UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Eugene and Christine Johnson

v. Civil No. 16-cv-229-JD Opinion No.

Joan Shields and Bank of America

O R D E R

Eugene and Christine Johnson, proceeding pro se, brought

suit in state court against Joan Shields and Bank of America,

N.A. after Bank of America attempted to repossess a sailboat

that the Johnsons bought with Shields.1 The purchase was

financed through a loan from Bank of America. The Johnsons

brought claims of misrepresentation and breach of contract

against Shields and sought an injunction against Bank of America

to prevent repossession of the boat. Bank of America defaulted.

Shields filed an answer and counterclaim.

On April 26, 2016, the state court granted the Johnsons a

ten-day injunction against Bank of America to prevent

repossession of the boat. The court held a hearing on the

injunction on May 5, 2016, and the Johnsons, Shields, and Bank

of America signed an agreement to address certain issues in the

1 Bank of America states that it is improperly identified in the complaint as Bank of America rather than Bank of America, N.A. case. The court approved the agreement and set a status

conference for July 5, 2016.

Under the agreement, BOA was required to identify the

arrearages on the mortgage within ten business days of May 5.

The Johnsons and Shields were ordered to split the amount

equally and to forward their shares to counsel for BOA within

ten business days after receiving notice of the amount owed.

The boat was to remain in storage at Rye Harbor. The Johnsons

and Shields were ordered to list the boat for sale within ten

business days of May 5. The Johnsons and Shields were also

ordered to share all expenses incurred for the boat. Based on

that agreement, Bank of America’s motion to set aside default

and vacate the ex parte injunction was granted.

Bank of America removed the case to this court on June 2,

2016, and moves to dismiss the claim seeking an injunction on

the ground that the Johnsons have failed to allege a plausible

basis for enjoining the Bank from repossessing the boat.

Neither the Johnsons nor Shields filed a response to the motion

to dismiss.

Standard of Review

A motion to dismiss for failure to state a claim is

governed by Federal Rule of Civil Procedure 12(b)(6). In

considering a motion under Rule 12(b)(6), the court assumes the

2 truth of the properly pleaded facts and takes all reasonable

inferences from those facts that support the plaintiff’s claims.

Mulero-Carrillo v. Roman-Hernandez,

(1st Cir.

2015). Based on the properly pleaded facts, the court

determines whether the plaintiff has stated “a claim to relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly,

(2007).

Background2

The Johnsons provide few facts to support the claims in the

complaint. In support of the motion to dismiss, Bank of America

adds information from the loan and security agreement on the

boat and the mortgage. Those documents may be considered for

purposes of the motion to dismiss because the complaint, along

with the Johnsons’ motion for injunctive relief in state court,

references financing of the boat through Bank of America. See

Freeman v. Town of Hudson,

(1st Cir. 2013).

The Johnsons and Shields bought a thirty-eight foot

sailboat in March of 2007, with a $100,000 loan through Bank of

America. The Johnsons expected Shields to pay part of the

financing costs and expenses for the boat. In the fall of 2015,

2 The background information is summarized from the state court pleadings and the documents provided by Bank of America. For that reason, the information provided in this section serves as background for this order only, not as findings of fact.

3 Shields stopped making mortgage payments and stopped reimbursing

the Johnson for expenses.

In early February of 2016, Bank of America hired

Commonwealth Boat Brokers, located in Virginia, to repossess the

sailboat owned by the Johnsons and Shields. Eugene Johnson

stopped the repossession effort because he believed the employee

of Commonwealth Boat Brokers sent to get the boat with a pickup

truck did not know anything about transporting large sailboats

and because the Johnsons still held title to the boat. The

Johnsons then filed suit to prevent repossession and to state

claims against Shields.

The loan agreement states that if the borrowers fail to

make the payments as required on the payment schedule or if they

default, Bank of America can repossess the boat. Bank of

America is required to provide written notice before selling the

boat. To get the boat back after repossession, the borrowers

would have to pay the entire amount owed on the loan, along with

late charges and the costs of repossession.

