110 F. Supp. 3d 338
D.N.H.2015Background
- Dionnes mortgage Pelham, NH property; 2006 loan, FNMA and Chase held mortgage; case removed from state court; defendants moved to dismiss under Rule 12(b)(6)
- April 23, 2015 order granted Dionnes leave to amend the Verified Petition; defendants sought reconsideration
- Court granted reconsideration, disregarded amended petition, and treated the original Complaint as operative for the motion to dismiss
- Dionnes alleged Chase promised no foreclosure during loan modification review, but foreclosure occurred January 12, 2015
- Court denied the motion to dismiss, finding RESPA plausibly violated and funding timing arguments not persuasive; noted procedural error in granting leave to amend under local rules
- Court directed actions: reconsideration granted, dismiss of amended complaint stricken, only the Verified Petition remains operative
- Note: background includes procedural posture and that some cited passages involve non-final discovery-like statements, but relevant for evaluating the Rule 12(b)(6) dismissal and RESPA claims
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under NH foreclosure-challenge rules | Dionnes relied on Chase assurances, delaying action | Foreclosure challenge filed after sale, untimely under NH law | Not dispositive; alleged reliance plausibly tolled timeliness |
| Validity of the RESPA claim against foreclosure timing | Loss mitigation application timely and complete; sale occurred before consideration | No complete loss mitigation submission; timing defeats RESPA | Plausible RESPA violation; not subject to dismissal at this stage |
| Whether the amended petition was improperly considered due to local rules | Leave to amend granted via unclear objection; not separate motion | Local Rule required separate motion; error in procedure | Reconsideration granted; amended complaint disregarded; original pleading remains operative |
Key Cases Cited
- Foley v. Wells Fargo Bank, N.A., 772 F.3d 63 (1st Cir. 2014) (plausibility standard under Rule 12(b)(6))
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (plausibility pleading standard)
- Trans-Spec Truck Serv. v. Caterpillar, Inc., 524 F.3d 315 (1st Cir. 2008) (use of attached exhibits in evaluating pleadings)
- Boone v. William W. Backus Hosp., 272 Conn. 551, 864 A.2d 1 (Conn. 2005) (interpretation of pleadings as a question of law)
- U.S. v. Allen, 573 F.3d 42 (1st Cir. 2009) (motions for reconsideration limited to limited grounds)