Gasparik v. Federal National Mortgage Association

Filing 19

///ORDER granting 14 Motion to Dismiss for Failure to State a Claim. The clerk of court is directed to enter judgment accordingly and close the case. So Ordered by Magistrate Judge Andrea K. Johnstone.(kad) Modified on 12/1/2016 to add: "///" (kad).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Bridget Gasparik
v.

Case No. 16-cv-147-AJ
Opinion No. 2016 DNH 215

Federal National Mortgage Association
O R D E R
In an action removed from state court, the plaintiff,
Bridget Gasparik, alleges that Federal National Mortgage
Association (“Fannie Mae”) violated state and federal law when
it foreclosed upon a home in Danbury, New Hampshire.
13.

Doc. no.

Fannie Mae moves to dismiss this action under Federal Rule

of Civil Procedure 12(b)(6) for failure to state a claim.
no. 14.

The plaintiff objects.

Doc. no. 15.

Doc.

For the following

reasons, Fannie Mae’s motion is granted.
Standard of Review
Under Rule 12(b)(6), the court must accept the factual
allegations in the complaint as true, construe reasonable
inferences in the plaintiff’s favor, and “determine whether the
factual allegations . . . set forth a plausible claim upon which
relief may be granted.”

Foley v. Wells Fargo Bank, N.A., 772

F.3d 63, 71 (1st Cir. 2014) (citation and quotation marks
omitted).

A claim is facially plausible “when the plaintiff

pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the
misconduct alleged.”
(2009).

Ashcroft v. Iqbal, 556 U.S. 662, 678

Analyzing plausibility is “a context-specific task” in

which the court relies on its “judicial experience and common
sense.”

Id. at 679.

The scope of the court’s analysis on a Rule 12(b)(6) motion
is generally limited to “facts and documents that are part of or
incorporated into the complaint . . .”

GE Mobile Water, Inc. v.

Red Desert Reclamation, LLC, 6 F. Supp. 3d 195, 199 (D.N.H.
2014) (quoting Rivera v. Centro Medico de Turabo, Inc., 575
F.3d, 10, 15 (1st Cir. 2009)); see also Fed. R. Civ. P. 12(d).
As an exception to this rule, the First Circuit permits trial
courts to consider “documents the authenticity of which are not
disputed by the parties; official public records; documents
central to plaintiff's claim; and documents sufficiently
referred to in the complaint” without converting a motion to
dismiss into one for summary judgment.

Id. (brackets omitted)

(quoting Rivera, 565 F.3d at 15).
Background
Accepting the factual allegations set forth in the
plaintiff’s complaint as true, the relevant facts are as
follows.

2

On July 31, 2006, the plaintiff’s father, Philip Catalano,
executed a promissory note in the amount of $208,050.00 to First
Call Mortgage Company, Inc. (“First Call”).
Catalano alone signed the note.

Doc. no. 2-2.

Id. at 3.

The note secured a

mortgage on the property central to this case, located at 440
Route 4, Danbury, New Hampshire.

Doc. no. 2-3.

Catalano, the

plaintiff, and Rudy Gasparik are named as mortgagors, and all
three signed the mortgage.

Id. at 2, 14.

First Call is named

as the lender, and the Mortgage Electronic Registration Systems,
Inc. (“MERS”) is named as mortgagee as a nominee for First
Call’s successors and assigns.

Id. at 2.

The mortgage was

recorded with the Merrimack County Registry of Deeds on August
2, 2006.

Id. at 2.

On March 20, 2009, MERS assigned the

mortgage to Fannie Mae.

Doc. no. 2-4, at 2.

This assignment

was recorded with the Merrimack County Registry of Deeds on
March 26, 2009.1

The note, mortgage, and assignment of mortgage are attached as
exhibits to Fannie Mae’s original motion to dismiss. See doc.
no. 2. The plaintiff successfully moved to amend, which
resulted in the original motion to dismiss being denied without
prejudice pursuant to Local Rule 15.1(c). Fannie Mae has not
reattached these documents to its present motion, but does make
reference to them therein. See, e.g., doc. no. 14-1, at 2, 3.
As these documents remain in the record, the plaintiff does not
dispute their authenticity, and, at least as to the mortgage and
assignment of mortgage, they are publicly recorded with a
registry of deeds, the court will consider them in its present
analysis. See GE Mobile Water, Inc., 6 F. Supp. 3d at 199.
1

3

Catalano, who is elderly, resides on the property. The
plaintiff is responsible for his care.

