Galvin et al v. Metrocities Mortgage, Llc et al

MOTION to Dismiss for Failure to State a Claim Defendants' Motion to Dismiss Plaintiffs' Amended Complaint

D.N.H.December 1, 2016

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE __________________________________________ ) MARK B. GALVIN and JENNY GALVIN, ) ) Plaintiffs, ) ) v. ) ) Civil Action No. 1:16-cv-00268-JL METROCITIES MORTGAGE, LLC, et al., ) ) Defendants. ) ) DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT1 Now comes Defendants The Bank of New York Mellon formerly known as The Bank of New York as successor Trustee to JPMorgan Chase Bank N.A. as Trustee for the Certificateholders of Structured Asset Mortgage Investments II Trust 2005-AR7 Mortgage Pass-Through Certificates, Series 2005-AR7 (“BNY Mellon Trustee”) (named as “Bank of New York Mellon Corporation” in the Amended Complaint), Gerald Hassell (“Hassell”), Credit Suisse Group (“Credit Suisse”), Brady Dougan (“Dougan”), MERSCORP Holdings, Inc. (“MERSCORP”), and R.K. Arnold (“Arnold”) (collectively, the “Defendants”), and hereby move to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), Plaintiffs’ Amended Complaint (ECF No. 22) for failure to state a claim. In support of this Motion, Defendants rely on their Memorandum of Law filed contemporaneously herewith. WHEREFORE, Defendants respectfully request that this Court dismiss with prejudice Plaintiffs’ Amended Complaint for failure to state a claim, and for any other relief that this Court deems just and equitable. 1 Defendants are joined by Metrocities Mortgage, LLC, Prospect Holding Company, LLC, Paul Wylie, JPMorgan Chase & Co., James Dimon, Wells Fargo & Company, John Stumpf, James Cayne, Harmon Law Offices, P.C., Mark P. Harmon and Commonwealth Auction Associates, Inc. Case 1:16-cv-00268-JL Document 78 Filed 12/01/16 Page 1 of 4 2 Respectfully submitted, The Bank of New York Mellon Corporation, Gerald Hassell, Credit Suisse Group, Brady Dougan, MERSCORP Holdings, Inc., and R.K. Arnold, by their attorney, /s/ Kevin P. Polansky Kevin P. Polansky (N.H. Bar # 265419) Kevin.polansky@nelsonmullins.com Nelson Mullins Riley & Scarborough LLP One Post Office Square, 30th Floor Boston, Massachusetts 02109 p. (617) 573-4700 f. (617) 573-4710 JPMorgan Chase & Co., James Dimon, Wells Fargo & Company, and John Stumpf, by their attorneys, /s/ Peter G. Callaghan Peter G. Callaghan (N.H. Bar # 6811) Preti, Flaherty, Beliveau & Pachios, PLLP P.O. Box 1318 Concord, NH 03302-1318 (603) 410-1500 pcallaghan@preti.com Case 1:16-cv-00268-JL Document 78 Filed 12/01/16 Page 2 of 4 3 Metrocities Mortgage, LLC, Paul Wylie and Prospect Holding Company, LLC, By their attorney, /s/ William P. Breen, Jr. William P. Breen, Jr. (N.H. Bar # 16929) Eckert Seamans Cherin & Mellott, LLC Two International Place, 16th Floor Boston, MA 02110 Tel: (617) 342-6887 wbreen@eckertseamans.com James Cayne, By his attorneys, /s/ Mark P. Hodgdon Mark P. Hodgdon (N.H. Bar #4074 ) Law Office of Mark P. Hodgdon PLLC 18 N. Main Street, Suite 307 Concord, NH 03301 Telephone: 603.715.5951 mark@hodgdonlegal.com David S. Frankel Maxim M.L. Nowak Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY 10035 Telephone: 212-715-9217 dfrankel@kramerlevin.com mnowak@kramerlevin.com Pro Hac Vice Admission Pending Case 1:16-cv-00268-JL Document 78 Filed 12/01/16 Page 3 of 4 4 Harmon Law Offices, P.C., Mark P. Harmon and Commonwealth Auction Associates, Inc. By their attorney, /s/ Scott C. Owens Scott C. Owens, Esq. (NH Bar Id. #17624) HARMON LAW OFFICES, P.C. 150 California Street Newton, MA 02458 Phone: 617-558-0738 Facsimile: 617-243-4038 sowens@harmonlaw.com Dated: December 1, 2016 CERTIFICATE OF SERVICE I, Kevin P. Polansky, hereby certify that this document filed through the ECF system will be sent electronically all registered participants as identified on the Notice of Electronic Filing (NEF), and paper copies will be sent to those indicated as non-registered participants on this date including Plaintiffs. Dated: December 1, 2016 /s/ Kevin P. Polansky Case 1:16-cv-00268-JL Document 78 Filed 12/01/16 Page 4 of 4 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE __________________________________________ ) MARK B. GALVIN and JENNY GALVIN, ) ) Plaintiffs, ) ) v. ) ) Civil Action No. 1:16-cv-00268-JL METROCITIES MORTGAGE, LLC, et al., ) ) Defendants. ) ) DEFENDANTS’1 MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTIONS TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT Plaintiffs Mark and Jenny Galvin (“Plaintiffs”) have filed an Amended Complaint in their third action in this Court challenging the same subject mortgage loan following the recent foreclosure sale by mortgagee The Bank of New York Mellon formerly known as The Bank of New York as successor Trustee to JPMorgan Chase Bank N.A. as Trustee for the Certificateholders of Structured Asset Mortgage Investments II Trust 2005-AR7 Mortgage Pass-Through Certificates, Series 2005-AR7 (“BNY Mellon Trustee”). This Court has previously found, following a bench trial, that BNY Mellon Trustee held the Plaintiffs’ Note and Mortgage and had standing to foreclose. This Court has also rejected, in denying Plaintiffs’ motion to enjoin the recently completed sale in this action, Plaintiffs’ allegations that (1) the original lender Metrocities Mortgage, LLC (“Metrocities”) failed to disclose Credit 1 Defendants Bank of New York Mellon Corporation ("BNY Mellon"), Gerald Hassell (“Hassell”), Credit Suisse Group (“Credit Suisse”), Brady Dougan (“Dougan”), MERSCORP Holdings, Inc. (“MERSCORP”), and R.K. Arnold (“Arnold”) (collectively, the “Defendants”). They are joined by Defendants Metrocities Mortgage, LLC, Prospect Holding Company, LLC, Paul Wylie, JPMorgan Chase & Co., James Dimon, Wells Fargo & Company, John Stumpf, James Cayne, Harmon Law Offices, P.C., Mark P. Harmon and Commonwealth Auction Associates, Inc. Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 1 of 31 2 Suisse’s role in origination of the loan, (2) their Note was illegally securitized and/or converted, and (3) they validly, unilaterally rescinded the loan in 2015 under the Truth in Lending Act (“TILA”). Plaintiffs’ instant Amended Complaint is entirely premised on these three allegations that this Court has already found meritless as a matter of law. Thus, the law of the case doctrine applies with full force here, and Plaintiffs’ Amended Complaint must be dismissed on that basis alone. Even if this Court were to reconsider those three issues of law, the result remains the same: all three allegations are legally defective and meritless. In addition, Plaintiffs’ Amended Complaint indisputably fails to comply with Federal Rule of Civil Procedure 8, as it is rambling, incoherent, impermissibly lengthy, and largely irrelevant to the parties to this action. Moreover, Plaintiffs have named corporations and corporate officers with no connection to their mortgage loan and no possible liability thereon, and those corporations and officers must be dismissed with prejudice for that reason alone. Further, Plaintiffs’ claims are barred by res judicata given that Plaintiffs have already litigated the legality of the loan and BNY Mellon Trustee’s standing to foreclose, and judgment entered against them. Finally, and notwithstanding all of these fatal defects, each and every one of Plaintiffs’ eighteen (18) claims fail for additional reasons, whether because they are time-barred, fail to plead the required elements of the claim, or rely on a legal theory or claim not recognized by New Hampshire law. In sum, following years of litigation and even a bench trial on their claims, Plaintiffs have failed to put forth any allegations, let alone a shred of evidence, that there was any wrongdoing (let alone actionable wrongdoing) associated with their mortgage loan. The simple facts are that Plaintiffs executed the loan documents in 