Speake v. The Bank of New York Mellon
///ORDER granting 2 Motion to Dismiss. All of the claims in the plaintiff's petition are 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
Jack T. Speake
Civil No. 17-cv-20-JD
Opinion No. 2017 DNH 076
The Bank of New York Mellon
f/k/a Bank of New York, as
Trustee of the CWALT, Inc.
Alternative Loan Trust 2006-6CB,
Mortgage Pass-Through Certificates
O R D E R
Jack T. Speake, proceeding pro se, filed a petition in
state court to enjoin The Bank of New York Mellon, as trustee,
of the CWALT, Inc. Alternative Loan Trust 2006-6CB, Mortgage
Pass-Through Certificates Series 2006-6CB (“Bank”) from
foreclosing on his property and seeking damages.
court denied Speake’s request for an ex parte temporary
moved to dismiss.
The Bank removed the case to this court and
Speak was granted an extension of time to
file a response to the motion to dismiss but failed to do so.
Standard of Review
In considering a motion 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 addition to the properly pleaded allegations in the
complaint, the court may consider documents that the plaintiff
filed with the complaint.
39, 46 (1st Cir. 2011).
See Haley v. City of Boston, 657 F.3d
In this case, Speake filed the mortgage
and the note, along with other documents, with his complaint.
Those documents are considered for purposes of the Bank’s motion
In the petition, Speake alleges that he and his wife took
title to property at 33 Route 4A, Wilmot, New Hampshire, in
April of 2006.
Speake alleges that they obtained a loan of
Much of the petition consists of legal conclusions which
cannot be considered for purposes of determining whether a
plaintiff has stated a claim for relief. See Garcia-Catalan v.
United States, 734 F.3d 100, 103 (1st Cir. 2013).
$215,300.00, which was secured by the property and that “[o]n
information and belief [he] allegedly executed a Promissory Note
(the ‘Note’) and Mortgage on the Property securing the Note (the
‘Mortgage’) with [Countrywide Home Loan, Inc. (‘CWHL’)].”
“The Note and Mortgage/Notice to Cancel Rescission
and HUD-1 Settlement Agreement were ever [sic] returned to the
Speake’s after CWHL Settlement agent left the Speake’s kitchen.”
In the Speakes’ mortgage, MERS was the nominee for the
lender, Countrywide Home Loans, Inc., and was named as the
MERS assigned the mortgage to BAC Home Loans
Servicing, LP on September 15, 2010, and the assignment was
recorded on September 16, 2010, in the Merrimack County Registry
Bank of America, N.A., as successor by merger to BAC
Home Loans Servicing, LP assigned the mortgage to the Bank on
June 11, 2011, and the assignment was recorded on June 14, 2011.
A second assignment from Bank of America, N.A. as successor by
merger to BAC Home Loans Servicing, LP, dated December 22, 2011,
was recorded on December 23, 2011.
Speake contends that the mortgage that is recorded in the
registry was fraudulently notarized by a justice of the peace
and that any documents the Bank might produce would be
He alleges that CWHL has never provided evidence of
a note or mortgage.
He further alleges that he mailed a “Notice
to Rescind” on May 20, 2015, and that the notice is recorded in
the registry of deeds.
Beginning in 2008, the Speakes attempted to have their loan
modified, without success.
Speake alleges that they have been
fighting to stop foreclosures since 2010.
Apparently, there was a foreclosure scheduled on the
property for March 14, 2016, which was cancelled.
Speake had communications with Select Portfolio Services, Inc.
Speake alleges misconduct by Select Portfolio Services, real
estate websites, and the Bank, pertaining to representations
about a foreclosure that had not happened.
A foreclosure of the property was scheduled for November 8,
Speake states that he did not receive notice of the
On November 8, 2016, Speake filed the
petition in state court, seeking, among other things, an ex
parte temporary restraining order to stop the foreclosure sale.
The state court denied the request for a restraining order.
Bank removed the case to this court.
Speake alleges in Counts I through III that the Bank lacks
the authority to foreclose.
Speake alleges in Counts IV through
VII that the Bank breached the duty of good faith and fair
dealing, that he did not default, that there is no mortgage
contract to enforce, and that the Bank lacks standing.
VIII is titled “Rescission”.
The Bank moves to dismiss all of
Authority to Foreclose
Speake contends that the Bank lacks the authority to
foreclose on the property because it does not have the “Original
Wet-Ink Note,” because of gaps in the chain of assignment of the
mortgage, and because the Bank does not possess both the note
and the mortgage.
The Bank moves to dismiss on the grounds that
the claims are not supported by facts, Speake does not state a
claim, and that Speake has not alleged any harm.
