UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Walter Steele

v. Civil No. 14-cv-350-JD Opinion No.

Deutsche Bank National Trust Company, as Trustee of the Residential Asset Securitization Trust 2005-A11CB, Mortgage Pass-Through Certificates, Series 2005-K Under the Pooling and Servicing Agreement Dated September 1, 2005

O R D E R

Walter Steele brought suit in state court, seeking an

injunction against Deutsche Bank National Trust Company to stop

foreclosure proceedings against Steele’s home and bringing three

claims for damages. Deutsche Bank removed the case to this

court. After an initial misstep that resulted in default being

entered against it, Deutsche Bank filed a motion to dismiss.

Steele asked for an extension of time to respond because the

parties were discussing a mortgage modification, and the request

was granted. The parties did not file a status report by

November 24, 2014, as they were required to do, and Steele did

not file a response to the motion to dismiss.1

1 Steele is represented by counsel. The clerk’s office sent an email to counsel on December 1, 2014, requesting information on the status of the case. Counsel for Deutsche Bank responded that she had been unable to reach Steele’s counsel to discuss the case but understood based on previous communications that the case would not be resolved and would proceed. The court has received no communication from Steele’s counsel. Standard of Review

In considering a motion pursuant to Federal Rule of Civil

Procedure 12(b)(6), the court must “determine whether the factual

allegations in the plaintiff’s complaint set forth a plausible

claim upon which relief may be granted.” Foley v. Wells Fargo

Bank, N.A.,

(1st Cir. 2014) (internal quotation

marks omitted). The properly pleaded factual allegations in the

complaint are accepted as true.

Statements that merely

provide legal conclusions or the bare elements of a cause of

action, without supporting facts, are not properly pleaded

allegations and must be ignored. Schatz v. Republican State

Leadership Comm.,

(1st Cir. 2012).

Background

The background information is provided in accordance with

the Rule 12(b)(6) standard.

The operative complaint is Steele’s verified ex parte

petition to enjoin the foreclosure sale of his home and complaint

for damages. The state court granted Steele’s request for

temporary ex parte relief on August 1, 2014, and temporarily

enjoined the foreclosure sale of his home. A hearing was

scheduled in state court for August 11, 2014, but the case was

removed to this court on August 8, 2014.

In state court, Steele sought an injunction based on the

Home Affordable Modification Program (“HAMP”) and argued that it

would cause him irreparable harm to lose his home. He brought

2 three claims for damages: Breach of Contract, Count I; Negligent

Misrepresentation, Count II; and Breach of the Covenant of Good

Faith and Fair Dealing, Count III. Steele alleged few facts to

support his claims, and those are summarized here.

The property subject to foreclosure by Deutsche Bank is

Steele’s primary home. As recently as the middle of July, 2014,

“[w]hile in the process of gathering the documents to proceed

with pursuit of the modification,” Steele received a call from a

representative of Deutsche Bank “and got ‘the run around.’” Soon

after, Steele “was told that someone may be interested in buying

the home on a short sale.” Steele is “sick and elderly and it

would be an extreme hardship to lose the property that he

occupies.”

In support of the breach of contract claim, Steele alleges

that Deutsche Bank has not produced the “original note,” that

“the photocopy is endorsed in blank,” and that Deutsche Bank “is

not even a ‘holder.’” Steele states, generally, that “[t]he

parties have entered into an agreement regarding financing

pursuant to the terms of their mortgage, and an original mortgage

agreement and other contracts.” Steele alleges that Deutsche

Bank “was required to follow the federal and New Hampshire

underwriting and closing requirements.” Steele contends that

Deutsche Bank breached the agreement by failing to recognize and

credit payments, by “failing to perform,” by failing to honor

“verbal promises,” and by moving toward foreclosure after

promising not to foreclose.

3 Steele alleges negligent misrepresentation based on Deutsche

Bank’s “duty to be honest and provide truthful representations.”

Steele contends that Deutsche Bank breached its duty by

misleading Steele and by failing to adequately communicate with

him. He contends that Deutsche Bank promised to provide an

accounting and promised to identify the location of the note and

other documents but failed to do so.

Discussion

Deutsche Bank moves to dismiss the claims on the grounds

that they are inadequately pleaded and fail to state viable

causes of action. Steele did not object or otherwise respond to

the motion to dismiss.

A. Injunction

Steele seeks an injunction to stop the foreclosure sale of

his home. Under New Hampshire law, “[t]he issuance of

injunctions, either temporary or permanent, has long been

considered as an extraordinary remedy.” N.H. Dep’t of Envtl.

Servs. v. Mottolo,

(2007). To obtain an

injunction, a party must show that there is an immediate danger

of irreparable harm to him, that no adequate remedy at law

exists, and that he is likely to succeed on the merits of his

claims.

Steele argues that the foreclosure sale should be stopped to

allow him an opportunity to pursue a modification of his mortgage

4 under HAMP. Steele has now had ample opportunity to pursue a

modification of his mortgage, including the additional time

allowed after Deutsche Bank moved to dismiss his claims. He has

not updated the factual circumstances pertaining to his efforts

to obtain a modification nor responded to the motion to dismiss.

