompanying note.

A warranty deed conveying the property from

the seller to Castleberry was recorded with the Strafford County
Registry of Deeds contemporaneously with the mortgage
instrument.

About a month later, Castleberry conveyed the

property to herself and Boyd via warranty deed, which was also
recorded.1

Under an agreement between Boyd and Castleberry, Boyd

lived in one unit in the house, collected rent from the tenants
of the three other units, paid the bills related to the house,
and made the mortgage payments to Wells Fargo.

Castleberry had

nothing further to do with the property for the next few years.
In 2014, Castleberry began collecting the rent from the
tenants without Boyd’s knowledge.

She did not, however, make

any payments against the mortgage loan obligation.

Boyd filed

for bankruptcy protection in November 2015 in an effort to save

In her complaint, Boyd alleges only that her name appears on
the warranty deed to the property. The public records available
from the Registry of Deeds, which were referenced in the
complaint and which are “fair game in adjudicating a Rule
12(b)(6) motion,” In re Colonial Mortgage Bankers Corp., 324
F.3d 12, 19 (1st Cir. 2003), elucidate Boyd’s opaque allegation.
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the house, but the Bankruptcy Court (Harwood, B.J.) dismissed
her petition after she failed to file requisite paperwork.
Though the complaint does not suggest precisely when, Wells
Fargo eventually initiated foreclosure proceedings.

Boyd

alleges that she tried to engage Wells Fargo in discussions in
connection with the mortgage, but that Wells Fargo refused
because Boyd was “on the deed not the loan.”

Compl. at 2.

On

March 31, 2016, Boyd filed a complaint in Strafford County
Superior Court to enjoin a foreclosure sale scheduled for the
next day.

The Superior Court enjoined the foreclosure sale.

Wells Fargo removed the case to this court and now moves to
dismiss the complaint, arguing (1) that Boyd fails to state a
cognizable claim for relief, see Fed. R. Civ. P. 12(b)(6), and
(2) that Boyd, a third party to the mortgage, lacks standing to
challenge the foreclosure, see Fed. R. Civ. P. 12(b)(1).

Though

Boyd filed no written objection, the court carefully analyzed
the defendant’s arguments and afforded Boyd the opportunity to
articulate her objections at oral argument, held on August 11,
2016.2

The court also undertook efforts to afford Boyd the opportunity
to object prior to oral argument. However, neither of the
telephone numbers that Boyd supplied to the court or opposing
counsel functioned when the court attempted to set up a
telephone conference two weeks before the scheduled argument.
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The court may dismiss a complaint under Rule 12(b)(6) if
the plaintiff has not alleged facts sufficient to “state a claim
to relief” by pleading, in her complaint, “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) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).

Even construing Boyd’s pro

se complaint liberally, see Erickson v. Pardus, 551 U.S. 89, 94
(2007), the court concludes that she has not done so here.
As best the court can tell from Boyd’s complaint, she seeks
two forms of relief.

First, she sought--and obtained--an

injunction so that she could collect rent from her tenants,
which she would use to make the mortgage payments.
3.

Compl. at 2-

Second, as a final resolution, Boyd seeks an order “[t]hat

the house belongs to her and all tenants’ rent needs to be paid
to [her], Leah Boyd, [and] [t]hat [she] is the rightful owner
. . . .”

Compl. at 4.

Neither amounts to a claim for relief

against Wells Fargo.
First, Boyd concedes that Castleberry defaulted on the
mortgage.

She does not challenge Wells Fargo’s right to

foreclose under those circumstances, nor the validity of the
foreclosure itself.

Nor does she contend that Wells Fargo

violated any statutory or regulatory requirements during the
foreclosure proceeding.

The court accordingly concludes that

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Boyd has failed to state a claim against Wells Fargo with
respect to the foreclosure.
Second, Boyd requests an order that the house belongs to
her.

Read generously, this may amount to a petition to quiet

title to the property.

Through an action to quiet title, the

plaintiff “essentially seeks a declaratory judgment from the
court regarding the parties’ land interests.”
154 N.H. 353, 357 (2006).

Porter v. Coco,

Boyd has alleged no facts that would

allow the court to draw a reasonable inference that she is
entitled to this relief.

While the deed conveying the property

to Castleberry and Boyd may well give Boyd an interest in the
property, any such interest was subject to the pre-existing
mortgage and its conditions, which included the possibility of
foreclosure in the event of default.

See Cadle Co. v.

Bourgeois, 149 N.H. 410 (2003) (a subsequent transfer of
mortgaged property “does not release the real estate from the
mortgage, unless the mortgage is unrecorded . . . .” (quoting
Restatement (Third) of Property (Mortgages) § 5.1 comment b at
330 (1997)).

Boyd bears the burden of demonstrating otherwise,

see Fadili v. Deutsche Bank Nat. Trust Co., 772 F.3d 951, 954
(1st Cir. 2014) (“Under New Hampshire law, the party seeking to
quiet title bears the burden of establishing [her] good title to
the property against the interests of all others.”).

Boyd has

alleged no facts that would establish that she has good title to

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the property; in fact, the facts she alleges, and those
extricable from the public record and documents referenced in
the complaint, would establish the contrary, that she lacks good
title against all others.3

Accordingly, Boyd’s complaint fails

to state a claim upon which this court can grant relief.
The defendant also moves to dismiss Boyd’s complaint for
lack of subject-matter jurisdiction, see Fed. R. Civ.
P. 12(b)(1), on the grounds that Boyd lacks standing to
challenge the validity of the foreclosure as a non-party to the
mortgage agreement.
6.

See Mot. to Dismiss (document no. 6) at 5-

This court has, as the defendant points out, acknowledged

that language of the Real Estate Settlement Procedure Act, 12
U.S.C. § 2601 et seq., precludes a non-borrower from obtaining
relief for a loan servicer’s violation of that statute and that
a non-party to a mortgage agreement lacks standing to challenge
the mortgage assignment.
LLC, 2015 DNH 185, 12-14.

See Fortin v. Ocwen Loan Servicing,
This court has not, however, held

that a non-party to a mortgage agreement lacks standing to
challenge a mortgage foreclosure under all circumstances.

Other

At oral argument, Boyd contended that her mother’s abandonment
of the property--in the sense that Castleberry ceased residing
there after some eight months--coupled with Boyd’s maintenance
thereof ceded to Boyd some additional or increased interest
therein. She has not offered, and the court is unaware of, any
authority that would support such a proposition.
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courts in this Circuit have suggested that a non-party may have
such standing, possibly as a third-party beneficiary of the
agreement, under certain circumstances.

See Rice v. Santander

Bank, N.A., No. CV 16-10478-FDS, 2016 WL 3676123, at *5 n.6 (D.
Mass. July 6, 2016) (Saylor, J.) (plaintiff property owner would
have standing to contest validity of mortgage agreement, though
not party thereto, where mortgage may impact property’s
marketability and value); Fryer v. B of A & PHH Mortgage Servs.,
2015 DNH 137, 4-6 (Diclerico, J.) (third-party beneficiary of
mortgage agreement may have standing to challenge defendant’s
actions under mortgage agreement).

This court need take no

position on that question here, however, having concluded that
Boyd fails to state a claim for relief against Wells Fargo.
For the reasons discussed above, the defendant’s motion to
dismiss the complaint4 is GRANTED.

The clerk shall enter

judgment accordingly and close the case.
SO ORDERED.

Joseph N. Laplante
United States District Judge
Dated:
cc:

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August 31, 2016
Leah Boyd, pro se
Joseph Patrick Kennedy, Esq.

Document no. 5.

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