LANDYA McCAFFERTY, District Judge.
James Gehrke, proceeding pro se, brings suit against Specialized Loan Servicing, LLC ("Specialized Loan"), alleging claims arising out of Specialized Loan's efforts to foreclose on his home. Gehrke originally filed his lawsuit in superior court and Specialized Loan removed it to this court. Specialized Loan moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Gehrke objects.
Standard of Review
Under Rule 12(b)(6), the court must accept the factual allegations in the complaint as true, construe reasonable inferences in the plaintiff's favor, and "determine whether the factual allegations in the plaintiff's complaint set forth a plausible claim upon which relief may be granted."
Because Gehrke is proceeding pro se, the court is obliged to construe his complaint liberally.
On October 10, 2006, Gehrke executed a promissory note in favor of Countrywide Home Loans, Inc. ("Countrywide"), in exchange for a loan of $180,000. That same day, Gehrke and Phyllis Buco granted a mortgage on their home to Countrywide to secure Gehrke's loan, with Mortgage Electronic Registrations Systems, Inc. ("MERS") as the mortgagee in its capacity as nominee for Countrywide. On June 29, 2011, MERS assigned the mortgage to Bank of New York Mellon ("Bank of New York").
On April 14, 2014, Gehrke instituted a voluntary Chapter 7 bankruptcy proceeding in the United States Bankruptcy Court for the District of New Hampshire.
On June 24, 2014, Bank of New York filed a "motion for relief from automatic stay."
Gehrke brought this action in superior court on November 11, 2016. In his complaint, Gehrke states: "November 2010 I tried to get a mortgage modification. They refused me, then I found a mortgage modification
Specialized Loan moves to dismiss the complaint, arguing that it fails to state a plausible claim for relief. Gehrke objects, stating simply that "we would like a modification to stay in our home." Doc. no. 7 at 1. He includes with his objection a handwritten letter, in which he states that he entered into a 30-year mortgage agreement with a company called Ideal Mortgage for a $100,000 loan, but that Ideal Mortgage then instituted foreclosure proceedings after six months.
Gehrke also includes with his objection a notice from Bank of America Home Loans Servicing, LP's ("Bank of America") Home Retention Division.
Gehrke's objection to Specialized Loan's motion to dismiss addresses actions taken by an entity, Ideal Mortgage, not referred to in Gehrke's complaint and based on a mortgage and loan which is also not referenced in his complaint. Thus, the nature of Gehrke's claims in this action are unclear. Gehrke appears to claim that someone forged his name on the August 2009 loan modification agreement, and that Specialized Loan is attempting to enforce the terms of that agreement based on Gehrke's failure to make his monthly payments. While the nature of the claim against Specialized Loan is not entirely clear, the nature of the relief Gehrke seeks is clear: Gehrke seeks a loan modification agreement that will allow him to remain in his home.
Gehrke makes no attempt to explain why Specialized Loan or any other entity would forge his signature on the August 2009 loan modification agreement. That allegation is particularly implausible in light of Gehrke's submissions in this case and filings in his bankruptcy case, which show that: Gehrke applied for a loan modification in 2009; he was in default of his obligations under the original note and mortgage prior to August 2009 because he failed to make his monthly payments; and that he failed to make any monthly mortgage payments for at least several years after August 2009.
Moreover, even if Gehrke could show that his name was forged on the August 2009 modification agreement, he would not be entitled to the relief that he seeks in this case. Gehrke was in default of his obligations under the original mortgage agreement which, by its terms, entitles the mortgagee as nominee for the lender to invoke the power of sale upon Gehrke's default. Thus, even if Gehrke could show that his signature was forged on the modification agreement, the relief for that claim would not include forcing Specialized Loan to offer him a loan modification agreement or allowing him to remain in his home.
In sum, Gehrke has failed to allege a plausible claim in his complaint. Therefore, the court grants defendant's motion to dismiss without prejudice to Gehrke's ability to file an amended complaint that states a viable claim against defendant.
For the foregoing reasons, defendant's motion to dismiss (doc. no. 6) is granted without prejudice to Gehrke's ability to file an amended complaint setting forth facts sufficient to state plausible claims against defendant.