Londong v. Deutsche Bank National Trust Co., et al.

2017 DNH 168

• Court: District Court, D. New Hampshire
• Decided: August 30, 2017
• Docket: 17-cv-204-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Raymond Londong

v. Civil No. 17-cv-204-JD Opinion No. 2017 DNH 168 Deutsche Bank National Trust Company, as Trustee

O R D E R

Raymond Londong, proceeding pro se, filed a plea of title

action in state court to prevent Deutsche Bank from evicting him

from his home following a foreclosure sale. Deutsche Bank

removed the case to this court. Londong filed an amended

complaint in which he alleged claims that the foreclosure sale

was improper because Deutsche Bank did not send the required

notice and that Deutsche Bank breached the implied duty of good

faith and fair dealing. Deutsche Bank moves for judgment on the

pleadings. Londong did not file a response.1

Standard of Review

A motion for judgment on the pleadings under Federal Rule

of Civil Procedure 12(c) is reviewed under the standard used for

motions under Rule 12(b)(6). HSBC Realty Credit Corp. v.

1 Having not filed a response, any objection is deemed to be waived by Londong. LR 7.1(b). O’Neill, 745 F.3d 564, 570 (1st Cir. 2014). In that review, the

court accepts all well-pleaded facts as true and resolves

reasonable inferences in the plaintiff’s favor. O’Shea v. UPS

Retirement Plan, 837 F.3d 67, 77 (1st Cir. 2016). To survive a

motion under Rule 12(b)(6), the complaint must state sufficient

facts to support a plausible claim for relief. In re Curran,

855 F.3d 19, 25 (1st Cir. 2017).

For purposes of a motion to dismiss and a motion for

judgment on the pleadings, the court generally is limited to the

allegations in the complaint. Fed. R. Civ. P. 12(d). The

court, however, may consider documents and materials whose

authenticity is not disputed that are submitted with the

complaint, referred to in the complaint, or submitted with the

answer to the complaint. Curran v. Cousins, 509 F.3d 36, 44

(1st Cir. 2007).

Background

In his amended complaint, Londong alleges that after he

began having financial troubles he contacted the servicing agent

to seek a modification of the mortgage but was not successful.

He then received a letter from Bank of America notifying him

that a foreclosure sale would be conducted with a lost note

affidavit. He further alleges that he heard nothing further

2 about the foreclosure until he was approached by a real estate

agent who claimed to be working for Deutsche Bank.

Deutsche Bank provided additional information in its answer

and attached documents. Londong has not disputed the

authenticity of the documents provided by Deutsche Bank.

In a letter dated April 20, 2015, Susan Cody of Korde and

Associates, P.C., notified Londong that her office represented

the servicer for Deutsche Bank National Trust Company, as

Trustee, which was the holder of Londong’s mortgage. She stated

that Londong’s mortgage account was delinquent, that the

indebtedness was accelerated, and that the balance was then due.

Cody also notified Londong that “it is the Intention of the

Holder to foreclose said Mortgage under the Power of Sale for

breach of the conditions of the loan documents.”

On May 29, 2015, Cody sent Londong a notice of foreclosure

sale to be held on July 1, 2015. The notice was sent by

certified mail. Londong signed the receipt for the delivery on

June 8, 2015.

The foreclosure sale was held on July 1, 2015. A

foreclosure deed was issued to Deutsche Bank for the property on

September 2, 2015, and the deed was recorded on February 11,

2016. Filed with the foreclosure deed is an affidavit by Cody

which documents that notice of the foreclosure was sent to

3 Londong, and others, and that notices of the foreclosure sale

were published in the Union Leader on three dates.

Deutsche Bank brought a possessory action against Londong

in state court in August of 2016, and in response Londong filed

a plea of title action, which Deutsche Bank removed to this

court as this case.

Discussion

In the amended complaint, Londong alleges that Deutsche

Bank improperly foreclosed on his property because it did not

send the notices required by RSA 479:25 and that its failure to

provide notice breached the implied covenant of good faith and

fair dealing. He also alleges that Deutsche Bank breached the

implied covenant by sending him notice that the foreclosure

would be conducted through a lost note affidavit and then

proceeding without mention of the lost note. Deutsche Bank

moves for judgment on the pleadings on the ground that Londong

has not stated a plausible claim. As is noted above, Londong

did not file a response to Deutsche Bank’s motion.

A. Notice Required by RSA 479:25

In 2015, RSA 479:25 required that notice of a foreclosure

sale be sent to the mortgagor by, among other things, certified

mail at least twenty-five days before the sale of the property.

4 RSA 479:25, II(a). The record in this case establishes that the

notice of the foreclosure sale was sent by certified mail on May

29, 2015, and the sale was held on July 1, 2015. Londong

received notice of the foreclosure sale, which is shown by his

signature.

Therefore, his claim in Count I that Deutsche Bank

improperly foreclosed because it did not provide the required

notice is not plausible based on the record.

B. Covenant of Good Faith and Fair Dealing

Londong alleges in Count II that the foreclosure is invalid

because Deutsche Bank breached the implied covenant of good

faith and fair dealing by not providing notice and by misleading

him with reference to a lost note. Deutsche Bank contends that

the claim fails because Londong received notice of the sale but

did not petition to enjoin the sale before it occurred.

Under New Hampshire law, a lender or mortgagee must satisfy

the notice requirements of RSA 479:25. If that is done, a

mortgagor’s failure to seek an injunction against a foreclosure

sale before it occurs bars any action that challenges the

validity of the foreclosure. RSA 479:25, II; Brown v. Wells

Fargo Home Mortg., 2016 WL 3440591, at *3 (D.N.H. June 20,

2016).

5 As is explained above, Deutsche Bank provided Londong with

notice of the foreclosure sale as is required by RSA 479:25.

Londong did not petition for an injunction to stop the sale, and

the sale was held as scheduled and provided in the notice.

Therefore, Londong cannot now challenge the validity of the

foreclosure sale.

Conclusion

For the foregoing reasons, the defendant’s motion for

judgment on the pleadings (document no. 12) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

August 30, 2017

cc: Raymond Londong, pro se Kevin P. Polansky, Esq.