McGrenanghan v. FNMA a/k/a Fannie Mae

2016 DNH 183

• Court: District Court, D. New Hampshire
• Decided: October 17, 2016
• Docket: 15-cv-271-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Bonnie McGrenaghan, Plaintiff

v. Case No. 15-cv-271-SM Opinion No. 2016 DNH 183 Federal National Mortgage Association a/k/a Fannie Mae, Defendant

O R D E R

The court’s order dated December 10, 2015 (document no. 11)

resolved all issues pending in this case save one. The relevant

factual background is discussed in that order and need not be

recounted here. It is sufficient to note that the court

liberally construed plaintiff’s complaint and concluded that, at

least arguably, it asserts a breach of contract claim with

respect to whether plaintiff was provided with adequate notice

of default and/or afforded 30 days in which to cure, as

(allegedly) required by the Note and the Mortgage. The

defendant now moves for summary judgment on that sole remaining

contract claim.

It is undisputed that the requisite notice of default, and

an opportunity to cure, were timely given to plaintiff’s former

1 husband, who was the only person obligated on the Note.

Plaintiff did not execute the Note and was not personally

obligated to repay it. Consequently, the terms of the Note did

not provide her with any contractual entitlement to notice of

her former husband’s default.

Plaintiff did, however, execute the Mortgage and, by so

doing, she pledged her interest in the family home as security

for her husband’s obligations under the Note. And, for purposes

of enumerating the parties’ respective rights and obligations,

the Mortgage defines plaintiff as a “Borrower.” See Mortgage

(document no. 6-3) at 1 (definitions). See also id. at para. 13

(specifically contemplating the situation in which only one

person is obligated on the Note, but multiple parties execute

the security instrument). The Mortgage also provides that

“Notice to any one Borrower shall constitute notice to all

Borrowers unless applicable law expressly requires otherwise.”

Id. at para. 15; see also Order dated December 10, 2015, at 11

n.3.

Given the undisputed facts of record, it is plain that

plaintiff received all notice to which she was entitled. First,

she does not argue that any “applicable law” supersedes the

provisions of the loan documents and requires that she receive

2 personal notice of her former husband’s default and an

opportunity to cure. And, with respect to the Mortgage, its

unambiguous terms provide that plaintiff is deemed to have

received notice of her former husband’s default and an

opportunity to cure once that information was properly and

timely provided to him. See Mortgage, at paras. 15 and 22. 1

To the extent plaintiff asserts that she (or her former

husband) was entitled to a new notice of default and/or a

renewed opportunity to cure after the original foreclosure was

cancelled but before it was subsequently rescheduled, this court

has specifically held that mortgagors are not entitled to such

duplicate notices and/or repeated opportunities to bring

defaulted loan obligations current. See Galvin v. EMC Mortg.

Corp., No. 12-cv-320-JL, 2013 WL 1386614, at *6 (D.N.H. April 4,

2013) (construing language in a mortgage deed that is

substantially similar to the language at issue here). See also

Mortgage, at para. 22 (“If the default is not cured on or before

the date specified in the notice, Lender at its option may

require immediate payment in full of all sums secured by the

1 Parenthetically, the court notes that there is no dispute that plaintiff had actual notice that the loan was in default and was given the opportunity to bring the loan current (and thereby avoid foreclosure). Her breach of contract claim is more precisely targeted - she asserts that she did not receive the type of notice she says the loan documents require.

3 Security Instrument without further demand and may invoke the

Statutory Power of Sale and any other remedies permitted by

Applicable Law.”) (emphasis supplied).

Conclusion

There are no genuinely disputed issues of material fact and

for the reasons stated, as well as those advanced by defendant

in its legal memoranda (document nos. 17-1 and 22), it is clear

that defendant is entitled to judgment as a matter of law on the

sole remaining claim in plaintiff’s complaint. Given the facts

of record, the arguable breach of contract claim identified by

the court is not viable.

Defendant’s motion for summary judgment (document no. 17)

is granted. The Clerk shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

October 17, 2016

cc: Craig N. Salomon, Esq. Kyle P. Griffin, Esq. Thomas J. Pappas, Esq.