          United States Court of Appeals
                      For the First Circuit

No. 13-1222

                         LINDA M. RUIVO,

                      Plaintiff, Appellant,

                                v.

  WELLS FARGO BANK, N.A., a/k/a WACHOVIA MORTGAGE, DIVISION OF
        WELLS FARGO BANK, N.A., f/k/a WACHOVIA MORTGAGE,
               FSB, f/k/a WORLD SAVINGS BANK, FSB,

                       Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

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


                              Before

                     Howard, Stahl and Lipez
                         Circuit Judges.


     David H. Bownes, with whom Law Office of David H. Bownes, P.C.
was on brief, for appellant.
     David M. Bizar, with whom Kiran A. Seldon and Seyfarth Shaw
LLP were on brief, for appellee.



                        September 8, 2014
               LIPEZ, Circuit Judge.      Linda Ruivo appeals the district

court's dismissal of counts one and five of her First Amended

Complaint. Ruivo argues that count one, captioned "N.H.R.S.A. 397-

A:2(VI)," adequately pleaded a state common law claim of fraud, and

that count five sufficiently pleaded, consistent with its caption,

a promissory estoppel claim. Agreeing with the district court that

both claims were inadequately pleaded, we affirm the district

court's dismissal.

                                         I.

               In reviewing the grant of a motion to dismiss, we recount

the facts as alleged in the operative complaint.               Grajales v. P.R.

Ports Auth., 682 F.3d 40, 43 (1st Cir. 2012).                Here the pertinent

complaint is the First Amended Complaint.

               In July of 2007, Ruivo's property, consisting of a

primary residence and cottage in Moultonborough, New Hampshire, was

subject to a $500,000 mortgage.               In the fall of 2007, Ruivo had

begun to consider refinancing her mortgage.              To that end, during

the late winter and early spring of 2008, she discussed refinancing

with       Wachovia   Mortgage,   FSB,    a    predecessor    in   interest   to

defendant-appellee Wells Fargo Bank, N.A. (hereinafter "Wells

Fargo") and Scott Farah, a mortgage broker at Financial Resources

Mortgage, Inc.1        Based on those discussions, she believed that


       1
       In her complaint, Ruivo refers to both Scott Farah and his
firm, Financial Resources Mortgage, Inc., as "agents" of Wells
Fargo.

                                         -2-
refinancing her property on more favorable terms was possible, but

that she needed to make some improvements to her property to

increase its appraised value. Hence, before refinancing, she began

to make improvements on her property, drawing on various lines of

credit.   Ruivo then applied to Wachovia for a thirty-year fixed

interest rate mortgage with cash out.                  In June of 2008, Farah

informed her that she had been approved for a loan.

             At    the    July    11,    20082   closing   for   the   refinancing,

without prior notice, the terms of the refinancing were unfavorably

changed to an interest-only loan with an interest rate increasing

every six months.          Farah, who was present as the Mortgage Advisor

at the closing for the refinancing, advised Ruivo that there were

no other options but to sign.              Faced with the large debt from her

property improvements, Ruivo moved forward with the refinancing.

Farah nonetheless assured Ruivo that further refinancing at a later

date was "a realistic option."                   In subsequent discussions, he

"continued        to     assure    her    more     favorable     terms   would   be

forthcoming."          She represents that at that time she had no reason

to distrust Farah.

             In November of 2009, after the demise of Financial

Resources Mortgage, Inc., Ruivo realized she would be unable to



     2
       In her complaint, Ruivo also refers to the closing date as
June 11, 2008. We treat that reference as a typographical error as
her timeline is consistent with a July closing date, and she uses
the July date in her brief on appeal.

                                           -3-
refinance her mortgage through conventional sources.                           Finding it

difficult to maintain her mortgage payments, she explored the

possibility          of    a    loan   modification     pursuant      to   the    American

Recovery and Reinvestment Act of 2009.                        On the advice of Joseph

Lamour, a loan modification consultant affiliated with Wells Fargo,

she applied for three different loan modifications.                              Ruivo was

informed verbally in February of 2011 that a loan modification

pursuant to the Home Affordable Modification Program ("HAMP") had

been approved.3            However, shortly after this notice of approval,

Lamour informed Ruivo by telephone that the modification ultimately

had been denied because the mortgage had a negative net present

value       caused    by       the   extraction    of   too    much   equity     from   the

property.