The plaintiff was also

responsible for paying the mortgage on the property, but fell
behind on these payments.

Once the mortgage was in default,

Fannie Mae commenced foreclosure proceedings and scheduled a
foreclosure sale.

The plaintiff reached out to Fannie Mae

seeking a resolution short of foreclosure.

Fannie Mae indicated

that the plaintiff needed to pay the full amount in arrears in
order to cancel the foreclosure sale.

The plaintiff indicated

that she would not be able to make any such payment until after
the scheduled date for the foreclosure sale, but offered to pay
the full arrearage at that time.
the foreclosure sale.

Fannie Mae refused to postpone

The plaintiff offered to make a payment

via credit card, which Fannie Mae also refused.
On March 14, 2016, the plaintiff filed a petition in state
court seeking, inter alia, an ex parte order restraining Fannie
Mae from foreclosing on the property.

Doc. no. 6, at 27.

The

state court denied the plaintiff’s petition on an ex parte basis
and scheduled a hearing for March 22, 2016.

Id. at 19.

Following the hearing, the state court preliminarily enjoined
Fannie Mae from conducting the foreclosure sale.

Id. at 16.

On

April 14, 2016, Fannie Mae removed this matter to this court,
see doc. no. 1, and moved to dismiss for failure to state a
claim, doc. no. 2.

The plaintiff moved to amend, doc. no. 10,
4

which the court granted over Fannie Mae’s objection.

Fannie Mae

thereafter filed the present motion, seeking the dismissal of
the plaintiff’s amended complaint.
Discussion
The plaintiff’s amended complaint is comprised of seven
counts.

Counts I, II, and V, hereinafter the “state tort

claims,” respectively allege negligence, negligent
misrepresentation, and negligent infliction of emotional
distress.

Count III alleges a breach of the covenant of good

faith and fair dealing.

Count IV alleges a violation of the New

Hampshire Consumer Protection Act, N.H. Rev. Stat. Ann (“RSA”) §
358-A.

Count VI alleges a violation of the Real Estate

Settlement Procedure Act (“RESPA”), 12 U.S.C. § 2601, et seq.
Finally, Count VII addresses Fannie Mae’s legal standing to
foreclose on the property.
Fannie Mae moves to dismiss the amended complaint in its
entirety.

First, Fannie Mae argues that the state tort claims

are barred by the economic loss doctrine. Next, Fannie Mae
contends that it has not violated the covenant of good faith and
fair dealing both because it had no duty to delay the
foreclosure in order to give the plaintiff time to seek loss
mitigation and because no such violation can be premised solely
upon the fact that it was exercising its bargained-for right to

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foreclose.

Third, Fannie Mae contends that it is exempt from

the CPA and, alternatively, that the plaintiff has not alleged
any conduct that could sustain a CPA claim.

Similarly, Fannie

Mae argues that the plaintiff is not a borrower as defined by
RESPA and that she has failed to allege any pecuniary harm
arising from a purported RESPA violation.

Lastly, Fannie Mae

contends that the plaintiff is barred by RSA § 479:25 from
raising her standing claim.

The plaintiff objects to these

arguments on various grounds.
I.

State Tort Claims
The court turns first to the plaintiff’s state tort claims.

As noted, Fannie Mae’s primary argument is that these claims are
barred by the economic loss doctrine.

The court agrees.

Under New Hampshire law, the contractual relationship
between a lender and a borrower typically precludes recovery in
tort.

See Moore v. Mortg. Elect. Registration Sys., Inc., 848

F. Supp. 2d 107, 133 (D.N.H. 2012) (citing Wyle v. Lees, 162
N.H. 406, 409–10 (2011)).

This principle, known as the

“economic loss doctrine,” is premised on the theory that “[i]f a
contracting party is permitted to sue in tort when a transaction
does not work out as expected, that party is in effect rewriting
the agreement to obtain a benefit that was not part of the
bargain.”

Plourde Sand & Gravel Co. v. JGI E., Inc., 154 N.H.

791, 794 (2007) (quoting Tietsworth v. Harley–Davidson, Inc.,
6

677 N.W.2d 233, 242 (Wis. 2004)).
The economic loss doctrine is not absolute.

The New

Hampshire Supreme Court (“NHSC”) has recognized that “a
contracting party may be ‘owed an independent duty of care
outside the terms of the contract.’”

