Joel Dutton, Plaintiff v. Bank of America, Bank of America, N.A., and Bank of New York Mellon, Defendants

2019 DNH 094

• Court: District Court, D. New Hampshire
• Decided: June 14, 2019
• Docket: 19-cv-284-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Joel Dutton, Plaintiff

v. Case No. 19-cv-284-SM Opinion No. 2019 DNH 094 Bank of America, Bank of America, N.A., and Bank of New York Mellon, Defendants

O R D E R

Pro se plaintiff, Joel Dutton, brings this common law fraud

claim alleging that his home mortgage loan is “fraudulent” and

“asking the court to have [defendants] prove they are not acting

in a fraudulent manner.” Complaint (document no. 1-1) at 7-8.

Defendants move to dismiss, asserting that Dutton’s complaint

fails to set forth the essential elements of a viable claim and

fails to allege fraud with sufficient particularity. See Fed.

R. Civ. P. 12(b)(6) and 9(b). Moreover, say defendants, any

action based upon an allegedly fraudulent act or omission prior

to January 18, 2016 (i.e., three years before the date on which

Dutton filed his complaint), is barred by the applicable New

Hampshire limitations period. See N.H. Rev. Stat. Ann. (“RSA”)

504:4. Dutton has not filed an objection to defendants’ motion. For the reasons discussed, defendants’ motion is granted

and Dutton’s complaint is dismissed, without prejudice and with

leave to file an amended complaint.

Standard of Review

When ruling on a motion to dismiss under Fed. R. Civ. P.

12(b)(6), the court must “accept as true all well-pleaded facts

set out in the complaint and indulge all reasonable inferences

in favor of the pleader.” SEC v. Tambone, 597 F.3d 436, 441

(1st Cir. 2010). Although the complaint need only contain “a

short and plain statement of the claim showing that the pleader

is entitled to relief,” Fed. R. Civ. P. 8(a)(2), it must allege

each of the essential elements of a viable cause of action and

“contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face,” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citation and internal

punctuation omitted).

In other words, “a plaintiff’s obligation to provide the

‘grounds’ of his ‘entitlement to relief’ requires more than

labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). Instead, the facts alleged

in the complaint must, if credited as true, be sufficient to

2 “nudge[] [plaintiff’s] claims across the line from conceivable

to plausible.” Id. at 570. Moreover, when pleading a claim

sounding in fraud, a plaintiff “must state with particularity

the circumstances constituting fraud.” Fed. R. Civ. P. 9(b)

(emphasis supplied).

Factual Background

Based upon the factual allegations set forth in Dutton’s

complaint, as well as the public documents submitted by

defendants, the pertinent facts are as follows. In April of

2007, Dutton (along with his wife, Kimberly, and a third party,

Ryan Roy) obtained a loan from Countrywide Home Loans

(“Countrywide”) in the original principal amount of One Hundred

Eighty Seven Thousand Two Hundred Dollars ($187,200.00). As

security for that loan, Dutton and the other borrowers conveyed

a mortgage deed to the property located at 24 Dundee Avenue,

Hooksett, New Hampshire, to Mortgage Electronic Registration

Systems, Inc. (“MERS”), as nominee for Countrywide.

It is unclear whether Dutton is currently in default of his

obligations under the loan. Nor is it apparent whether MERS (or

an assignee) has taken any action against the real estate

pledged as security for that loan. It seems, however, that

3 Dutton no longer wishes to make payments on that loan (or thinks

that he should be legally excused from doing so).

In his complaint, Dutton alleges that “this is a fraudulent

loan.” Complaint (document no. 1-1) at 8. He goes on to claim

that:

1. “Defendants are trying to confuse the facts to hide such,” id.;

2. “Specialized Loan Services says that they are collecting on behalf of Bank of New York Mellon,” id. at 9;

3. “Specialized Loan Services claims that Bank of New York Mellon is the current creditor,” id.;

4. None of the parties mentioned have shown any proof of the Person Entitled to Enforce is [sic] or of the properly filed files of transfer or ownership of the promissory note.” id. at 9.

In terms of relief, Dutton “ask[s] that all parties be

notified of further payments on this loan are going to be

withheld as agreed by the written requests submitted to Bank of

New York Mellon and their agent Specialized Loan Services.” Id.

Dutton also requests “that all funds held in escrow for taxes be

returned, and all defendants render a letter of satisfaction and

release of lien.” Id.

4 Discussion

Even liberally construing the factual claims advanced by

Dutton, his complaint fails to set forth the essential elements

of a viable cause of action for fraud.

To establish fraud, the plaintiff must prove that the defendant made a fraudulent representation for the purpose or with the intention of causing the plaintiff to act upon it. While the plaintiff need not establish fraud in his pleadings, in order to withstand a motion to dismiss the plaintiff must specify the essential details of the fraud, and specifically allege the facts of the defendant’s fraudulent actions. It is not sufficient for the plaintiff merely to allege fraud in general terms.

Proctor v. Bank of New Hampshire, N.A., 123 N.H. 395, 399 (1983)

(citations omitted). See also Ezell v. Lexington Ins. Co., No.

18-2064, 2019 WL 2428113, at *2 (1st Cir. June 11, 2019) (“In

short, appellants have failed to state with particularity the

circumstances constituting fraud. Under Rule 9(b), appellants

must state the who, what, where, and when of the allegedly

misleading representation with particularity.”) (citations and

internal punctuation omitted); Davis v. Gutierrez, 2018 DNH 063,

2018 WL 1514869, at *9 (D.N.H. Mar. 27, 2018) (“The heightened

standard imposed by Rule 9(b) to plead fraud with particularity

means that a complaint rooted in fraud must specify the who,

what, where, and when of the allegedly false or fraudulent

5 representations or omissions.”) (citation and internal

Conclusion

Dutton’s complaint fails to set forth the essentials

elements of a viable fraud claim under New Hampshire common law.

It also, necessarily, fails to plead his fraud claim with the

requisite particularity under Fed. R. Civ. P. 9(b).

Accordingly, Dutton’s complaint is dismissed, albeit

without prejudice to his filing, on or before July 12, 2019, an

amended complaint that clearly and concisely sets forth the

essential elements of a viable fraud claim, with the specificity

required by Rule 9(b). That is, he must clearly allege: who

made the allegedly fraudulent misrepresentation(s) upon which he

relied; what precisely was misrepresented to him; and, finally,

when and where the fraudulent misrepresentation(s) was or were

made. He shall also allege, with specificity, how he claims to

have been harmed by the allegedly fraudulent statement(s). If

he fails to do so, his complaint shall be dismissed with

prejudice.

SO ORDERED.

____________________________

6 Steven J. McAuliffe United States District Judge

June 14, 2019

cc: Joel Dutton, pro se Thomas J. Pappas, Esq.