LaFratta v. Select Portfolio Servicing, Inc.
///ORDER granting 3 Motion to Dismiss for Failure to State a Claim. Complaint is dismissed. Clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John E. LaFratta
Civil No. 16-cv-510-JD
Opinion No. 2017 DNH 007
Select Portfolio Servicing, Inc.
O R D E R
John LaFratta, who is proceeding pro se, brought suit in
state court against Select Portfolio Servicing, Inc. (“SPS”).
SPS removed the case to this court and has moved to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6).
did not respond to the motion to dismiss.
Standard of Review
In considering a motions under Rule 12(b)(6), the court
takes the factual allegations in the complaint as true and draws
reasonable inferences from those facts in favor of the
Sanders v. Phoenix Ins. Co., 843 F.3d 37,
42 (1st Cir. 2016).
Based on the properly pleaded facts, the
court determines whether the plaintiff has stated “a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. 544, 570 (2007).
Bell Atl. Corp. v.
A claim is plausible if the
facts as pleaded, taken in the context of the complaint and in
light of “judicial experience and common sense,” allow the court
to draw “the reasonable inference that the defendant is liable
for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662,
In the complaint, LaFratta alleges that that SPS is a debt
collector, that SPS received his mortgage payments owed to J.P.
Morgan Chase Bank, that he contacted SPS more than 60 times to
pay his debt owed to J.P. Morgan Chase Bank, and that SPS
refused his payments.
LaFratta seeks $500,000 in damages.
moves to dismiss the complaint on the grounds that LaFratta has
not alleged sufficient facts to support a cause of action and
that to the extent LaFratta intended to bring a breach of
contract claim, it fails.
Because LaFratta did not respond to
the motion to dismiss, he has not provided any insight into what
claim or claims he intended to bring in his complaint.
Under New Hampshire law, a breach of contract claim
requires a valid and enforceable contract between the parties
and a breach of the contract by the defendant.
Mudge v. Bank of
Am., N.A., 2015 WL 1287476, at *2 (D.N.H. Mar. 25, 2015).
few facts that LaFratta alleges in his complaint do not suggest
a contract between LaFratta and SPS.
According to the
complaint, his mortgage was with J.P. Morgan Chase Bank, not
LaFratta does not allege that he had entered any agreement
with SPS or that SPS owed him a contractual duty.
In some circumstances, mortgage servicers may have certain
statutory duties and obligations.
See, e.g., Gasparik v. Fed.
Nat’l Mortg. Ass’n, 2016 WL 7015672, at *6 (D.N.H. Dec. 1,
2016); Dionne v. Fed. Nat’l Mortg. Ass’n, 2016 WL 6892465, at
*4-*5 (D.N.H. Nov. 21, 2016); Hamilton v. Fed. Home Loan Mortg.
Corp., 2014 WL 4594733, at *20 (D. Me. Sept. 15, 2014).
mortgage servicer’s actions might also support state law causes
See, e.g., Leon v. Ocwen Servicing, 2016 WL 4575314,
at *3 (D. Mass. Sept. 1, 2016); Saade v. Pennymac Loan Servs.,
LLC, 2016 WL 4582083, at *7 (D. Mass. Aug. 31, 2016).
LaFratta, however, has not raised statutory or common law
claims and has not alleged facts to support any such claims.
Therefore, LaFratta has not alleged a claim on which relief may
For the foregoing reasons, the defendant’s motion to
dismiss (document no. 3) is granted.
The complaint is
The clerk of court shall enter judgment accordingly and
close the case.
Joseph DiClerico, Jr.
United States District Judge
January 10, 2017
John E. LaFratta, pro se
William P. Breen, Esq.
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