Moore, 848 F. Supp. 2d at

133 (quoting Wyle, 162 N.H. at 410).2

“Where the existence of

such a duty is claimed, though, the burden is on the
borrower . . . to prove the lender’s voluntary assumption of
activities beyond those traditionally associated with the normal
role of a money lender.”

Id. (internal quotation marks and

brackets omitted) (quoting Seymour v. N.H. Sav. Bank, 131 N.H.
753, 759 (1989)).

The plaintiff has not raised any such

argument in the present case.
Instead, the plaintiff contends that the economic loss
doctrine should not apply in the first instance because she
never entered into a contractual relationship with Fannie Mae.
This argument is unpersuasive.

At the time the mortgage was

For instance, the NHSC has held that “a lender owes a borrower
a duty not to disburse its loan funds without authorization,
Lash v. Cheshire Cnty. Sav. Bank, Inc., 124 N.H. 435, 438–39
(1984), and that a mortgagee, in its role as seller at a
foreclosure sale, owes a duty to the mortgagor ‘to obtain a fair
and reasonable price under the circumstances.’ Murphy v. Fin.
Dev. Corp., 126 N.H. 536, 541 (1985).” Moore, 848 F. Supp. 2d at
133.
2

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executed, MERS was named as mortgagee thereunder.
at 2.

Doc. no. 2-3

The mortgage expressly contemplates the assignment of the

mortgage by MERS, see id. at 2, 12, and MERS indisputably
assigned the mortgage to Fannie Mae prior to the foreclosure,
see doc. no. 2-4.

The NHSC has approvingly cited Restatement

(Second) of Contracts § 317, see Dillman v. Town of Hooksett,
153 N.H. 344, 346–48 (2006), which allows for the liberal
assignment of contractual rights under common law unless 1) such
assignment “would materially change the duty of the obligor, or
materially increase the burden or risk imposed on him by his
contract, or materially impair his chance of obtaining return
performance, or materially reduce its value to him”; 2) “the
assignment is forbidden by statute or is otherwise inoperative
on grounds of public policy”; or 3) “assignment is validly
precluded by contract.”
317(a)(2).

Restatement (Second) of Contracts §

None of these conditions is present here.

Thus,

MERS validly assigned its rights as mortgagee to Fannie Mae, and
privity of contract existed between the plaintiff and Fannie Mae
at the time of the foreclosure.3
The plaintiff next argues that, privity notwithstanding,

And even if privity did not exist, the NHSC has suggested,
citing considerable authority from other states, that the
economic loss doctrine still generally bars recovery in a tort
for purely economic harm. See Plourde Sand & Gravel, 154 N.H.
at 795–96.
3

8

the economic loss doctrine should not apply because a “special
relationship” exists between the plaintiff and Fannie Mae.

The

NHSC, like many courts, has recognized that a plaintiff can
recover for purely economic harm “where there is a ‘special
relationship’ between the plaintiff and the defendant that
creates a duty owed by the defendant . . . .”

Plourde Sand &

Gravel, 154 N.H. at 795 (formatting and citation omitted).
Beyond conclusorily stating that Fannie Mae “enjoys a ‘special
relationship’ in [its] role as mortgage servicer”, doc. no. 15,
at 2, however, the plaintiff has provided no basis for
concluding that her relationship with Fannie Mae was anything
other than purely contractual.

Moore, 848 F. Supp. 2d at 133

(citing Ahrendt v. Granite Bank, 144 N.H. 308, 311 (1999))
(“[U]nder New Hampshire law, the relationship between a lender
and borrower is contractual in nature . . . .”).

The court can

identify no precedent supporting such a conclusion.

Thus, this

argument too must fail.
Finally, the plaintiff argues that her negligent
misrepresentation claim is not barred because Fannie Mae is “in
the business of supplying information.”

Doc. no. 15, at 2.

NHSC has recognized such an exception to the economic loss
doctrine.

Plourde Sand & Gravel, 154 N.H. at 795 (citation

omitted).
One who, in the course of his business, profession or
9

The

employment, or in any other transaction in which he has a
pecuniary interest, supplies false information for the
guidance of others in their business transactions, is
subject to liability for pecuniary loss caused to them by
their justifiable reliance upon the information, if he
fails to exercise reasonable care or competence in
obtaining or communicating the information.
Plourde Sand & Gravel, 154 N.H. at 799 (quoting Restatement
(Second) of Torts § 552(1)).

This exception “is narrower than

the traditional tort claim” for negligent misrepresentation.
Id. (citation omitted).
Here, the plaintiff has not adequately pleaded the elements
of the negligent misrepresentation exception.

