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Case 1:13-cv-00103-JD Document 14 Filed 07/30/13 Page 1 of 9

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Janice M. Winnett

v.

Civil No. 13-cv-103-JD

J.P. Morgan Chase and
Federal National Mortgage Association

O R D E R

Janice M. Winnett, who is proceeding pro se, filed a

petition in state court seeking a temporary restraining order and

an injunction to prevent J.P. Morgan Chase and Federal National

Mortgage Association from conducting a foreclosure sale of her

home. The defendants removed the case to this court on March 6,

2013, and Winnett filed an amended complaint here. The

defendants now move to dismiss her amended complaint. Winnett

did not respond to the motion.

Standard of Review

Federal Rule of Civil Procedure 12(b)(6) allows a defendant

to move to dismiss on the ground that the plaintiff’s complaint

fails to state a claim on which relief can be granted. In

assessing a complaint for purposes of a motion to dismiss, the

court “separate[s] the factual allegations from the conclusory

statements in order to analyze whether the former, if taken as

Case 1:13-cv-00103-JD Document 14 Filed 07/30/13 Page 2 of 9

true, set forth a plausible, not merely conceivable, case for

relief.” Juarez v. Select Portfolio Servicing, Inc., 708 F.3d

269, 276 (1st Cir. 2013) (internal quotation marks omitted). “If

the facts alleged in [the complaint] allow the court to draw the

reasonable inference that the defendants are liable for the

misconduct alleged, the claim has facial plausibility.” Id.

(internal quotation marks omitted).

Background

In her amended complaint, Janice Winnett alleged that she

co-owned and resided in a home in Milford, New Hampshire, with

her three minor children. When the complaint was filed, Brian J.

Winnett, Janice’s husband, owned the house with Janice but was

excluded from the home under the terms of a Final Order of

Protection issued by the New Hampshire Family Division Court.

Janice and Brian were in the process of divorce when Janice filed

suit, and the divorce is now final.

On June 24, 2005, Brian Winnett signed a note to Beacon

Mortgage Company, LLC, for a loan of $210,000. Brian and Janice

both executed the mortgage on their home to secure the loan. The

mortgage was then assigned to other entities, eventually being

held by J.P. Morgan Chase which assigned the mortgage to the

Federal National Mortgage Association (“FNMA”). FNMA is the

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current holder of the note and the mortgage, and J.P. Morgan

Chase is the “agent and servicer” for FNMA.

During the divorce proceedings, Janice and Brian were

ordered to each pay half of the monthly mortgage payments. Brian

did not make his share of the payments. Janice learned through

Brian’s disclosures to the Family Division Court that he had not

made mortgage payments since August of 2012. Janice could not

communicate with Brian because of the terms of the Domestic

Violence Protection Order. Janice alleges that J.P. Morgan Chase

would not accept payments from her to make up the deficiency.

When the complaint was filed, FNMA was pursuing foreclosure

on the home. The foreclosure sale was scheduled for February 28,

2013, but was enjoined by the state court before the action was

removed to this court. Janice alleged that she was employed and

was willing to make full monthly payments on the mortgage. She

also alleged that she was pursuing a contempt order against Brian

to force him to make his share of the payments. Janice alleged

that FNMA refused to communicate with her about the mortgage or

to allow her to exercise her right to reinstatement before

foreclosure.

The Winnetts’ divorce became final in May of 2013. Under

the terms of the final divorce decree, Janice was awarded all

right, title, and interest in the home and was solely responsible

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for paying the mortgage, taxes, and insurance on the property.

Brian was required to quitclaim his interest in the property, but

he remained “responsible for the payment of the lien on the home

that is owed to Attorney Mooney and shall indemnify and hold

Janice harmless thereon.”

The defendants, through their counsel, offered Janice an

opportunity to assume the loan from Brian and make the loan

current. They provided the paperwork for the changes and gave

Janice additional time to submit the completed paperwork. As of

the date of the motion to dismiss, June 28, 2013, Janice had not

applied to assume the loan and was not responding to inquiries.

Janice also did not file a response to the motion to dismiss.

Discussion

Janice Winnett brings breach of contract and breach of the

implied covenant of good faith and fair dealing claims and asks

the court to enjoin the foreclosure proceedings. The defendants

move to dismiss Winnett’s claims on the grounds that they have

not breached the terms of the mortgage and have not breached the

implied covenant of good faith and fair dealing.1 In support of

1Although Winnett named J.P. Morgan Chase as a defendant,

along with FNMA, she does not allege that J.P. Morgan Chase
breached the mortgage or the implied covenant of good faith and
fair dealing. The causes of action are alleged against FNMA

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their motion, the defendants rely on and filed additional

documents, including the note, the mortgage, an agreement reached

between them and Winnett after the action was removed from state

court, and a reinstatement quote and related paperwork that they

provided to Winnett on May 24, 2013. Based on those documents,

the defendants argue that they provided Winnett with the

reinstatement opportunity that she contends the mortgage

required.

Generally, a motion to dismiss is decided on the well-

pleaded allegations in the complaint. Young v. Wells Fargo Bank,

N.A., 717 F.3d 224, 231 (1st Cir. 2013). In addition, however,

the court may consider any documents attached to the complaint,

documents incorporated into the complaint by reference, and

documents outside the pleadings that are undisputed, central to

the plaintiff’s claims, and sufficiently referred to in the

complaint. Id.; Giragosian v. Ryan, 547 F.3d 59, 65 (1st Cir.

