Angell v. Pacific Union Financial

2016 DNH 104

• Court: District Court, D. New Hampshire
• Decided: June 22, 2016
• Docket: 16-cv-167-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Eric Angell

v. Civil No. 16-cv-167-JD Opinion No. 2016 DNH 104 Pacific Union Financial, LLC

O R D E R

Eric Angell, who is proceeding pro se, brought suit in

state court seeking to enjoin the foreclosure sale of his home

by Pacific Union Financial, LLC. Pacific Union removed the

case, and Angell’s motion to remand has been denied. Pacific

Union moves to dismiss the complaint, and Angell objects.

Standard of Review

A motion to dismiss for failure to state a claim is

governed by Federal Rule of Civil Procedure 12(b)(6). In

considering a motion under Rule 12(b)(6), the court assumes the

truth of the properly pleaded facts and takes all reasonable

inferences from those facts that support the plaintiff’s claims.

Mulero-Carrillo v. Roman-Hernandez, 790 F.3d 99, 104 (1st Cir.

2015). Based on the properly pleaded facts, the court

determines whether the plaintiff has stated “a claim to relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). Background

Angell filed a form complaint in state court titled

“Complaint to Enjoin Foreclosure Sale.” Angell asked the court

to enjoin the foreclosure sale of his home, then scheduled for

May 20, 2016. The property is located at 29A Lund Drive,

Hudson, New Hampshire.

Angell acknowledged in the complaint that his mortgage is

in default. He alleged that he was involved in a divorce, filed

by his wife, Sarah Hill, in November of 2015. Because of a no

contact order in the divorce proceeding and Angell’s bail

conditions, he could not discuss arrangements for paying the

mortgage with Hill. In December of 2015, as part of the divorce

proceeding, Hill was required to pay 50% of the current bills,

including the mortgage. Angell alleged that Hill did not comply

with the payment order, which resulted in default on the

mortgage and the scheduled foreclosure sale.

In the complaint, Angell alleged that he was “willing,

able, and ready to bring the mortgage out of foreclosure by

either loan modification or paying the past due balance in

full.” He also alleged, however, that “due to the current

divorce matter, this may not happen until after the auction on

the property has been held.” He asked the state court to enjoin

the foreclosure sale for ninety days after the final divorce

2 hearing to allow him time to reinstate the mortgage with funds

that were then frozen due to the divorce proceeding.

Angell has not moved to amend the complaint. In his

objection to the motion to dismiss, however, he provides

additional factual background about his efforts to resolve the

mortgage default with Pacific Union. He also states that the

divorce proceeding has ended with a reconciliation between

Angell and Hill and that he would like to pay the amount

required to reinstate the mortgage but has not been able to do

so because Pacific Union has not provided him with the required

payment amount.

Pacific Union has represented to the court that the

foreclosure sale was cancelled “in order to allow exploration of

loss mitigation efforts.” Pacific Union also represents that

the foreclosure sale has not been rescheduled.

Discussion

In the complaint, Angell seeks to enjoin the foreclosure

sale of his home. The foreclosure sale has been cancelled and

has not been rescheduled. Therefore, at present, there is no

foreclosure sale to enjoin.

Pacific Union moves to dismiss the action on the ground

that Angell has no right to reinstate or modify the mortgage and

that Angell has not stated any other cause of action. In his

3 objection to the motion, Angell agrees that he has not fulfilled

the reinstatement requirement in the mortgage but argues that is

because of Pacific Union’s failure to provide the reinstatement

amount. He also agrees that he has no right to modify the

mortgage but argues that he is entitled to relief based on a new

theory of promissory estoppel.

Given Angell’s pro se status and the change in

circumstances and theories since the complaint was filed, it is

appropriate to give him an opportunity to amend the complaint to

allege facts to support a new cause of action. See Fed. R. Civ.

P. 15(a). In addition, it appears that Pacific Union may be

working with Angell to resolve the matter, which would be a

better way to end the case. Therefore, the motion to dismiss is

granted, but Angell will be given leave to file an amended

complaint to allege a new claim or new claims. Pacific Union

may respond as appropriate under the Local Rules and the Federal

Rules of Civil Procedure.

Conclusion

For the foregoing reasons, the defendant’s motion to

dismiss (document no. 7) is granted.

The plaintiff is granted leave to file an amended complaint

on or before July 20, 2016.

4 If the case is settled before that date, Angell and counsel

for Pacific Union shall so notify the court with a joint filing.

If the case is not settled before that date and Angell fails to

file an amended complaint within the time allowed, regardless of

any ongoing discussions with Pacific Union, judgment will be

entered against Angell, and the case will be closed.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

June 22, 2016

cc: Eric Angell, pro se Michael P. Robinson, Esq.