LANDYA McCAFFERTY, District Judge.
Wells Fargo Bank, N.A., as Trustee on behalf of the holders of Harborview Mortgage Loan Pass-Through Certificates 2006-12 ("Wells Fargo"), foreclosed on the Derry, New Hampshire property (the "property") of John C. Burke, III. Burke, acting pro se, filed suit in state court seeking to enjoin Wells Fargo from proceeding with a possessory action on the property. After removing the suit to this court, Wells Fargo filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Burke filed no response. For the reasons set forth below, the motion to dismiss is granted.
Ruling on a motion to dismiss for "failure to state a claim upon which relief can be granted," Fed. R. Civ. P. 12(b)(6), requires the court to conduct a limited inquiry, focusing not on "whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims."
The court construes Burke's complaint liberally because he is proceeding pro se.
In October of 2006, Mortgage Electronic Registration Systems, Inc., as nominee for Countrywide Bank, N.A., issued a mortgage to John and Derika Burke, secured by the property. The record suggests that the mortgage was subsequently conveyed to Wells Fargo. In February of 2013, Wells Fargo sold the property to itself at a public foreclosure sale.
Approximately a year later, Wells Fargo recorded the foreclosure deed in the Rockingham County Registry of Deeds, along with an affidavit, as required by New Hampshire law.
The foreclosure deed and accompanying affidavit both referenced a power of attorney "recorded herewith," purportedly authorizing Select Portfolio to take certain actions on behalf of Wells Fargo. However, a power of attorney was not included with the foreclosure deed or the affidavit.
Burke brought this action in state court alleging that Wells Fargo violated RSA 479:26, and acted in a deceptive and unfair manner in violation of the New Hampshire Consumer Protection Act, RSA 358-A et seq. ("CPA"), by referencing but failing to record the power of attorney. Burke seeks a declaration that the foreclosure deed is invalid, and he asks that the court enjoin the pending possessory action.
Wells Fargo is correct that New Hampshire law did not require it to record a power of attorney with the foreclosure deed. Rather, "New Hampshire law provides that a power of attorney
Because Burke has failed to plead an actionable violation of 479:26, his claim under the CPA must also fail. The CPA prohibits the use of "any unfair method of competition or any unfair or deceptive act or practice in the conduct of any trade or commerce within [the State of New Hampshire]." RSA 358-A:2. Because Burke has not demonstrated that Wells Fargo was under any legal obligation to file a power of attorney with the foreclosure deed or the affidavit, Burke cannot show that Wells Fargo acted in an unfair or deceptive manner. Thus, there are no grounds on which the court could enjoin the possessory action, and Wells Fargo is entitled to dismissal of Burke's CPA claim.
For the foregoing reasons, Wells Fargo's unopposed motion to dismiss (doc. no. 5) is granted. The court's dismissal is, however, without prejudice. In his complaint, Burke sought leave to amend to "include additional claims and/or defendants pending further discovery as justice so requires." Complaint, doc. no. 1.4 at 3. It is not clear why Burke failed to include these allegations in his original complaint. However, as Burke is pro se, the court grants him the leave he has requested. Accordingly, on or before January 16, 2015, Burke shall file an amended complaint or the court will dismiss this case with prejudice.
SO ORDERED.