Therefore, Steele has not provided a showing to support the

elements necessary for an injunction.

In addition, courts have not found a private right of action

under HAMP. MacKenzie v. Flagstar Bank, FSB,

, 491-

92 (1st Cir. 2013); Young v. Wells Fargo Bank, N.A.,

, 237 n.10 (1st Cir. 2013); Frangos v. Bank of Am., N.A.,

, at *4 (D.N.H. July 24, 2014). HAMP does not support

Steele’s request for an injunction, and for the reasons that

follow, Steele cannot proceed on his claims for damages.

B. Breach of Contract

Breach of contract occurs when a party fails to perform any

promise that “forms the whole or part of a contract” without

legal excuse. Axenics, Inc. v. Turner Constr. Co.,

(2013) (internal quotation marks omitted). Steele’s

allegations identify “an agreement regarding financing pursuant

to the terms of their mortgage, and an original mortgage

agreement,” along with “other contracts.” He provides no

specifics about the contracts at issue or the terms of the

contract or contracts that he alleges were breached.

5 Steele states that “[a]s part of the agreement, [Deutsche

Bank] was required to follow the federal and New Hampshire

underwriting and closing requirements” but does not allege what

those requirements are or which agreement incorporated those

requirements. He states that Deutsche Bank breached the

agreement to follow underwriting and closing requirements by

failing to recognize and credit payments, by promising not to

foreclose and then moving to foreclose, and “in other ways,” but

provides no specifics about those actions or inactions. He also

states that Deutsche Bank “failed to perform properly” and

“failed to honor verbal promises, . . . among other things”

without any facts pertaining to what happened.

Such vague, meager, and conclusory allegations do not state

a claim for breach of contract. See, e.g., Lydon v. Local 103,

Int’l Bhd. of Elec. Workers,

(1st Cir. 2014);

United States v. AVX Corp.,

(1st Cir. 1992).

In response to Deutsche Bank’s motion to dismiss, Steele had the

opportunity to amend his complaint to provide the missing facts

or, at a minimum, he could and should have filed a response to

the motion. He did neither. The deficient claim for breach of

contract is dismissed.

C. Negligent Misrepresentation

The elements of a negligent misrepresentation claim “are a

negligent misrepresentation of a material fact by the defendant

and justifiable reliance by the plaintiff.” Wyle v. Lees, 162

, 412 (2011). “It is the duty of one who volunteers

information to another not having equal knowledge, with the

intention that he will act upon it, to exercise reasonable care

to verify the truth of his statements before making them.”

The economic loss doctrine, however, precludes a contracting

party from a tort recovery for purely economic loss unless the

defendant owed him a duty that is independent of the contract

relationship.

.

Deutsche Bank argues that the negligent misrepresentation

claim is barred by the economic loss doctrine. Steele alleges,

in support of his negligent misrepresentation claim, that

Deutsche Bank “had a duty to be honest and provide truthful

representations,” that Deutsche Bank “breached its duty by

misleading [Steele] and failing to adequately communicate,” and

that Deutsche Bank “promised to provide the accounting, the

physical location of the Note and other documents and failed to

comply.” Steele also states that he relied on the representa-

tions and that he was misled “when [Deutsche Bank] made numerous

material promises and failed to perform.”

Steele’s negligent misrepresentation claim fails due to the

lack of supporting factual allegations. In addition, as Deutsche

Bank contends, the general representations Steele raises are

promises and statements that are related to the mortgage

relationship. As such, the economic loss doctrine bars Steele

from recovering on his claim of negligent misrepresentation.

7 D. Good Faith and Fair Dealing

“In every agreement, there is an implied covenant that the

parties will act in good faith and fairly with one another.”

Birch Broadcasting, Inc. v. Capitol Broadcasting Corp., Inc.,

(2010). While New Hampshire recognizes three

categories of covenants, which serve different functions, the

most applicable in the circumstances of this case appears to be

the “limitation of discretion in contractual performance.”

That category “prohibit[s] behavior inconsistent with the

parties’ agreed-upon common purpose and justified expectations as

well as with common standards of decency, fairness and

reasonableness.”

(internal quotation marks omitted).

Deutsche Bank contends that Steele lacks factual allegations

to support his claim. In support of the claim, Steele alleges

that Deutsche Bank “had an implied duty to act in good faith and

deal fairly with [him]” and “a duty to be honest, fair and act in

good faith with [him].” Steele then states that Deutsche Bank

breached the duty, causing Steele to lose the benefit of a

modification, apparently meaning a modification of his mortgage

agreement, and causing the likelihood of losing his home.

Steele’s allegations in the complaint simply restate in

conclusory fashion elements of the claim, without providing any

facts “to remove the possibility of relief from the realm of

conjecture.” Lydon,

(internal quotation marks

omitted). Such conclusory pleading is insufficient to avoid

8 dismissal under Rule 12(b)(6). Ashcroft v. Iqbal,

(2009). The claim is dismissed.

Conclusion

For the foregoing reasons, the defendant’s motion to dismiss

(document no. 12) is granted. All claims in the complaint are

dismissed.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

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

December 17, 2014

cc: Peter G. McGrath, Esq. Jessica Suzanne Babine, Esq.

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