LaFratta v. Select Portfolio Servicing, Inc.

2017 DNH 007

• Court: District Court, D. New Hampshire
• Decided: January 10, 2017
• Docket: 16-cv-510-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John E. LaFratta

v. Civil No. 16-cv-510-JD Opinion No. 2017 DNH 007 Select Portfolio Servicing, Inc.

O R D E R

John LaFratta, who is proceeding pro se, brought suit in

state court against Select Portfolio Servicing, Inc. (“SPS”).

SPS removed the case to this court and has moved to dismiss

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

did not respond to the motion to dismiss.

Standard of Review

In considering a motions under Rule 12(b)(6), the court

takes the factual allegations in the complaint as true and draws

reasonable inferences from those facts in favor of the

plaintiff’s claims. Sanders v. Phoenix Ins. Co., 843 F.3d 37,

42 (1st Cir. 2016). 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). A claim is plausible if the

facts as pleaded, taken in the context of the complaint and in

light of “judicial experience and common sense,” allow the court to draw “the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

678-79 (2009).

Discussion

In the complaint, LaFratta alleges that that SPS is a debt

collector, that SPS received his mortgage payments owed to J.P.

Morgan Chase Bank, that he contacted SPS more than 60 times to

pay his debt owed to J.P. Morgan Chase Bank, and that SPS

refused his payments. LaFratta seeks $500,000 in damages. SPS

moves to dismiss the complaint on the grounds that LaFratta has

not alleged sufficient facts to support a cause of action and

that to the extent LaFratta intended to bring a breach of

contract claim, it fails. Because LaFratta did not respond to

the motion to dismiss, he has not provided any insight into what

claim or claims he intended to bring in his complaint.

Under New Hampshire law, a breach of contract claim

requires a valid and enforceable contract between the parties

and a breach of the contract by the defendant. Mudge v. Bank of

Am., N.A., 2015 WL 1287476, at *2 (D.N.H. Mar. 25, 2015). The

few facts that LaFratta alleges in his complaint do not suggest

a contract between LaFratta and SPS. According to the

complaint, his mortgage was with J.P. Morgan Chase Bank, not

2 SPS. LaFratta does not allege that he had entered any agreement

with SPS or that SPS owed him a contractual duty.

In some circumstances, mortgage servicers may have certain

statutory duties and obligations. See, e.g., Gasparik v. Fed.

Nat’l Mortg. Ass’n, 2016 WL 7015672, at *6 (D.N.H. Dec. 1,

2016); Dionne v. Fed. Nat’l Mortg. Ass’n, 2016 WL 6892465, at

*4-*5 (D.N.H. Nov. 21, 2016); Hamilton v. Fed. Home Loan Mortg.

Corp., 2014 WL 4594733, at *20 (D. Me. Sept. 15, 2014). A

mortgage servicer’s actions might also support state law causes

of action. See, e.g., Leon v. Ocwen Servicing, 2016 WL 4575314,

at *3 (D. Mass. Sept. 1, 2016); Saade v. Pennymac Loan Servs.,

LLC, 2016 WL 4582083, at *7 (D. Mass. Aug. 31, 2016).

LaFratta, however, has not raised statutory or common law

claims and has not alleged facts to support any such claims.

Therefore, LaFratta has not alleged a claim on which relief may

be granted.

Conclusion

For the foregoing reasons, the defendant’s motion to

dismiss (document no. 3) is granted. The complaint is

dismissed.

3 The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

January 10, 2017

cc: John E. LaFratta, pro se William P. Breen, Esq.