UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Darrin M. Mottram

v. Case No. 15-cv-470-PB Opinion No.

Wells Fargo Bank, N.A.

MEMORANDUM AND ORDER

Darrin M. Mottram, proceeding pro se, has sued Wells Fargo

Bank, N.A., for claims arising from the bank’s attempts to

foreclose on his home. Mottram alleges that Wells Fargo (1)

discriminated against him because he is disabled, (2) violated

the Real Estate Settlement Procedures Act (“RESPA”) by failing

to disclose certain information about his loan, and (3) breached

the covenant of good faith and fair dealing by declining to

modify his loan. He asserts that Wells Fargo’s actions have

caused him emotional distress. Wells Fargo responded with a

motion to dismiss, arguing that Mottram’s complaint fails to

state a viable claim for relief.

I. BACKGROUND

Mottram, who suffers from an unspecified disability, lives

at 42 South Avenue in Derry, New Hampshire.1 In January 2009,

1 The parties have provided little information about the facts surrounding their dispute. To put this lawsuit into context, I piece together the relevant facts from the complaint and the Mottram entered into a mortgage, secured by his home, with Plaza

Home Mortgage, Inc. In 2012, Mottram’s mortgage was assigned to

Wells Fargo, the defendant here.

At some point, Mottram defaulted on his mortgage, and Wells

Fargo attempted to foreclose. Wells Fargo hired the Harmon Law

Offices as foreclosure counsel, which sent Mottram notices that

his house would be auctioned. Those notices, and the

possibility that he would be required to leave his home, upset

Mottram. He filed this suit.

II. STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion, a plaintiff must allege

sufficient facts to “state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal,

(2009)

(quoting Bell Atl. Corp. v. Twombly,

(2007)).

A claim is facially plausible if it provides “factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.”

This

plausibility standard “asks for more than a sheer possibility

that a defendant has acted unlawfully,”

but “simply calls

for enough fact to raise a reasonable expectation that discovery

briefs. I construe the well-pleaded facts in the light most favorable to Mottram. See Rivera v. Centro Medico de Turabo, Inc.,

(1st Cir. 2009). 2 will reveal evidence” of wrongdoing. Twombly,

.

I employ a two-step approach in deciding a Rule 12(b)(6)

motion. See Ocasio-Hernandez v. Fortuno-Burset,

(1st Cir. 2011). First, I screen the complaint for statements

that “merely offer legal conclusions couched as fact or

threadbare recitals of the elements of a cause of action.”

(citations, internal punctuation, and alterations omitted). I

then accept as true all non-conclusory factual allegations and

the reasonable inferences drawn therefrom, and determine whether

the claim is plausible.

When applying this standard to a

pro se pleading, I construe the pleading liberally. See

Erickson v. Pardus,

(2007); see also Dutil v.

Murphy,

(1st Cir. 2008) (explaining that

courts “hold pro se pleadings to less demanding standards than

those drafted by lawyers and endeavor, within reasonable limits,

to guard against the loss of pro se claims due to technical

defects”).

III. ANALYSIS

Mottram’s complaint appears to include four claims: (1) a

discrimination claim, (2) a RESPA claim, (3) a breach of the

implied covenant of good faith and fair dealing claim, and (4) a

claim for infliction of emotional distress. Wells Fargo attacks

each claim on various grounds.

3 A. Discrimination Claim

Mottram first alleges that Wells Fargo discriminated

against him on the basis of his disability by declining to

modify his loan, attempting to foreclose on his home, and

sending him auction notices. Mottram claims that these actions

violate federal and state anti-discrimination laws. He

specifically cites Title VII of the Civil Rights Act of 1964,

and the Americans with Disabilities Act. See Doc. No. 1 at 1.

1. Title VII

Mottram contends that Wells Fargo violated Title VII by

discriminating against him because of his disability. Title VII

forbids “an employer . . . [from] discriminat[ing] against any

individual with respect to his compensation, terms, conditions,

or privileges of employment, because of such individual's race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e–

2(a)(1). Accordingly, “Title VII is a vehicle through which an

individual may seek recovery for employment discrimination . . .

