Fleming et al v. Korde & Associates, P.C. et al
///ORDER granting 11 Supplemental Motion to Dismiss for Failure to State a Claim; granting 12 Motion to Dismiss for Failure to State a Claim. The Clerk of Court shall enter judgment in accordance withthis order and close the case. So Ordered by Judge Steven J. McAuliffe.(lw)
Case 1:20-cv-00911-SM Document 14 Filed 11/17/20 Page 1 of 8
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Xzavier A. Randolph Fleming,
Selena S. Randolph, and
Qiayra M. Randolph,
Case No. 20-cv-911-SM
Opinion No. 2020 DNH 199
Korde & Associates, P.C.,
Wilmington Savings Fund Society,
NewRez, LLC d/b/a Shellpoint Mortgage
Servicing, and Unknown Mortgage Creditor,
O R D E R
This is yet another in a lengthy series of frivolous
lawsuits (and bankruptcy filings) seeking to enjoin the
foreclosure of a mortgage deed to property at 16 Front Street,
Rochester, New Hampshire.
Like those before it, this action
Plaintiffs have, once again, sued the mortgage holder
(“Wilmington”), as well as its servicing agent (“Shellpoint”)
and its legal counsel/foreclosure agent (“Korde”).
They seek to
enjoin the foreclosure sale (or, now that the foreclosure has
occurred, set it aside).
And, for reasons that are not entirely
Case 1:20-cv-00911-SM Document 14 Filed 11/17/20 Page 2 of 8
clear, plaintiffs move the court to compel defendants to conduct
a judicial foreclosure of the mortgage – presumably because they
believe they have some defenses.
They do not.1
All defendants have moved to dismiss.
For the reasons
discussed, those motions are granted.
Because plaintiffs – in particular the mortgagor, Selena
Randolph – have already litigated these claims, the factual
background to the parties’ dispute has been discussed many
times, by many courts.
See, e.g., John Doe 1-10 and Randolph v.
Wilmington Savings Fund Society, FSB, 2020 DNH 91, 2020 WL
2813065 (D.N.H. May 29, 2020) (“Randolph I”).
Those facts need
Plaintiffs explain that, “We have continually said the
whole financial administration is unconscionable and unworkable.
They cannot ‘transfer’ a servicing relationship, and all of it
violates TILA, RESPA and FDCPA. Under UCC 3-501, the ‘holder’
of any Note must present it ‘at the place of payment.’
Obviously this is impossible here. If this were a judicial
foreclosure case and the defendant was a plaintiff, the first
objection would be that it failed to ‘exhaust a plain remedy’:
go cash the Note, go collect complete payment due in exchange
for the bill, which is then left in original with the maker in
their own possession, to be destroyed and thereby cancelled out
of circulation. This is the ordinary use of ‘negotiable
instruments,’ but it never happens in these cases, will not
happen here, and cannot happen at all.” Plaintiffs’ Opposition
Memorandum (document no. 13) at 1-2 (emphasis in original).
Case 1:20-cv-00911-SM Document 14 Filed 11/17/20 Page 3 of 8
not be recounted in detail.
It is sufficient to note the
In April of 2007, Randolph executed a promissory note in
the principal amount of $314,400.
She secured her obligations
under that note by conveying a mortgage deed to property located
at 16 Front Street, Rochester, New Hampshire.
The mortgagee was
Mortgage Electronic System, Inc., as nominee for the lender.
Subsequently, Wilmington, as Trustee for BCAT 2017-19TT, was
assigned that mortgage and became the holder of Randolph’s note.
Randolph defaulted on the note several years ago and owes
more than $120,000 on that debt.2
Since her default, Randolph
has employed a number of questionable and meritless tactics to
avoid foreclosure, including the filing of at least eight
bankruptcy proceedings (seven in New Hampshire and one in
Massachusetts), and what might well have been a fraudulent
transfer of the property - on the eve of one scheduled
foreclosure - to her mother, Qiayra (who immediately filed a
Bankruptcy courts in both New Hampshire
In 2013, Randolph was in default and she was permitted to
modify the terms of her original loan. At the time, the
outstanding balance exceeded $500,000. As part of that
modification, more than $430,000.00 in debt was forgiven, and
Randolph’s new principal balance was reduced to $74,290.00. She
defaulted on that Loan Modification Agreement as well.
Case 1:20-cv-00911-SM Document 14 Filed 11/17/20 Page 4 of 8
and Massachusetts have barred Randolph (and her mother), in
varying degrees, from filing any bankruptcy petitions related
to, or scheduling, the property.
In Randoph I, this court summarized the pertinent (preforeclosure) facts as follows:
So, looking beyond the arguably fraudulent transfer,
and the numerous abusive bankruptcy filings, and the
state court lawsuit, the relevant facts related to the
property at 16 Front Street are currently as follows:
Randolph’s mother (not Randolph) currently
holds title to the property, subject to
Wilmington’s mortgage deed;
The note secured by that mortgage deed is in
default, Wilmington’s right to foreclose has been
(repeatedly) established, and the bankruptcy
court has (repeatedly) granted Wilmington relief
from the automatic stay to pursue its contractual
and statutory right to foreclose the mortgage
The bankruptcy court has barred Randolph
from filing any bankruptcy petitions until late
2020, and provided that, for a period of two
years, the automatic stay provisions of the
bankruptcy code shall not apply to the property
or serve to bar or delay Wilmington’s foreclosure
efforts with respect to that property.