2005, accepted nearly $3 million in proceeds to refinance their existing loan, defaulted four years later, and lived payment-free Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 2 of 31 3 in the property for seven years while litigating meritless claims against every entity ever involved in the mortgage loan (real or perceived). Following Plaintiffs’ unsuccessful attempt to enjoin the latest scheduled foreclosure sale, BNY Mellon Trustee lawfully foreclosed on the subject property. Plaintiffs do not, and cannot, challenge the legality of that sale, but continue to press the aforementioned, barred allegations relating to origination and securitization of their loan. Their claims, which have already been litigated and rejected time and time again, must be dismissed with prejudice. FACTUAL & PROCEDURAL BACKGROUND The facts set forth herein are taken from the First Amended Complaint, unless otherwise noted. Defendants do not agree with or dispute the facts but merely take the facts as alleged for the purposes of this Motion to Dismiss. The Galvins attended a closing on August 22, 2005 and executed documents as part of obtaining a residential mortgage loan, which they obtained to refinance an existing loan. (First Am. Complaint, Doc. No. 22 at ¶ 97). The Galvins executed a number of documents at the closing, including an Adjustable Rate Note executed by Mark Galvin, and a Mortgage executed by Mark and Jenny Galvin. (First Am. Complaint, Doc. No. 22 at ¶¶ 98-99). Prior to the closing, the Galvins communicated with Metrocities as the lender and Signature Title, who handled the closing. (First Am. Complaint, Doc. No. 22 at ¶100). The mortgage granted by the Galvins identified Mortgage Electronic Registration Systems, Inc. (“MERS”) as the mortgagee, solely as nominee for lender and lender’s successors and assigns. (Exh. G to First Am. Complaint, Doc. No. 22-7). The mortgage provided that the mortgage could be sold one or more times. (Exh. G to First Am. Complaint, Doc. No. 22-7 at p. 11; see also First Am. Complaint, Doc. No. 22 at ¶¶103-104). Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 3 of 31 4 In 2005, Mark Galvin executed a promissory note (the “Note”) in the amount of $2,900,000, payable to Metrocities Mortgage, LLC (“Metrocities”). The Note was secured by a mortgage (the “Mortgage”) on real property located at 17 Heather Drive in Rye, New Hampshire (the “Property”), which both Plaintiffs executed together. See ECF No. 20 - Court’s Order Denying Plaintiffs’ Motion for Preliminary Injunction (“PI Order”), p. 3. The Note and Mortgage were eventually transferred to BNY Mellon Trustee. Id. Galvin defaulted on the Note in June 2009 and foreclosure was scheduled for August 2012. Id., p. 4. On the eve of the scheduled August 1, 2012 foreclosure sale, Plaintiffs filed an action against BNY Mellon Trustee and others, alleging fifteen (15) claims for relief, seeking a preliminary injunction, and challenging BNY Mellon Trustee’s standing to foreclose. The action was removed to this Court and became Galvin v. EMC Mortg. Corp., et al., No. 1:12- cv-00320-JL (“Galvin I”). The Court dismissed fourteen of the fifteen counts in the Complaint in an Order dated April 2, 2013 (Case No. 1:12-CV-320, Doc. No. 22), but permitted the Galvins to amend. The action proceeded to a bench trial on claims for declaratory judgment for lack of standing to foreclose. Following the bench trial, this Court (Laplante, J.) issued a thirty-three page decision in which it explicitly found Plaintiff Mark Galvin to be a not “particularly credible” witness and stated that Galvin “was attempting to advocate or advance a position or argument, as opposed to simply reporting recollected facts.” See Galvin I, Doc. No. 78 (Bench Trial Decision), ¶ 12. The Court then concluded that BNY Mellon Trustee had the right to foreclose because it held the Note and Mortgage, and entered judgment in favor of Defendants; Plaintiffs did not appeal. After judgment entered in Galvin I, BNY Mellon Trustee scheduled the foreclosure sale for September 14, 2015. However, Plaintiffs again filed a complaint on the eve of foreclosure, Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 4 of 31 5 this time solely against BNY Mellon Trustee’s servicer, Specialized Loan Servicing LLC (“SLS”). This action was removed to this Court and became Galvins v. SLS, No. 1:15-cv-00386-JL (“Galvin II”). SLS moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and to dissolve an ex parte restraining order that had been granted in the state court enjoining foreclosure before the action was removed. The Court referred the motion to dismiss to the magistrate judge, and the restraining order was dissolved by this Court’s order. Thus, BNY Mellon Trustee scheduled the foreclosure sale for July 6, 2016. In the meantime, Plaintiffs purported to file an Amended Complaint that was similar if not identical to the complaints filed herein, but it was not properly before the Court due to Plaintiffs’ failure to move for leave to file it. On June 1, 2016, Plaintiffs voluntarily dismissed the action pursuant to Federal Rule of Civil Procedure 41(a)(1) without any prior notice to SLS in an attempt to skirt the Court's ruling on SLS's motion to strike the improperly filed Amended Complaint. On June 22, 2016, when the ink had barely dried on dismissal of Galvin II, Plaintiffs filed this action, their third action in this Court challenging the same subject mortgage loan, mere days before the July 6th foreclosure sale and again seeking an injunction as to the same. This Court denied Plaintiffs’ motion for a preliminary injunction, however. See generally PI Order. In doing so, the Court rejected as a matter of law Plaintiffs’ contentions that (1) their Note was illegally securitized/converted, (2) Credit Suisse was the actual original lender, and (3) they had unilaterally rescinded the loan in 2015. Id. Thus, the foreclosure sale occurred on August 8, 2016; BNY Mellon Trustee was the highest bidder. Thereafter, Plaintiffs filed their Amended Complaint. See ECF No. 22. Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 5 of 31 6 STANDARD OF REVIEW To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must allege “a plausible entitlement to relief.” Thomas v. Rhode Island, 542 F.3d 944, 948 (1st Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007)). “[A] plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do... Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 127 S. Ct. 1964-65. A plaintiff may not fashion a complaint with “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal v. Ashcroft, 129 S.Ct. 1937, 1949-50 (2009). Indeed, a court must ignore such legal conclusions word-smithed into factual allegations. See id. In making its determination, “[t]he 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.” Moore v. Mortg. Elec. Registration Sys., Inc., 848 F. Supp. 2d 107, 115 (D.N.H. 2012). ARGUMENTS & AUTHORITIES I. Plaintiffs Have Failed to Comply with Fed. R. Civ. P. 8. In the first instance, Plaintiffs’ Amended Complaint is a textbook example of exactly the type of pleading that Rule 8 forbids. Rule 8(a) requires, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Plaintiffs’ Amended Complaint is 124 pages long, contains 324 numbered paragraphs, pleads 18 claims against 17 defendants, and includes an additional 27 “Non-Defendant Relevant Parties” and 322 pages of attached exhibits. This despite the fact that Plaintiffs are well-versed Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 6 of 31 7 in the procedural rules of this Court, as this action is their third such action in this Court regarding the same mortgage loan. Moreover, despite the length of Plaintiffs’ Amended Complaint, the Court would be hard-pressed to find a single factual allegation in the 324 paragraphs contained therein. Rather, the Amended Complaint is replete with (if not solely comprised of) legal conclusions, rambling and incoherent stream-of-consciousness conspiracy theories, citations to legal treatises and other obscure sources, and irrelevant discourses on the banking industry. See generally Amended Complaint. See also Peabody v. Griggs, 2009 U.S. Dist. LEXIS 93184, at *16 (D.R.I. Oct. 6, 2009) (“The complaint is replete with irrelevant, repetitive, and incomprehensible factual averments that saddle Defendants with the unfair task of meeting their obligation to admit or deny the allegations asserted . . . by an opposing party. The complaint also forces this Court to parse countless irrelevant and wholly unnecessary factual allegations to attempt to determine what Plaintiffs are alleging against each Defendant.”). Further, it is no excuse that Plaintiffs are pro se litigants because the rules apply equally to them. See United States v. Gomez-Rosario, 418 F.3d 90, 101 (1st Cir. 2005) (“The Federal Rules of Civil Procedure apply to all litigants and impose an obligation, both on counsel and on individuals acting as their own counsel, to comply with court rules and not file frivolous motions.” (citation and quotation omitted)). In any event, Plaintiffs are-to say the least-seasoned litigators in this Court, having brought three actions regarding this mortgage loan alone and prosecuting one of those actions (albeit with counsel) through a bench trial.2 2 The Galvins also litigated the foreclosure of their home on Martha’s Vineyard. See Galvin v. US Bank, No. 14- CV-14723-RGS (D. Mass.). The District Court granted the Mortgagee's motions to dismiss and motion for summary judgment and the Galvins later appealed to the First Circuit. Oral argument has now been concluded and the parties are waiting a further decision from the First Circuit. Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 7 of 31 8 Plaintiffs’ obvious failure to satisfy even the most basic of pleading standards- including a short and plain statement of their claims-in and of itself justifies dismissal of their Amended Complaint. Moreover, no allowance for further amendment should be made. Not only is the Amended Complaint Plaintiffs’ second bite at the apple in this action, they have been given every opportunity (including a bench trial) over the course of four (4) years to plead a plausible claim of wrongdoing in connection with their mortgage loan, but have failed at every step. Given that this is their third action challenging the loan and their second pleading attempt herein, Plaintiffs should not be afforded any more opportunities. Their Amended Complaint must be dismissed with prejudice for failure to comply with Rule 8. II. Plaintiffs Have Named Inapposite Defendants. In addition to the fact that Plaintiffs have failed to comply with Rule 8, they have named numerous inapposite Defendants with no connection to the allegations herein; as they have made clear in their filings, they did so intentionally and it is not a case of mistaking the name of any of the defendants. In the first instance, Plaintiffs have insisted on naming “Bank of New York Mellon Corp.” as a Defendant despite that “Bank of New York Mellon Corp.” has no connection to the mortgage loan at issue in this action. Rather, BNY Mellon Trustee is the entity that holds the Mortgage and Note, recently foreclosed, and holds title to the Property. Thus, ““Bank of New York Mellon Corp.” was named erroneously and has absolutely no liability in connection with Plaintiffs’ mortgage loan. As such, it must be dismissed from this action with prejudice. Second, as explained further infra, Credit Suisse was not the original lender as Plaintiffs claim, has no possible connection to any wrongdoing alleged herein, and must likewise be dismissed with prejudice from this action. Similarly, Plaintiffs have not alleged any wrongdoing against MERSCORP, which likewise has no Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 8 of 31 9 connection to Plaintiffs’ mortgage loan. To the extent Plaintiffs intended to plead claims against Mortgage Electronic Registration Systems, Inc. (the nominee for the original lender of the loan), they have failed to do so, and have not included any allegations of wrongdoing against that entity, either. In addition, Plaintiffs have named numerous corporate officers as Defendants, including Hassell, Arnold, and Dougan. Plaintiffs have not alleged, nor could they, that any of the corporate officers had personal involvement in their mortgage loan. In addition, Plaintiffs have not offered any basis to pierce the corporate veil, which is allowed only upon a finding that “the corporate identity has been used to promote an injustice or fraud on the plaintiffs.” See Terren v. Butler, 134 N.H. 635, 639 (N.H. 1991). Not only have Plaintiffs utterly failed to plead such allegations, they have failed to plead a single instance of any wrongdoing whatsoever. Thus, clearly, no basis exists to pierce the corporate veil of the officers’ respective corporations, and the officers must be dismissed with prejudice from this action for that reason alone. This is equally applicable to Defendants JPMorgan Chase & Co. and its officer James Dimon, and Wells Fargo & Company and its officer John Stumpf. Plaintiffs have failed to plead a single fact that shows the entity or the individual had anything to do with their loan or any of the accusations they level. Plaintiffs have also failed to identify any legal or factual basis for imputing liability to them. They too should be dismissed from this action with prejudice. III. Plaintiffs’ Claims Are Barred by Res Judicata. Under the doctrine of res judicata, “a final judgment on the merits of an action precludes the parties or their privies from relitigating claims that were raised or could have Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 9 of 31 10 been raised in that action.” Breneman v. United States ex rel. F.A.A., 381 F.3d 33, 38 (1st Cir. 2004) (citation omitted). Res judicata applies when the following exist: “(1) a final judgment on the merits in an earlier proceeding, (2) sufficient identicality between the causes of action asserted in the earlier and later suits, and (3) sufficient identicality between the parties in the two actions.” Id.; see also Giroux v. Fed Nat’l Mortgage Assoc., 2014 DNH 135*4 (quoting Sleeper v. Hoben Family P’ship, 157 N.H. 530, 533 (2008) and Meier v. Town of Littleton, 154 N.H. 340, 342 (2006)). It is well settled that “a cause of action need not be a clone of the earlier cause of action” for claim preclusion to apply. Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 38 (1st Cir. 1998). Here, Plaintiffs’ claims are barred by res judicata. Namely, in Galvin I, this Court explicitly found, following a bench trial, that BNY Mellon Trustee was the valid and lawful holder of Plaintiffs’ Mortgage and Note and had standing to foreclose. Because there was a final judgment on the merits against Plaintiffs and in favor of BNY Mellon Trustee on these issues, Plaintiffs are barred by res judicata from re-litigating BNY Mellon Trustee’s standing to foreclose, its status as lawful holder of their Mortgage and Note, the legality of the foreclosure, the genuineness of the Mortgage or Note, or any ancillary issues which were or could have been raised. To the extent Plaintiffs claim their arguments are “new” and could not have been raised in Galvin I, this contention is meritless. Their arguments concerning the original lender’s alleged failure to disclose certain material terms, the securitization of their Note, among other arguments, all could have been raised (or were raised) in Galvin I. Thus, they are barred here. Plaintiffs’ contention that they only recently discovered that Credit Suisse was the original creditor is unavailing because they have failed to allege let alone establish that the August 2005 wire transfer they