Rossop, et al v. Bank of America, et al.

2013 DNH 172

• Court: District Court, D. New Hampshire
• Decided: December 17, 2013
• Docket: 13-cv-112-PB
• Status: Published

Opinion

Rossop, et al v . Bank of America, et a l . 13-cv-112-PB 12/17/13

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John A . Rossop and Margo H . Parker

v. Civil N o . 13-cv-112-PB Opinion N o . 2013 DNH 172 Bank of America Corporation, et a l .

MEMORANDUM AND ORDER

This case arises from two loans obtained by plaintiffs John

Rossop and Margo Parker, both secured by mortgages on the

plaintiffs’ home in Hampton Falls, New Hampshire. The

plaintiffs seek several forms of relief based on a variety of

federal and state law claims relating to the origination and

servicing of their loans, the assignment of their notes and

mortgages, the foreclosure of the senior mortgage, and the sale

of their home at auction. The only remaining defendant in this

case, American Home Mortgage Services, Inc., 1 moves for summary

judgment pursuant to Federal Rule of Civil Procedure 5 6 . I

grant the motion.

1 American Home Mortgage Services, Inc. is now known as Homeward Residential, Inc. Doc. N o . 4 . For the sake of simplicity, I use the former name. I. BACKGROUND

The plaintiffs’ complaint includes several unrelated

allegations pertaining to two separate home loans and their

associated mortgages. I address each loan before turning to the

relevant procedural history.

A. The November 19, 2002 Home Loan and Mortgage

As consideration for a $110,000 home loan, John Rossop

executed a promissory note on November 1 9 , 2002 payable to First

National Bank of Nassau County, now known as CBC National Bank,

a wholly-owned subsidiary of Coastal Banking Company, Inc. Doc.

Nos. 2 1 , 2 2 . At all relevant times, Bank of America, N.A.

serviced the loan. The note was secured by a mortgage on

residential property that Rossop purchased with the loan

proceeds; First National was named mortgagee. On November 2 5 ,

2002, First National assigned the mortgage to Mortgage

Electronic Registration Systems (“MERS”) as nominee for

Countrywide Home Loans, Inc. and Countrywide’s successors and

assigns. On November 1 2 , 2010, MERS assigned the mortgage to

Federal National Mortgage Association (Fannie M a e ) . Id. Rossop

defaulted on his loan obligations in April 2011. 2 Doc. N o . 1-2.

2 The date of default is listed elsewhere as April 2010. Doc. N o . 20-1. For the purpose of this order, the precise date is immaterial. 2 On June 1 4 , 2011, Rossop recorded a warranty deed purporting to

jointly deed the property to Rossop and Margo Parker. Doc. Nos.

2 1 , 2 2 . On January 2 4 , 2012, Fannie Mae served a Notice of

Foreclosure Sale on the plaintiffs informing them that an

auction was scheduled for February 2 3 , 2012. Fannie Mae sold

the property on that date to Frank Depippo for $145,391.40.

Depippo subsequently assigned his interest in the property to

Blue Spruce Ocean Holdings, LLC. Fannie Mae executed a

Foreclosure Deed under Power of Sale on April 6, 2012. Id.

Blue Spruce subsequently leased the property back to the

plaintiffs, where they continued to reside for a period of time.

Doc. N o . 1 1 .

B. The August 5, 2004 Home Loan and Mortgage

On September 3 0 , 2005, H&R Block Mortgage Corp. granted

Rossop and Marcia E . Kelly Rossop a second loan of $85,000.00.

Doc. Nos. 2 1 , 2 2 . This loan was secured by a second mortgage on

the property, junior in priority to the earlier mortgage, with

H&R Block named as mortgagee. American Home serviced the second

loan. On May 9, 2006, H&R Block assigned the second mortgage to

Option One Mortgage Corp. The second mortgage was never

foreclosed; rather, it was extinguished on February 2 3 , 2012 by

the foreclosure of the first mortgage. The second mortgage and

3 the parties associated with it had no further relationship to

the first mortgage and its associated parties. Id.

