Gehrke v. Specialized Loan Servicing, LLC

Filing 11

ORDER granting 6 Motion to Dismiss for Failure to State a Claim. Defendant's motion to dismiss (doc. no. 6) is granted without prejudice to Gehrke's ability to file an amended complaint setting forth facts sufficien t to state plausible claims against defendant. Gehrke has until May 12, 2017, to file and properly serve an amended complaint. Failure to file and properly serve an amended complaint within this time frame will result in the dismissal of Gehrke's claims against defendant with prejudice. So Ordered by Judge Landya B. McCafferty.(de)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
James E. Gehrke
v.

Civil No. 16-cv-484-LM
Opinion No. 2017 DNH 075

Specialized Loan Servicing, LLC
O R D E R
James Gehrke, proceeding pro se, brings suit against
Specialized Loan Servicing, LLC (“Specialized Loan”), alleging
claims arising out of Specialized Loan’s efforts to foreclose on
his home.

Gehrke originally filed his lawsuit in superior court

and Specialized Loan removed it to this court.

Specialized Loan

moves to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6).

Gehrke objects.
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 in the plaintiff’s complaint 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 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

Because Gehrke is proceeding pro se, the court is obliged
to construe his complaint liberally.

See Erikson v. Pardus, 551

U.S. 89, 94 (2007) (per curiam) (internal citations omitted) (“a
pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers”).

However, “pro se status does not insulate a party

from complying with procedural and substantive law.

Even under

a liberal construction, the complaint must adequately allege the
elements of a claim with the requisite supporting facts.”
Chiras v. Associated Credit Servs., Inc., No. 12-10871-TSH, 2012
WL 3025093, at *1 n.1 (D. Mass. July 23, 2012) (quoting Ahmed v.
Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997) (internal citation
and quotation marks omitted)).
Background 1
On October 10, 2006, Gehrke executed a promissory note in
favor of Countrywide Home Loans, Inc. (“Countrywide”), in
exchange for a loan of $180,000.

That same day, Gehrke and

1

The facts are drawn from Gehrke’s complaint (doc. no. 12), the exhibits attached to the complaint, see Fed. R. Civ. P.
10(c); see also Trans-Spec Truck Serv. v. Caterpillar, Inc., 524
F.3d 315, 321 (1st Cir. 2008), and filings in Gehrke’s
bankruptcy proceeding, which were included with defendant’s
motion to dismiss, see Rivera v. Centro Medico de Turabo, Inc.,
575 F.3d 10, 15 (1st Cir. 2009) (noting that a court may
consider official public records and documents sufficiently
referred to in the complaint on a motion to dismiss without
converting the motion to one for summary judgment).
2

Phyllis Buco granted a mortgage on their home to Countrywide to
secure Gehrke’s loan, with Mortgage Electronic Registrations
Systems, Inc. (“MERS”) as the mortgagee in its capacity as
nominee for Countrywide.

On June 29, 2011, MERS assigned the

mortgage to Bank of New York Mellon (“Bank of New York”).
On April 14, 2014, Gehrke instituted a voluntary Chapter 7
bankruptcy proceeding in the United States Bankruptcy Court for
the District of New Hampshire.

See In re James E. Gehrke, Bk.

No. 14-10746-JMD (Bankr. D.N.H. 2014).

Gehrke listed his home

as the only real property in which he held an interest on his
Bankruptcy Schedule A.

See doc. no. 6-3.

Gehrke identified

Specialized Loan as his only secured creditor, stating that
Specialized Loan held a “First Mortgage” on his home that
originated in “10/2006.”

Id.

On June 24, 2014, Bank of New York filed a “motion for
relief from automatic stay.”

See doc. no. 6-4.

In the motion,

Bank of New York stated that it held Gehrke and Buco’s mortgage,
and that the mortgage was “modified by a Loan Modification
Agreement on August 27, 2009.”

Id. at 3.

The motion further

stated:
Movant desires relief from the automatic stay under 11
U.S.C. §362(d), as the Respondent has failed to make
the Pre-Petition payments for September 20010 [sic]
through September 2011 at the rate of $1,674.74 per
month and October 1, 2011 through September 20012
[sic] at the rate of $1,601.26 per month, and October

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2012 through September 2013 at the rate of $1,607.50
per month and October 2013 through April 1, 2014 at
the rate of $1,667.68 per month for a pre-petition
mortgage arrearage of $71,950.50 plus reasonable
attorney’s fees of $550.00 for filing this motion and
court costs of $176.00. That the Respondent is in
default under the terms, conditions, and covenants of
the mortgage and the total Pre-petition arrears are
$72,676.50.
Id. at 3-4.
6-5 at 4.

Gehrke did not object to the motion.

See doc. no.

On July 16, 2014, the bankruptcy court granted Bank

of New York’s motion.

See doc. no. 1-2 at 8.