                                             II.

               Ruivo subsequently brought suit against Wells Fargo,

alleging, inter alia, a violation of N.H. Rev. Stat. Ann. § 397-

A:2(VI) in count one of her complaint and a promissory estoppel

claim in count five.                 Wells Fargo moved to dismiss the complaint

under Federal Rule of Civil Procedure 12(b)(6).

               In response to the motion, the district court found that

Ruivo claimed in count one that Wells Fargo was liable under a New



        3
       HAMP is a "a federal initiative that incentivizes lenders
and loan servicers to offer loan modifications to eligible
homeowners." Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 228
(1st Cir. 2013).

                                             -4-
Hampshire   statute   that      authorized    the    New   Hampshire     Banking

Department to regulate mortgage bankers and mortgage brokers, but

did not expressly authorize enforcement actions by private parties.

See N.H. Rev. Stat. Ann. § 397-A:2(VI).               Citing New Hampshire

precedent, the court concluded that Ruivo was not entitled to

invoke   that    statute   unless    she     could   demonstrate       that    the

legislature     intended   to   authorize    a   private     party's    suit   by

implication.     The court then dismissed the claim, concluding that

Ruivo had failed to present a credible argument to support a

private right of action under the statute.                 In a footnote, the

court further stated, "I also reject Ruivo's eleventh-hour attempt

to convert her statutory claim into a common law fraud claim.                   A

litigant may not amend a complaint in an objection to a motion to

dismiss."   Ruivo v. Wells Fargo Bank, N.A., No. 11-cv-466-PB, 2012

WL 5845452, at *2 n.4 (D.N.H. Nov. 19, 2012).

            With respect to count five of Ruivo's complaint, the

district court explained that under the law of promissory estoppel,

"'a promise reasonably understood as intended to induce action is

enforceable by one who relies on it to his detriment or to the

benefit of the promisor.'"        Id. at *5 (quoting Panto v. Moore Bus.

Forms, Inc., 547 A.2d 260, 266 (N.H. 1988) (Souter, J.)).                      The

court then dismissed the claim, finding that Ruivo "fail[ed] to

plausibly allege a claim either that she relied on the promise to




                                     -5-
her detriment or that Wells Fargo benefitted in some way from

making the promise."        Id.

                                      III.

             We review de novo the grant of a motion to dismiss under

Rule 12(b)(6).     Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 7

(1st Cir. 2011). We examine whether the operative complaint states

a   claim    for   which    relief    can     be    granted,      construing       the

well-pleaded facts in the light most favorable to the plaintiff,

id., accepting their truth and drawing all reasonable inferences in

plaintiff's favor, Grajales, 682 F.3d at 44.

             In resolving a motion to dismiss, we "must separate the

complaint's factual allegations (which must be accepted as true)

from   its    conclusory     legal    allegations        (which    need     not     be

credited)." A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80

(1st Cir. 2013) (internal quotation marks omitted).                  We then

"determine     whether     the    remaining    factual      content       allows    a

reasonable     inference     that    the    defendant     is   liable      for     the

misconduct alleged."        Id. (internal quotation marks omitted).

             This is not to say, however, that legal allegations serve

no purpose and go unscrutinized.              Under Federal Rule of Civil

Procedure    8(a)(2),      the    plaintiff   has    a   "'responsibility          for

identifying the nature of her claim.'" Thomas v. Rhode Island, 542

F.3d 944, 949 (1st Cir. 2008) (quoting Calvi v. Knox Cnty., 470

F.3d 422, 430 (1st Cir. 2006)).             On appeal of a dismissal ruling


                                       -6-
that a legal claim was unpleaded, we review de novo whether "the

generality of the complaint's language did not afford defendants

[advance] notice with respect to the [nature of that particular

legal] claim."      Thomas, 542 F.3d at 949.