2008). When a motion to dismiss is based on extrinsic materials

that are not undisputed or sufficiently related to the complaint,

the motion must be converted to one for summary judgment. Fed.

R. Civ. P. 12(d); Cruz-Vazquez v. Mennonite Gen. Hosp., Inc.,

717 F.3d 63, 68 (1st Cir. 2013).

only.

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In this case, Winnett does not dispute the authenticity or

relatedness of the documents the defendants filed in support of

their motion. Therefore, the additional documents will be

considered in deciding the motion.

A. Breach of Contract

Winnett alleges that FNMA breached the mortgage agreement by

failing to provide her the opportunity to reinstate the loan

before foreclosing on the house. Under New Hampshire law, “a

breach of contract occurs when there is a failure without legal

excuse to perform any promise which forms the whole or part of a

contract.” Axenics, Inc. v. Turner Constr. Co., 164 N.H. 659,

668 (2013) (internal quotation marks omitted).

Section 19 of the mortgage agreement provides “Borrower’s

Right to Reinstate After Acceleration,” as follows:

If Borrower meets certain conditions, Borrower shall
have the right to have enforcement of this Security
Instrument discontinued at any time prior to the
earliest of: (a) five days before sale of the Property
pursuant to any power of sale contained in this
Security Instrument; (b) such other period as
Applicable Law might specify for the termination of
Borrower’s right to reinstate; or (c) entry of a
judgment enforcing this Security Instrument. Those
conditions are that Borrower (a) pays Lender all sums
which then would be due under this Security Instrument
and the Note as if no acceleration had occurred; (b)
cures any default of any other covenants or agreements;
(c) pays all expenses incurred in enforcing this
Security Instrument, including, but not limited to,

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reasonable attorneys’ fees, property inspection and
valuation fees, and other fees incurred for the purpose
of protecting Lender’s interest in the Property and
rights under this Security Instrument; and (d) takes
such action as Lender may reasonably require to assure
that Lender’s interest in the Property and rights under
this Security Instrument, and Borrower’s obligation to
pay the sums secured by this Security Instrument, shall
continue unchanged. Lender may require that Borrower
pay such reinstatement sums and expenses in one or more
of the following forms, as selected by Lender: (a)
cash; (b) money order; (c) certified check, bank check,
treasurer’s check or cashier’s check, provided any such
check is drawn upon an institution whose deposits are
insured by a federal agency, instrumentality or entity;
or (d) Electronic Funds Transfer. Upon reinstatement
by Borrower, this Security Instrument and obligations
secured hereby shall remain fully effective as if no
acceleration had occurred. However, this right to
reinstate shall not apply in the case of acceleration
under Section 18.

Section 22 of the mortgage agreement also requires the lender to

give notice to the borrower before enforcing the terms of the

agreement following the borrower’s breach and to give the

borrower at least thirty days to cure the default before

proceeding with foreclosure. Winnett alleges that FNMA breached

the mortgage agreement by “proceeding blindly to foreclosure

without permitting payment by Plaintiff Winnett to cure the

arrearages owed.”

The defendants contend that they did not breach the

reinstatement right in Section 19 because they reached an

agreement with Winnett in early May of 2013 that extended the

time for her to cure the default and to assume the obligation of

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the note that was signed by Brian Winnett.2 They represent that

Winnett did not satisfy the requirements for reinstatement under

the terms of their agreement. Therefore, they argue, they

provided Winnett with an opportunity to reinstate the mortgage

and avoid foreclosure as required under Section 19.

Because Winnett did not respond to the defendants’ motion to

dismiss, she does not dispute their version of events. Under

these unusual circumstances, Winnett does not state a claim for

breach of contract.

B. Breach of the Implied Covenant of Good Faith and Fair Dealing

Winnett alleges that FNMA breached the implied covenant of

good faith and fair dealing by unreasonably exercising its

discretion in enforcing its remedies for default. New Hampshire

recognizes an implied covenant of good faith and fair dealing

when “an agreement that appears by word or silence to invest one

party with a degree of discretion in performance sufficient to

deprive another party of a substantial proportion of the

agreement’s value.” Centronics Corp. v. Genicom Corp., 132 N.H.

133, 143 (1989). Under the covenant, an “obligation of good

faith to observe reasonable limits in exercising that discretion,

2The defendants do not address the circumstances that

preceded the foreclosure notice in February of 2013.

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consistent with the parties’ purpose or purposes in contracting”

is implied into the parties’ agreement. Id.



The defendants argue that because Winnett had an opportunity

to cure the default and reinstate the mortgage they did not

breach the implied covenants. As stated above, because Winnett

does not dispute the circumstances the defendants present, she

has not stated a claim for breach of the implied covenants.

Conclusion

For the foregoing reasons, the defendants’ motion to dismiss

(document no. 13) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

July 30, 2013

cc: Peter G. Callaghan, Esquire

Janice M. Winnett, pro se

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____________________________
Joseph A. DiClerico, Jr.
United States District Judge