UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Adam Aho

v. Civil No. 15-cv-128-JL Opinion No.

Bank of America, N.A. Deutsche Bank Nat'l Trust Co.

MEMORANDUM ORDER

In this mortgage-related case, plaintiff Adam Aho brings a

seven-count complaint for damages and declaratory and injunctive

relief against two banks whom Aho claims have no right to

foreclose on his home. The defendants, Bank of America (“BOA”)

and Deutsche Bank National Trust Co. (“Deutsche”), moved to

dismiss, asserting that Aho’s complaint fails to state a claim

upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).

After consideration of the complaint, the parties’ written

submissions, and oral argument, the court grants defendants’

motion.

I. Legal standard

To survive a motion to dismiss under Rule 12(b)(6), the

plaintiff’s complaint must allege facts sufficient to “state a

claim to relief.” Ashcroft v. Iqbal,

(2009)

(quoting Bell Atl. Corp. v. Twombly,

(2007)).

In ruling on such a motion, the court must accept as true all

well-pleaded facts set forth in the complaint and must draw all

reasonable inferences in the plaintiff’s favor. See, e.g., Martino v. Forward Air, Inc.,

(1st Cir. 2010). The

court “may consider not only the complaint but also facts

extractable from documentation annexed to or incorporated by

reference in the complaint and matters susceptible to judicial

notice.” Rederford v. U.S. Airways, Inc.,

(1st

Cir. 2009). With the facts so construed, “questions of law [are]

ripe for resolution at the pleadings stage.” Simmons v. Galvin,

(1st Cir. 2009). The following factual summary

adopts that approach.

II. Background facts

In January 2007, Aho and his wife executed a mortgage naming

as mortgagee Mortgage Electronic Registration Systems, Inc.

(“MERS”) as nominee for New Century Mortgage Corporation, its

successors and assigns. The mortgage secured a promissory note

for $195,000 that Aho executed in favor of New Century and

granted a security interest in property in Rindge, New Hampshire.

New Century endorsed the note in blank and undated. New Century

filed for Chapter 11 bankruptcy in August 2008.

The mortgage was assigned from MERS to BAC Home Loans

Servicing, LP, f/k/a Countrywide Home Loan Servicing ("BAC").

That assignment was recorded in the Cheshire County (N.H.)

Registry of Deeds on August 29, 2011. BOA is the successor by

merger to BAC.

2 In July 2012, Select Portfolio Servicing, Inc. (“SPS”) began

servicing Aho's loan. Deutsche, as trustee for a trust into

which the note and mortgage were pooled with other mortgages and

sold to investors – known as securitizing -- holds the note. An

assignment of the mortgage from BOA to Deutsche, as Trustee, was

recorded in the Cheshire County Registry on November 19, 2014.

By letter dated August 24, 2011, BOA notified Aho of its

intent to foreclose on the property. Shortly thereafter, Aho

filed suit in state court to enjoin the foreclosure. He claimed

that he was deceptively “put into this mortgage” and asked that

the bank provide the signed contract and original promissory

Note. Roughly one month later, the Superior Court continued the

foreclosure sale for 60 days. By February 2012, the state court

noted that the note had been produced but that Aho continued to

challenge the identity of the note holder. After a lengthy

interregnum during which the record reflects the parties’

attempts to reach an amicable resolution, Aho was informed in

March 2015 that BOA was no longer the servicer of the note or

mortgage and that Deutsche, as trustee, held the note. Soon

after, Aho filed a second amended complaint, adding Deutsche as a

defendant. Deutsche subsequently removed the case to this court.

The operative complaint consists of seven counts. Counts 1-

4 allege wrongful foreclosure against BOA based on several

different rationales: that BOA wasn’t the note-holder when it

3 sent the foreclosure notice; that the mortgage was held by a

different entity than the note, rendering it invalid; that the

2011 MERS assignment to BAC (predecessor to BOA) was invalid

because it came three years after New Century's bankruptcy; and

that BOA must demonstrate precisely when it came into possession

of the original note to validate its right to foreclose. The

three counts against Deutsche follow a similar theme. Aho

alleges that Deutsche lacks the authority to foreclose because

MERS did not have the right to assign the original mortgage, that

Deutsche was never assigned the mortgage and that it does not

legally own the note and mortgage due to an alleged violation of

the rules of the trust into which they were purportedly

transferred. Aho seeks declaratory and injunctive relief, as

well as attorneys’ fees from both defendants; he also seeks

compensatory damages against BOA for wrongful foreclosure.

IV. Legal Analysis

A. Counts 1-4 (wrongful foreclosure against BOA)

BOA argues that Aho’s complaint fails to state a claim for

wrongful foreclosure because, as Aho concedes, BOA did not

foreclose on Aho’s property and no foreclosure by BOA is

scheduled. Aho argues that merely by initiating the foreclosure

process, BOA is liable. Moreover, Aho claims entitlement to an

injunction against BOA because, he alleges, BOA does not

presently hold the note and mortgage. Aho’s claims fail.

4 “[A] necessary element of a wrongful foreclosure claim, as

the claim suggests, is that a foreclosure sale must have

occurred.” Worrall v. Fed. Nat'l Mortg. Ass'n,

at

8. As Judge DiClerico observed in Worrall, New Hampshire has

recognized wrongful foreclosures claims after foreclosure sales,

based on the conduct of the sale leading to an unfair sale price.

