United States Court of Appeals

For the First Circuit

No. 12-2284

HAROLD FRENCH,

Plaintiff, Appellant,

v.

THE BANK OF NEW YORK MELLON,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Torruella, Dyk* and Kayatta,

Circuit Judges.

Eugene F. Sullivan, III, for appellant. 

George R. Schneider, with whom Goodwin Procter LLP, Thomas J.

Pappas, Jennifer T. Beaudet, and Primmer Piper Eggleston & Cramer

PC, were on brief, for appellee.

August 30, 2013

*

Of the Federal Circuit, sitting by designation.
KAYATTA, Circuit Judge. Harold French borrowed money

from Countrywide Financial ("Countrywide") and secured the loan

with a mortgage on a parcel of land he owned. Having failed to

make payments on his loan, French seeks to enjoin foreclosure by

Countrywide's assignee, Bank of New York Mellon ("BONY"). French

argues that: (1) the description of his property in the mortgage he

signed does not satisfy New Hampshire's statute of frauds; and, (2)

Countrywide's unilateral addition of a more precise legal

description of the property to the copy of the mortgage filed with

the registry of deeds was an act of fraud that should bar

Countrywide's assignee, BONY, from foreclosing. In ruling on a

motion by BONY to dismiss for failure to state a claim upon which

relief could be granted, the district court rejected both of

French's arguments. We affirm.

I. Background

 Because this case comes to us on an appeal of a

dismissal under Rule 12(b)(6), we "take the complaint's well-pled

(i.e., non-conclusory, non-speculative) facts as true, drawing all

reasonable inferences in the pleader's favor." Schatz v.

Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012).

French signed a promissory note with Countrywide in 2005,

securing the loan with a mortgage on a parcel of land in Warner,

New Hampshire. The mortgage he signed described the property

simply as "74 Route 127, Warner, NH, 03278," its street address.

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The parties left blank a page called "Appendix A - Description of

the Property." After the closing and without French's knowledge,

Countrywide replaced the blank Appendix A with a version containing

a description of the property as follows: 

A certain tract of land situated in the Town of Warner,

County of Merrimack, State of New Hampshire, being shown

as Lot 87 of Plan #17458 recorded July 1, 2005 with the

Merrimack County Registry of Deeds.

Excepting therefrom a portion of Lot 87 to be annexed and

become part of Lot 86 containing 37,600 square feet more

or less as shown on said plan. 

Being the same premisses conveyed to me by deed of Carol

A. Redus dated January 12, 1999 recorded with the

Merrimack County Registry of Deeds in Book 2139, Page

654.

Importantly, French's complaint does not allege that the

more precise description in the substitute Appendix A fails to

describe precisely the property he agreed to mortgage. Indeed, his

complaint describes the land on which BONY is attempting to

foreclose under the mortgage containing the substitute Appendix A

as "Mr. French's land and residence located at 74 Route 127,

Warner, New Hampshire."1

1

 French's counsel claimed for the first time at oral argument

on appeal that the description of the property in substitute

Appendix A is not accurate because it omits an easement over the

mortgaged property of which French purportedly intended to retain

sole ownership. Of course, were that so, the omission would have

been apparent on the face of the mortgage actually signed by

French. In any event, such a belated allegation by counsel is

thrice waived here. Trans-Spec Truck Serv., Inc. v. Caterpillar

Inc., 524 F.3d 315, 321 (1st Cir. 2008) ("Under Rule 12(b)(6), the

district court may properly consider only facts and documents that

are part of or incorporated into the complaint...."); Welch v.

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Countrywide recorded the mortgage containing the

substitute Appendix A with the Merrimack County Register of Deeds. 

The recorded mortgage, including the substitute Appendix A, was

subsequently assigned to the Bank of New York Mellon which also

holds the note on French's property. When French was unable to

make payments on the mortgage, BONY began judicial foreclosure

proceedings. French filed suit to enjoin the foreclosure. 

In Count I of his amended complaint, French alleged that

the original mortgage was invalid under New Hampshire's statute of

frauds, N.H. Rev. Stat. Ann. § 506:1, and that the recorded

mortgage was fraudulent and therefore invalid. Either defect, he

argued, entitled him to an injunction barring BONY from

foreclosing. Counts II and III are derivative of Count I, in that

they allege that a foreclosure relying on an invalid mortgage

violates, respectively, the federal Fair Debt Collection Practices

Act, 15 U.S.C. §§ 1692-1692p, and its state analog, N.H. Rev. Stat.

Ann. § 358-C:1-4. Finally, in Count IV, French challenges the

foreclosure based on an allegation that BONY lacked ownership and

possession of the note. BONY moved to dismiss the complaint and

the district court granted its motion, except as to Count IV. 

Ciampa, 542 F.3d 927, 941 n.4 (1st Cir. 2008) (court will not

consider facts not raised below where plaintiff could have brought

them to the district court's attention); Ortiz v. Gaston Cnty.

Dyeing Mach. Co., 277 F.3d 594, 598 (1st Cir. 2002) (failure to

raise an argument in briefing on appeal results in waiver).

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After discovery, the district court granted summary judgement in

BONY's favor on that remaining count. In pressing this appeal from

the final judgment against him, French challenged only the

dismissal of his claims concerning his mortgage.

II. Analysis

If French's allegations are true, Countrywide acted in a

sloppy and cavalier manner. Demonstrating that Countrywide was

either sloppy or cavalier in its record generation, however,

provides insufficient cause for French to prevail. To survive a

motion to dismiss he must show, on de novo review, that he

plausibly pled facts which, if true, state a claim that entitles

him to relief. Mass. Ret. Sys. v. CVS Caremark Corp., 716 F.3d

229, 237 (1st Cir. 2013). In arguing that he has stated such a

claim, French relies on two theories for why BONY's mortgage is

invalid: first, that the mortgage was insufficiently definite to

satisfy the New Hampshire statute of frauds; second, that the

insertion of the substitute Appendix A invalidated or voided the

mortgage held by BONY. We discuss each theory in turn.

