Marquis v. JPMorgan Chase Bank

2016 DNH 111

• Court: District Court, D. New Hampshire
• Decided: July 6, 2015
• Docket: 16-cv-200-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Teri A. Marquis

v. Civil No. 16-cv-200-JD Opinion No. 2016 DNH 111 JPMorgan Chase Bank, N.A.

O R D E R

Teri A. Marquis, proceeding pro se, brought suit in state

court to enjoin the foreclosure sale of her home by JPMorgan

Chase Bank, N.A. JPMorgan removed the case to this court and

now moves to dismiss the case. Marquis did not file a response

to the motion to dismiss.

Standard of Review

A motion to dismiss for failure to state a claim is

governed by Federal Rule of Civil Procedure 12(b)(6). In

considering a motion under Rule 12(b)(6), the court assumes the

truth of the properly pleaded facts and takes all reasonable

inferences from those facts that support the plaintiff’s claims.

Mulero-Carrillo v. Roman-Hernandez, 790 F.3d 99, 104 (1st Cir.

2015). 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). Background

In 2014, Marquis filed a complaint in state court to enjoin

the foreclosure sale on her home that was scheduled for May 19,

2014. After the state court issued a temporary injunction,

JPMorgan removed the case to this court and moved to dismiss.

The court granted the motion to dismiss, and judgment was

entered on August 8, 2014. See Marquis v. JPMorgan Chase Bank

N.A., 14-cv-251-JL. Marquis did not file an appeal.

Marquis alleged in her complaint in that action that her

ex-husband had been ordered to make the mortgage payments but

had stopped without her knowledge. Marquis tried to communicate

with JPMorgan about the mortgage but was unsuccessful because

she was not a party to the note. She also tried to have her ex-

husband sign an authorization form to allow her to work with

JPMorgan, but he would not do that. Marquis stated that the

issue with her ex-husband was scheduled to be addressed in

Laconia Family Court in May of 2014.

Marquis also represented that she had the financial means

to refinance the home. She asserted that it was “not fair or

equitable for the defendant to foreclose because [she had]

access to funds to cure the arrearage and the defendant [would]

not discuss loss mitigation options with [her] despite the fact

that she is on the deed and a party to the mortgage.”

2 Marquis did not state a specific claim in that case but

simply sought to enjoin the foreclosure sale. The court and

JPMorgan construed Marquis’s allegations to raise a claim for

breach of the implied covenant of good faith and fair dealing.

The court expressed sympathy for Marquis’s plight but explained

that her claim for breach of the implied covenant of good faith

and fair dealing was not cognizable and granted the motion to

dismiss.

On April 19, 2016, Marquis again filed a complaint in state

court to enjoin the foreclosure sale of her home. She alleged

that the home was going into foreclosure because of her divorce

and her ex-husband’s failure to make the mortgage payments as he

had been ordered to do. She further alleged that she had been

working with JPMorgan’s counsel for six months and that she had

“presented” a check to JPMorgan for $43,000 on April 12, 2016,

to cover the mortgage arrearage. Marquis provided a copy of the

check with her complaint. She stated that JPMorgan had not

gotten back to her about the mortgage arrearage.

The state court granted Marquis’s ex parte request to

temporarily enjoin the foreclosure sale. JP Morgan then removed

the case to this court.

3 Discussion

JPMorgan moves to dismiss the complaint on the grounds that

Marquis’s claim is barred by res judicata, based on her 2014

action, and that she fails to state a claim for relief. Marquis

did not respond to the motion to dismiss.

A. Res Judicata

JPMorgan contends that the decision granting its motion to

dismiss Marquis’s claims in her previous suit, Marquis v.

JPMorgan Chase Bank, N.A., Civil No. 14-cv-251-JL (D.N.H. Aug.

7, 2014), precludes Marquis’s claims here. “[F]ederal common

law governs the claim-preclusive effect of a dismissal by a

federal court sitting in diversity.” Semtek Int’l Inv. v.

Lockheed Martin Corp., 531 U.S. 497, 508 (2001). “The

appropriate rule under federal common law is ‘the law that would

be applied by state courts in the State in which the federal

diversity courts sits,’ unless that rule would be ‘incompatible

with federal interests.’” Medina-Padilla v. U.S. Aviation

Underwriters, Inc., 815 F.3d 83, 86 (1st Cir. 2016) (quoting

Semtek, 531 U.S. at 508-9).

Because this court sits in the District of New Hampshire,

New Hampshire law of claim preclusion governs the preclusive

effect of Marquis’s prior suit. New Hampshire applies a three-

part test to determine whether a prior action precludes

4 subsequent actions: “(1) the parties are the same or in privity

with one another; (2) the same cause of action was before the

court in both instances; and (3) the first action ended with a

final judgment on the merits.” Merriam Farm, Inc. v. Town of

Surry, 168 N.H. 197, 199-200 (2015) (internal quotation marks

omitted). To determine whether the causes of action are the

same, the court “consider[s] whether the alleged causes of

action arise out of the same transaction or occurrence.” Id. at

200 (internal quotation marks omitted).

The parties are the same in both of Marquis’s suits and the

first action ended in a final judgment. The only remaining

question is whether the causes of action are the same.

Marquis did not state a specific claim in her prior

complaint. Instead, she simply sought an order to enjoin

JPMorgan from conducting a foreclosure sale on her home based on

the circumstances that led to the arrearage on the mortgage.

The court and JPMorgan construed her complaint to allege a claim

for breach of the implied covenant of good faith and fair

dealing. The court granted the motion to dismiss because that

claim was not cognizable under the circumstances alleged.

In her present complaint, Marquis again does not state a

specific claim against JPMorgan and again seeks an order to

prevent a foreclosure sale of her home based on the

5 circumstances around the arrearage and her attempts to cure.

The allegations in the second complaint address her current

negotiations with JPMorgan that had not occurred when the first

complaint was filed. As such, the second complaint arises out

of new transactions and occurrences. Therefore, claim

preclusion does not apply.

B. Failure to State a Claim

JPMorgan again construes Marquis’s complaint to raise a

claim for breach of the implied covenant of good faith and fair

dealing. JPMorgan moves to dismiss the claim on the familiar

ground that foreclosure by a lender under the terms of a

mortgage is not a breach of the implied covenant. See, e.g.,

Marquis, 14-cv-251-JL, at *3; see also Dionne v. Fed. Nat’l

Mortg. Ass’n, 2016 WL 3264344, at *11-*12 (D.N.H. June 14,

2016); Dove v. Bank of N.Y. Mellon, 2016 WL 799117, at *5

(D.N.H. Feb. 29, 2016). A lender also has no obligation to

negotiate loss mitigation options before foreclosing. Marquis,

14-cv-251-JL, at *3.

Marquis did not respond to the motion to dismiss. As a

result, she fails to assert any argument in support of a claim

dealing or any another claim that she may have intended to

6 allege in her complaint. Therefore, the complaint must be

dismissed.

Conclusion

For the foregoing reasons, the defendant’s motion to

dismiss (document no. 3) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

July 6, 2016

cc: Teri Marquis, pro se Nathan Reed Fennessy, Esq.