C. Relevant Procedural History

On August 6, 2012, the plaintiffs petitioned the New

Hampshire Superior Court seeking a variety of forms of relief in

law and equity against Bank of America, American Home, Coastal

Banking, and Blue Spruce. Doc. N o . 7 . On January 4 , 2013, the

court dismissed Blue Spruce. The remaining defendants removed

the case to this court on March 1 3 , 2013. Id. In separate

orders, I granted Coastal Banking’s and Bank of America’s

motions to dismiss all counts relating to them for failure to

state a claim. Endorsed Order, Rossop v . Bank of America Corp.,

N o . 13-cv-112-PB (D.N.H. July 3 , 2013); Endorsed Order, Rossop,

N o . 13-cv-112-PB (D.N.H. May 1 3 , 2013). On July 3 , 2013, I

granted American Home’s motion to dismiss Counts three, six,

seven, eight, and nine for failure to state a claim. Endorsed

Order, Rossop, N o . 13-cv-112-PB (D.N.H. May 1 3 , 2013). That

same day, American Home moved for summary judgment on all

remaining counts. Doc. Nos. 2 1 , 2 2 . The plaintiffs filed an

objection to the motion on October 2 2 , 2013, 3 Doc. N o . 2 6 , to

which American Home timely replied. Doc. N o . 2 8 .

3 In this court, “[o]bjections to summary judgment motions shall 4 I I . STANDARD OF REVIEW

Summary judgment is appropriate when the record reveals “no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). An issue is considered genuine if the evidence allows a

reasonable jury to resolve the point in favor of the nonmoving

party, and a fact is considered material if it “is one ‘that

might affect the outcome of the suit under the governing law.’”

United States v . One Parcel of Real Prop. with Bldgs., 960 F.2d

200, 204 (1st Cir. 1992) (quoting Anderson v . Liberty Lobby,

Inc., 477 U.S. 2 4 2 , 248 (1986)). In ruling on a motion for

summary judgment, I examine the evidence in the light most

favorable to the nonmoving party. Navarro v . Pfizer Corp., 261

be filed within thirty (30) days from the date the motion is served. The court shall deem waived any objection not filed in accordance with this rule.” LR 7.1(b). In light of the plaintiffs’ pro se status, I deferred ruling on the motion despite their failure to respond by this deadline. Endorsed Order, Rossop, N o . 13-cv-112-PB (D.N.H. Oct. 3 , 2013). Because the plaintiffs still failed to respond within the additional fourteen days I provided to them, “I will assume the truth of the well pleaded facts offered in support of the motion [for summary judgment] and determine whether the motion has merit.” Id. This standard of review is appropriate in any event because the plaintiffs’ objection and accompanying materials fail to address the material facts noted in the memorandum of law filed in support of American Home’s motion. See LR 56.1(b) (“All properly supported material facts set forth in the moving party’s factual statement may be deemed admitted unless properly opposed by the adverse party.”). 5 F.3d 9 0 , 94 (1st Cir. 2001). Given this case’s procedural

history, however, I “assume the truth of the well pleaded facts

offered in support of the motion” for summary judgment. See

supra note 3 .

The party moving for summary judgment bears the initial

burden of identifying the portions of the record it believes

demonstrate an absence of disputed material facts. Celotex

Corp. v . Catrett, 477 U.S. 3 1 7 , 323 (1986). In determining what

constitutes a material fact, “we safely can ignore ‘conclusory

allegations, improbable inferences, and unsupported

speculation.’” Carroll v . Xerox Corp., 294 F.3d 2 3 1 , 237 (1st

Cir. 2002) (quoting Medina–Munoz v . R.J. Reynolds Tobacco Co.,

896 F.2d 5 , 8 (1st Cir. 1990)).

I hold pro se pleadings to a less stringent standard than

those drafted by lawyers and liberally construe them in favor of

the pro se party. See Estelle v . Gamble, 429 U.S. 9 7 , 106

(1979); Ahmed v . Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).

That review ensures that pro se pleadings are given fair and

meaningful consideration. See Eveland v . Dir. of CIA, 843 F.2d

4 6 , 49 (1st Cir. 1988).

