Brian Goodman v. Wells Fargo Bank, N.A.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0424, Brian Goodman v. Wells Fargo
Bank, N.A., the court on June 10, 2016, issued the following
order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The plaintiff, Brian Goodman (owner), appeals an order of the Superior
Court (Smukler, J.) dismissing for failure to state a claim his amended petition
against the defendant, Wells Fargo Bank, N.A. (bank), seeking to enjoin the
bank’s foreclosure on his property.

We construe the owner’s brief to argue that the trial court erred in
dismissing his petition because: (1) as part of its motion to dismiss, the bank
did not produce evidence that it had paid the prior mortgage, which the loan at
issue was intended to refinance; (2) his allegation that the bank had not paid
the prior mortgage created a question of material fact; (3) the bank’s alleged
failure to pay the prior mortgage constituted fraud; (4) a letter from the bank,
which it subsequently contradicted by affidavit, stating that the bank did not
hold or service his loan created a question of fact as to whether the bank
owned his note; (5) the evidence did not support the trial court’s conclusion
that the bank presented the original note; (6) there was a factual dispute
whether the bank held the original note and mortgage; (7) if the note was
transferred to a mortgage-backed security, then the bank could not claim that
it had always been in the bank’s possession and it was unclear whom he
should pay; (8) the court should have compared the written settlement
agreement reached in March 2011 with the written partial modification of the
note and mortgage executed by him in July 2009, although he did not mention
the modification in the petition; (9) the bank should be “held accountable” for
not submitting the 2009 modification to the trial court until 2015; (10) the
bank breached the contract when it refused to accept his payments after he
was in default and it failed to provide him with account statements, although
he did not plead these allegations; (11) he did not receive “proper disclosure”
under the federal Truth in Lending Act and its repose provision should be
equitably tolled; (12) “Wells Fargo [ ] is not the same entity as World Savings or
as Wachovia” (bolding and upper case omitted), although he did not plead this
allegation; and (13) his March 2011 agreement with the bank’s predecessor’s
counsel was binding upon the bank.
 In reviewing the trial court’s grant of a motion to dismiss for failure to
state a claim, our standard of review is whether the allegations in the plaintiff’s
pleadings are reasonably susceptible of a construction that would permit
recovery. Kassotis v. Town of Fitzwilliam, 166 N.H. 648, 650 (2014). We
assume that the plaintiff’s factual allegations are true and construe all
reasonable inferences in the light most favorable to him. Id. We will not,
however, assume the truth or accuracy of any allegations which are not well-
pleaded, including conclusions of fact and principles of law. Snierson v.
Scruton, 145 N.H. 73, 76 (2000). The trial court may also consider documents
attached to the petitioner’s pleadings, documents the authenticity of which are
not disputed by the parties, and documents sufficiently referred to in the
petition. Bean v. Dana S. Beane & Co., 160 N.H. 708, 711 (2010). We then
engage in a threshold inquiry, testing the facts alleged in the pleading against
the applicable law, and, if the allegations do not constitute a basis for legal
relief, we will uphold the granting of the motion to dismiss. Kassotis, 166 N.H.
at 650.

To the extent that the owner asserts the existence of an oral agreement
in March 2011 between him and the bank’s predecessor’s counsel, we note that
the trial court denied the owner’s motion for reconsideration “for the reasons
set forth in the [bank’s] objection.” Those included that an oral agreement to
modify the mortgage would be invalid under the terms of the mortgage, which
provided that it could be “modified or amended only by an agreement in writing
signed by Borrower and Lender,” and that the owner had not pleaded facts
showing a waiver of this provision. Cf. Prime Financial Group v. Masters, 141
N.H. 33, 37 (1996) (stating, when party claims oral amendment to written
contract that prohibits oral amendment, finder of fact must first determine
parties intended to waive contract’s in-writing clause). We note that the owner
does not argue on appeal that such an oral agreement to modify the mortgage
would be enforceable.

As the appealing party, the owner has the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the trial court’s well-reasoned order, the owner’s challenges to it, the
relevant law, and the record submitted on appeal, we conclude that the owner
has not demonstrated reversible error. See id.

Affirmed.

Dalianis, C.J., and Hicks, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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