Fryer v. B of A and PHH Mortgage Services

2015 DNH 137

• Court: District Court, D. New Hampshire
• Decided: July 16, 2015
• Docket: 15-cv-106-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Stephen Fryer, Sr.

v. Civil No. 15-cv-106-JD Opinion No. 2015 DNH 137 B of A and PHH Mortgage Services

O R D E R

Stephen Fryer, Sr., proceeding pro se, brought suit in

state court to stop a foreclosure sale and to modify the

mortgage loan on the property. PHH Mortgage Corporation removed

the action to this court.1 The court previously granted PHH’s

motion to dismiss the claims, without prejudice to Fryer to file

an amended complaint by June 1, 2015, alleging actionable

claims. On June 1, Fryer filed an amended motion for a

permanent injunction against PHH. In response, PHH moved to

strike or dismiss the amended motion. Fryer did not respond to

the motion to dismiss or strike the motion.

The court instructed Fryer in the previous order that if he

filed an amended complaint he should clarify whether he intended

to bring claims against only PHH or whether he intended to

allege claims against any other defendant. In the amended

1 PHH represents that its correct name is PHH Mortgage Corporation. motion for an injunction, Fryer names only PHH as the defendant.

The court, therefore, concludes that PHH is the only defendant.

Discussion

PHH contends that the amended motion for a permanent

injunction should be struck because it is not an amended

complaint and because “it reads more like a motion for

reconsideration than anything else.” Because Fryer is pro se,

the title of his pleading will not be deemed to preclude its

filing. Whether the motion states a cognizable claim is

determined in the context of Federal Rule of Civil Procedure

12(b)(6), not Rule 12(h).

To avoid dismissal under Rule 12(b)(6), a plaintiff “must

set forth sufficient factual matter to state a claim for relief

that is plausible on its face.” Lister v. Bank of Am., N.A.,

--- F. 3d ---, 2015 WL 3635282, at *2 (1st Cir. June 12, 2015).

In assessing the complaint, the court “accept[s] as true all

well-pled facts in the complaint and draw[s] all reasonable

inferences in [the plaintiff’s] favor.” Lydon v. Local 103, 770

F.3d 48, 53 (1st Cir. 2014). Conclusory legal allegations are

not credited in determining the sufficiency of the complaint.

Cardigan Mountain School v. N.H. Ins. Co., 787 F.3d 82, 84 (1st

Cir. 2015).

2 In the previous order that granted PHH’s motion to dismiss,

the court summarized the allegations Fryer made, which were

presented on a printed complaint form, and the history of the

case up to that time. Fryer had alleged that Elaine and Ronald

Rondeau, his parents-in-law, entered into a mortgage on their

property at 6 Kevin Lane in Jaffrey, New Hampshire, in 2003, and

that the mortgage loan was modified in 2005 and 2011. As

grounds for enjoining the foreclosure sale of the property,

Fryer stated that PHH had not acted responsibly or fairly. The

court granted PHH’s motion to dismiss because Fryer had not

alleged facts showing that he had standing to challenge the

foreclosure sale of the property and because his allegations did

not allege any recognizable claim.

Fryer alleges in the amended motion that certain documents

submitted with the motion show that he is a party to the

mortgage and that he owns the mortgaged property. He also

alleges that issues with the mortgage have been going on for

years, that he and the “ERC Trust” have made payments to PHH,

and that the mortgage was never reinstated, which lead to the

foreclosure proceedings. Fryer contends that the mortgage is

“in trouble due to negligence and unfair practices create [sic]

by the Defendant itself.” PHH contends that the amended motion

fails to state a claim because Fryer lacks standing to challenge

3 the foreclosure proceedings, because the Rondeaus did not comply

with the terms of the 2011 mortgage modification, and because

the purported conveyance of the property to Fryer without

consideration was a fraudulent conveyance.

As the court explained in the prior order, in order to

challenge PHH’s actions under the mortgage agreement and the

subsequent mortgage modification agreements, Fryer must be a

party to those agreements or a third-party beneficiary of them.

See Brooks v. Trustees of Dartmouth College, 161 N.H. 685, 697

(2011). Fryer was not a party to the mortgage or to the

subsequent modification agreements, and the documents he

submitted with the amended motion do not show otherwise.2

Instead, Fryer asserts that he owns the mortgaged property and

has made payments for the Rondeaus to reinstate the mortgage.

PHH contends that because the Rondeaus conveyed the property to

Fryer by a quitclaim deed without consideration, the conveyance

was fraudulent as the mortgage was delinquent at the time of the

conveyance.

2 The documents Fryer submitted are a letter to him from PHH, dated May 28, 2015, that notified him that the foreclosure sale was postponed and referenced documents for a loan modification, a quitclaim deed from the Rondeaus to Fryer and his wife, and a tax assessment document listing the Fryers as owners of the property.

4 A third-party beneficiary of an agreement is a non-party

who may sue to enforce the agreement because the parties to the

agreement intended him to have that right. Brooks, 161 N.H. at

697. “A third-party beneficiary relationship exists if: (1)

the contract calls for a performance by the promisor, which will

satisfy some obligation owned by the promissee to the third

party; or (2) the contract is so expressed as to give the

promisor reason to know that a benefit to a third party is

contemplated by the promissee as one of the motivating causes of

his making the contract.” Id. “Ordinarily a person’s

entitlement to sue to enforce a contract to which she’s not a

party must be expressed in the contract rather than implied.”

Id. at 698.

Fryer is not mentioned in the mortgage agreement or the

subsequent loan modification agreements. Nothing in those

agreements suggest that Fryer was intended to be a third-party

beneficiary. Further, although the Rondeaus had signed the

quitclaim deed to Fryer before they signed the second

modification agreement in 2011, the 2011 modification agreement

does not state that Fryer owned the mortgaged property or

include Fryer as a party.

Under these circumstances, the amended motion along with

the documents of record show that Fryer is neither a party to

5 the mortgage agreements nor a third-party beneficiary of them.

Therefore, Fryer lacks standing to seek an injunction to stop

PHH from foreclosing pursuant to the terms of the mortgage

agreements. Fryer has not stated any new claim or made

allegations to support a cognizable claim in the amended motion.

Conclusion

For the foregoing reasons, the defendant’s motion to strike

or dismiss (document no. 15) is granted to the extent that the

case is dismissed because the plaintiff lacks standing to bring

claims against the defendant. The plaintiff’s amended motion

(document no. 13) is denied.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

July 16, 2015

cc: Stephen F. Fryer, pro se John S. McNicholas, Esq. Walter H. Porr, Jr., Esq.