Roxanne Moore v. United States Department of Agriculture

2019 DNH 006

• Court: District Court, D. New Hampshire
• Decided: January 10, 2019
• Docket: 18-cv-187-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Roxanne Moore

v. Civil No. 18-cv-187-JD Opinion No. 2019 DNH 006 United States Department of Agriculture

O R D E R

Roxanne Moore, proceeding pro se, filed suit against the

United States Department of Agriculture (the “USDA”) seeking an

injunction to prevent a foreclosure sale on her home located at

8 Half Moon Lane, Kingston, New Hampshire (the “Half Moon

Property”). The USDA moves for summary judgment. Moore did not

file a response.

Standard of Review

Summary judgment is appropriate when the moving party

“shows that there is 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). “A genuine issue of material fact only

exists if a reasonable factfinder . . . could resolve the

dispute in that party’s favor.” Town of Westport v. Monsanto

Co., 877 F.3d 58, 64-65 (1st Cir. 2017) (internal quotation

marks omitted). The court must take the facts and draw all reasonable inferences in the light most favorable to the

nonmoving party. McGunigle v. City of Quincy, 835 F.3d 192, 202

(1st Cir. 2016).

Background

As is noted above, Moore did not file a response to the

USDA’s motion for summary judgment. In this district, when a

party does not file an opposition to a motion for summary

judgment, all properly supported facts in the moving party’s

memorandum are deemed admitted. LR 56.1(b). Therefore, the

facts presented by the USDA in support of the motion for summary

judgment are deemed to be admitted by Moore.

Moore granted the USDA a 30-year mortgage on the Half Moon

Property on August 31, 1988, in the amount of $95,000.00. Moore

has not made a voluntary payment on the mortgage since January

7, 2013. The mortgage is in default and, as of November 6,

2018, had a total amount due of $128,428.75, including

$42,709.89 in fees and interest.

Based on the materials Moore filed with her complaint, the

USDA has sent Moore notices that she was in arrears on her

mortgage payments, granted her a two-year moratorium on payments

that expired in October 2015, addressed her mortgage subsidy

agreement, and, finally, sent notices of planned foreclosure.

Moore responded to at least some of the notices asking for

2 information and explaining her difficult circumstances. After

receiving notice of a foreclosure sale of the Half Moon Property

scheduled for February 20, 2018, Moore filed a “Complaint to

Enjoin Foreclosure Sale” in state court on February 20, 2018.

The USDA removed the case to this court a week later, on

February 27, 2018.

Discussion

The USDA argues that Moore cannot succeed in her suit to

enjoin the foreclosure sale because Moore’s mortgage is in

default. It further argues that, under the default provision in

the mortgage agreement, it has the right to foreclose on and

sell the property. Therefore, the USDA argues, it has the legal

right to foreclose on the property.

The mortgage agreement provides in pertinent part:

SHOULD DEFAULT occur in the performance or discharge of any obligation in this instrument or secured by this instrument, . . . the Government, at its option, with or without notice, may . . . (d) foreclose this instrument as provided herein or by law.

Doc. 7-3 at 3. The USDA contends and Moore does not dispute

that the default provision allows it to foreclose the mortgage

because Moore has defaulted.

Nevertheless, in appropriate circumstances, the court may

enjoin the foreclosure of a mortgage. N.H. Rev. Stat. Ann.

(“RSA”) §§ 479:25, II(c), 498:1; Murphy v. Fin. Dev. Corp., 126

3 N.H. 536, 539-40 (1985); Ruotolo v. Benjamin Franklin Corp., 122

N.H. 149, 149-50 (1982); F.D.I.C. v. Holden, 1994 WL 263691, at

*5 (D.N.H. Jan. 26, 1994). An injunction prohibiting or setting

aside a foreclosure sale is, however, an extraordinary remedy

that requires the mortgagor to show evidence of failure to meet

the statutory requirements under § 479:25 or evidence of failure

to deal with the mortgagor fairly and in good faith. See

Murphy, 126 N.H. at 540; Frangos v. Bank of America, N.A., 2014

WL 3699490, at *4 (D.N.H. July 24, 2014).

Moore offers no evidence that the USDA acted unfairly, in

bad faith, or otherwise failed to meet the requirements of

§ 429:25. The undisputed facts show that the mortgage is in

default, and Moore does not offer any argument that the USDA

failed to satisfy any statutory prerequisite to foreclosure.

Moore does not offer any evidence that the USDA misled her or

dealt unfairly with her in the foreclosure process.

In her complaint, Moore suggested1 that the foreclosure sale

will be unfair because she had difficulty obtaining paperwork

about potential alternative options to foreclosure. She also

stated that she encountered several unfortunate financial

circumstances that prevented her from paying the debt. Even

1 Courts liberally construe the pleadings and arguments of pro se litigants. Tang v. Citizens Bank, N.A., 821 F.3d 206, 219-20 (1st Cir. 2016).

4 setting aside her failure to provide substantiating evidence,

Moore’s difficulty in obtaining unspecified paperwork about

alternative options to foreclosure does not deprive the USDA of

its right to foreclose on the property. See, e.g., Ruivo v.

Wells Fargo Bank, N.A., 2012 WL 5845452, at *3 (D.N.H. Nov. 19,

2012) (rejecting claim that mortgagee breached covenant of good

faith and fair dealing by refusing to modify a mortgage

contract). Nor do financial difficulties suffice. See id.

(“Parties are bound by the agreements they enter into and the

court will not use the implied covenant of good faith and fair

dealing to force a party to rewrite a contract so as to avoid a

harsh or inequitable result.”).

Conclusion

For the foregoing reasons, the USDA’s motion for summary

judgment (doc. no. 7) is granted.

As all claims in the case are resolved on summary judgment,

the clerk of court shall enter judgment accordingly and close

the case.

SO ORDERED.

__________________________ Joseph A. DiClerico, Jr. United States District Judge

January 10, 2019 cc: Roxanne Moore, pro se Michael. T. McCormack, Esq.