When the mortgage shows an agency relationship between the
lender and the mortgagee, with the ability to assign those
interests, and the subsequent assignments are valid, an assignee
of the mortgagee, as the agent of the noteholder, has the
authority to exercise the power of sale under the mortgage
without holding the note.
N.H. 63, 71 (2015).
Bergeron v. N.Y. Comm’ty Bank, 168
When a mortgage states that MERS is “acting
solely as nomine for Lender and Lender’s successors and
assigns,” it creates an agency relationship between MERS and the
Id. at 70.
Then, if the mortgage so provides, MERS has
the right to exercise any and all of the rights of the lender,
including the authority to foreclose and sell the property.
That is the case here.
Speake’s mortgage identifies MERS
as the nominee for Countrywide Home Loans, Inc. in the same
language that was used in the mortgage at issue in Bergeron.
Speake’s mortgage also grants MERS, as nominee for Countrywide,
the right to exercise all of the lender’s interests, including
the right to foreclose and sell the property, as was the case in
Therefore, as long as the assignment of the mortgage
to the Bank is valid, the Bank has the authority to foreclose
and sell the property.
Speake does not explain what defect he finds in the chain
of assignments between MERS and the Bank.2
To the extent he
relies on the second assignment from BAC to the Bank in December
of 2011, he does not show a defect.
Instead, the second
Speake attached to the complaint a copy of an “Expert
Summary Report” prepared by Brown & Associates of Beverly Farms,
Massachusetts, that is dated June 29, 2015. Doc. 1-1, at 58.
The report states that “Brown & Associates LLC was retained to
conduct a review of the securitization documents publicly
available for [Speake’s property’s address] and subsequent
documentation for purposes of making the following
determinations: (1) identify the terms of the compliance with
the Trust; and (2) review whether the terms of compliance have
been met or not met after a consideration of review of
additional documentation made available for purposes of this
review.” Id. at 59. The Brown report provides an opinion that
the assignments of the mortgage “did not occur in accordance
with the terms of Prospectus and Pooling and Servicing
Agreement.” That opinion, however, does not affect the validity
of the mortgage assignments with respect to the Bank’s right to
foreclose on Speake’s mortgage. See, e.g., Proal v. JP Morgan
Chase & Co., 202 F. Supp. 3d 209, 214 (D. Mass. 2016); Dove v.
Bank of N.Y. Mellon, 2016 WL 799117, at *4 (D.N.H. Feb. 29,
assignment merely confirms the first assignment, which was made
in September of 2010.
Dyer v. Wells Fargo, N.A., 841 F.3d 550,
554 (1st Cir. 2016).
Because Speake has not alleged a defect in
the chain of assignment to the Bank, the Bank has authority to
foreclose and sell the property.
Good Faith and Fair Dealing
Speake alleges that the Bank breached the duty of good
faith and fair dealing by denying him loan modifications because
the Bank or its servicing agents lost the documents he provided.
New Hampshire recognizes an implied duty of good faith and fair
dealing in contractual relationships.
Birch Broad, Inc. v.
Capitol Broad. Corp., 161 N.H. 192, 198 (2010).
It is well-
settled, however, that mortgagees are not required under the
duty of good faith and fair dealing to consider a request or an
application for a loan modification.
Mader v. Wells Fargo Bank,
N.A., 2017 WL 177619, at *4 (D.N.H. Jan. 17, 2017) (citing
Therefore, Speake has not stated a claim for breach of
the duty of good faith and fair dealing.
Speake states that “[p]ursuant to the provisions of the
Pooling Servicing Agreement and other related agreements by the
parties to said Series 2006-6CB Trust, other parties including
the servicers and/or insurers have assumed or guaranteed or
insured the payment obligations of the Speake’s [sic] under
their Promissory Note thereby curing and eliminating any default
under the promissory note according to its own terms.”
1-1, at 18, Petition, ¶ 93.
In support, Speake alleges only
that the “internal accounting and tax records of said Trust”
will show that his mortgage loan has been paid.
The theory that a mortgage loan was paid pursuant to
agreements between the Trust and other entities has been raised
and rejected in other cases.
Payments made under Pooling
Service Agreements are “pursuant to separate contractual
obligations between the servicers and the trusts” and, for that
reason, are not made on behalf of the mortgagor.
Ouch v. Fed.
Nat’l Mortg. Ass’n, 2013 WL 139765, at *3 (D. Mass. 2013); see
also In re Rivera, 2016 WL 5868693, at *11 (B.A.P. 9th Cir. Oct.
6, 2016) (explaining operation of Pooling Servicing Agreements);
Pulliam v. PennyMac Mortg. Inv. Tr. Holding I LLC, 2014 WL
3784238, at *4 (D. Me. July 31, 2014) (lack of servicing
agreement not material when allegations do not support claim).
