UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Leah Boyd

v. Civil No. 16-cv-131-JL Opinion No.

Wells Fargo Bank, N.A. d/b/a/ Wells Fargo Mortgage

SUMMARY ORDER

In this mortgage-related action, a third party to the

mortgage challenges the foreclosure on her home in Somersworth,

New Hampshire. Plaintiff Leah Boyd, proceeding pro se, sued the

mortgage-holder and servicer of the mortgage secured by her

home, Wells Fargo Bank, N.A., doing business as Wells Fargo

Mortgage, in Strafford County Superior Court. The defendant

removed the action to this court, see

, which

has jurisdiction under

(diversity).

The following facts, construed in Boyd’s favor, are drawn

from her complaint and documents sufficiently referenced

therein. See, e.g., Martino v. Forward Air, Inc.,

(1st Cir. 2010) (The court must “accept as true all well-pleaded

facts in the complaint and make all reasonable inferences in

plaintiff's favor.”); Rederford v. U.S. Airways, Inc.,

(1st Cir. 2009) (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.”). Boyd and her mother, Glenda

Castleberry, purchased the four-unit house in question in

August, 2009. To obtain more favorable financing terms, and in

light of the status of Boyd’s credit at the time, Castleberry

alone took out the mortgage on the house and signed the

accompanying note. A warranty deed conveying the property from

the seller to Castleberry was recorded with the Strafford County

Registry of Deeds contemporaneously with the mortgage

instrument. About a month later, Castleberry conveyed the

property to herself and Boyd via warranty deed, which was also

recorded.1 Under an agreement between Boyd and Castleberry, Boyd

lived in one unit in the house, collected rent from the tenants

of the three other units, paid the bills related to the house,

and made the mortgage payments to Wells Fargo. Castleberry had

nothing further to do with the property for the next few years.

In 2014, Castleberry began collecting the rent from the

tenants without Boyd’s knowledge. She did not, however, make

any payments against the mortgage loan obligation. Boyd filed

for bankruptcy protection in November 2015 in an effort to save

1 In her complaint, Boyd alleges only that her name appears on the warranty deed to the property. The public records available from the Registry of Deeds, which were referenced in the complaint and which are “fair game in adjudicating a Rule 12(b)(6) motion,” In re Colonial Mortgage Bankers Corp.,

(1st Cir. 2003), elucidate Boyd’s opaque allegation.

2 the house, but the Bankruptcy Court (Harwood, B.J.) dismissed

her petition after she failed to file requisite paperwork.

Though the complaint does not suggest precisely when, Wells

Fargo eventually initiated foreclosure proceedings. Boyd

alleges that she tried to engage Wells Fargo in discussions in

connection with the mortgage, but that Wells Fargo refused

because Boyd was “on the deed not the loan.” Compl. at 2. On

March 31, 2016, Boyd filed a complaint in Strafford County

Superior Court to enjoin a foreclosure sale scheduled for the

next day. The Superior Court enjoined the foreclosure sale.

Wells Fargo removed the case to this court and now moves to

dismiss the complaint, arguing (1) that Boyd fails to state a

cognizable claim for relief, see Fed. R. Civ. P. 12(b)(6), and

(2) that Boyd, a third party to the mortgage, lacks standing to

challenge the foreclosure, see Fed. R. Civ. P. 12(b)(1). Though

Boyd filed no written objection, the court carefully analyzed

the defendant’s arguments and afforded Boyd the opportunity to

articulate her objections at oral argument, held on August 11,

2016.2

2 The court also undertook efforts to afford Boyd the opportunity to object prior to oral argument. However, neither of the telephone numbers that Boyd supplied to the court or opposing counsel functioned when the court attempted to set up a telephone conference two weeks before the scheduled argument.

3 The court may dismiss a complaint under Rule 12(b)(6) if

the plaintiff has not alleged facts sufficient to “state a claim

to relief” by pleading, in her complaint, “factual content that

allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal,

(2009) (citing Bell Atl. Corp. v.

Twombly,

(2007)). Even construing Boyd’s pro

se complaint liberally, see Erickson v. Pardus,

(2007), the court concludes that she has not done so here.