            A.   Fraud

            On appeal, Ruivo concedes that she cannot claim a private

right of action under N.H. Rev. Stat. Ann. § 397-A:2(VI). Instead,

she insists, as she did at oral argument before the district court,

that she has stated a claim for common law fraud.4           Wells Fargo

argues that there is no reference to any such fraud claim in the

complaint, and therefore Ruivo is not entitled to pursue it.

            The relevant allegations of the complaint fall under the

section with the heading:       "COUNT I N.H.R.S.A. 397-A:2(VI)."     The

allegations following that heading describe the actions of Wells

Fargo and its agents that Ruivo felt violated the statute.          Among

other things, Ruivo alleged that "[t]he defendants' agents . . .

employed a device[,] scheme and artifice to deceive and defraud the

plaintiff    into    entering   into   and   agreeing   to   the   Closing

documents," and further alleged that "it was not until November of


     4
       Ruivo also specifically disclaims construing her objection
to the motion to dismiss as an attempt to amend her complaint to
add a common law claim. Ruivo insists that the common law claim
was part of her complaint from the beginning. Thus, she does not
challenge as an error of law the district court's statement that
"[a] litigant may not amend a complaint in an objection to a motion
to dismiss," Ruivo, 2012 WL 5845452, at *2 n.4, and we need not
examine the procedural and discretionary limitations on amending a
complaint in response to a motion to dismiss.

                                    -7-
2009 . . . that the plaintiff first understood that [defendants'

agents] had been engaging in a pattern of fraud and deceit. . . ."

(Emphasis added).     Those two fleeting uses of the words "defraud"

and "fraud" simply borrow from the statutory language, which makes

it unlawful for any mortgagee "[t]o employ any device, scheme, or

artifice to defraud."      N.H. Rev. Stat. Ann. § 397-A:2(VI).              The

complaint contains no other references to fraud and sets forth no

separate count of common law fraud.

          Although     "'[a]     complaint     need   not     point   to    the

appropriate statute or law in order to raise a claim for relief

under Rule 8,'" Morales-Vallellanes v. Potter, 339 F.3d 9, 14 (1st

Cir. 2003) (quoting Tolle v. Carroll Touch, Inc., 977 F.2d 1129,

1134 (7th Cir. 1992)), its "substance and structure" must give the

defendants   notice   of   the   nature   of   the    claim   against      them,

Cortés-Rivera v. Department of Corrections & Rehabilitation, 626

F.3d 21, 28-29 (1st Cir. 2010). The court, and the defendants, are

entitled to rely on the plain language and the structure of the

complaint in determining what claims are present there. See id. at

28.   To be sure, a plaintiff need not divide her complaint into

specifically labeled subsections, one for each count.                 However,

when, as here, a plaintiff chooses to do just that, her claims are

confined by the "internal logic present in . . . the complaint."

Id.




                                    -8-
          In light of the explicit invocation of a statutory claim

in the relevant heading of the complaint, and her use of language

in the complaint essentially tracking the statute invoked, there is

nothing in the complaint that would provide Wells Fargo with

adequate notice of a potential common law fraud claim.              All

indications pointed to a statutory claim only.          See Thomas, 542

F.3d at 949 (affirming a dismissal because "[t]he vague references

in the complaint to acts of the defendants that 'are illegal' and

'without lawful authority' were insufficient to apprise defendants

that the appellants were asserting a more particular claim that

there was a lack of probable cause for the arrests"); see also

Cortés-Rivera, 626 F.3d at 28-29 (affirming the dismissal of a

claim that the plaintiff pleaded in the complaint in state law

terms and then attempted to reframe in federal law terms in the

face of a motion for summary judgment).     Here, as in those cases,

the plaintiff is not entitled to pursue "every legal theory that a

court may some day find lurking in the penumbra of the record."

Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1172 (1st Cir.

1995).   Accordingly, the district court properly dismissed any

state law fraud claim that Ruivo belatedly attempted to advance.