rely on for that argument could not have been Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 10 of 31 11 discovered sooner even in the exercise of reasonable diligence. See Mortimer Off Shore Servs., Ltd. v. Fed. Republic of Germany, 2012 U.S. Dist. LEXIS 42993, at *23, 2012 WL 1067648 (D. Mass. Mar. 28, 2012) (to avoid application of res judicata, plaintiff must show that he could not have pressed argument in the prior action upon exercise of reasonable diligence). This is of course notwithstanding the fact that the August 2005 wire transfer does not establish that Credit Suisse was the original creditor, and that any claim based on an alleged non-disclosure by the original lender is time-barred, see infra. Thus, Plaintiffs’ Complaint and instant motion are barred by res judicata and, resultantly, they have no likelihood of success on the merits. IV. Plaintiffs’ Underlying Allegations Are Also Meritless. Plaintiffs’ Amended Complaint rests on three primary allegations, all of which are factually or legally meritless, and all of which this Court has previously rejected on those grounds. First, Plaintiffs claim that their Note was securitized and “converted” without their permission, rendering the mortgage loan void. See, e.g., Amended Complaint, ¶ 11. Second, Plaintiffs claim that they have discovered that Credit Suisse was the original lender, not Metrocities, and that this constituted some type of unlawful non-disclosure. See id., ¶ 4. Finally, Plaintiffs claim that they unilaterally rescinded the mortgage loan in 2015 and that the loan was no longer valid thereafter. Id., ¶ 16. Because these underlying allegations are all meritless as described below (as this Court has already found), and Plaintiffs’ claims are all premised on the baseless allegations, Plaintiffs’ Amended Complaint must be dismissed. A. Plaintiffs’ Complaint That Their Note Was Securitized/Converted Does Not Make Out A Claim For Relief. Plaintiffs’ argument that the securitization of their Note without their knowledge or consent renders the mortgage loan void is factually and legally inaccurate. First, neither the Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 11 of 31 12 Note nor the Mortgage precludes the mortgage loan from being sold to a securitized trust. In fact, the Mortgage explicitly states that “[t]he Note or a partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower.” See PI Order, pp. 8-9 (emphasis added). Thus, even if Plaintiffs were truly unaware that their mortgage loan could be sold for a profit, this was entirely legal under the plain terms agreed to by them under the Note and the Mortgage. Moreover, Plaintiffs’ argument is simply a hopeless attempt to distract from the obvious. The Plaintiffs voluntarily and willingly executed a $2.9 million mortgage loan with a monthly $10,000-plus payment. See PI Order, p. 3. Plaintiffs readily accepted the loan proceeds. Then, Mark Galvin was unable to make payments under the loan, even after he was offered the ability to cure his default. Therefore, acceleration of the debt was lawful and inevitable due to Galvin’s breach of the agreement he voluntarily executed. No amount of eleventh-hour complaints about the securitization of the mortgage loan can distract from or alter these basic facts, especially because securitization did not preclude Galvin from making his monthly payments, which he undisputedly failed to do. Indeed, all courts to consider this very same argument have summarily rejected it. See, e.g., Andersen v. LaSalle Bank N.A., 2016 U.S. Dist. LEXIS 71240, at *18-19 (D. Mass. June 1, 2016) (“His theory is that Defendants fraudulently misrepresented the fact that his loan would be securitized and failed to disclose the terms of the securitization. The Mortgage, however, states the loan may be sold without notice to Plaintiff. … Moreover, it is difficult to understand how Plaintiff could have been harmed by the alleged misrepresentations. Plaintiff alleges he ‘would not have consented’ to the securitization had he known about it, but the transaction did not require his consent and his consent was never given. … While securitization Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 12 of 31 13 has many consequences, it did nothing to affect Plaintiff’s rights and obligations under the Note and Mortgage. Whether or not securitization occurred or was disclosed, Plaintiff always risked foreclosure by the mortgagee if he defaulted on his loan.” (internal citations omitted)); Orellana v. Deutsche Bank Nat’l Trust Co., 2013 U.S. Dist. LEXIS 135698, at *12, 2013 WL 5348596 (D. Mass. Aug. 30, 2013) (“[S]ecuritization by itself does not render a foreclosure invalid. . . . Orellana does not allege that he made unsuccessful attempts to pay down his loan, and fails to cite to any authority in support of his legal theories. Accordingly, the securitization of Orellana’s note, by itself, does not support a claim for wrongful foreclosure.”). In addition, this Court has already rejected this argument in denying Plaintiffs’ motion for a preliminary injunction. Namely, this Court cited both Andersen and Orellana, deeming them “persuasive[].” See PI Order, p. 7. This Court also noted that Plaintiffs explicitly agreed by executing the mortgage that the Note could be sold one or more times without their knowledge, without any limitations on the type of buyer or the uses for the Note. Id., pp. 8-9. The Court also rejected Plaintiffs’ argument that the Note was their personal property and securitization of it was an illegal conversion, stating that “a note is not like a horse that one lends and expects returned under the terms of the loan.” Id., p. 8.3 These findings constitute law of the case and apply with full force here. “Under the ‘law of the case’ doctrine, ‘when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.’” See Island View Residential Treatment Ctr., Inc. v. 3 Plaintiffs’ argument that the Note is their personal property, likened to a horse, is completely nonsensical. The Note and the Mortgage are not Plaintiffs’ personal property. Rather, they constitute a contract with clear rights and obligations. Plaintiffs, by granting a Mortgage on their Property and agreeing to repay the principal balance plus interest and other fees, were given the proceeds of the mortgage loan in order to refinance their property. In exchange, the lender (Metrocities) was given the rights to enforce the mortgage loan, sell it without prior knowledge or consent of Plaintiffs, and enforce the debt if Plaintiffs defaulted. Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 13 of 31 14 Bluecross Blueshield of Mass., Inc., 2007 U.S. Dist. LEXIS 94901, at *21 (D. Mass. Dec. 28, 2007) (quoting Arizona v. California, 460 U.S. 605, 618 (1983)); see also Cohen v. Brown Univ., 101 F.3d 155, 167 (1st Cir. 1996) (“The law of the case doctrine precludes relitigation of the legal issues presented in successive stages of a single case once those issues have been decided.”). Where, as here, the Court has already decided issues of law, those rulings continue to apply at every subsequent stage of the action. See Baetge-Hall v. Am. Overseas Marine Corp., 624 F. Supp. 2d 148, 161 (D. Mass. 2009). Therefore, in addition to the fact that the allegations of illegal securitization/conversion are baseless, they are also barred by the law of the case doctrine.4 B. Plaintiffs’ Allegation Concerning Credit Suisse is Meritless. Plaintiffs claim that they discovered that Credit Suisse was the actual original lender on their mortgage loan. See Amended Complaint, ¶ 4. Their evidence for this assertion is a purported wire transfer listing “CSFB” as “Originator” on the transfer, which they claim proves that “CSFB”-who they claim to be “Credit Suisse First Boston”-was the actual original creditor (or one creditor). See id. & Exhibit A to the Amended Complaint. In the first instance, Exhibit A-the purported wire transfer (the authenticity of which Defendants do not admit)-merely purports to be a wire transfer transferring the proceeds of the mortgage loan following loan origination in 2005. On the wire transfer itself, “CSFB” is listed as “Originator.” This document (even assuming the authenticity of it) is susceptible to numerous reasonable interpretations, none of which include an interpretation that the wire transfer establishes that “CSFB” is the originator of Plaintiffs’ mortgage loan. The plain terms 4 Although a preliminary injunction ruling is ordinarily based on an undeveloped record, here, this Court’s findings were made on issues of law, not fact, and were not dependent on any factual inquiry. Thus, the findings are not subject to change based on discovery and should apply with full force to Defendants’ Motion to Dismiss. Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 14 of 31 15 of the Note and Mortgage establish beyond dispute that Metrocities was the original holder of the Note and MERS, on behalf of Metrocities and its successors and assigns, was the original holder of the Mortgage. Plaintiffs’ attempt eleven years later to dig up an irrelevant purported wire transfer to establish some conspiracy must be rejected. Moreover, regardless of other entities who were or may have been involved in origination, Plaintiffs executed the mortgage loan with Metrocities, Metrocities was identified as the original lender therein, and thus all benefits and obligations flowing from the mortgage loan were vested in Metrocities, not some other “shadow” entity as Plaintiffs claim. The plain terms of the mortgage loan control regardless of any other fringe documents to which Plaintiffs can point. This Court has also previously rejected this argument concerning Credit Suisse. The Court noted that Plaintiffs “conceded at oral argument [on their motion for a preliminary injunction]” that they “have provided no legal support for this theory” and the Court was “unable to find any.” See PI Order, p. 9. This legal finding also constitutes law of the case and applies with full force here. See Island View Residential Treatment Ctr., Inc., 2007 U.S. Dist. LEXIS 94901, at *21. Plaintiffs’ attempt to resurrect an allegation they have previously conceded was meritless must fail. In any event, any TILA claim5 based on the alleged non-disclosure of the existence or role of “CSFB” (notwithstanding that “CSFB” was and is not a creditor of Plaintiffs’ loan), or any other alleged non-disclosure, is time-barred. “TILA’s limitations provision (which is also applicable to claims under Regulation Z, …) states that an action for damages must be brought ‘within one year from the date of the occurrence of the violation.’” Moore v. Mortgage Elec. 5 Count 12 of the Amended Complaint appears to attempt to plead a claim under TILA, although the underlying allegations are far from clear. Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 15 of 31 16 Registration Sys., 848 F. Supp. 2d 107, 120-122 (D.N.H. 2012) (citing 15 U.S.C. § 1640(e)). “Where, as here, the plaintiff’s claim is based upon insufficient or nonexistent disclosures, the limitations period begins running on the date the disclosures should have been made,” which is the closing date for the subject mortgage loan. Id. Thus, the one year limitations period on Plaintiffs’ purported TILA claim began running in 2005, and has been expired for over a decade. Accordingly, any claim under TILA for alleged nondisclosures is clearly time- barred.6 Furthermore, to the extent TILA was violated by the original lender (which it was not), there is no liability against Defendants. For instance, BNY Mellon Trustee is a mere assignee of the loan. Under the plain terms of TILA, assignee liability based on an alleged TILA violation is appropriate only where “the violation for which such action or proceeding is brought is apparent on the face of the disclosure statement, except where the assignment was involuntary. For the purpose of this section, a violation apparent on the face of the disclosure statement includes, but is not limited to (1) a disclosure which can be determined to be incomplete or inaccurate from the face of the disclosure statement or other documents assigned, or (2) a disclosure which does not use the terms required to be used by this title.” See 15 U.S.C. § 1641(a); see also Ritter v. Durand Chevrolet, 932 F. Supp. 32, 35 D. Mass. 1996) (noting that, under TILA, an assignee’s liability is limited to alleged violations that are 6 To the extent Plaintiffs argue that the statute of limitations should be equitably tolled because they only recently discovered the referenced wire transfer, it should be noted that this Court has not applied equitable tolling to TILA claims, see Moore, 848 F. Supp. 2d at 120-22 (noting that “[s]ome district courts” have applied equitable tolling, but not this Court as of yet). In addition, equitable tolling would require, at the very least, a showing that plaintiff could not discover information essential to the claim despite reasonable diligence. Id. Plaintiffs cannot show either the existence of new information essential to their TILA claim, since the wire transfer at issue establishes nothing of import (let alone a TILA violation), or that they were reasonably diligent, since the wire transfer is dated in August 2005 and they fail to explain how they came in possession of it or why they could not have come into possession of it sooner. Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 16 of 31 17 apparent on the face of the disclosure statement). The alleged nondisclosure here is based on a purported wire transfer wholly unrelated to the mortgage loan documents themselves and, thus, is not apparent on the face of the disclosure statement. Resultantly, BNY Mellon Trustee, or any other Defendant, is not liable for any prior TILA violation, notwithstanding that no such violation occurred. C. Plaintiffs’ Claim of Unilateral Rescission Is Baseless. Plaintiffs also claim that they unilaterally rescinded the Mortgage in September 2015, which was effective under TILA, therefore voiding the Mortgage and making the foreclosure unlawful. See Amended Complaint, ¶ 16. This allegation is simply legally incorrect. First, TILA requires any rescission based on certain alleged nondisclosures to be made within three years “after the date of consummation of the transaction.” See 15 U.S.C. § 1635(f) (“An obligor’s right of rescission shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first”). Thus, Mark Galvin’s alleged 2015 unilateral rescission, well after the Order concluding Galvin I, is clearly untimely given that the mortgage loan was executed (i.e. consummated) a decade prior. Furthermore, Galvin’s purported untimely unilateral rescission was not effective, in any event. As the First Circuit has squarely held, a purported unilateral rescission under TILA is not valid to effectuate a rescission under TILA: “rescission of a mortgage governed by TILA does not automatically occur at the time a debtor sends the creditor a notice of rescission. Rescission only occurs when the parties agree to rescind or when a court (or arbitrator) orders the remedy.” See Belini v. Wash. Mut. Bank, FA, 412 F.3d 17, 25 n.3 (1st Cir. 2005); see also Large v. Conseco Fin. Servicing Corp., 292 F.3d 49, 54-55 (1st Cir. 2002) (same). To the extent Plaintiffs would claim that Jesinoski v. Countrywide Home Loans, Inc., 135 S.Ct. Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 17 of 31 18 790 (2015) altered this case law, they are incorrect. That case dealt only with how a borrow exercises his right to rescind (holding that it is exercised as soon as he gives notice to the creditor), not whether and when a rescission is validly effectuated. As the Sixth Circuit has held, an exercise of that right does not equate to a valid exercise of that right or a valid rescission. See Chapman v. JP Morgan Chase Bank, N.A., 2016 U.S. App. LEXIS 10603, at *11-12 (6th Cir. June 10, 2016) (“So too of Jesinoski v. Countrywide Home Loans, Inc.