LaFratta v. Select Portfolio Servicing, Inc.

Filing 6

///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
v.

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).

LaFratta

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
plaintiff’s claims.

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,

678-79 (2009).
Discussion
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.

SPS

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).

The

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

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SPS.

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).

A

mortgage servicer’s actions might also support state law causes
of action.

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
be granted.
Conclusion
For the foregoing reasons, the defendant’s motion to
dismiss (document no. 3) is granted.
dismissed.

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The complaint is

The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.

__________________________
Joseph DiClerico, Jr.
United States District Judge
January 10, 2017
cc:

John E. LaFratta, pro se
William P. Breen, Esq.

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