Poor v. U.S. Bank National Association, Trustee

Filing 12

///ORDER granting 5 Motion to Dismiss for Failure to State a Claim; granting 10 Motion Declare That State Court TRO Has Expired. 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

Shawn Poor
v.

Civil No. 17-cv-065-JD
Opinion No. 2017 DNH 073

U.S. Bank National
Association, Trustee

O R D E R
Shawn Poor brings suit to enjoin U.S. Bank National
Association (“U.S. Bank”) from foreclosing on his house.

U.S.

Bank moves to dismiss, arguing that Poor has failed to state a
claim.

Poor objects.

U.S. Bank also moves for an order declaring that a
temporary restraining order that the state court issued before
this case was removed has expired.

Poor did not object to this

motion.
Standard of Review
A motion to dismiss is reviewed under Federal Rule of Civil
Procedure 12(b)(6), which addresses whether the complaint states
a claim on which relief may be granted.
N.A., 790 F.3d 20, 23 (1st Cir. 2015).

Lister v. Bank of Am.,
In conducting this

review, the court “accept[s] as true all well–pled facts alleged
in the complaint and draw[s] all reasonable inferences in the

plaintiff’s favor.”
(1st Cir. 2016).

Miller v. Town of Wenham, 833 F.3d 46, 51

“A plaintiff’s allegations are sufficient to

overcome a Rule 12(b)(6) motion if they contain ‘enough facts to
state a claim to relief that is plausible on its face.’”
Yershov v. Gannett Satellite Info. Network, Inc., 820 F.3d 482,
485 (1st Cir. 2016) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 569 (2007)).
Background
In 1995, Poor obtained a loan secured by a mortgage on a
property located in Newton, New Hampshire.

Poor’s mortgage was

assigned to U.S. Bank as trustee for the Structured Asset
Investment Loan Trust, Mortgage Pass-through Certificates,
Series 2005-8.

On December 6, 2016, counsel for U.S. Bank

notified Poor that U.S. Bank had scheduled a foreclosure sale of
the property.
Five days before the scheduled foreclosure sale, Poor
brought suit in state court, seeking an ex parte temporary
restraining order and a preliminary injunction to stop the
foreclosure sale.

The state court granted Poor’s request for an

ex parte temporary restraining order.

In that order, the state

court required Poor to serve the summons and complaint on U.S.
Bank.

The summons notified U.S. Bank that the state court had

scheduled a hearing on Poor’s request for injunctive relief.
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U.S. Bank did not appear for that hearing because, it
contends, Poor did not complete service on it.

On the day of

the hearing, the state court issued an order noting that U.S.
Bank had “not yet received formal service” and holding that the
injunction “will remain in effect.”

U.S. Bank then removed the

action to this court on February 16, 2017, on the basis of
diversity jurisdiction.
Discussion
U.S. Bank moves to dismiss Poor’s complaint, arguing that
Poor has failed to (1) identify any cause of action entitling
him to relief and (2) allege any wrongful conduct on U.S. Bank’s
part that could support a cause of action.

In response, Poor

contends that he has alleged a viable equitable claim and
appears to challenge this court’s jurisdiction to hear this
suit.
In addition, U.S. Bank moves for an order declaring that
the ex parte temporary restraining order that the state court
issued has expired.

Poor did not file an objection to this

motion.
I.

Motion to Dismiss
Poor contends that U.S. Bank’s motion to dismiss must be

denied because (1) U.S. Bank improperly removed the case to this
court and (2) he has sufficiently stated a state law claim.
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A. Remand and Removal
In his opposition to the motion to dismiss, Poor argues
that U.S. Bank improperly removed this action under diversity
jurisdiction.

In support, Poor contends that removal was

improper because his claim is governed by state law.

Poor

asserts that U.S. Bank is using diversity jurisdiction “to
‘create’ a federal question (and then use the same as a basis
for dismissal) where none has been pled.”

Doc. no. 8 at ¶ 3.

To challenge removal, a plaintiff typically must move to
remand the case to state court.

See 28 U.S.C. § 1447(c).

Moreover, under the local rules of this district, parties may
not seek affirmative relief, such as remand, in an objection.
L.R. 7.1(a) (“Objections to pending motions and affirmative
motions for relief shall not be combined in one filing.”).
Therefore, to the extent Poor challenges the removal of the case
in his opposition to U.S. Bank’s motion to dismiss, that
challenge is procedurally improper.
In any event, Poor does not provide a basis for remanding
this case to state court.

In its notice of removal, doc. no. 1,

U.S. Bank asserts that the parties are citizens of different
states and that the amount in controversy is more than $75,000.
Poor does not challenge those assertions (some of which are

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based on his own allegations).

