Boyd et al v. Wells Fargo Bank Home Mortgage
///ORDER granting 4 Motion to Dismiss for Failure to State a Claim. The clerk shall enter judgment accordingly and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Glenda Castleberry and
Civil No. 17-cv-146-JL
Opinion No. 2017 DNH 240
Wells Fargo Home Mortgage
In this mortgage-based action, plaintiffs Glenda
Castleberry and Leah Boyd, proceeding pro se, again1 seek to
enjoin the foreclosure on property in Somersworth, New
They sued the mortgage-holder and servicer of the
mortgage secured by that property, Wells Fargo Bank, N.A.,2 in
Strafford County Superior Court.
Wells Fargo removed the action
to this court, see 28 U.S.C. § 1441, which has jurisdiction
under 28 U.S.C. § 1332 (diversity).
The court draws the following facts from the complaint and
from documents sufficiently referenced therein, construing them
in the plaintiffs’ favor.
See Martino v. Forward Air, Inc., 609
F.3d 1, 2 (1st Cir. 2010) (The court must “accept as true all
See Boyd v. Wells Fargo Bank, N.A., 2016 DNH 156 (dismissing
Boyd’s complaint for failure to state a claim for relief against
Plaintiffs named the defendant as Wells Fargo Bank Home
Mortgage on the complaint.
well-pleaded facts in the complaint and make all reasonable
inferences in plaintiff's favor.”); Rederford v. U.S. Airways,
Inc., 589 F.3d 30, 35 (1st Cir. 2009) (The court “may consider
not only the complaint but also facts extractable from
documentation annexed to or incorporated by reference in the
complaint and matters susceptible to judicial notice.”).
also draws on the facts set forth in its order dismissing an
action filed by Boyd in 2016 to prevent foreclosure on the same
Boyd, 2016 DNH 156, 1-3.
Castleberry purchased a four-unit house in Somersworth in
Boyd, 2016 DNH 156, 2.
Castleberry took out the
mortgage and signed the accompanying note.
mortgage and the warranty deed conveying the property to her
were recorded with the Strafford County Registry of Deeds,
Castleberry conveyed the property to herself and Boyd, her
daughter, through a warranty deed.
Boyd resided in one of
the property’s units; Castleberry rented out the other three
At some point prior to Boyd’s 2016 action, some of those
tenants stopped paying rent and, lacking funds to make mortgage
payments, Castleberry defaulted.3
Wells Fargo initiated
Compl. (doc. no. 1-1) at 3. In the complaint, the plaintiffs
allege that “[they] got behind on the mortgage,” not Castleberry
alone. The court credits the complaints’ account, understanding
that, though Castleberry alone signed the note and mortgage,
Boyd filed that action seeking to
quiet title and to enjoin the foreclosure sale so that she could
obtain rent withheld by the tenants, which she would use to make
Id. at 4.
Concluding that Boyd may have
lacked standing to challenge the foreclosure’s validity as a
non-party to the mortgage agreement, see Fed. R. Civ.
P. 12(b)(1), and that, in any event, she failed to state a claim
upon which it could grant relief, see id. 12(b)(6), the court
granted Wells Fargo’s motion to dismiss that action.
DNH 156, 4-7.
Eight months later, Boyd and Castleberry together filed
this action seeking to enjoin Wells Fargo’s renewed foreclosure
Plaintiffs allege that, due to the tenants’
nonpayment, Castleberry fell behind on the mortgage.4
court dismissed Boyd’s previous action, they contacted the
defendant in an effort to obtain a loan modification.5
allege that they “have not been given enough time to do the loan
modification,” that Wells Fargo “keep[s] switching [them] around
and saying [it is] doing something but [Castleberry and Boyd]
Boyd also made mortgage payments on her behalf. The plaintiffs
remain vague about when she began falling behind on payments.
Compl. (doc. no. 1-1) at 3. They do not allege that they cured
the default giving rise to Boyd’s 2016 action.
Id. at 1, 4-5.
just get the runaround when [they] ask for answers,” and that
“the only reason [the loan modification] has not gone through is
because [Wells Fargo] keep[s] telling [them] they need more
documents or something else.”6
Much as Boyd did through her last
action, they seek an injunction preventing Wells Fargo from
foreclosing so that they have time to:
(1) evict non-paying
tenants and/or get their tenants to pay rent, (2) obtain Social
Security Income benefits for Boyd, and (3) “have a judge decide
who really even owns the home”7 in light of the post-mortgage
warranty deed conveying the property to both Castleberry and
Wells Fargo removed the case to this court and now moves to
dismiss the complaint, arguing that the plaintiffs fail to state
a cognizable claim for relief.
See Fed. R. Civ. P. 12(b)(6).
Boyd filed a brief objection,8 to the effect that she could
“prove property rights are that of Leah Boyd’s,” but that she
“need[s] Wells Fargo to speak and cooperate with [her] to
Id. at 3-5.
Id. at 5.
The court attempted to contact the plaintiffs some six weeks
after the objection deadline passed without any filing on their
part. It then sua sponte extended that deadline three months
after it passed. Plaintiffs filed their objection within the
resolve this matter . . . .”9
The court held oral argument on
Wells Fargo’s motion on October 26, 2017 and afforded the
plaintiffs an opportunity to articulate any further objections
at that time.