(citing Murphy v. Fin. Dev. Corp.,

(1985)). Like the plaintiff Worrall, Aho cited no cases

recognizing a claim for wrongful attempted foreclosure and

conceded at oral argument that he was aware of none. To the

extent Aho asks the court to expand New Hampshire law to create

such a cause of action, the court declines. See Quality Cleaning

Prods. R.C. v. SCA Tissue N. Am.,

(1st Cir.

2015) (“A federal court sitting in diversity cannot be expected

to create new doctrines expanding state law.”).

Aho's claim for injunctive relief against BOA fares no

better. He concedes that BOA has not foreclosed and does not

hold the note or mortgage. As such, the court finds that Aho

cannot establish either a likelihood of success on the merits of

his wrongful foreclosure claim or the potential for irreparable

harm (as to BOA) in the absence of an injunction. See Esso

Standard Oil Co. v. Monroig-Zayas,

(1st Cir.

2006). Accordingly, counts 1-4 against BOA must be dismissed.

5 B. Counts 5-7 (claims against Deutsche)1

Aho's claims against Deutsche are limited to seeking a

declaration that it does not validly possess the note or mortgage

and an injunction preventing Deutsche from foreclosing. These

counts cannot survive the defendants’ motion.

The court rejects Aho's baseline argument that MERS lacked

the power to assign the mortgage to BAC, legal predecessor to

BOA, and thus BOA neither held nor assigned anything of legal

significance. As Judge McAuliffe recently observed in Lovy v.

Fed. Nat'l Mortg. Ass'n,

, the First

Circuit Court of Appeals has “unequivocally ruled that MERS may

validly possess and assign a legal interest in a mortgage.”

(quoting Serra v. Quantum Servicing Corp.,

(1st

Cir. 2014) (citing Culhane v. Aurora Loan Servs. Of Nebraska,

(1st Cir. 2013)).

The rest of Aho’s claims against Deutsche fare no better.

As previously explained, the note and mortgage were securitized

into a trust for which Deutsche is trustee. The formation and

operation of the trust is controlled by a Pooling and Service

Agreement (“PSA”). The counts against Deutsche are premised on

Aho's claim that Deutsche has no right to foreclose because any

transfer of the note and mortgage to the trust was done in

1 The court assumes, without deciding, that Deutsche’s present posture – it has neither instituted nor threatened foreclosure against Aho – is not a bar to declaratory judgment.

6 violation of the PSA. Deutsche argues that Aho has no standing

to pursue such a claim. Deutsche is correct.

Essentially, Aho argues that the trust acquired the note and

mortgage after a deadline set forth in the PSA and that the

method of acquisition did not occur in the required sequence.2

Under New York law (which controls the trust), Aho argues, these

infirmities render the instruments void, as opposed to voidable,

and thus he has standing to contest the transfers. Cf. Culhane,

(“[A] mortgagor does not have standing to

challenge shortcomings in an assignment that render it merely

voidable at the election of one party but otherwise effective to

pass legal title.”).

In support of his argument, Aho relies on a New York trial

court decision, Wells Fargo Bank, N.A. v. Erobobo,

(unpublished table decision),

(N.Y. Sup. Ct

2013). Erobobo, citing New York trust law, held that such

transfers in violation of a PSA are void. That decision,

however, was reversed before plaintiff submitted his objection to

the pending motion. See Wells Fargo Bank, N.A. v. Erobobo, 9

2 At oral argument, Aho argued for the first time that the transfer into the trust constituted a fraud on the Internal Revenue Service, making any assignment void, rather than voidable, and therefore giving him standing. But Aho conceded that he did not brief this issue. “[T]his court generally will not consider theories raised for the first time at oral argument, out of fairness to adverse parties and the court.” Johnson v. Gen. Dynamics Info. Tech.,

, 241 n.3 (D.N.H. 2009).

(N.Y. App. Div. 2015). As relevant here, the

appeals court stated "Erobobo, as a mortgagor whose loan is owned

by a trust, does not have standing to challenge the plaintiff's

possession or status as assignee of the note and mortgage based

on purported noncompliance with certain provisions of the PSA."

at 314 (citing Bank of N.Y. Mellon v. Gales,

(N.Y. Ct. App. 2014); Rajamin v. Deutsche Bank Natl. Trust Co.,

, 86–87 (2d Cir. 2014); see also, Pike v. Deutsche

Bank Nat'l Trust Co., No. 2014-594,

(N.H. July

15, 2015) (noting Erobobo's reversal and observing that the "vast

majority" of courts have found similar analysis unpersuasive)).

This conclusion is consistent with general principles of New York

law, under which a non-party lacks standing to enforce a contract

unless the contract contains a clear indication of an intent to

allow it. See e.g., Rajamin,

("the terms of a

contract may be enforced only by contracting parties or intended

third-party beneficiaries of the contract").3

Given that MERS did have the authority to convey the

mortgage and that Aho does not have standing to challenge the

transfers to the trust, Aho's claims against Deutsche necessarily

fail.

3 This court notes that Judge McCafferty, faced with a choice between following the Erobobo trial court ruling and Rajamin, chose the latter, correctly forecasting the New York appellate decision released roughly two weeks later. See Monchgesang v. Deutsche Bank Nat. Trust Co,

.

8 V. Conclusion

In light of the foregoing, defendants' motion to dismiss

(doc. no. 5) is GRANTED.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: December 18, 2015

cc: Stephen T. Martin, Esq. William P. Breen, Esq. Peter F. Carr, II, Esq.

9