The mortgage agreement also provides remedies for default.

In that event, Bank of America may choose to do one or more of

the listed remedies. The remedies provided include the right to

demand that the mortgagors deliver the boat to a reasonable

location while still requiring payment of any deficiency

following sale, to repossess the boat with anything in or on the

4 boat “with or without legal process or judicial decree and with

or without previous notice or demand for performance,” and to

sell or otherwise dispose of the boat.

Discussion

Bank of America moves to dismiss the Johnsons claims

against it. In support, Bank of America contends that the

complaint lacks facts to support any claim against it and that

the Johnsons have no legitimate claim to challenge Bank of

America’s right to repossess the boat. The Johnsons did not

respond to the motion to dismiss.3

As a preliminary matter, Bank of America does not explain

the status of the boat with respect to the requirements of the

agreement, as ordered by the state court. Because neither the

Johnsons nor Shields responded to the motion, they also failed

to provide any information about the boat’s status. The

deadlines in the court-ordered agreement have now lapsed and had

lapsed by the time the motion to dismiss was filed. Therefore,

the court will assume that the Johnsons and Shields have not

sold the boat or paid the arrearages on the mortgage.

The Johnsons allege claims of misrepresentation and breach

of contract against Shields. They do not provide any

3 Although the Johnsons are proceeding pro se, Shields represents in her answer that Eugene Johnson is a lawyer.

5 allegations to support those claims as against Bank of America.

Therefore, to the extent the Johnsons intended to allege

misrepresentation or breach of contract against Bank of America,

those claims are dismissed.

Instead, it appears that the Johnsons seek a preliminary

injunction to avoid repossession of the boat by Bank of America

until after their claims against Shields are resolved. Bank of

America does not address the applicable standard for an

injunction in this context. Because the parties do not argue

that New Hampshire provides a different standard, the court will

follow the federal preliminary injunction standard.4 See

Corporate Techs., Inc. v. Harnett,

, 9 n.1 (1st Cir.

2013); Lanier Prof’l Servs. v. Ricci,

(1st Cir.

1999).

To be entitled to a preliminary injunction under federal

law, the moving party must show: “(1) the movant’s likelihood

of success on the merits of its claims; (ii) whether and to what

extent the movant will suffer irreparable harm if the injunction

4 Under New Hampshire law, “[t]he issuance of injunctions, either temporary or permanent, has long been considered an extraordinary remedy.”4 N.H. Dep’t of Envtl. Servs. V. Mottolo,

(2007). The purpose of a preliminary injunction is to preserve the status quo until the case is resolved on the merits.

To be entitled to injunctive relief, the moving party must show that it is likely to succeed on the merits of the case and that “there is an immediate danger of irreparable harm” with no adequate remedy at law.

6 is withheld; (iii) the balance of the hardships as between the

parties; and (iv) the effect, if any, that an injunction (or the

withholding of one) may have on the public interest.” Corporate

Techs.,

. The most important factor is the

likelihood of success.

.

The Johnsons allege only that the default in mortgage

payments is Shields’s fault and that they hope to remedy the

situation through this action. They do not dispute that the

loan is in default or that Bank of America has the right under

the loan agreement and the mortgage to repossess the boat.

Assuming the boat has not been sold, Bank of America is

entitled to repossess the boat now, without waiting for the

Johnsons to attempt to recover payments from the Shields. Given

the right to repossess, which is unchallenged by the Johnsons,

they have not shown a likelihood of success in avoiding

repossession.

Further, the Johnsons have not shown irreparable harm that

would be caused by repossession or that the lack of an

injunction would cause them more hardship. The Johnsons have

not carried their burden of showing they are entitled to a

preliminary injunction.

7 Conclusion

For the foregoing reasons, Bank of America’s motion to

dismiss (document no. 4) is granted. All claims against Bank of

America are dismissed.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

July 19, 2016

cc: Christine Johnson, pro se Eugene Johnson, pro se Thomas J. Pappas, Esq. John P. Sherman, Esq.

8