Gehrke brought this action in superior court on November
11, 2016.

In his complaint, Gehrke states: “November 2010 I

tried to get a mortgage modification. They refused me, then I
found a mortgage modification agreement that I have never
signed, dated August 27th, 2009, and says I signed allegedly
September 24th 2009.”

Doc. no. 1-2 at 1.

Gehrke alleges that

“the foreclosure sale of my home is based on a forged document,”
which he explains is the loan modification agreement.

Id. at 2.

He further alleges that “the mortgage is full of fraudulent
papers” and states that he wants “to find out who owns the
mortgage and to work out a resolution to make payments.”

Id.

Gehrke also includes with his complaint a copy of the signature
page of his loan modification agreement, with handwritten

4

remarks stating “forged notorization [sic] paper” and an arrow
pointing to the Notary’s signature. 2

Id. at 5.

Discussion
Specialized Loan moves to dismiss the complaint, arguing
that it fails to state a plausible claim for relief.

Gehrke

objects, stating simply that “we would like a modification to
stay in our home.”

Doc. no. 7 at 1.

He includes with his

objection a handwritten letter, in which he states that he
entered into a 30-year mortgage agreement with a company called
Ideal Mortgage for a $100,000 loan, but that Ideal Mortgage then
instituted foreclosure proceedings after six months.

See doc.

no. 7 at 4.
Gehrke also includes with his objection a notice from Bank
of America Home Loans Servicing, LP’s (“Bank of America”) Home
Retention Division.

See id. at 5.

The notice is dated August

27, 2009, and informs Gehrke that his loan modification has been
approved and that he must sign the enclosed modification
agreement in the presence of a Notary. 3

See id. at 5 & 6.

2

Gehrke alleges that his signature is forged. Gehrke’s
handwritten remarks on the modification agreement’s signature
page, however, appear to suggest that it is the Notary’s
signature that is forged.
3

Although not clear from Gehrke’s complaint, it appears
that Bank of America was the servicer of Gehrke’s mortgage in
August 2009, and that Specialized Loan became the servicer on
the mortgage sometime after that date.
5

Gehrke’s objection to Specialized Loan’s motion to dismiss
addresses actions taken by an entity, Ideal Mortgage, not
referred to in Gehrke’s complaint and based on a mortgage and
loan which is also not referenced in his complaint.
nature of Gehrke’s claims in this action are unclear.

Thus, the
Gehrke

appears to claim that someone forged his name on the August 2009
loan modification agreement, and that Specialized Loan is
attempting to enforce the terms of that agreement based on
Gehrke’s failure to make his monthly payments.

While the nature

of the claim against Specialized Loan is not entirely clear, the
nature of the relief Gehrke seeks is clear: Gehrke seeks a loan
modification agreement that will allow him to remain in his
home. 4
Gehrke makes no attempt to explain why Specialized Loan or
any other entity would forge his signature on the August 2009
loan modification agreement.

That allegation is particularly

implausible in light of Gehrke’s submissions in this case and
filings in his bankruptcy case, which show that: Gehrke applied
for a loan modification in 2009; he was in default of his
obligations under the original note and mortgage prior to August
2009 because he failed to make his monthly payments; and that he

4

The court notes that Specialized Loan appears to be the
servicer of the mortgage, and Bank of New York, which is not
named in the complaint, holds the mortgage.
6

failed to make any monthly mortgage payments for at least
several years after August 2009.
Moreover, even if Gehrke could show that his name was
forged on the August 2009 modification agreement, he would not
be entitled to the relief that he seeks in this case.

Gehrke

was in default of his obligations under the original mortgage
agreement which, by its terms, entitles the mortgagee as nominee
for the lender to invoke the power of sale upon Gehrke’s
default.

Thus, even if Gehrke could show that his signature was

forged on the modification agreement, the relief for that claim
would not include forcing Specialized Loan to offer him a loan
modification agreement or allowing him to remain in his home.
In sum, Gehrke has failed to allege a plausible claim in
his complaint.

Therefore, the court grants defendant’s motion

to dismiss without prejudice to Gehrke’s ability to file an
amended complaint that states a viable claim against defendant.

Conclusion
For the foregoing reasons, defendant’s motion to dismiss
(doc. no. 6) is granted without prejudice to Gehrke’s ability to
file an amended complaint setting forth facts sufficient to
state plausible claims against defendant.

See, e.g., Rodi v. S.

New Eng. Sch. of Law, 389 F.3d 5, 20 (1st Cir. 2004).

Gehrke

has until May 12, 2017, to file and properly serve an amended

7

complaint.

Failure to file and properly serve an amended

complaint within this time frame will result in the dismissal of
Gehrke’s claims against defendant with prejudice.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge

April 14, 2017
cc:

James E. Gehrke, pro se
Jack S. McNicholas, Esq.

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