The court may dismiss a complaint under Rule 12(b)(6) if
the plaintiffs have not alleged facts sufficient to “state a
claim to relief” by pleading “factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
Even construing the plaintiffs’ pro se
complaint liberally, see Erickson v. Pardus, 551 U.S. 89, 94
(2007), the court concludes that they have not done so here.
Reading their complaint generously, the plaintiffs attempt
to bring a claim for breach of the covenant of good faith and
That is, they allege that they have sought a loan
modification and that Wells Fargo is failing to cooperate in the
loan modification process.
But the plaintiffs allege that
Castleberry defaulted on the loan.10
And “New Hampshire imposes
no duty to forebear from foreclosure in the face of default.”
Frangos v. Bank of Am., N.A., No. 13-CV-472-PB, 2014 WL 3699490,
Document no. 5.
Compl. (doc. no. 1-1) at 3.
at *4 (D.N.H. July 24, 2014).
As this court has explained faced
with similar allegations, “the covenant of good faith and fair
dealing in a loan agreement cannot be used to require the lender
to modify or restructure the loan.”
Moore v. Mortg. Elec.
Registration Sys., Inc., 848 F. Supp. 2d 107, 130 (D.N.H. 2012).
Though the plaintiffs’ frustration at their perceived inability
to obtain a direct answer or consistent information from the
defendant concerning its willingness to modify the loan is
understandable,11 the plaintiffs have not, therefore, stated a
claim for relief through those allegations.
As this court has previously noted, Boyd’s attempt to
establish her ownership of the property “may amount to a
petition to quiet title to the property.”
Boyd, 2016 DNH 156,
Through such an action, a plaintiff “essentially seeks a
declaratory judgment from the court regarding the parties’ land
Porter v. Coco, 154 N.H. 353, 357 (2006).
plaintiffs raise an identical issue in this action, alleging
that “it’s not clear if [Boyd] in fact has the right to take the
house free of Wells Fargo because they put her on the deed not
the mortgage,” as a result of which they “need time to go to
The plaintiffs allege that they sought a loan modification,
were told that they needed to submit more documentation, were
led to understand that their modification may be approved, and
then suddenly faced a notice of foreclosure. Compl. (doc. no.
1-1) at 3-5.
court to have a judge decide who really even owns the home.”12
As the court previously explained, “[w]hile the deed conveying
the property to Castleberry and Boyd may well give Boyd an
interest in the property, any such interest was subject to the
pre-existing mortgage and its conditions, which included the
possibility of foreclosure in the event of default.”
DNH 156, 5 (citing Cadle Co. v. Bourgeois, 149 N.H. 410 (2003)).
Boyd has not, therefore, alleged facts that would allow the
court to draw a reasonable inference that she is entitled to
quiet title to the property.13
Compl. (doc. no. 1-1) at 5. Boyd elaborated on her position
at oral argument, explaining that she recalled signing the
warranty deed conveying the property to herself and Castleberry
on the same day that Castleberry closed on the property and
signed the note and mortgage. Some failure to record the
documents with the Registry of Deeds or the order in which the
documents were recorded, she argued, was prejudicial to her
interest in the property.
The public records available from the Registry of Deeds, which
were referenced in the complaint and which are “fair game in
adjudicating a Rule 12(b)(6) motion,” In re Colonial Mortgage
Bankers Corp., 324 F.3d 12, 19 (1st Cir. 2003), suggest instead
that Castleberry executed the note and mortgage on August 7,
2009, and signed the warranty deed conveying the property to
herself and Boyd on September 29, 2009, subjecting it to the
Indeed, as the court observed in its previous order, the
alleged facts -- functionally identical to those alleged here,
on this point -- and those extricable from public records and
documents referenced in the complaint establish the contrary.
Boyd, 2016 DNH 156, 5-6.
At oral argument, Boyd argued, for the first time, that her
tenants stopped paying their rent after receiving notices of the
impending foreclosure from Wells Fargo.
She alleged that Wells
Fargo either wrongfully informed her tenants that they no longer
needed to pay rent to her because the house no longer belonged
to Boyd or, alternatively, that Wells Fargo wrongfully failed to
tell her tenants that, despite the impending foreclosure, they
must continue paying their rent.
The court afforded Boyd an
opportunity to substantiate this new allegation of tortious
interference with contract by providing copies of the letters
she claimed her tenants received from Wells Fargo in a
supplemental objection to Wells Fargo’s motion to dismiss.
deadline for supplementation passed on November 2, 2017 without
any such filing, and none has been received as of the date of
Because the plaintiffs have failed to state a claim upon
which relief can be granted, the court GRANTS the defendant’s
motion to dismiss the complaint.15
The clerk shall enter
judgment accordingly and close the case.
Not least because Boyd failed to supplement her allegations,
the court need not -- and therefore does not -- address the
merits of any such claim.
Document no. 4.
Joseph N. Laplante
United States District Judge
November 20, 2017
Glenda Castleberry, pro se
Leah Boyd, pro se
David D. Christensen, Esq.
Timothy Ryan Demarco, Esq.
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