[,] 135 S. Ct. 790, 190 L. Ed. 2d 650 (2015). It held that borrowers exercise their right to rescind as soon as they give notice to the creditor, even if they have not yet brought a lawsuit to enforce the rescission. Id. at 792. This reasoning does not mean, as the Chapmans claim, that creditors must accept the validity of a rescission as soon as they receive notice of it; creditors still may ask a court not to enforce an invalid rescission, as today's defendants do. Nor does Jesinoski exempt borrowers from the statutory requirements for making a valid rescission in the first place.”). In any event, Plaintiffs’ purported rescission was indisputably untimely under TILA. To the extent Plaintiffs attempt to suggest that they have a right of rescission under different sources of law besides TILA, including common law, they fare no better under this theory. At common law, rescission is effected where (1) the rescinding party returns what was received, or (2) a court affirmatively decrees rescission. See Jesinoski, 135 S.Ct. at 793 (“It is true that rescission traditionally required either that the rescinding party return what he received before a rescission could be effected (rescission at law), or else that a court affirmatively decree rescission (rescission in equity).”). Obviously neither of those two conditions have occurred, and the Plaintiffs continue to enjoy the fruits of the mortgage loan (i.e. the substantial proceeds of the loan used to discharge the then-existing mortgage that was Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 18 of 31 19 refinanced) without holding their end of the bargain for many years (i.e. making payments thereunder) despite now claiming rescission. In addition, this Court has already found that Galvin’s purported rescission was untimely under TILA. Specifically, the Court found that “[i]t is beyond dispute that the Galvins tendered their putative rescission roughly ten years after ‘the date of consummation of the transaction,’ long after their right to do so had expired.” See PI Order, p. 6. This finding is also law of the case that applies here. See Island View Residential Treatment Ctr., Inc., 2007 U.S. Dist. LEXIS 94901, at *21. V. Plaintiffs’ Claims Are Meritless for Additional Reasons. Notwithstanding that Plaintiffs’ claims are premised on the three meritless allegations addressed supra, they all also fail for the additional reasons addressed below, as well. A. Plaintiffs’ Federal Claims (Counts 12-15). Plaintiffs have pleaded five claims under federal law or which relate to federal law, and all are meritless for reasons in addition to the fact that they rely on the meritless aforementioned allegations. First, Plaintiffs’ Count 13 is entitled “Federal Preemption Under Supremacy Clause,” which is obviously not a claim for relief, and it is entirely unclear what Plaintiffs attempt to plead here. See Amended Complaint, ¶¶ 291-99. Plaintiffs’ only reference to a law or statute is to 42 U.S.C. § 1988, which merely governs civil rights actions and does not create a private right of action. See 42 U.S.C. § 1988. Because Count 13 does not even reference an applicable law or statute, let alone actually state a claim thereunder, it must be dismissed. Pursuant to Counts 14, 15, and 16, Plaintiffs attempt to plead claims under 42 U.S.C. §§ 1983, 1985, and 1986. However, § 1983 applies only to persons acting under color of state Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 19 of 31 20 law, which clearly does not apply to any of the Defendants or other parties to this action, who are all private actors. See 42 U.S.C. § 1983 (“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”); see also Estades-Negroni v. CPC Hosp. San Juan Capestrano, 412 F.3d 1, (1st Cir. 2005) (“[A] plaintiff claiming a § 1983 violation must allege that a person or persons acting under color of state law deprived him of a federal constitutional or statutory right.”). As to § 1985, Plaintiffs did not specify which subsection of the statute they invoke in support of their claim, but only subsection (3) is arguably applicable. See 42 U.S.C. § 1985 (including Subsection (1) (“Preventing Officer from Performing Duties,” (2) (“Obstructing Justice; Intimidating Party, Witness, or Juror”) and (3) (“Depriving Persons of Rights or Privileges”)). Plaintiffs’ claim fails because, among other reasons, they have not alleged a racial or other class-based discriminatory animus. See, e.g., Perez-Sanchez v. Public Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008) (“It has long been established that a claim under § 1985(3) requires some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.” (citation and quotation omitted)). Finally, Plaintiffs’ claim under § 1986 fails given that it is predicated on their claim under § 1985, which is patently meritless. See 42 U.S.C. § 1986 (providing for action against those who failed to prevent violations of § 1985); see also Landrigan v. Warwick, 628 F.2d 736, 739 n.1 (1st Cir. 1980) (“As plaintiff has not alleged any racial or other "class-based, invidiously discriminatory Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 20 of 31 21 animus," section 1985 is not applicable. As section 1985 does not apply, any claim under section 1986 must also fail.” (internal citations and quotations omitted)). Finally, Plaintiffs’ Count 12, pursuant to 15 U.S.C. § 1640, claiming that they effectively rescinded the loan in 2015, is meritless because, among other things, their claimed rescission was both untimely and ineffective for the reasons stated supra. B. Plaintiffs’ State Law Claims. i. Fraud Claims (Counts 1, 2 & 6). Plaintiffs’ claims of Fraudulent Misrepresentation (Count 1), “Fraudulent Concealment” (Count 2, which appears to be entirely duplicative of Count 1), and Fraud (Count 6), which appear to be premised on their baseless Credit Suisse allegations, are additionally meritless because Plaintiffs have utterly failed to plead fraud with the requisite specificity. See Fed.R.Civ.P. 9(b) (“In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.”); see also United States ex rel. Ge v. Takeda Pharm. Co., 737 F.3d 116, 123 (1st Cir. 2013) (plaintiffs are required to set forth with particularity the “who, what, when, where, and how of the alleged fraud”). In any event, all claims based on Credit Suisse’s alleged role in the origination/execution of the mortgage loan are long time-barred under New Hampshire law because the mortgage loan was executed in 2005, and the wire transfer on which Plaintiffs rely for their claims was likewise dated 2005. See RSA § 508:4(I) (three year statute of limitations for all personal actions, including fraud claims).7 7 Although far from clear, to the extent that Plaintiffs also base their fraud claims on securitization of the loan, BNY Mellon Trustee became holder of their Mortgage in 2010 and, thus, any fraud claim based on securitization is likewise long time-barred. Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 21 of 31 22 Moreover, Plaintiffs have failed to plead the basic elements of fraud claims under New Hampshire law, including but not limited to (1) that Defendants knowingly made a false representation (2) to induce Plaintiffs’ reliance, and (3) Plaintiffs suffered pecuniary harm from the same. See Tessier v. Rockefeller, 162 N.H. 324, 331-32 (N.H. 2011) (reciting familiar elements of intentional misrepresentation/fraud claim). They have also failed to plead a claim for fraudulent concealment. See Van Der Stok v. Van Voorhees, 151 N.H. 679, 681-82 (2005) (in order to successfully assert a claim that a contract was procured by means of fraud, a plaintiff must demonstrate that the defendant “made a representation with knowledge of its falsity or with conscious indifference to its truth with the intent to cause another to rely on it,” and "justifiable reliance”). “In New Hampshire, as elsewhere, liability for fraudulent concealment does not arise in the absence of a duty of disclosure.” Invest Almaz v. Temple- Inland Forest Products Corp., 243 F.3d 57, 82-83 (1st Cir. 2001). Notwithstanding that Credit Suisse was not the “lender” as Plaintiffs claim, Plaintiffs have failed to plausibly allege that any misrepresentations were made at closing (given that Metrocities was the lender as disclosed and agreed upon by Plaintiffs), that they suffered a loss as a result of the alleged non- disclosure of Credit Suisse’s purported role in the transaction, or that any defendant owed a duty of disclosure. Rather, Plaintiffs intended to enter into a mortgage loan with original lender Metrocities, did in fact enter into such a mortgage loan, and realized the profits thereof (i.e. the loan proceeds), all while failing to hold up to their end of the bargain by defaulting a mere four (4) years after executing the loan. Far from being harmed, Plaintiffs breached the mortgage loan and realized a profit. In any event, none of the moving Defendants are liable for alleged misrepresentations that occurred at closing, given that none of the moving Defendants were involved therein (notwithstanding that no misrepresentations occurred). Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 22 of 31 23 ii. Conversion (Count 3). Plaintiffs’ Count 3 (Conversion) fails for the additional reason that, as this Court has previously found, Plaintiffs had no right to “control” the Note, including any transfers of the same, and thus securitization of the Note (which was fully permissible thereunder) did not constitute conversion. See Leeper v. Leeper, 114 N.H. 294, 297-98 (N.H. 1974) (conversion relates to appropriation of assets or property); Muzzy v. Rockingham Cnty. Trust Co., 113 N.H. 520, 523 (N.H. 1973) (“Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.”); see also Kingston 1686 House, Inc. v. B.S.P. Transp., Inc., 121 N.H. 93, 95 (1981) (“Among the factors that a court must consider are . . . the intent to assert a right inconsistent with the other party’s right of control.”). As the Galvins had no right to control the note, no defendant could have asserted a right inconsistent with the Galvins’ non-existent rights. iii. Civil Conspiracy/Aiding and Abetting (Counts 4 & 5). Pursuant to Counts 4 and 5, Plaintiffs have alleged “Aiding and Abetting Liability” and Civil Conspiracy based on their allegations concerning Credit Suisse and securitization of the Note. However, and among many other reasons, these claims fail because Plaintiffs have utterly failed to plausibly plead the existence of an agreement between any Defendants to this action to commit an unlawful act. A plaintiff alleging a claim for aiding and abetting must establish: (1) an underlying breach of duty by the primary wrongdoer; (2) actual knowledge of the underlying breach by the alleged aider and abetter and the rendering of substantial assistance in committing the wrongdoing by the alleged aider and abettor; and (3) resulting damages caused by the primary Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 23 of 31 24 wrongdoer. Invest Almaz v. Temple-Inland Forest Products Corp., 243 F.3d 57, 82-83 (1st Cir. 2001) (predicting that the New Hampshire Supreme Court would incorporate the principles of aiding and abetting liability set forth in the Restatement (Second) of Torts). Here, the plaintiffs generally allege “the parties are all known to one another and it appears have a long record of aiding and abetting the “conduit financing” structure. (FAC ¶ 225). That is plainly insufficient to properly allege a theory of aiding and abetting. “A civil conspiracy is a combination of two or more persons by concerted action to accomplish an unlawful purpose, or to accomplish some purpose not in itself unlawful by unlawful means.” Jay Edwards, Inc. v. Baker, 130 N.H. 41, 47 (1987) (citation omitted). “Its essential elements are: (1) two or more persons (including corporations); (2) an object to be accomplished (i.e. an unlawful object to be achieved by lawful or unlawful means or a lawful object to be achieved by unlawful means); (3) an agreement on the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof.” Id. (citations omitted). See also King v. Philip Morris, Inc., 2000 N.H. Super. LEXIS 5, at *29-30 (N.H. Super. Ct. Nov. 2, 2000) (reciting elements of civil conspiracy claim). As noted, Credit Suisse did not perform the role Plaintiffs allege (i.e. original lender, which was indisputably Metrocities), and securitization of the Note was entirely lawful. In addition, Plaintiffs have failed to plead any damages resulting from the civil conspiracy/aiding and abetting claims. Id. (damages is required element of claim). The claims are additionally meritless because they are necessarily derivative of all of the other failed claims. iv. Slander of Title (Count 7). Plaintiffs’ Slander of Title claim (Count 7) fails because they have not pleaded the basic elements of the claim, which are (1) publication of a slanderous statement disparaging a Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 24 of 31 25 person’s title to an interest in land, (2) the statement was false, (3) the statement was made with malice or reckless disregard of its falsity, and (4) the statement caused actual damage. See Bourne v. Town of Madison, 2008 N.H. Super. LEXIS 176, at *11-12 (N.H. Super. Ct. Dec. 7, 2008). See also Saraswati v. Mandiram, Inc. v. G&G, LLC, 2008 N.H. LEXIS 198, at *4-5 (N.H. 2008) (3JX Order); Wilko v. Tap Realty, Inc., 117 N.H. 843, 846, 849 (1977) (Slander of title requires that the defendant knowingly or fraudulently place a cloud on plaintiff’s title to land); 50 Am Jur 2d Libel and Slander § 530; Pettee v. Young, 783 A.2d 637, 642 (Me. 2001); Arnold Road Realty v. Tiogue Fire Dist., 873 A.2d 119, 125-26 (R.I. 2005). Although far from clear, to the extent Plaintiffs claim the false publication was the recording of the Mortgage or Assignments thereof (notwithstanding that these “publications” were clearly not false), their claim is long time-barred since the Mortgage was executed in 2005 and last assigned, to BNY Mellon Trustee, in 2010. See Galvin I, Docket No. 78 (Bench Trial Decision), ¶ 9 (Mortgage assigned to BNY Mellon Trustee in 2010, and recorded the same year). See also RSA § 508:4(I) (three year statute of limitations). The claim is also barred by the doctrine of res judicata, as the Court Order in Galvin I determined the Trust properly held the note and mortgage and could foreclose. In addition, to the extent that Plaintiffs have referenced the notices of sale provided to Plaintiffs prior to foreclosure as required by New Hampshire law, the notices of sale were a prerequisite to foreclosure and based on Plaintiffs’ seven year default, not slanderous statements affecting Plaintiffs’ interest in the property. Finally, to the extent Plaintiffs have claimed that the recording of a foreclosure deed constituted slander of title, the claim clearly fails because Plaintiffs no longer held title following the foreclosure sale. See Saraswati, 2008 N.H. LEXIS 198, at *4-5 (borrower’s rights to property lost once “auctioneer’s hammer fell” at sale). And, clearly, Plaintiffs can Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 25 of 31 26 establish no actual damages from the recording of the Mortgage and the Assignments thereof, the publication of the notices of sale, and any other foreclosure-related publications, because Plaintiffs last made a mortgage payment in 2009 and no longer have title to the Property following foreclosure. v. “Civil Theft.”