          B.   Promissory Estoppel

          In   contrast   to   her    alleged   fraud    claim,   Ruivo

specifically enumerated a promissory estoppel claim as "Count V" in

her complaint.    Under New Hampshire's doctrine of promissory


                                -9-
estoppel, "a promise reasonably understood as intended to induce

action is enforceable by one who relies upon it to his detriment or

to the benefit of the promisor."            Panto, 547 A.2d at 266 (citing

Restatement (Second) of Contracts § 90 (1981)); see also Rockwood

v. SKF USA Inc., 687 F.3d 1, 9 (1st Cir. 2012) ("The New Hampshire

Supreme Court has adopted the definition of promissory estoppel

from Section 90 of the Restatement (Second) of Contracts.").

             In New Hampshire, "the promissory estoppel doctrine does

not   simply    allow   the   enforcement      of   promises     'as   justice

requires.'"     Rockwood v. SKF USA Inc., 758 F. Supp. 2d 44, 56

(D.N.H. 2010). "There are other limitations on its reach," such as

protecting     only   "'reasonable    reliance'     on   the    part   of    the

promis[ee]" to her detriment.          Id.     at 56-57 (quoting Marbucco

Corp. v. City of Manchester, 632 A.2d 522, 524 (N.H. 1993).                 Thus,

in order to survive a motion to dismiss, a plaintiff must plead

facts that could plausibly support a finding that she reasonably

relied on a promise of the defendant to her detriment.

             Here, Ruivo bases her claim on the alleged promise of

Wells Fargo to "consider her mortgage modification request in good

faith and fair dealing."5     The complaint goes on to allege that she

"relied   on   the    defendants'    representation      by    submitting    her

application, request[ing] documentation and subsequent information


      5
       We note that her promissory estoppel claim is not based on
the events leading up to and including Ruivo's refinancing. Her
focus is on the subsequent attempts to modify her refinanced loan.

                                     -10-
relating to the appraisal"6 and, as to detriment, that she "risks

losing her home and suffered additional fees and charges on her

accounts and/or foreclosure/collection activity against her home."

                 The district court ruled that "she fails to plausibly

allege a claim either that she relied on the promise to her

detriment or that Wells Fargo benefitted in some way from making

the promise."         Ruivo, 2012 WL 5845452, at *5 (emphasis added).7               We

agree       with    the    deficiency     of    her   allegations     on   reasonable

detrimental reliance.           First, her complaint indicates that she was

having trouble making her mortgage payments due to "economic

difficulties."            Only then did she need a loan modification.             There

is nothing to indicate that she stopped paying her mortgage or

sought       a     loan    modification        because    she   was   promised     fair

consideration of her application.                 Indeed, apparently recognizing

this shortcoming, Ruivo belatedly attempts to allege, for the first

time on appeal, that "she stopped paying her mortgage" in reliance

on Wells Fargo's promise to fairly consider her loan modification

application.         The complaint, however, contains no such allegation.

                 Second, even if Ruivo adequately pleaded that she acted

in   reliance        on    Wells   Fargo's      promise    to   consider    her    loan


        6
       An appraisal was required to establish the value of Ruivo's
home for the purpose of any potential loan modification. Ruivo
commissioned a second appraisal when she was not happy with the one
commissioned by Wells Fargo.
        7
       Ruivo does not cite "benefit of the promisor" in pursuing
her promissory estoppel claim.

                                           -11-
modification application, she failed to adequately plead how that

reliance was to her detriment.    The alleged promise at issue was

only to "consider her mortgage modification request."     (Emphasis

added).     Hence, Wells Fargo could have considered and denied her

request without breaking its promise.    Such a result would leave

Ruivo in the same predicament she now faces.      The "risk[] [of]

losing her home" came from Ruivo's apparent inability to pay her

mortgage, not any actions taken in reliance on Wells Fargo's

promise.      As the district court aptly put it, "[i]t is not

sufficient to allege, as she has done, only that she has been

harmed by losing out on the benefit of a renegotiated loan."

Ruivo, 2012 WL 5845452, at *5.     Accordingly, the district court

correctly dismissed her promissory estoppel claim.8



Affirmed.




     8
       Because we conclude that Ruivo failed to adequately plead
reasonable detrimental reliance, we need not reach the more
complicated question of whether a claim for promissory estoppel can
ever be based on a mortgagee's alleged promise to consider a
mortgagor for a loan modification under HAMP.

                                 -12-
