C.A. Russell, Esq., et al v. Emigrant Residential, LLC

Filing 8

///ORDER granting 5 Motion to Dismiss for Failure to State a Claim. 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

Charles A. Russell, Administrator
of the Estate of Kathleen Skwozinski,
and Matthew Skwozinski
v.

Civil No. 17-cv-078-JD
Opinion No. 2017 DNH 069

Emigrant Residential, LLC

O R D E R
Charles A. Russell, as the administrator of the estate of
Kathleen Skworzinski, and Matthew Skworzinski, filed a complaint
against Emigrant Residential, LLC in state court to enjoin the
foreclosure sale of property owned by the estate and Matthew
Skworzinski.1

Emigrant removed the case to this court.

Emigrant

now moves to dismiss, and the plaintiffs object.
Standard of Review
In considering 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

Charles Russell is an attorney serving as the administrator
of the estate and also representing Matthew Skworzinski
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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).
The plaintiffs’ objection does not comply with Local Rule
2.3(a) and Appendix A to the Local Rules, Supplemental Rules for
Electronic Case Filing, 2.3(a).

For that reason, the plaintiffs

were directed to refile the objection by April 7, 2017.

The

plaintiffs failed to refile the objection.
The court may impose sanctions for a failure to comply with
the local rules.
failure to comply.

LR 1.3(a).
LR 1.3(b).

The court may also excuse a
In light of the outcome in this

case, the court excuses counsel’s failure to comply with the
local rules and has considered the objection.
Background
With the motion to dismiss, Emigrant provided a copy of the
mortgage and a document showing the assignment of the mortgage.
The plaintiffs do not object to those documents or dispute their
contents.
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In 2008, Kathleen Skwozinski, and her son, Matthew
Skwozinski, Jr., executed a promissory note to Emigrant Mortgage
Company, Inc. for a loan of $50,000 that is secured by a
mortgage on their property at 440 Gold Street, Manchester, New
Hampshire.

Emigrant Mortgage assigned the mortgage to Emigrant

Residential, LLC in 2011.
The Skwozinskis have defaulted on their payment obligations
since 2011.

A foreclosure sale of the property was scheduled

for February 22, 2017.
On February 17, 2017, the plaintiffs filed two complaints
on forms provided by the state court, seeking to enjoin the
foreclosure sale.

In describing why he is asking the court to

enjoin the foreclosure sale, Russell states:
State of N.H. is owed over $62,000 for nursing care
bills. Estate will have insufficient asets [sic]
remaining to make little, if any payment, on that
bill. Emigrant is owed about $70,000. Property
listed and assessed at two to three times amount owed
to Emigrant. Risk of any loss by Emigrant is low
given those facts.
Matthew Skwozinski adds that he is a half owner of the house and
that his retirement funds are tied up in the house.

The

plaintiffs further state that they want to have the foreclosure
sale enjoined so that they can proceed with a private sale of
the property.

The state court issued an ex parte temporary

restraining order on February 17, 2017.

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Discussion
Emigrant moves to dismiss the case on the ground that the
plaintiffs do not allege any claim for relief.

Specifically,

Emigrant notes that the plaintiffs allege no wrong doing by
Emigrant.

In response, the plaintiffs acknowledge that they

“are not challenging standing, faulty assignment, defective
title, or other possible violations of Federal laws.”

Instead,

the plaintiffs are asking the court to enjoin the foreclosure
sale because the property would be sold for less through that
process than it would in a private sale.
The plaintiffs’ mortgage, which Emigrant submitted with its
motion to dismiss, provides that the lender may invoke the
statutory power of sale in the event of default.

The plaintiffs

identify no right to proceed with a private sale of property
that is subject to foreclosure.2

The plaintiffs simply argue

that the court may provide them relief in equity by enjoining
the foreclosure sale.

Emigrant contends that equity would not

support an injunction when the property has been subject to
foreclosure since 2011 and the plaintiffs have been maneuvering
since then to avoid a foreclosure sale.

Charles A. Russell, who is administrator of the estate, is
an attorney and is also representing Matthew Skwozinski.
Therefore, the plaintiffs’ pleadings are not entitled to a less
stringent standard that could apply to pro se parties.
2

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A.

Temporary Restraining Order
The ex parte restraining order issued by the state court on

February 17, 2017, remained in effect when the case was removed
from state court.
has now expired.

See 28 U.S.C. § 1450.

That order, however,

See Fed. R. Civ. P. 65(b)(2); Granny Goose

Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No.
70, 415 U.S. 423, 436-37 (1974).

Therefore, the temporary

restraining order no longer has any force or effect.
B.

Permanent Injunction
A plaintiff who is seeking a permanent injunction must show

“(1) that it has suffered an irreparable injury; (2) that
remedies available at law, such as monetary damages, are
inadequate to compensate for that injury; (3) that, considering
the balance of hardships between the plaintiff and defendant, a
remedy in equity is warranted; and (4) that the public interest
would not be disserved by a permanent injunction.”

eBay Inc. v.

MercExchange, L.L.C., 547 U.S. 388, 391 (2006); Greene v. Ablon,
794 F.3d 133, 156 (1st Cir. 2015).
The plaintiffs here have made none of the necessary
showings to support imposition of a permanent injunction.

As is

noted above, the mortgage grants Emigrant the right to conduct a
statutory sale in the event of default.
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New Hampshire law

provides a process for foreclosure sales.

See RSA 479:25.

In

addition to the statutory requirements, under New Hampshire
common law, the mortgagee owes the mortgagor a duty “to take all
reasonable and necessary steps under the circumstances to insure
that a fair and reasonable price is obtained.”

Bascom Constr.,

Inc. v. City Bank & Tr., 137 N.H. 472, 475 (1993).
The plaintiffs do not dispute that they are in default,
which triggers Emigrant’s right to foreclose and conduct a
statutory sale under RSA 479:25.

The plaintiffs have not shown

that they have suffered an irreparable injury or that any future
loss due to the foreclosure sale would lack a remedy at law.
The plaintiffs also acknowledge that Emigrant has done
nothing wrong in handling the mortgage and the debt they owe.
As such, they have not shown that the equities in this situation
would support an injunction barring the foreclosure sale of the
property.

For similar reasons, the plaintiffs failed to provide

a showing that the public interest would not be disserved by an
injunction.
Conclusion
For the foregoing reasons, the defendant’s motion to
dismiss (document no. 5) is granted.

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The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
April 10, 2017
cc:

John Harold McCann, Esq.
Michael P. Robinson, Esq.
Charles A. Russell, Esq.

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