.” Franceschi v. U.S. Dep't of Veterans Affairs,

(1st Cir. 2008) (emphasis added). Title VII thus prohibits

only employment-related discrimination. See Joseph G. Cook &

John L. Sobieski, Jr., Civil Rights Actions, § 21.08[A], at 21-

54 (2015) (“Title VII prohibits discrimination only insofar as

it relates to employment.”); DeLia v. Verizon Commc'ns Inc., 656

(1st Cir. 2011) (noting that the absence of an

employment relationship is “fatal” to a Title VII claim).

In this case, Mottram concedes that he did not have an

employment relationship with the Wells Fargo. Doc. No. 5 at 2

(“[P]laintiff is not the employee of the Defendant . . . .”).

He instead bases his Title VII claim solely on his status as a

Wells Fargo borrower. See

Because Mottram has not alleged

an essential element of a Title VII claim – i.e. the existence

of an employment relationship - his claim fails as a matter of

law.2

2. Americans with Disabilities Act

Mottram also cites the Americans with Disabilities Act

(“ADA”). Title III of the ADA provides that “[n]o individual

shall be discriminated against on the basis of disability in the

full and equal enjoyment of the goods, services, facilities,

privileges, advantages, or accommodations of any place of public

accommodation . . . .”

(a). To state a Title

2 The Title VII claim fails for two additional reasons. First, by its express terms, Title VII forbids discrimination on the basis of race, color, religion, sex, or national origin; it “does not prohibit discrimination on the basis of disability.” Lane v. Potter,

(D. Mass. 2010); see Orell v. UMass Mem'l Med. Ctr., Inc.,

(D. Mass. 2002). And second, “judicial recourse under Title VII is not a remedy of first resort.” Franceschi,

(internal punctuation omitted). “Before [a plaintiff] may sue in federal court on a Title VII claim, he must first exhaust administrative remedies.”

Mottram has not alleged that he exhausted those remedies before bringing suit here. 5 III claim, a plaintiff must allege that (1) he is disabled

within the meaning of the ADA, (2) the defendant is a private

entity that owns or operates a public accommodation, (3) the

defendant has a discriminatory policy or practice in effect, and

(4) that the plaintiff was denied an accommodation that would

have afforded him access to the desired service. Nickerson-Reti

v. Bank of America, N.A., No. 13-12316-FDS,

, at

*11 (D. Mass. June 26, 2014) (citing Dudley v. Hannaford Bros.

Co.,

(1st Cir. 2003)).

Mottram may be able to state a Title III claim if he can

show that Wells Fargo’s actions were attributable to disability-

based discrimination, or if he can demonstrate unequal treatment

between disabled and non-disabled people. See Jordan v. Chase

Manhattan Bank,

(S.D.N.Y. 2015)

(explaining that the bank was required to make “reasonable

accommodation” when necessary to provide the same services to

individual with disabilities, but concluding that the “law did

not require defendants to postpone or forego the foreclosure . .

. simply because [plaintiff] was disabled”). Yet, Mottram’s

complaint does not include adequate facts to substantiate such a

claim. For instance, although Mottram states that he is

“disabled,” he does not specify his disability; he does not

allege that he requested, and was denied, an accommodation for

his disability; and, despite asserting that Wells Fargo

6 discriminated against him “because” he is disabled, Doc. No. 1

at 2, he does not offer any information to support this claim.

I therefore conclude that, even under the liberal pleadings

requirements for pro se plaintiffs, Mottram has not alleged

sufficient facts to survive the bank’s motion to dismiss his ADA

claim. Nevertheless, because Mottram is representing himself,

and may not have understood what he needed to include in his

complaint, I grant him leave to amend his complaint to assert

additional facts to support his claim. To do so, Mottram must

identify his disability and allege sufficient facts to support a

plausible claim under the ADA. In particular, he must explain

what Wells Fargo did or failed to do that allegedly violated his

rights under the ADA.

