Londong v. Deutsche Bank National Trust Company, as Trustee
///ORDER granting 12 Motion for Judgment on the Pleadings. 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
Civil No. 17-cv-204-JD
Opinion No. 2017 DNH 168
Deutsche Bank National
Trust Company, as Trustee
O R D E R
Raymond Londong, proceeding pro se, filed a plea of title
action in state court to prevent Deutsche Bank from evicting him
from his home following a foreclosure sale.
removed the case to this court.
Londong filed an amended
complaint in which he alleged claims that the foreclosure sale
was improper because Deutsche Bank did not send the required
notice and that Deutsche Bank breached the implied duty of good
faith and fair dealing. Deutsche Bank moves for judgment on the
Londong did not file a response.1
Standard of Review
A motion for judgment on the pleadings under Federal Rule
of Civil Procedure 12(c) is reviewed under the standard used for
motions under Rule 12(b)(6).
HSBC Realty Credit Corp. v.
Having not filed a response, any objection is deemed to be
waived by Londong. LR 7.1(b).
O’Neill, 745 F.3d 564, 570 (1st Cir. 2014).
In that review, the
court accepts all well-pleaded facts as true and resolves
reasonable inferences in the plaintiff’s favor.
O’Shea v. UPS
Retirement Plan, 837 F.3d 67, 77 (1st Cir. 2016).
To survive a
motion under Rule 12(b)(6), the complaint must state sufficient
facts to support a plausible claim for relief.
In re Curran,
855 F.3d 19, 25 (1st Cir. 2017).
For purposes of a motion to dismiss and a motion for
judgment on the pleadings, the court generally is limited to the
allegations in the complaint.
Fed. R. Civ. P. 12(d).
court, however, may consider documents and materials whose
authenticity is not disputed that are submitted with the
complaint, referred to in the complaint, or submitted with the
answer to the complaint.
Curran v. Cousins, 509 F.3d 36, 44
(1st Cir. 2007).
In his amended complaint, Londong alleges that after he
began having financial troubles he contacted the servicing agent
to seek a modification of the mortgage but was not successful.
He then received a letter from Bank of America notifying him
that a foreclosure sale would be conducted with a lost note
He further alleges that he heard nothing further
about the foreclosure until he was approached by a real estate
agent who claimed to be working for Deutsche Bank.
Deutsche Bank provided additional information in its answer
and attached documents.
Londong has not disputed the
authenticity of the documents provided by Deutsche Bank.
In a letter dated April 20, 2015, Susan Cody of Korde and
Associates, P.C., notified Londong that her office represented
the servicer for Deutsche Bank National Trust Company, as
Trustee, which was the holder of Londong’s mortgage.
that Londong’s mortgage account was delinquent, that the
indebtedness was accelerated, and that the balance was then due.
Cody also notified Londong that “it is the Intention of the
Holder to foreclose said Mortgage under the Power of Sale for
breach of the conditions of the loan documents.”
On May 29, 2015, Cody sent Londong a notice of foreclosure
sale to be held on July 1, 2015.
The notice was sent by
Londong signed the receipt for the delivery on
June 8, 2015.
The foreclosure sale was held on July 1, 2015.
foreclosure deed was issued to Deutsche Bank for the property on
September 2, 2015, and the deed was recorded on February 11,
Filed with the foreclosure deed is an affidavit by Cody
which documents that notice of the foreclosure was sent to
Londong, and others, and that notices of the foreclosure sale
were published in the Union Leader on three dates.
Deutsche Bank brought a possessory action against Londong
in state court in August of 2016, and in response Londong filed
a plea of title action, which Deutsche Bank removed to this
court as this case.
In the amended complaint, Londong alleges that Deutsche
Bank improperly foreclosed on his property because it did not
send the notices required by RSA 479:25 and that its failure to
provide notice breached the implied covenant of good faith and
He also alleges that Deutsche Bank breached the
implied covenant by sending him notice that the foreclosure
would be conducted through a lost note affidavit and then
proceeding without mention of the lost note.
moves for judgment on the pleadings on the ground that Londong
has not stated a plausible claim.
As is noted above, Londong
did not file a response to Deutsche Bank’s motion.
Notice Required by RSA 479:25
In 2015, RSA 479:25 required that notice of a foreclosure
sale be sent to the mortgagor by, among other things, certified
mail at least twenty-five days before the sale of the property.
RSA 479:25, II(a).
The record in this case establishes that the
notice of the foreclosure sale was sent by certified mail on May
29, 2015, and the sale was held on July 1, 2015.
received notice of the foreclosure sale, which is shown by his
Therefore, his claim in Count I that Deutsche Bank
improperly foreclosed because it did not provide the required
notice is not plausible based on the record.
Covenant of Good Faith and Fair Dealing
Londong alleges in Count II that the foreclosure is invalid
because Deutsche Bank breached the implied covenant of good
faith and fair dealing by not providing notice and by misleading
him with reference to a lost note.
Deutsche Bank contends that
the claim fails because Londong received notice of the sale but
did not petition to enjoin the sale before it occurred.
Under New Hampshire law, a lender or mortgagee must satisfy
the notice requirements of RSA 479:25.
If that is done, a
mortgagor’s failure to seek an injunction against a foreclosure
sale before it occurs bars any action that challenges the
validity of the foreclosure.
RSA 479:25, II; Brown v. Wells
Fargo Home Mortg., 2016 WL 3440591, at *3 (D.N.H. June 20,
As is explained above, Deutsche Bank provided Londong with
notice of the foreclosure sale as is required by RSA 479:25.
Londong did not petition for an injunction to stop the sale, and
the sale was held as scheduled and provided in the notice.
Therefore, Londong cannot now challenge the validity of the
For the foregoing reasons, the defendant’s motion for
judgment on the pleadings (document no. 12) is granted.
The clerk of court shall enter judgment accordingly and
close the case.
Joseph DiClerico, Jr.
United States District Judge
August 30, 2017
Raymond Londong, pro se
Kevin P. Polansky, Esq.
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