Russell v. Emigrant Residential, LLC

2017 DNH 069

• Court: District Court, D. New Hampshire
• Decided: April 10, 2017
• Docket: 17-cv-078-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Charles A. Russell, Administrator of the Estate of Kathleen Skwozinski, and Matthew Skwozinski

v. Civil No. 17-cv-078-JD Opinion No. 2017 DNH 069 Emigrant Residential, LLC

O R D E R

Charles A. Russell, as the administrator of the estate of

Kathleen Skworzinski, and Matthew Skworzinski, filed a complaint

against Emigrant Residential, LLC in state court to enjoin the

foreclosure sale of property owned by the estate and Matthew

Skworzinski.1 Emigrant removed the case to this court. Emigrant

now moves to dismiss, and the plaintiffs object.

Standard of Review

In considering motions under Rule 12(b)(6), the court takes

the factual allegations in the complaint as true and draws

reasonable inferences from those facts in favor of the

plaintiff’s claims. Sanders v. Phoenix Ins. Co., 843 F.3d 37,

42 (1st Cir. 2016). Based on the properly pleaded facts, the

1 Charles Russell is an attorney serving as the administrator of the estate and also representing Matthew Skworzinski 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). A claim is plausible if the

facts as pleaded, taken in the context of the complaint and in

light of “judicial experience and common sense,” allow the court

to draw “the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

678-79 (2009).

The plaintiffs’ objection does not comply with Local Rule

2.3(a) and Appendix A to the Local Rules, Supplemental Rules for

Electronic Case Filing, 2.3(a). For that reason, the plaintiffs

were directed to refile the objection by April 7, 2017. The

plaintiffs failed to refile the objection.

The court may impose sanctions for a failure to comply with

the local rules. LR 1.3(a). The court may also excuse a

failure to comply. LR 1.3(b). In light of the outcome in this

case, the court excuses counsel’s failure to comply with the

local rules and has considered the objection.

Background

With the motion to dismiss, Emigrant provided a copy of the

mortgage and a document showing the assignment of the mortgage.

The plaintiffs do not object to those documents or dispute their

contents.

2 In 2008, Kathleen Skwozinski, and her son, Matthew

Skwozinski, Jr., executed a promissory note to Emigrant Mortgage

Company, Inc. for a loan of $50,000 that is secured by a

mortgage on their property at 440 Gold Street, Manchester, New

Hampshire. Emigrant Mortgage assigned the mortgage to Emigrant

Residential, LLC in 2011.

The Skwozinskis have defaulted on their payment obligations

since 2011. A foreclosure sale of the property was scheduled

for February 22, 2017.

On February 17, 2017, the plaintiffs filed two complaints

on forms provided by the state court, seeking to enjoin the

foreclosure sale. In describing why he is asking the court to

enjoin the foreclosure sale, Russell states:

State of N.H. is owed over $62,000 for nursing care bills. Estate will have insufficient asets [sic] remaining to make little, if any payment, on that bill. Emigrant is owed about $70,000. Property listed and assessed at two to three times amount owed to Emigrant. Risk of any loss by Emigrant is low given those facts.

Matthew Skwozinski adds that he is a half owner of the house and

that his retirement funds are tied up in the house. The

plaintiffs further state that they want to have the foreclosure

sale enjoined so that they can proceed with a private sale of

the property. The state court issued an ex parte temporary

restraining order on February 17, 2017.

3 Discussion

Emigrant moves to dismiss the case on the ground that the

plaintiffs do not allege any claim for relief. Specifically,

Emigrant notes that the plaintiffs allege no wrong doing by

Emigrant. In response, the plaintiffs acknowledge that they

“are not challenging standing, faulty assignment, defective

title, or other possible violations of Federal laws.” Instead,

the plaintiffs are asking the court to enjoin the foreclosure

sale because the property would be sold for less through that

process than it would in a private sale.

The plaintiffs’ mortgage, which Emigrant submitted with its

motion to dismiss, provides that the lender may invoke the

statutory power of sale in the event of default. The plaintiffs

identify no right to proceed with a private sale of property

that is subject to foreclosure.2 The plaintiffs simply argue

that the court may provide them relief in equity by enjoining

the foreclosure sale. Emigrant contends that equity would not

support an injunction when the property has been subject to

foreclosure since 2011 and the plaintiffs have been maneuvering

since then to avoid a foreclosure sale.

2 Charles A. Russell, who is administrator of the estate, is an attorney and is also representing Matthew Skwozinski. Therefore, the plaintiffs’ pleadings are not entitled to a less stringent standard that could apply to pro se parties.

4 A. Temporary Restraining Order

The ex parte restraining order issued by the state court on

February 17, 2017, remained in effect when the case was removed

from state court. See 28 U.S.C. § 1450. That order, however,

has now expired. See Fed. R. Civ. P. 65(b)(2); Granny Goose

Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No.

70, 415 U.S. 423, 436-37 (1974). Therefore, the temporary

restraining order no longer has any force or effect.

B. Permanent Injunction

A plaintiff who is seeking a permanent injunction must show

“(1) that it has suffered an irreparable injury; (2) that

remedies available at law, such as monetary damages, are

inadequate to compensate for that injury; (3) that, considering

the balance of hardships between the plaintiff and defendant, a

remedy in equity is warranted; and (4) that the public interest

would not be disserved by a permanent injunction.” eBay Inc. v.

MercExchange, L.L.C., 547 U.S. 388, 391 (2006); Greene v. Ablon,

794 F.3d 133, 156 (1st Cir. 2015).

The plaintiffs here have made none of the necessary

showings to support imposition of a permanent injunction. As is

noted above, the mortgage grants Emigrant the right to conduct a

statutory sale in the event of default. New Hampshire law

5 provides a process for foreclosure sales. See RSA 479:25. In

addition to the statutory requirements, under New Hampshire

common law, the mortgagee owes the mortgagor a duty “to take all

reasonable and necessary steps under the circumstances to insure

that a fair and reasonable price is obtained.” Bascom Constr.,

Inc. v. City Bank & Tr., 137 N.H. 472, 475 (1993).

The plaintiffs do not dispute that they are in default,

which triggers Emigrant’s right to foreclose and conduct a

statutory sale under RSA 479:25. The plaintiffs have not shown

that they have suffered an irreparable injury or that any future

loss due to the foreclosure sale would lack a remedy at law.

The plaintiffs also acknowledge that Emigrant has done

nothing wrong in handling the mortgage and the debt they owe.

As such, they have not shown that the equities in this situation

would support an injunction barring the foreclosure sale of the

property. For similar reasons, the plaintiffs failed to provide

a showing that the public interest would not be disserved by an

injunction.

Conclusion

For the foregoing reasons, the defendant’s motion to

dismiss (document no. 5) is granted.

6 The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

April 10, 2017

cc: John Harold McCann, Esq. Michael P. Robinson, Esq. Charles A. Russell, Esq.