Assuming arguendo

that Fannie Mae is “in the business of supplying information,”
the plaintiff has pleaded no facts from which the court can
reasonably infer that Fannie Mae supplied her with false
information.

Nor has she pleaded any facts suggesting

justifiable reliance on her part.
Yet even if the plaintiff had pleaded such facts, recovery
would nonetheless be barred by the economic loss doctrine.

The

First Circuit, interpreting NHSC precedent, has read this
exception to apply “only [to] those representations that precede
the formation of the contract or that relate to a transaction
other than the one that constitutes the subject of the
contract . . . .”

Schaefer v. Indymac Mortg. Servs., 731 F.3d

98, 109 (1st Cir. 2013) (citing Wyle, 162 N.H. at 411–12).

As

Fannie Mae was assigned the mortgage in this case, any purported
10

misrepresentation on Fannie Mae’s part necessarily occurred
after the mortgage was formed.

And misrepresentations made in

the context of foreclosure proceedings inextricably relate to a
transaction central to the underlying contract, in this case the
mortgage itself.

Thus, consistent with established First

Circuit precedent, the negligent misrepresentation exception
cannot apply in the present context.
In sum, the economic loss doctrine bars the plaintiff from
recovering on any of her state tort claims.

Accordingly, Counts

I, II, and V are dismissed.
II.

Good Faith and Fair Dealing
The court next considers Count III of the plaintiff’s

amended complaint, her claim for breach of the covenant of good
faith and fair dealing.

Fannie Mae contends that this claim

must be dismissed both because it had no duty to provide the
plaintiff with the opportunity to seek loss mitigation prior to
foreclosure and because no violation of this covenant can be
premised solely upon the exercise of a bargained-for right.
Again, the court agrees.
“In every agreement, there is an implied covenant that the
parties will act in good faith and fairly with each other.”
Birch Broad, Inc. v. Capitol Broad. Corp., Inc., 161 N.H. 192,
198, 13 A.3d 224 (2010).

The NHSC applies this covenant in

three contexts: 1) contract formation; 2) termination of at-will
11

employment agreements; and 3) limitations of discretion in
contractual performance.
161 N.H. 714, 724 (2011).

J & M Lumber & Const. Co. v. Smyjunas,
The plaintiff contends that Fannie

Mae violated the covenant in at least two ways: 1) “[b]y keeping
[her] uninformed and off track with her [loan] modification
application”; and 2) “[b]y ignoring [her] ability to pay and
keeping [her] waiting to achieve [a] work out resolution while
[Fannie Mae] continued to add interest, late payments[,] and
other fees to [her] loan.”

Amend. Compl., doc. no. 13, ¶ 64.

Based on these allegations, the court assumes that the plaintiff
alleges that Fannie Mae abused its discretion under the mortgage
in the manner in which it pursued foreclosure.
As discussed above, there is privity of contract between
the parties.4

As such, the plaintiff’s good faith and fair

dealing claim turns on three questions: 1) whether the agreement
allows or confers discretion on Fannie Mae to deprive the
plaintiff of a substantial portion of the benefit thereunder; 2)
whether Fannie Mae exercised its discretion reasonably; and 3)

The plaintiff appears to contend in her amended complaint that
she and Fannie Mae entered a subsequent contract to work toward
a loan modification. See Amend. Compl. §§ 58–62. She has not,
however, alleged any facts to support this legal conclusion. As
such, the court need not assume its truth. See Ocasio-Hernandez
v. Fortuno-Burset, 640 F.3d 1, 10 (1st Cir. 2011) (citation
omitted) (“Unlike factual allegations, legal conclusions
contained within a complaint are not entitled to a presumption
of truth.”).
4

12

whether Fannie Mae’s abuse of discretion caused the damage
complained of.
omitted).

Moore, 848 F. Supp. 2d at 129 (citations

The court considers each of these questions in turn.

As to the first question, the mortgage here expressly
grants Fannie Mae the authority to foreclose upon the property
in the event of default.
479:19 et seq.

Doc. no. 2-3, at 13; see also RSA §

The court therefore concludes that the mortgage

allows or confers on Fannie Mae the discretion to deprive the
plaintiff of her rights to the property.
Turning, then, to the second question, the court finds that
Fannie Mae exercised its discretion reasonably.

“Courts have

generally concluded . . . that the covenant of good faith and
fair dealing in a loan agreement cannot be used to require the
lender to modify or restructure the loan.”
2d at 130.