3. Fair Housing Act

Construing his complaint liberally, Mottram may also be

bringing a claim under the Fair Housing Act (“FHA”). The FHA

provides that “[i]t shall be unlawful for any person or other

entity whose business includes engaging in residential real

estate-related transactions to discriminate against any person

in making available such a transaction . . . because of race,

color, religion, sex, handicap, familial status, or national

origin.”

(a). The Act defines “residential

real-estate related transaction” to include the “making or

purchasing of loans or providing other financial assistance” for

7 purchasing or maintaining a dwelling, or where the loan or other

financial assistance is secured by residential real estate.

§ 3605(b).

At this time, however, Mottram has not alleged sufficient

facts to support a claim under the FHA. In the interest of

ensuring that Mottram does not lose a claim due to his failure

to name the proper statute, I grant Mottram leave to amend his

complaint to assert facts sufficient to support an FHA claim.

B. RESPA Claim

In Count II, Mottram claims that Wells Fargo violated RESPA

by “failing to disclose the information in regard of the cost of

the loan and fees that [Wells Fargo] as [sic] added to the cost

of the loan.” Doc. No. 1 at 3. Mottram provides no additional

information to support his RESPA claim. He does not identify

the information that Wells Fargo allegedly failed to disclose,

or specify when the bank failed to disclose it.

Again, even under the liberal pleadings standard applied to

pro se pleadings, Mottram’s complaint does not provide enough

facts to make out a viable RESPA claim at this time.

Accordingly, I grant Mottram leave to amend his complaint.

Should he choose to amend, Mottram must explain, in greater

8 detail than he has to date, what Wells Fargo did or failed to do

that allegedly violated his rights under RESPA.3

C. Breach of Implied Covenant of Good Faith and Fair Dealing Claim

Mottram next alleges that Wells Fargo breached the implied

covenant of good faith and fair dealing by declining to modify

Mottram’s loan. Doc. No. 1 at 3. Under New Hampshire law,

there is an implied covenant in every agreement “that the

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

Livingston v. 18 Mile Point Drive, Ltd.,

(2009). This duty applies, however, only where the agreement

vests a contracting party with a degree of discretion in

performing its duties under the agreement, and the party

exercises that discretion in a way that harms the other party.4

Ruivo v. Wells Fargo Bank, N.A.,

; see Centronics

Corp. v. Genicom Corp.,

(1989).

3 Wells Fargo argues that Mottram’s RESPA claim is time barred. As the bank notes,

requires a plaintiff to bring his RESPA claim within either one or three years “from the date of the occurrence of the violation,” depending on the nature of the alleged violation. Because I dismiss Mottram’s claim on other grounds, and because it is currently unclear what “violation” Mottram is alleging, I do not reach this issue. 4 A party may also invoke the duty of good faith and fair dealing with respect to issues concerning contract formation and the termination of at will employment. Birch Broadcasting, Inc. v. Capitol Broadcasting Corp., Inc.,

(2010). Neither of these aspects of the duty is relevant here. 9 Mottram’s claim fails here because he has not alleged that

the loan agreement gave Wells Fargo discretion in performing its

obligations under the agreement, or pointed to any provision in

the agreement that might support such an argument. He also has

not claimed that Wells Fargo exercised such discretion in a way

that denied Mottram an essential benefit of the bargain. He

instead appears to argue that Wells Fargo is liable simply

because it rejected his loan modification request. See Doc. No.

1 at 3. This argument is unpersuasive.

Courts in this district have regularly found “that the

covenant of good faith and fair dealing in a loan agreement

cannot be used to require the lender to modify or restructure

the loan.” Moore v. Mortg. Elec. Registration Sys., Inc.,

(D.N.H. 2012); see Mudge v. Bank of

America, N.A.,

; Douglas v. U.S. Bank Nat.

