Burke v. Wells Fargo Bank

2014 DNH 252

• Court: District Court, D. New Hampshire
• Decided: December 16, 2014
• Docket: 14-cv-326-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John C. Burke, III

v. Civil No. 14-cv-326-LM Opinion No. 2014 DNH 252 Wells Fargo Bank, N.A., as Trustee on behalf of the holders of Harborview Mortgage Loan Pass-Through Certificates 2006-12

O R D E R

Wells Fargo Bank, N.A., as Trustee on behalf of the holders

of Harborview Mortgage Loan Pass-Through Certificates 2006-12

(“Wells Fargo”), foreclosed on the Derry, New Hampshire property

(the “property”) of John C. Burke, III. Burke, acting pro se,

filed suit in state court seeking to enjoin Wells Fargo from

proceeding with a possessory action on the property. After

removing the suit to this court, Wells Fargo filed a motion to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).

Burke filed no response. For the reasons set forth below, the

motion to dismiss is granted.

Legal Standard

Ruling on a motion to dismiss for “failure to state a claim

upon which relief can be granted,” Fed. R. Civ. P. 12(b)(6), requires the court to conduct a limited inquiry, focusing not on

“whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claims.”

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). When considering

such a motion, a trial court “accept[s] as true all well-pled

facts in the complaint and draw[s] all reasonable inferences in

favor of plaintiffs.” Plumbers’ Union Local No. 12 Pension Fund

v. Nomura Asset Acceptance Corp., 632 F.3d 762, 771 (1st Cir.

2011) (quoting SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010)

(en banc)). To survive a Rule 12(b)(6) motion, a complaint

“must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’”

González-Maldonado v. MMM Healthcare, Inc., 693 F.3d 244, 247

(1st Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009); quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)).

The court construes Burke’s complaint liberally because he

is proceeding pro se. See Erikson v. Pardus, 551 U.S. 89, 94

(2007) (per curiam). “However, pro se status does not insulate

a party from complying with procedural and substantive law.

Even under a liberal construction, the complaint must adequately

allege the elements of a claim with the requisite supporting

facts.” Chiras v. Associated Credit Servs., Inc., 12-10871-TSH,

2012 WL 3025093, at *1 n.1 (D. Mass. July 23, 2012) (citing

2 Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997)

(citations and internal quotation marks omitted)).

Factual Background

In October of 2006, Mortgage Electronic Registration

Systems, Inc., as nominee for Countrywide Bank, N.A., issued a

mortgage to John and Derika Burke, secured by the property. The

record suggests that the mortgage was subsequently conveyed to

Wells Fargo. In February of 2013, Wells Fargo sold the property

to itself at a public foreclosure sale.

Approximately a year later, Wells Fargo recorded the

foreclosure deed in the Rockingham County Registry of Deeds,

along with an affidavit, as required by New Hampshire law. See

N.H. Rev. Stat. Ann. (“RSA”) 479:26. Both the foreclosure deed

and the affidavit were executed by Select Portfolio Servicing,

Inc. (“Select Portfolio”), Wells Fargo’s attorney-in-fact.

The foreclosure deed and accompanying affidavit both

referenced a power of attorney “recorded herewith,” purportedly

authorizing Select Portfolio to take certain actions on behalf

of Wells Fargo. However, a power of attorney was not included

with the foreclosure deed or the affidavit.

Burke brought this action in state court alleging that

Wells Fargo violated RSA 479:26, and acted in a deceptive and

unfair manner in violation of the New Hampshire Consumer

3 Protection Act, RSA 358-A et seq. (“CPA”), by referencing but

failing to record the power of attorney. Burke seeks a

declaration that the foreclosure deed is invalid, and he asks

that the court enjoin the pending possessory action.

Discussion

Wells Fargo is correct that New Hampshire law did not

require it to record a power of attorney with the foreclosure

deed. Rather, “New Hampshire law provides that a power of

attorney may be recorded . . . but [it] does not require

recording.” Calef v. Citibank, N.A., No. 11-cv-526-JL, 2013 WL

653951, at *5 (D.N.H. Feb. 21, 2013) (emphasis added) (citations

and internal quotation marks omitted); see also RSA 477:9 (a

power of attorney “may be recorded as required for a deed . . .

.”) (emphasis added). Thus, Wells Fargo’s failure to record a

power of attorney with the foreclosure deed and accompanying

affidavit did not violate RSA 479:26, nor did it render the

foreclosure deed invalid.

Because Burke has failed to plead an actionable violation

of 479:26, his claim under the CPA must also fail. The CPA

prohibits the use of “any unfair method of competition or any

unfair or deceptive act or practice in the conduct of any trade

or commerce within [the State of New Hampshire].” RSA 358-A:2.

Because Burke has not demonstrated that Wells Fargo was under

4 any legal obligation to file a power of attorney with the

foreclosure deed or the affidavit, Burke cannot show that Wells

Fargo acted in an unfair or deceptive manner. Thus, there are

no grounds on which the court could enjoin the possessory

action, and Wells Fargo is entitled to dismissal of Burke’s CPA

claim.

Conclusion

For the foregoing reasons, Wells Fargo’s unopposed motion

to dismiss (doc. no. 5) is granted. The court’s dismissal is,

however, without prejudice. In his complaint, Burke sought

leave to amend to “include additional claims and/or defendants

pending further discovery as justice so requires.” Complaint,

doc. no. 1.4 at 3. It is not clear why Burke failed to include

these allegations in his original complaint. However, as Burke

is pro se, the court grants him the leave he has requested.

Accordingly, on or before January 16, 2015, Burke shall file an

amended complaint or the court will dismiss this case with

prejudice.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge December 16, 2014 cc: John C. Burke, III Nathan R. Fennessy, Esq.