Moore, 848 F. Supp.

“These decisions are consistent with New Hampshire

law that the applied covenant cannot be used to rewrite a
contract to avoid harsh results.”

Id. (citation omitted).

This

court “has time and again held that lenders have no duty absent
explicit contractual language to modify a loan or forbear from
foreclosure.”

Towle v. Ocwen Loan Servicing, LLC, No. 15-CV-

189-LM, 2015 WL 4506964, at *2 (D.N.H. July 23, 2015).

Here,

there is no language in the mortgage imposing such a duty upon
Fannie Mae.

There was therefore no requirement that Fannie Mae

restructure the mortgage or otherwise forebear from foreclosing
13

while the plaintiff pursued loan modification or acquired funds
to pay the arrearage.
The plaintiff arguably contends that Fannie Mae improperly
refused payment from the plaintiff for the amount in arrears.
This contention is unavailing for at least two reasons.

First,

as noted, Fannie Mae had no duty to postpone the foreclosure in
order to allow the plaintiff to make such a payment.

Id.

Accordingly, any contention that Fannie Mae violated the
covenant by failing to wait for the plaintiff must fail.

And

while the mortgage does grant the borrower a right to reinstate
the mortgage by making a full payment of the arrearage and
meeting other conditions, it only contemplates certain forms of
payment, none of which are by credit card.

Doc. no. 2-3, at 12.

Thus, Fannie Mae was fully within its rights to decline this
form of payment.
As Fannie Mae did not abuse its discretion under the
mortgage in the course of the foreclosure proceedings, the court
need not consider the third question.

The plaintiff has not

stated a viable claim for breach of the covenant of good faith
and fair dealing.

Accordingly, Count III is dismissed.

III. CPA
The court next considers the plaintiff’s CPA claim.

The

plaintiff contends that Fannie Mae violated the CPA by: 1)
“[r]efusing to consider reasonable foreclosure alternatives”; 2)
14

“[r]efusing to [p]ostpone [f]oreclosure to consider commercially
reasonable alternatives”; and 3) “[f]ail[ing] to [e]xhaust
[a]dministrative [r]emedies prior to embarking on
[f]oreclosure.”

Amend. Compl. ¶ 68.

Fannie Mae contends that

it is exempt from the CPA and, alternatively, that the plaintiff
has not identified any conduct that would give rise to a CPA
violation.

The court is persuaded by both arguments.

The CPA exempts from its purview “[t]rade or commerce that
is subject to the jurisdiction of . . . federal banking or
securities regulators who possess the authority to regulate
unfair or deceptive trade practices.”

RSA § 358-A:3, I.

The

director of the Federal Housing Finance Authority (“FHFA”) has
“general regulatory authority” over Fannie Mae “to ensure that
the purposes of [12 U.S.C. § 4511 et seq.], the authorizing
statutes, and any other applicable law are carried out.”
U.S.C. § 4511.

12

The scope of this authority is broad, and can

reasonably be construed to reach unfair or deceptive trade
practices.

See 12 U.S.C. § 4513(a).

Accordingly, Fannie Mae is

subject to the jurisdiction of federal banking and securities
regulators such that the CPA does not apply.
Even if the CPA did apply, however, the plaintiff has still
not stated a viable claim thereunder.

It is unlawful under the

CPA “for any person to use any unfair method of competition or
any unfair or deceptive act or practice in the conduct of any
15

trade or commerce within [New Hampshire].”

RSA § 358-A:2.

RSA

§ 358-A:2 contains a non-exhaustive list of conduct amounting to
a CPA violation.

See id. § 358-A:2, I–XVI.

Conduct not

specifically delineated can nonetheless give rise to a CPA
violation if it meets the so-called “rascality” test: i.e., it
“attain[s] a level of rascality that would raise an eyebrow of
someone inured to the rough and tumble of the world of
commerce.”

ACAS Acquisitions (Precitech) Inc. v. Hobert, 155

N.H. 381, 402 (2007) (citation omitted).
Here, the plaintiff has not specified any subsection of RSA
§ 358-A:2 that she believes Fannie Mae violated.

She instead

alleges general violations of the CPA based on the conduct noted
above.

As previously discussed, however, Fannie Mae was under

no obligation to consider alternatives to foreclosure or
otherwise forebear from foreclosure in order to allow the
plaintiff additional time to either modify the mortgage or pay
the arrearage.