Therefore, U.S. Bank has

demonstrated that this court has diversity jurisdiction over
Poor’s claim.

See 28 U.S.C. § 1332 (setting forth requirements

for diversity jurisdiction).
Contrary to Poor’s assertions, his claim need not present a
federal question for this court to maintain diversity
jurisdiction over it.1

When a federal court sits in diversity,

it applies state substantive law.

Sanders v. Phoenix Ins. Co.,

843 F.3d 37, 42 (1st Cir. 2016) (“Because this case is brought
in diversity jurisdiction, we must look to state law for the
substantive rules of decision.”).
Accordingly, Poor’s challenge to removal, including his
jurisdictional arguments, lack merit.
B. Failure to State a Claim
U.S. Bank contends that Poor has failed to state a
plausible claim for relief.

In support, U.S. Bank argues that

Poor’s complaint fails to identify a viable cause of action.
Additionally, U.S. Bank asserts that Poor has alleged no
wrongdoing on its part that would justify any relief.

In

response, Poor states that his complaint, which is captioned as
“Verified Petition for Preliminary Injunction,” “set[s] forth

1

Poor is represented by counsel.
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the grounds for relief under traditional standards of equity,
i.e. irreparable harm, etc.”

Doc. no. 8 at ¶ 4.

In support of his petition for injunctive relief, Poor
alleges that a foreclosure sale of his property would be
inequitable because it would deny him the opportunity to either
(1) refinance his loan or (2) secure a private sale of the
property.

Mortgagees, however, have no duty to refinance or

modify a loan “absent explicit contractual language” requiring
them to do so.

Towle v. Ocwen Loan Servicing, LLC, 2015 WL

4506964, at *2 (D.N.H. July 23, 2015) (collecting cases)
(dismissing claim to enjoin foreclosure).

Mortgagees also have

no duty to forbear from foreclosing on a property following
default.

Id.

Poor cites no authority to the contrary.

Poor argues, nevertheless, that a foreclosure sale will
result in an unfair price, which will diminish the amount he
will receive for his equity in the property.

U.S. Bank,

however, has a duty to “exert every reasonable effort to obtain
a fair and reasonable price under the circumstances.”

Murphy v.

Fin. Dev. Corp., 126 N.H. 536, 541 (1985)(internal quotation
marks omitted).

Therefore, Poor does not state a claim based on

a theory that he has a right to conduct a private sale.
“Because mortgage foreclosure is essentially a right to
equitable relief, the element of fairness must pervade the

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entire foreclosure process.”

Meredith v. Fisher, 121 N.H. 856,

858-59 (1981) (internal citations omitted).

Courts may enjoin a

foreclosure sale based on the equities of the situation, such as
when the mortgage was obtained by fraud.

See Chase v.

Ameriquest Mortg. Co., 155 N.H. 19, 23-24 (2007).
In this case, however, Poor alleges no unfairness in the
foreclosure process and no wrongdoing by U.S. Bank.

As such, he

provides no allegations to support an injunction against the
foreclosure sale.
injunction.

Therefore, Poor has not stated a claim for an

Peoples Fed. Sav. Bank v. People’s United Bank, 672

F.3d 1, 8–9 (1st Cir. 2012) (providing elements necessary to
support injunctive relief).
II.

Temporary Restraining Order
U.S. Bank moves for an order declaring that the state

court’s ex parte temporary restraining order has expired.

“[A]n

ex parte temporary restraining order issued by a state court
prior to removal remains in force after removal no longer than
it would have remained in effect under state law, but in no
event does the order remain in force longer than the time
limitations imposed by [Federal Rule of Civil Procedure] 65(b),
measured from the date of removal.”

See Granny Goose Foods,

Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 of
Alameda Cty., 415 U.S. 423, 439-40 (1974).
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Under Rule 65(b), an

ex parte temporary restraining order, unless extended, can last
no longer than 14 days.

Fed. R. Civ. P. 65(b)(2).

U.S. Bank removed this action on February 16, 2017.
Accordingly, the state court’s order has now expired under Rule
65(b).

Therefore, the temporary restraining order is no longer

of any force or effect.
Conclusion
For the foregoing reasons, U.S. Bank’s motion to dismiss
(doc. no. 5) is granted, and U.S. Bank’s motion for an order
declaring that the ex parte temporary restraining order has
expired (doc. no. 10) is granted.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.

__________________________
Joseph A. DiClerico, Jr.
United States District Judge

April 12, 2017
cc:

David P. Azarian, Esq.
Michael R. Stanley, Esq.

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