Ass’n,

(“That the [plaintiffs] later found

themselves unable to repay their loan, and may have benefitted

from a loan modification, does nothing to undermine the fact

that, in the first instance, they received the loan they

bargained for, which was the full value of their agreement.”);

Ruivo,

. This conclusion is “consistent with

New Hampshire law that the [implied] covenant cannot be used to

rewrite a contract to avoid harsh results.” Moore,

. Accordingly, even if Mottram had alleged that the

10 loan agreement gave Wells Fargo discretion to permit a loan

modification, and that the bank exercised that discretion

unreasonably, his claim likely would still be dismissed.

D. Emotional Distress Claims

Finally, although not pled as a separate claim, Mottram

alleges that Wells Fargo’s actions have caused him emotional

distress. Mottram does not state whether he is bringing a claim

for “negligent” or “intentional” infliction of emotional

distress. In light of his pro se status, I address both causes

of actions.

1. Negligent Infliction of Emotional Distress

To make out a negligent infliction of emotional distress

claim, the plaintiff must show: “(1) causal negligence of the

defendant; (2) foreseeability; and (3) serious mental and

emotional harm accompanied by objective physical symptoms.”

Tessier v. Rockefeller,

(2011) (internal

quotation marks omitted). Thus, to state a viable negligent

infliction claim, the plaintiff must allege “physical

manifestations of the distress.” Hudson v. Dr. Michael J.

O'Connell's Pain Care Ctr., Inc.,

(D.N.H.

2011).

Here, Mottram does not assert in his complaint (or argue in

his objection to Wells Fargo’s motion) that he experienced any

physical symptoms due to Wells Fargo’s alleged negligent

11 infliction of emotional distress. Therefore, to the extent that

Mottram is bringing a negligent infliction claim, his claim

fails. If Mottram did suffer such symptoms as a result of Wells

Fargo’s actions, and can provide details about those symptoms,

he is free to amend his complaint. See

(dismissing

negligent infliction claim where plaintiff provided no details

regarding symptoms).

2. Intentional Infliction of Emotional Distress

A defendant is liable for intentional infliction of

emotional distress if it “by extreme and outrageous conduct,

intentionally or recklessly cause[d] severe emotional distress

to another.” Tessier,

(alteration in original).

To satisfy the “extreme and outrageous” requirement, the

defendant’s actions must be “so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.”

(quoting Mikell v.

Sch. Admin. Unit No. 33,

(2009)). “The

ordinary activities of a bank foreclosing on a mortgage do not

generally meet the extreme and outrageous standard.” Bradley v.

Wells Fargo Bank, N.A.,

, 12; see Beaudette v. Bank

of America, Inc.,

, 4.

In this case, Mottram claims that Wells Fargo intentionally

inflicted emotional distress by denying his request for a loan

12 modification, and by sending him “repeated” auction notices.

See Doc. No. 5 at 3. These actions were “outrageous,” Mottram

argues, because he is disabled, and because it would be

outrageous to “force” a disabled person to leave his home.

Although I appreciate the difficult situation that Mr.

Mottram faces, the fact that he is disabled, by itself, does not

render the activities described in his complaint - denying a

loan modification request and sending auction notices - “extreme

and outrageous.” Instead, these appear to be precisely the

kinds of ordinary foreclosure-related activities that, in most

cases, cannot give rise to a viable intentional infliction of

emotional distress claim. See Bradley,

, 12. In

the absence of additional facts, then, Mottram’s claim fails as

a matter of law.

IV. CONCLUSION

For the reasons set forth above, defendant’s motion to

dismiss (Doc. No. 3) is granted. I grant plaintiff leave to

amend his complaint within thirty days.

SO ORDERED.

/s/ Paul Barbadoro Paul Barbadoro United States District Judge March 8, 2016 cc: Darrin M. Mottram, pro se Joseph Patrick Kennedy, Esq.

13