UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Howard R. Fogle, Jr. and

Sharon Fogle

v. Civil No. 08-cv-388-JD

Opinion No. 2011 DNH 006

Wilmington Finance, et al.

O R D E R

Howard and Sharon Fogle brought suit against several banks

and financial institutions, alleging violations of federal and

state law in the course of providing, collecting, and foreclosing

on a home mortgage. The Fogles assert that Countrywide Home

Loans, Inc. violated the Fair Debt Collection Practices Act

("FDCPA") and the New Hampshire Unfair, Deceptive, or

Unreasonable Collection Practices Act by the manner in which it

attempted to collect payment on the Fogles’ mortgage. 

Countrywide moves to dismiss the Fogles’ claims against it. The

Fogles object.

Standard of Review

To avoid dismissal under Federal Rule of Civil Procedure

12(b)(6), a plaintiff must allege "a plausible entitlement to

relief" meaning "a claim to relief that is plausible on its

Case 1:08-cv-00388-JD Document 46 Filed 01/11/11 Page 1 of 10
face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 

Plausibility does not mean probability but is more than a mere

possibility. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 

The pleading standard “demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation." Id. Therefore, "[a]

pleading that offers labels and conclusions or a formulaic

recitation of the elements of a cause of action will not do. Nor

does a complaint suffice if it tenders naked assertions devoid of

further factual enhancement.” Id. (internal quotation marks and

citations omitted).

Background

In their complaint, the Fogles alleged that they were the

victims of illegal lending practices and seek rescission of the

mortgage loan on their home. They further alleged that they

obtained a variable rate mortgage through Wilmington Finance and

Saratoga First Guarantee Funding in late November of 2005. They

contended that Countrywide, as the "servicer" for Wilmington,

began the foreclosure process by sending the Fogles an

acceleration letter. Since they filed their complaint,

foreclosure has been completed.

2

Case 1:08-cv-00388-JD Document 46 Filed 01/11/11 Page 2 of 10
Discussion

The Fogles bring claims against Countrywide under the FDCPA

and the Consumer Protection Act. Countrywide moves to dismiss on

the grounds that it was not acting as a debt collector for

purposes of the FDCPA, that the Fogles fail to state a claim

against Countrywide under the FDCPA, and that the Fogles fail to

state a claim under the New Hampshire Unfair, Deceptive, or

Unreasonable Collection Practices Act. The Fogles object,

asserting that other evidence, outside of the complaint, raises a

question as to whether Countrywide was a loan servicer, that

Countrywide should be considered a debt collector under the

FDCPA, and that allegations in other parts of the complaint

support its Consumer Protection Act claim against Countrywide. 

The Fogles also assert that they have alleged claims against

Countrywide that were not addressed in the motion.

A. FDCPA Claim

In Count V of their complaint, the Fogles allege that

Countrywide violated FDCPA. FDCPA provides a private cause of

action to persons harmed by prohibited actions which were

performed by debt collectors. Jerman v. Carlisle, McNellie,

Rini, Kramer & Ulrich LPA, 130 S. Ct. 1605, 1608-09 (2010). The

term “debt collector” is defined in FDCPA as “any person who

3

Case 1:08-cv-00388-JD Document 46 Filed 01/11/11 Page 3 of 10
‘regularly collects . . . debts owed or due or asserted to be

owed or due to another.’” Id. at 1608 (quoting 15 U.S.C. §

1692a(5),(6)). The definition of “debt collector” is subject to

certain restrictions, including that FDCPA “treats assignees as

debt collectors if the debt sought to be collected was in default

when acquired by the assignee, and as creditors if it was not.” 

Schlosser v. Fairbanks Capital Corp., 323 F.3d 534, 536 (7th Cir.

2003).

Countrywide contends that the Fogles did not state a claim

against them under FDCPA because they did not allege facts that

would show that Countrywide is a debt collector under FDCPA. In

particular, Countrywide points out that the Fogles allege that it

was the loan servicer on the Fogles’ mortgage loan and make no

allegation that the loan was in default when Countrywide began

servicing the loan. The Fogles respond by arguing that based on

statements made in another defendant’s motion for summary

judgment, it is unclear whether Countrywide was a servicer of the

loan or whether the loan was sold outright to Countrywide.

For purposes of a motion to dismiss under Rule 12(b)(6), the

court considers the allegations in the plaintiffs’ complaint. 

Countrywide is correct that in their complaint the Fogles allege

that Countrywide was servicing the loan, not that Countrywide

acquired the loan outright, and do not allege that the loan was

4

Case 1:08-cv-00388-JD Document 46 Filed 01/11/11 Page 4 of 10
in default when Countrywide began its service. Therefore, under

the plain terms of FDCPA, the Fogles have not stated a claim

against Countrywide.

B. Unfair, Deceptive, or Unreasonable Collection Practices Act

Claim

The Fogles allege in Count VI of their complaint that

Countrywide violated the New Hampshire Unfair, Deceptive, or

Unreasonable Collection Practices Act, New Hampshire Revised

Statutes Annotated (“RSA”) § 358-C, by “threaten[ing] to take an

action prohibited by law, in sending Plaintiffs an acceleration

letter.” Complaint, ¶ 72. The Fogles also alleged that the

defendants, as a group, violated RSA 358-C by “misrepresenting

the quality, characteristics, benefits and rights of the services

involved in the transaction known as the Fogle Loan,” and that

“[t]he violations of FDCPA are incorporated here and realleged,

as several violations of RSA 358 C [sic].” Complaint, ¶¶ 71 &

73. Countrywide moves to dismiss the claim on the ground that

the Fogles failed to allege any actions by Countrywide that

violated RSA 358-C.