As best the court can tell from Boyd’s complaint, she seeks

two forms of relief. First, she sought--and obtained--an

injunction so that she could collect rent from her tenants,

which she would use to make the mortgage payments. Compl. at 2-

3. Second, as a final resolution, Boyd seeks an order “[t]hat

the house belongs to her and all tenants’ rent needs to be paid

to [her], Leah Boyd, [and] [t]hat [she] is the rightful owner

. . . .” Compl. at 4. Neither amounts to a claim for relief

against Wells Fargo.

First, Boyd concedes that Castleberry defaulted on the

mortgage. She does not challenge Wells Fargo’s right to

foreclose under those circumstances, nor the validity of the

foreclosure itself. Nor does she contend that Wells Fargo

violated any statutory or regulatory requirements during the

foreclosure proceeding. The court accordingly concludes that

4 Boyd has failed to state a claim against Wells Fargo with

respect to the foreclosure.

Second, Boyd requests an order that the house belongs to

her. Read generously, this may amount to a petition to quiet

title to the property. Through an action to quiet title, the

plaintiff “essentially seeks a declaratory judgment from the

court regarding the parties’ land interests.” Porter v. Coco,

(2006). Boyd has alleged no facts that would

allow the court to draw a reasonable inference that she is

entitled to this relief. While the deed conveying the property

to Castleberry and Boyd may well give Boyd an interest in the

property, any such interest was subject to the pre-existing

mortgage and its conditions, which included the possibility of

foreclosure in the event of default. See Cadle Co. v.

Bourgeois,

(2003) (a subsequent transfer of

mortgaged property “does not release the real estate from the

mortgage, unless the mortgage is unrecorded . . . .” (quoting

Restatement (Third) of Property (Mortgages) § 5.1 comment b at

330 (1997)). Boyd bears the burden of demonstrating otherwise,

see Fadili v. Deutsche Bank Nat. Trust Co.,

(1st Cir. 2014) (“Under New Hampshire law, the party seeking to

quiet title bears the burden of establishing [her] good title to

the property against the interests of all others.”). Boyd has

alleged no facts that would establish that she has good title to

5 the property; in fact, the facts she alleges, and those

extricable from the public record and documents referenced in

the complaint, would establish the contrary, that she lacks good

title against all others.3 Accordingly, Boyd’s complaint fails

to state a claim upon which this court can grant relief.

The defendant also moves to dismiss Boyd’s complaint for

lack of subject-matter jurisdiction, see Fed. R. Civ.

P. 12(b)(1), on the grounds that Boyd lacks standing to

challenge the validity of the foreclosure as a non-party to the

mortgage agreement. See Mot. to Dismiss (document no. 6) at 5-

6. This court has, as the defendant points out, acknowledged

that language of the Real Estate Settlement Procedure Act,

et seq., precludes a non-borrower from obtaining

relief for a loan servicer’s violation of that statute and that

a non-party to a mortgage agreement lacks standing to challenge

the mortgage assignment. See Fortin v. Ocwen Loan Servicing,

LLC,

. This court has not, however, held

that a non-party to a mortgage agreement lacks standing to

challenge a mortgage foreclosure under all circumstances. Other

3 At oral argument, Boyd contended that her mother’s abandonment of the property--in the sense that Castleberry ceased residing there after some eight months--coupled with Boyd’s maintenance thereof ceded to Boyd some additional or increased interest therein. She has not offered, and the court is unaware of, any authority that would support such a proposition.

6 courts in this Circuit have suggested that a non-party may have

such standing, possibly as a third-party beneficiary of the

agreement, under certain circumstances. See Rice v. Santander

Bank, N.A., No. CV 16-10478-FDS,

, at *5 n.6 (D.

Mass. July 6, 2016) (Saylor, J.) (plaintiff property owner would

have standing to contest validity of mortgage agreement, though

not party thereto, where mortgage may impact property’s

marketability and value); Fryer v. B of A & PHH Mortgage Servs.,

(Diclerico, J.) (third-party beneficiary of

mortgage agreement may have standing to challenge defendant’s

actions under mortgage agreement). This court need take no

position on that question here, however, having concluded that

Boyd fails to state a claim for relief against Wells Fargo.

For the reasons discussed above, the defendant’s motion to

dismiss the complaint4 is GRANTED. The clerk shall enter

judgment accordingly and close the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: August 31, 2016 cc: Leah Boyd, pro se Joseph Patrick Kennedy, Esq.

4 Document no. 5.

7