A. The New Hampshire Statute of Frauds

The parties agree that mortgages are subject to New

Hampshire's statute of frauds. Under New Hampshire law, "[a]

memorandum is sufficiently definite to satisfy the statute of

frauds if it is 'reasonably certain from the contract itself and

the acts of the parties in performance of it what land was

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intended.'" Jesseman v. Aurelio, 106 N.H. 529, 532 (1965) (quoting

White v. Poole, 74 N.H. 71 (1906)). To enforce a contract for the

sale of land, "[r]easonable certainty" about what land the parties

intended to transact "is all that is demanded and that requirement

is fulfilled if the meaning of the contract, as a whole, is

intelligible to the court." Cunningham v. Singer, 111 N.H. 159,

160 (1971).

In Jesseman, the principal defendant agreed to sell to

the plaintiff a portion of the defendant's land "at the

intersection of Route 11 and 11B...." 106 N.H. at 530. The written

memorandum described the portion in rough and imprecise metes and

bounds (e.g. "approximately 300 feet from the Westerly point near

the beach to an open sand pit...") and was materially incorrect in

some of its estimated measurements. Id. After observing the

imprecision caused by the absence of "designations frequently used

in formal conveyances of real estate," the court found that,

because the writing was nevertheless sufficiently certain as to

what land the parties intended to transfer, parol evidence could

fill in the gaps and resolve the lack of detail and precision in

the original document. Id. at 532-33; see also Cunningham, 111

N.H. at 160.

Similarly, in Gilbert v. Tremblay, 111 A. 314, 315 (N.H.

1920), the Supreme Court of New Hampshire held that a description

of a property as "234 Union Ave & lot" was sufficiently definite to

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satisfy the statute of frauds where there was only one plot of land

corresponding to that address in the town the parties resided in. 

Here, any imprecision in the written description in the document

signed by French and Countrywide is similarly eliminated by

unambiguous and undisputed parol evidence: the substitute Appendix

A, the accuracy of which French does not challenge. In short, the

complaint alleges a written agreement that is, in context, likely

more certain than was the description in either Jesseman or

Gilbert.

The purpose of the New Hampshire's statute of frauds is

to "promote certainty and to protect from frauds and perjuries in

land transactions." Weale v. Mass. Gen. Hous. Corp., 117 N.H. 428,

431 (1977). New Hampshire courts recognize that "a strict

enforcement of the statute can produce frustration on the one hand,

and unethical conduct on the other" and "equitable considerations"

may militate against its application in a particular case. Id.

Because the parties agreed before the district court on precisely

what the written description of the property in the document they

signed means, certainty will be promoted by, and equitable

considerations support, enforcing the agreement that both parties

intended to enter into--a mortgage covering the land described

informally as "74 Route 127, Warner, New Hampshire" as detailed

more precisely and accurately in the substitute Appendix A. We

therefore agree with the district court that the written agreement,

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in light of the surrounding circumstances as alleged in the

complaint, was not so imprecise as to be unenforceable under the

New Hampshire statute of frauds.2

B. The Effect of the Insertion of Substitute Appendix A

French also advances several unconvincing theories under

which Countrywide's unilateral substitution of Appendix A for the

original blank version renders the mortgage held by BONY invalid or

void. French first suggests that Countrywide committed fraud by

making this substitution. In so arguing, French fails to explain

how altering a writing in a way that indisputably causes it to

better reflect the intentions of the parties constitutes fraud. In

New Hampshire, "[t]he essence of fraud is a fraudulent

misrepresentation." Jay Edwards, Inc. v. Baker, 130 N.H. 41, 46

(1987). Fraudulent misrepresentation, in turn, must be "made with

knowledge of its falsity...." Tessier v. Rockefeller, 162 N.H.

324, 332 (2011); Ed Peters Jewelry Co., Inc. v. C & J Jewelry Co.,

Inc., 215 F.3d 182, 191 (1st Cir. 2000) ("The hallmarks of fraud

2

 French suggests that holding that the mortgage satisfies the

statute of frauds will create a cloud on the titles of properties

adjoining his. Because this argument is raised for the first time

on appeal and is unsupported by relevant citation we treat it as

waived. Randall v. Laconia, N.H., 679 F.3d 1, 5 (1st Cir. 2012)

(treating argument as waived because of its "perfunctory treatment"

in appellant's brief and because it was raised for the first time

on appeal). Even if we did consider the argument, French fails to

explain how the use of an address in his mortgage creates a cloud

on other properties' titles where the recorded form of the mortgage

contains an accurate and precise description of the mortgaged

property.

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are misrepresentation or deceit."). Here, in contrast, the

description of the property in the substitute Appendix A was

correct.

French also suggests that allowing BONY to foreclose is

a form of equitable relief to which BONY is not entitled because it

has unclean hands due to its predecessor's unilateral substitution

of Appendix A. His theory that the district court provided

equitable relief relies on the district court's statement that

"even if the final page of the mortgage document is excised, the

description on the document's third page is sufficient to satisfy

the statute of frauds." This, French argues, means the district

court reformed the mortgage. But we read the district court as

using "excised" to mean "ignored," simply saying that even the bare

reference to the street address, and not the surrounding acts of

the parties, was sufficiently precise to avoid the statute of

frauds. Whether that is correct we need not decide. 

III. Conclusion

All three counts of French's complaint ultimately rest on

the two theories we have discussed and rejected. Accordingly, we

affirm the district court's ruling.

So ordered.

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