Therefore, Speake does not state a claim based on a theory
that his mortgage note is not in default.
Speake contends that there is no mortgage contract because
Countrywide did not provide funds under the mortgage loan and is
not the identified lender.
As a result, Speake asserts,
Countrywide lacked authority to enforce or assign the mortgage.
The language of the mortgage itself contradicts Speake’s
Countrywide is identified as the “Lender” in the mortgage
agreement and references the note through which Speake borrowed
Speake alleged in the complaint that he and his
wife obtained a loan of $215,300.00 from Countrywide in 2006.
Therefore, Speake does not allege a viable claim that there is
no mortgage contract.
In support of the claim titled “No Standing,” Speake
alleges that his property has been taken “by false pretenses and
false advertising regarding pending listings of Petitioners
property without it ever having been foreclosed on.”
at 20, Petition, ¶ 101.
He cites advertisements on real estate
websites, Trulia and Zillow, and states that he was promised
thousands of dollars to leave the property or face eviction.
asserts that the advertising was “false swearing, slandering off
the Petitioners title and defamation of character.”
Id. ¶ 102.
To the extent Speake intended to rely on his assertion that
the mortgage recorded in the registry of deeds was fraudulently
notarized, that assertion does not support his claim. Speake
does not deny that he signed the mortgage.
To the extent Speake intended to challenge the Bank’s
standing to foreclose and sell the property, that claim was
addressed in Part A, above.
The remainder of Count VII does not
address standing but instead seems to raise slander of title and
A claim of slander of title must be supported with facts
showing that the defendant maliciously published false
statements that disparaged his right to the property and special
damages that resulted.
See Rosa v. Mortg. Elec. Sys., Inc., 821
F. Supp. 2d 423, 434 (D. Mass. 2011); Sprague Corp. v. Sprague,
855 F. Supp. 423, 437 (D. Me. 1994).
Speake alleges that Trulia
and Zillow have shown on their websites that his property was
foreclosed and sold for $31,000 and that a bank owns the
Speake provides no facts to show that the Bank had
any involvement in providing the information shown on the cited
websites, that the information disparages his right to the
property, or that he suffered any special damages as a result of
the information on the websites.
Therefore, Speake provides no
factual allegations to support a claim of slander of title.
Under New Hampshire law, “to establish defamation, there
must be evidence that a defendant published a false and
defamatory statement of fact about the plaintiff to a third
Moss v. Camp Pemigewassett, Inc., 312 F.3d 503, 507
(1st Cir. 2002) (internal quotation marks omitted).
alleges that Trulia and Zillow, not the Bank, published false
information about his property.
His allegations do not support
a claim for defamation against the Bank.
Speake contends that he is entitled to have the mortgage
loan rescinded, under the Truth in Lending Act (“TILA”) and the
Real Estate Settlement Procedures Act (“RESPA”), because he sent
a notice of rescission by certified mail on May 15, 2015, which
was recorded on March 11, 2016.4
The Bank moves to dismiss the
claim on the ground that it is time barred.
Under TILA, a borrower in a consumer credit transaction
that provides a security interest in the principal dwelling of
the borrower “shall have the right to rescind the transaction
until midnight of the third business day following the
consummation of the transaction or the delivery of the
information and rescission forms” and other information.
U.S.C. § 1635(a).
Regardless of when or if the required
information, forms, and disclosures are provided, a borrower’s
“right of rescission shall expire three years after the date of
RESPA does not appear to apply to this claim. To the extent
Speake intended to raise an issue about a QWR under RESPA, he
has not alleged facts to support the claim. 12 U.S.C.
§§ 2605(e)(1) & 2605(f). See, e.g., Ramos-Gonzalez v. First
Bank of P.R., 2015 WL 6394409, at *2-*3 (D.P.R. Oct. 22, 2015)
(explaining claims under RESPA).
consummation of the transaction or upon the sale of the
property, whichever occurs first” unless an agency proceeding to
enforce TILA is begun in the meantime that involves the
borrower’s right to rescind.
In this case, Speake and his wife obtained the mortgage
loan in March of 2006.
Speake did not send a notice of
rescission until May of 2015.
Because Speake’s right to rescind
expired long before May of 2015, the claim is time barred.
For the foregoing reasons, the defendant’s motion to
dismiss (document no. 2) is granted.
All of the claims in the
plaintiff’s petition are dismissed.
The clerk of court shall enter judgment accordingly and
close the case.
Joseph DiClerico, Jr.
United States District Judge
April 17, 2017
Jack T. Speake, pro se
Michael P. Trainor, Esq.
Mary Ellen Manganelli, Esq.
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