6 III. ANALYSIS

Although frequently difficult to decipher, the plaintiffs’

complaint alleges that the foreclosure sale was invalid due to

fraud and various other violations of state and federal law

relating to the origination and servicing of their first home

loan, the assignment of the associated note and mortgage, and

the conduct of the foreclosure sale itself. Doc. N o . 8 .

Because American Home had nothing to do with the first loan and

mortgage or the foreclosure sale, however, it cannot possibly be

held liable, under any conceivable legal theory, for the only

cognizable harm alleged by the plaintiffs – the loss of their

home. 4 See, e.g., Gikas v . JPMorgan Chase Bank, N.A., 2013 DNH

057, 12 (“[W]hether or not Chase and MERS had standing to

conduct the foreclosure is entirely irrelevant to the validity

of the sale when they did not, in fact, conduct the

4 Reading the complaint quite liberally to also include allegations that the plaintiffs suffered economic damages as a result of American Home fraudulently inducing and/or coercing them to enter into an unconscionable loan agreement in 2005 – all assertions unsupported by any evidence - I find that these claims, which arose when plaintiffs began repaying the second loan, are barred by New Hampshire’s three-year statute of limitations. See Lehane v . Wachovia Mortg., FSB, 2013 DNH 059, 8-9 & n.5 (citing N.H. Rev. Stat. Ann. § 508:4(I)). The plaintiffs also claim that “each of the defendants sued herein was the agent and employee of each of the remaining defendants,” Doc. N o . 8 , but because the plaintiffs have offered no evidence in support of this “conclusory allegation[],” I do not credit i t . See Medina–Munoz, 896 F.2d at 8 . 7 foreclosure.”); see also Coggeshall v . Mass. Bd. of Registration

of Psychologists, 604 F.3d 6 5 8 , 666 (1st Cir. 2010) (citing

Lujan v . Defenders of Wildlife, 504 U.S. 555, 560–61 (1992);

N.H. Right to Life PAC v . Gardner, 99 F.3d 8 , 13 (1st Cir.

1996)) (“[A] party seeking relief in federal court must show

that he has suffered an actual injury, which is fairly traceable

to the defendant’s conduct . . . . ” ) . The defendants that were

associated with these events – Coastal Banking, Bank of America,

and Blue Spruce – have already been dismissed from this case.

The plaintiffs cannot now force American Home to account for the

alleged misdeeds of the former parties over which it had no

control.

Although American Home’s complete lack of involvement with

the first loan and foreclosure is dispositive, I make one brief

observation before concluding. The plaintiffs have included in

their pleadings numerous newspaper articles, judicial opinions,

and other references to irresponsible and unlawful activity

carried out throughout the country by certain prominent lending

institutions which has seriously harmed many homeowners and

exacerbated the nation’s current foreclosure crisis. I

understand the plaintiffs’ anger regarding these events and

their suspicion that the loss of their own home to foreclosure

8 fits within the same pattern. But without presenting evidence

specific to their own circumstances that ties American Home or

some other party to unlawful activity resulting in the

foreclosure, a court simply cannot grant them relief. See,

e.g., Wallace v . Bank of Am., N o . 10–cv–017–JL, 2010 WL 4916570,

at *3 (D.N.H. Aug. 3 0 , 2010) (“[C]laims pending and evidence

submitted in an unrelated case . . . does not provide any basis

for this court to find that [defendant] has violated any law as

to [plaintiff].”), rep. & rec. adopted, 2010 WL 4916569 (D.N.H.

Nov. 3 0 , 2010); Gilroy v . Ameriquest Mortg. Co., 2009 DNH 0 3 0 , 6

(“[E]vidence of fraudulent lending practices against others is

irrelevant to [a plaintiff’s] case.”).

IV. CONCLUSION

For the foregoing reasons I grant American Home’s motion

for summary judgment (Doc. N o . 2 1 ) . The clerk shall enter

judgment accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge December 1 7 , 2013

cc: John A . Rossop, pro se Margo H . Parker, pro se Mark E . Porada, Esq. 9