Dionne v. Federal National Mortgage Assoc.

2015 DNH 086

• Court: District Court, D. New Hampshire
• Decided: April 23, 2015
• Docket: Civil No. 15-cv-056-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jason S. Dionne and Denise C. Dionne

v. Civil No. 15-cv-056-LM Opinion No. 2015 DNH 086 Federal National Mortgage Association and JPMorgan Chase Bank, N.A.

O R D E R

The plaintiffs, Jason Dionne and Denise Dionne, sought

relief in the Hillsborough County Superior Court following the

foreclosure sale of their home by the defendants, Federal

National Mortgage Association (“FNMA”) and JPMorgan Chase Bank,

N.A. (“Chase” and together with FNMA, the “Defendants”). The

Dionnes filed a document captioned “Verified Petition for Ex-

Parte Order Voiding Foreclosure Ab Initio or Alternatively to

Enjoin Recordation of Foreclosure Deed and/or for Leave of Court

to File Lis Pendens” (the “Verified Petition”).

After the Superior Court issued an ex parte preliminary

injunction enjoining the Defendants from recording the

foreclosure deed, but before the date of a scheduled hearing on

the matter, the Defendants removed the action to this court.

The Defendants have now filed a motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6). For the reasons that

follow, the court denies the Defendants’ motion to dismiss without prejudice, and grants the Dionnes leave to amend the

Verified Petition.

Factual Background

The court will briefly rehearse the operative facts as set

forth in the Verified Petition and in the exhibits attached

thereto. See Fed. R. Civ. P. 10(c) (“A copy of a written

instrument that is an exhibit to a pleading is a part of the

pleading for all purposes.”).

The subject property, located in Pelham, New Hampshire, has

been in the Dionne family since 1976. Verified Petition (doc.

no. 1-1) ¶¶ 8, 12. Pursuant to a 2006 loan agreement, the

Defendants held a mortgage on the property. On August 12, 2014,

Ms. Dionne received a letter from Chase indicating that a

foreclosure sale had been scheduled for October 1, 2014. Id. ¶

15; see also Ex. 1. Immediately thereafter, the Dionnes applied

for a loan modification, and Chase acknowledged receipt of the

application by letter dated August 27, 2014. Id. ¶ 16; see also

Ex. 2. For reasons that are unclear, the October 1 foreclosure

sale did not occur. Id. ¶ 17.

In October and November of 2014, the Dionnes submitted the

financial paperwork that Chase had requested in connection with

the loan modification, but were repeatedly informed that Chase

had not received the necessary materials. Id. ¶¶ 18-21; see

2 also Exs. 3, 4. On November 18, 2014, before a decision was

reached on the loan modification, the Dionnes received a letter

from an attorney indicating that the Defendants had authorized

another foreclosure sale. Id. ¶¶ 22-23; see also Ex. 5. The

Dionnes contacted Chase, and were assured that a foreclosure

sale would not occur during the pendency of the application.

Id. ¶ 23.

Several weeks later, the Dionnes received another letter

from the same attorney, indicating that a foreclosure sale had

been scheduled for January 12, 2015, despite Chase’s assurances

that a foreclosure sale would not occur during the pendency of

the application for a loan modification. Id. ¶ 24; see also Ex.

6. The foreclosure sale took place as scheduled, and the

property was sold. Id. ¶ 26; see also Ex. 7.

The Dionnes filed the Verified Petition in the Hillsborough

County Superior Court shortly after the foreclosure sale. The

Dionnes alleged that they had relied to their detriment on

Chase’s promise that the Defendants would not foreclose during

the pendency of the loan modification application, and they

alleged that the Defendants violated federal consumer protection

law by foreclosing during that period. After the Superior Court

granted an ex parte preliminary injunction barring the recording

of the foreclosure deed, but before the Superior Court had an

opportunity to hold a scheduled hearing on the matter, the

3 Defendants removed the proceedings to this court, and have now

moved to dismiss the Verified Petition.

Discussion

The Defendants seek dismissal on various legal and factual

grounds. In opposing dismissal, however, the Dionnes write:

Defendants’ argument for dismissal is premature inasmuch as no complaint is presently before the court. Plaintiffs’ pleading in issue was filed in state court as an ex parte preliminary injunction seeking temporary relief pending [a] hearing on the merits of the ex parte hearing. Said pleading was not accompanied by a separate complaint at the time, but its filing was contingent on the outcome of the hearing on the merits of the ex parte hearing. . . . Plaintiffs hereby move that their ex parte motion be further allowed pending the filing of a complaint to preserve the status quo until the court issues a decision on the merits of the action.

See Pls.’ Objection to Defs.’ Mot. to Dismiss (doc. no. 6) ¶¶ 1-

2. Though not overtly phrased as such, the court construes this

pleading as a motion for leave to amend the Verified Petition.

Federal Rule of Civil Procedure 15 states that a “court

should freely give leave [to amend a pleading] when justice so

requires.” Fed. R. Civ. P. 15(a)(2). The trial courts are not

to “mindlessly grant every request for leave to amend,” and

leave is “appropriately denied when, inter alia, the request is

characterized by undue delay, bad faith, futility, [or] the

absence of due diligence on the movant’s part.” Manning v. Bos.

4 Med. Ctr. Corp., 725 F.3d 34, 60-61 (1st Cir. 2013) (citations

omitted) (internal quotation marks omitted).

In the court’s view, under these circumstances, justice

requires that the Dionnes be permitted to file an amended

pleading setting forth their allegations against the Defendants.

This is particularly true given that the Verified Petition was

submitted to the Hillsborough County Superior Court for the

express purpose of obtaining immediate, ex parte relief

following the foreclosure sale.

Conclusion

For the foregoing reasons, the Dionnes are granted leave to

file an amended version of the Verified Petition within thirty

(30) days of the date hereof. The Defendants’ motion to dismiss

(doc. no. 5) is denied without prejudice, and may be refiled in

response to the amended Verified Petition.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

April 23, 2015

cc: David E. Buckley, Esq. Nathan Reed Fennessy, Esq.