Under New Hampshire law, “[n]o debt collector shall collect

or attempt to collect a debt in an unfair, deceptive or

unreasonable manner as defined in [RSA 358-C].” RSA 358-C:2. 

5

Case 1:08-cv-00388-JD Document 46 Filed 01/11/11 Page 5 of 10
Certain acts are prohibited, which are listed in RSA 358-C:3. In

general terms, RSA 358-C prohibits certain oral or written

communications with a debtor, threats to use force or violence,

threats to take unlawful actions, communications and threats to

communicate to others that the debt exists, direct communications

with a represented debtor, communications through simulated

forms, material false representations about the debt or its

status in a legal proceeding, representations that the debt may

be or will be increased, collection or attempts to collect

certain charges, threats of arrest, and threats to assign or sell

an account with certain repercussions. 

The Fogles do not allege in their complaint which prohibited

acts under RSA 358-C:3 are the basis for their claim. In the

motion to dismiss, Countrywide interprets the claim to be based

on RSA 358-C:3, VII. The Fogles state in their objection to the

motion that the allegations in other parts of their complaint

support a claim under RSA 358-C:3, VII. Therefore, their

complaint is construed to allege a claim under RSA 358-C:3, VII.

RSA 358-C:3, VII provides that an effort to collect a debt “shall

be deemed unfair, deceptive or unreasonable if the debt

collector: . . . [m]akes any material false representation or

implication of the character, extent or amount of the debt, or of

its status in any legal proceeding.”

6

Case 1:08-cv-00388-JD Document 46 Filed 01/11/11 Page 6 of 10
The Fogles argue in their objection that their allegations

in other parts of the complaint, incorporated by reference, “have

painted a picture of fraud” against the defendants generally. 

They point to Count III in which they alleged that Wilmington

Finance and Saratoga First Guarantee Funding violated regulations

under the Truth in Lending Act; to Count IX in which they alleged

that all of the defendants had wrongfully begun foreclosure

proceedings against the Fogles; and to Count X in which they

alleged fraud against the defendants generally based on

allegations that the defendants misrepresented the annual

percentage rate for interest that would be applied to the Fogles

mortgage loan.

Count III pertains only to Wilmington Finance and Saratoga

and includes no allegations against Countrywide. Count X alleges

fraud when the mortgage transaction was initiated, before

Countrywide became the servicer of the loan, and therefore

includes no allegations against Countrywide. In Count IX, the

Fogles allege that “the Defendants’ proceeding to begin the

foreclosure process against Plaintiffs’ property is wrongful, and

the same should be enjoined, and if permitted to be conducted,

thereafter set aside.” Complaint, ¶ 87. The Fogles do not

allege that Countrywide made any false representations or implied

false representations about the character, the extent, or amount

7

Case 1:08-cv-00388-JD Document 46 Filed 01/11/11 Page 7 of 10
of the debt, or of its status. As such, a general allegation

that the foreclosure process was wrongful does not support the

Fogles’ claim in Count VI that Countrywide violated RSA 358-C.

Count VI is dismissed.

C. Other Claims Against Countrywide

In their objection, the Fogles argue that Countrywide’s

motion to dismiss failed to address its claims in Counts III, IX,

and X. Countrywide responds that the Fogles have not stated

claims against it in those counts. As is addressed above in Part

B, neither Count III nor Count X pertains to actions by

Countrywide. Therefore, to the extent the Fogles intended to

state claims against Countrywide in those counts, the claims are

dismissed.

Count IX is titled “Wrongful Foreclosure.” The first

paragraph states that the Fogles “repeat, reallege, and

incorporate by reference the foregoing paragraphs.” Complaint, ¶

86. The other paragraph in Count IX states: “For all the

foregoing reasons, the Defendants’ proceeding to begin the

foreclosure process against Plaintiffs’ property is wrongful, and

the same should be enjoined, and, if permitted to be conducted,

thereafter set aside.” Id., ¶ 87.

8

Case 1:08-cv-00388-JD Document 46 Filed 01/11/11 Page 8 of 10
The Fogles’ motion to enjoin the foreclosure was denied. 

Therefore, to the extent the Fogles were seeking an injunction to

bar foreclosure, that claim appears to be moot.

As to the claim of a wrongful foreclosure, as Countrywide

points out, the complaint includes no allegations as to what

Countrywide did that was wrongful. The only allegation

pertaining to the foreclosure is a statement at paragraph 20, in

the background section of the complaint, that Countrywide had

started the foreclosure process by sending the Fogles’ an

acceleration letter. There are no allegations as to why that

action was wrongful. 

To state a claim, a plaintiff must provide “‘a short and

plain statement of the claim showing that the pleader is entitled

to relief,’ in order to give the defendant fair notice of what

the . . . claim is and the grounds upon which it rests.’” 

Sepulveda-Villarini v. Dept. of Educ., P.R., --- F.3d ---. 2010

WL 509322), at *3 (1st Cir. Dec. 10, 2010) (quoting Twombly, 550

U.S. at 555). In Count IX, the Fogles failed to allege

sufficient facts to put Countrywide on notice of the basis for

the Fogles’ claim. Therefore, to the extent Count IX was

intended to be brought against Countrywide, it is dismissed.

9

Case 1:08-cv-00388-JD Document 46 Filed 01/11/11 Page 9 of 10
Conclusion

For the foregoing reasons, Countrywide’s motion to dismiss

(document no. 16) is granted. All claims against Countrywide are

dismissed. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

January 11, 2011

cc: Chad W. Higgins, Esquire

John A. Mangones, Esquire

Joy Harmon Sperling, Esquire

Todd W. Stevens, Esquire

Mark E. Swirbalus, Esquire

Michael a. Weiss, Esquire

10

Case 1:08-cv-00388-JD Document 46 Filed 01/11/11 Page 10 of 10