Nor has the plaintiff pleaded facts from which

the court could reasonably infer that Fannie Mae failed to
exhaust administrative remedies in a matter that would violate
the CPA.

Simply put, even when taken as true, Fannie Mae’s

alleged conduct in this case does not rise to the level of
rascality to sustain a CPA claim.
Accordingly, Count IV of the plaintiff’s amended complaint
is dismissed.
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IV.

RESPA
The court turns to the plaintiff’s RESPA claim.

The

plaintiff alleges that Fannie Mae failed to respond to numerous
requests to avoid foreclosure, in violation of 12 U.S.C. §
2605(k).

Fannie Mae contends that the plaintiff does not have

standing to bring a RESPA claim because she did not sign the
promissory note.

The court need not reach this argument,

however, because even if the plaintiff did have standing to
bring a RESPA claim, she has failed to allege a violation of 12
U.S.C. § 2605(k).
Under RESPA, the servicer of a mortgage “shall not fail to
take timely action to respond to a borrower’s requests to
correct errors relating to . . . avoiding foreclosure . . . .”
12 U.S.C. § 2605(k)(1)(C).

Though the plaintiff asserts that

Fannie Mae failed to respond to “numerous requests . . . to
avoid foreclosure,” Amend. Compl. § 83, she has not alleged any
facts to support this assertion.

On the contrary, the

plaintiff’s amended complaint is replete with allegations that
Fannie Mae did in fact respond to the plaintiff’s requests to
avoid foreclosure, and each time refused to do so.

The court

therefore views this as “an example of a conclusory statement
that, though presented as an assertion of fact, simply describes
[a] legal conclusion.” Ocasio-Hernandez, 640 F.3d at 10.

In

this context, the legal conclusion is that Fannie Mae violated
17

RESPA.
Even were the court to construe this assertion as an
allegation of fact, however, the plaintiff’s RESPA claim would
still fail.

Subsection 2605(k)(1)(C) does not make it unlawful

to fail to respond to any requests to avoid foreclosure, but, as
relevant here, to “requests to correct errors relating to[,]”
among other things, “avoiding foreclosure.”
added).

Id. (emphasis

The plaintiff has nowhere asserted that she made a

request to correct an error relating to avoiding foreclosure,
let alone that Fannie Mae failed to respond to such a request.
This is fatal to her RESPA claim.
Accordingly, Count VI of the plaintiff’s amended complaint
is dismissed.
V.

Standing to Foreclose
Finally, the court turns to Count VII of the plaintiff’s

amended complaint, which addresses Fannie Mae’s legal standing
to foreclose on the property.

The plaintiff suggests that

Fannie Mae may not have standing to foreclose on the property
because it may not be able to produce the promissory note.

This

argument fails for several reasons.
First, the plaintiff has not alleged any concrete harm, and
merely speculates that Fannie Mae’s standing to foreclose might
become an issue at some point in the future.

The plaintiff has

accordingly failed to plead any injury-in-fact that this court
18

may redress.

See Hochendoner v. Genzyme Corp., 823 F.3d 724,

731 (1st Cir. 2016) (discussing the requirements of Article III
standing).
Next, Fannie Mae has in fact produced the note in question,
as evidenced by the note’s attachment as an exhibit to Fannie
Mae’s original motion to exist.
Finally, to the extent that the plaintiff attempts to argue
that Fannie Mae does not have the authority to foreclose because
it is not the current holder of the promissory note, this
argument also fails.

The NHSC has held that when MERS is acting

as nominee to the lender, as is the case here, see doc. no. 2-3,
at 2, an agency relationship exists between MERS and the lender.
See Bergeron v. N.Y. Cmty. Bank, 168 N.H. 63, 70 (2015).

Under

such circumstances, the assignee of MERS’s interests as nominee
has the authority to foreclose regardless of whether it holds
the note at the time of foreclosure.

Id. at 70–71.

It is

therefore immaterial whether Fannie Mae currently holds the
note.
Accordingly, Count VII of the amended complaint must also
be dismissed.
Conclusion
In sum, the plaintiff’s amended complaint, doc. no. 13,
fails to state any plausible claim for relief.

19

Fannie Mae’s

motion to dismiss, doc. no. 14, is granted.

The clerk of court

is directed to enter judgment accordingly and close the case.
SO ORDERED.

__________________________
Andrea K. Johnstone
United States Magistrate Judge
December 1, 2016
cc:

Keith A. Mathews, Esq.
David D. Christensen, Esq.
Michael R. Stanley, Esq.

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