(Count 8) Plaintiffs’ claim for “Civil Theft” (Count 8) fails because there does not appear to be a civil tort for “theft” under New Hampshire law in the circumstances alleged here (i.e. in the foreclosure context) and any such claim is barred under the doctrine of res judicata by the decision in Galvin I. In any event, BNY Mellon Trustee had the lawful right under the mortgage loan to foreclose once Plaintiffs defaulted on the same, which they did in 2009. Thus, the foreclosure did not constitute theft but, rather, the lawful exercise of a contractually-provided right. To the extent this claim is premised on Plaintiffs’ conversion allegations, the Note, as discussed supra, was not their personal property or asset. vi. Unjust Enrichment (Count 9). Plaintiffs’ Unjust Enrichment claim (Count 9) is legally defective because, among other things, the mortgage loan governs and, thus, the equitable remedy of unjust enrichment is not available vis-à-vis the parties to the loan. See Axenics, Inc. v. Turner Constr. Co., 164 N.H. 659, 669-70 (2013) (“Unjust enrichment is an equitable remedy that is available when an individual receives a benefit which would be unconscionable for him to retain. . . . One general limitation is that unjust enrichment may not supplant the terms of an agreement. It is a well-established principle that the court cannot allow recovery under a theory of unjust enrichment when there is a valid, express contract covering the subject matter at hand.” (internal citations and quotations omitted)); see also Turner v. Shared Towers VA, LLC, 167 Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 26 of 31 27 N.H. 196, 202 (2014) (same). In addition, Plaintiffs’ claim is truly incredible in light of the fact that they stopped making mortgage payments and defaulted under their loan in 2009, despite having accepted all of the loan proceeds, and lived payment free in the Property for seven years, which BNY Mellon Trustee continues to pay the carrying costs. It is Plaintiffs, if anyone, who have been unjustly enriched. vii. Intentional Infliction of Emotional Distress (Count 10). Pursuant to Count 10, Plaintiffs claim intentional infliction of emotional distress, apparently based on pre-foreclosure related activities including the “threat” of losing their home to foreclosure. See Amended Complaint, ¶ 270. This claim is barred under the doctrine of res judicata by the Order in Galvin I, declaring the Trustee had the right to foreclose. Notwithstanding that foreclosure was lawful and justified following Plaintiffs’ seven-year default, Plaintiffs’ claim fails because, among other things, a plaintiff cannot sustain such a claim based on allegations of mere threats alone. See Tessier, 162 N.H. at 341 (“The only conduct the plaintiff alleges in her writ involved threats made to her husband. Liability for intentional infliction of emotional distress clearly does not extend to mere … threats.” (internal citation and quotation omitted)). In addition, and notwithstanding the absence of any alleged extreme or outrageous conduct, it is well-settled that borrowers cannot sustain intentional infliction of emotional distress claims based on foreclosure related activities, even where the borrowers dispute the validity of the foreclosure. See, e.g., In re Bailey, 437 B.R. 721, 730 (Bankr. D. Mass. 2010) (dismissing claim for intentional infliction of emotional distress based on allegations that defendant conducted foreclosure sale without adequate evidence that it was the holder of the mortgage because allegations were insufficient to show that defendant's conduct was intentional); In re Fernandes, 446 B.R. 6, 10-11 (Bankr. D. Mass. 2011) Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 27 of 31 28 (dismissing claim for intentional infliction of emotional distress based on allegations that defendant did not hold the mortgage when it conducted foreclosure sale, and that mortgage was unenforceable due to defects in its origination). viii. “Successor and Vicarious Liability.”(Counts 11 & 17) Pursuant to Counts 11 and 17, Plaintiffs purport to plead claims for “Successor and Vicarious Liability.” Successor and vicarious liability is not a stand-alone claim but may be a theory to hold a party liable for the actions of another, but that must be pled in the context of a specific claim for relief. See Gavin v. Liberty Mutual Group, Inc., 2012 DNH 154 (holding the claim is not a free standing claim but is a means of proving an element of another claim). Plaintiffs have failed to plausibly allege direct liability against any defendant that could be imputed to the moving Defendants, in any event. ix. Request for Injunction (Count 18). Finally, Plaintiffs’ Count 18, apparently seeking to enjoin BNY Mellon Trustee from taking “adverse claim to title,” is moot in light of the fact that BNY Mellon Trustee has foreclosed on the Property and Plaintiffs no longer have any right or title to the same. See Saraswati, 2008 N.H. LEXIS 198, at *4-5 (noting that, although recording of foreclosure deed officially passes legal title, borrower’s rights to property actually lost once “auctioneer’s hammer fell” at sale). In addition, any request for an injunction fails because all of Plaintiffs’ claims fail on the merits for the reasons addressed supra. CONCLUSION Plaintiffs’ Amended Complaint is defectively pleaded and fails to comply with Rule 8 and Rule 9(b), is directed to the wrong parties, is premised on previously rejected and Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 28 of 31 29 meritless allegations, and otherwise fails to state a claim. Therefore, it must be dismissed with prejudice. Respectfully submitted, The Bank of New York Mellon Corporation, Gerald Hassell, Credit Suisse Group, Brady Dougan, MERSCORP Holdings, Inc., and R.K. Arnold, by their attorney, /s/ Kevin P. Polansky Kevin P. Polansky (N.H. Bar # 265419) Kevin.polansky@nelsonmullins.com Nelson Mullins Riley & Scarborough LLP One Post Office Square, 30th Floor Boston, Massachusetts 02109 p. (617) 573-4700 f. (617) 573-4710 JPMorgan Chase & Co., James Dimon, Wells Fargo & Company, and John Stumpf, by their attorneys, /s/ Peter G. Callaghan Peter G. Callaghan (N.H. Bar # 6811) Preti, Flaherty, Beliveau & Pachios, PLLP P.O. Box 1318 Concord, NH 03302-1318 (603) 410-1500 pcallaghan@preti.com Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 29 of 31 30 Metrocities Mortgage, LLC, Paul Wylie and Prospect Holding Company, LLC, By their attorney, /s/ William P. Breen, Jr. William P. Breen, Jr. (N.H. Bar # 16929) Eckert Seamans Cherin & Mellott, LLC Two International Place, 16th Floor Boston, MA 02110 Tel: (617) 342-6887 wbreen@eckertseamans.com James Cayne, By his attorneys, /s/ Mark P. Hodgdon Mark P. Hodgdon (N.H. Bar #4074 ) Law Office of Mark P. Hodgdon PLLC 18 N. Main Street, Suite 307 Concord, NH 03301 Telephone: 603.715.5951 mark@hodgdonlegal.com David S. Frankel Maxim M.L. Nowak Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY 10035 Telephone: 212-715-9217 dfrankel@kramerlevin.com mnowak@kramerlevin.com Pro Hac Vice Admission Pending Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 30 of 31 31 Harmon Law Offices, P.C., Mark P. Harmon and Commonwealth Auction Associates, Inc. By their attorney, /s/ Scott C. Owens Scott C. Owens, Esq. (NH Bar Id. #17624) HARMON LAW OFFICES, P.C. 150 California Street Newton, MA 02458 Phone: 617-558-0738 Facsimile: 617-243-4038 sowens@harmonlaw.com Dated: December 1, 2016 CERTIFICATE OF SERVICE I, Kevin P. Polansky, hereby certify that this document filed through the ECF system will be sent electronically all registered participants as identified on the Notice of Electronic Filing (NEF), and paper copies will be sent to those indicated as non-registered participants on this date including Plaintiffs. Dated: December 1, 2016 /s/ Kevin P. Polansky Case 1:16-cv-00268-JL Document 78-1 Filed 12/01/16 Page 31 of 31