Randolph I, 2020 WL 2813065 at *2.
In that case, Randolph
sought, inter alia, an order declaring her ownership of the
property, free of any encumbrances (based upon adverse
possession), as well as an order enjoining a pending foreclosure
Case 1:20-cv-00911-SM Document 14 Filed 11/17/20 Page 5 of 8
She was denied all relief, judgment was entered, and the
case was closed.
On September 2, 2020, Wilmington conducted a
“power of sale” foreclosure, foreclosed the mortgage deed, and
sold the property to a third party.
In their complaint (document no. 1-1) and amended complaint
(document no. 10), plaintiffs advance a variety of claims,
including assertions that the promissory note had already been
paid (it had not), the mortgage “expired” and, therefore, the
foreclosure sale was time-barred (it was not), and the notice of
foreclosure was defective (it was not).
Nearly all of
plaintiffs’ claims have been litigated before and resolved
against the mortgagor, Randolph.
principles of res judicata.
They are, then, barred by
Those that have not been addressed
previously, or are not otherwise barred, are meritless.
The only arguably viable and novel claim is the assertion
that the foreclosure sale was defective.
plaintiffs, the notice of sale falsely identifies Wilmington as
mortgagee, the notice of sale failed to advertise the place of
sale, and the “sale procedure is unconscionable.”
Complaint (document no. 10) at 1-2.
Plaintiffs also challenge
Wilmington’s use of a foreclosure agent (defendant Korde), which
they say was engaged in the unauthorized practice of law.
Case 1:20-cv-00911-SM Document 14 Filed 11/17/20 Page 6 of 8
finally, plaintiffs assert that Wilmington is merely an illegal,
“nominal stand-in” for the true mortgagee.
plaintiffs, Wilmington lacked legal authority to foreclose the
Id. at 4.
Each of those allegations is frivolous and conclusory.
Most are demonstrably false.
None states a viable claim for
See generally SEC v. Tambone, 597 F.3d 436, 441, 442
(1st Cir. 2010) (“If the factual allegations in the complaint
are too meager, vague, or conclusory to remove the possibility
of relief from the realm of mere conjecture, the complaint is
open to dismissal.”).
See also Shay v. Walters, 702 F.3d 76, 82
(1st Cir. 2012).
Both the mortgage and the notice of sale are attached to
See Legal Notice of Mortgagee’s Sale of
Real Estate (document no. 1-1) at 13-15; Mortgage (document no.
Looking beyond plaintiffs’ vague and occasionally
fanciful claims, there is no indication that the notice of sale
failed to comply with New Hampshire law.
See generally N.H.
Rev. Stat. Ann. 479:25 (establishing the requirements of a
“power of sale” foreclosure).
As required, that notice was
published for three successive weeks in a newspaper of general
circulation and it contained the elements and disclosures
Case 1:20-cv-00911-SM Document 14 Filed 11/17/20 Page 7 of 8
specified by New Hampshire law.
(document no. 9-14) at 2-4.
See Sale Publication Notices
Plaintiffs’ asserted “defects” in
the foreclosure sale are, then, contradicted by the very
documents attached to their complaint and those of public
None of the claims asserted in plaintiffs’ original
complaint or their amended complaint states a viable cause of
Defendants are, then, entitled to dismissal of all
claims asserted against them.
These pro se plaintiffs – in particular, Selena Randolph have engaged in an unrelenting, multi-year, and frivolous course
of litigation aimed at thwarting Wilmington’s lawful right to
foreclose the mortgage deed securing Randolph’s long-defaulted
obligations to repay her mortgage loan.
Wilmington’s right to
foreclose the mortgage has been litigated – and affirmed –
Indeed, in September of 2020, Wilmington conducted a
public foreclosure sale and sold the property to a third party.
Consequently, plaintiffs’ efforts to enjoin that foreclosure are
Their other various assaults on the validity of the
mortgage and propriety of the foreclosure sale are entirely
Plaintiffs are put on notice that similar future
Case 1:20-cv-00911-SM Document 14 Filed 11/17/20 Page 8 of 8
conduct will likely result in sanctions, including payment of
defendants’ reasonable attorney’s fees and costs.
For the foregoing reasons, as well as those set forth in
defendants’ legal memoranda, Korde & Associates’ Supplemental
Motion to Dismiss (document no. 11) and Wilmington Savings Fund
Society’s Supplemental Motion to Dismiss (document no. 12) are
The Clerk of Court shall enter judgment in accordance with
this order and close the case.
Steven J. McAuliffe
United States District Judge
November 17, 2020
Xzavier A. Randolph Fleming, pro se
Selena S. Randolph, pro se
Qiayra M. Randolph, pro se
Susan W. Cody, Esq.
Tracy A. Kish, Esq.
Thomas J. Pappas, Esq.
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