United States District Court, District of New Hampshire
Ruth A. Hall, Esq. Terrie L. Harman, Esq. Christopher J. Fischer, Esq. William Philpot, Jr., Esq. John S. McNicholas, Esq.
MEMORANDUM AND ORDER
Paul Barbadoro United States District Judge
Jeffrey Bradley lost his home to foreclosure. He challenges the legality of the foreclosure proceedings and his subsequent eviction. I previously dismissed his claims against the original mortgage lender, the initial assignee of the note and mortgage, and one of the entities involved in servicing his loan. The remaining two defendants, Wells Fargo as Trustee for a Pooling and Service Agreement (“PSA Trustee”), the foreclosing mortgagee, and Ocwen Loan Servicing, LLC, the loan servicer at the time of foreclosure, now move for partial summary judgment against Bradley. PSA Trustee also seeks summary judgment on its counterclaim for a deficiency judgment.
A. The Mortgage Loan
On November 5, 2004, Bradley obtained a loan of $143, 500 from Ameriquest Mortgage Company secured by a mortgage on his home in Epping, New Hampshire. The note and mortgage provide that a failure to make monthly payments on the loan constitutes a default. The mortgage includes an acceleration clause and the right to invoke the statutory power of sale in the event of default, with the lender “entitled to collect all expenses” incurred in the sale, including fees for services performed in connection with the default. The note states that any notice given to Bradley concerning the loan “will be given by delivering it or by mailing it by first class mail to [Bradley] at the [property secured by the loan] or at a different address if [Bradley] give[s] the Note Holder a notice of [his] different address.” This provision applies unless a different form of notice is required under applicable law. Doc. Nos. 77-3, 77-4.
On November 12, 2004, Ameriquest assigned “all beneficial interest” in the mortgage via a so-called “assignment in blank, ” with “[t]he critical lines that should contain the name and address of the assignee . . . blank, but the notarization . . . already completed.” Doc. Nos. 78-1, 80-1. The document was notarized in Ameriquest’s home state of California. At an unknown later point, the assignment in blank was filled in with Wells Fargo Bank, N.A. as Trustee (“Wells Fargo Trust”) as the assignee. Wells Fargo Trust subsequently recorded the assignment in Rockingham County, New Hampshire on April 6, 2006. On December 23, 2010, Wells Fargo Trust assigned the mortgage to PSA Trustee. This second assignment was recorded on February 16, 2011. Doc. No. 77-6. The “signatures” on this document are in the form of initials, not full names.
C. Performance, Foreclosure, and Post-foreclosure Proceedings
Bradley stopped making payments on his loan in the fall of 2005 because “the defendants refused to accept” his payments. Doc. Nos. 79, 80-2. On October 16, 2006, Bradley attempted to refinance his loan, granting a release to his loan servicers and the note and mortgage holder to provide any information about his account to Complete Mortgage Company. Bradley’s plans to refinance were thwarted when HomEq, the company servicing his loan, “either would not or could not give [Complete Mortgage] the pay-off amount.” Doc. No. 79.
In 2011, PSA Trustee accelerated Bradley’s loan obligations and exercised its statutory power of sale. Doc. No. 77-2. A foreclosure sale was initially scheduled for March 9, 2011, then twice postponed, first to April 6 and then to April 27. On February 8, 2011, the bank sent Bradley a letter via certified mail to his home address notifying him of the initial foreclosure date. Doc. Nos. 77-2, 83-5. The letter included a copy of the Notice of Sale and offered Bradley several methods to request reinstatement or payoff of the loan. Postponement letters were also sent to Bradley at the same address on March 8 and April 5, 2011. Doc. Nos. 77-2, 83-6. Bradley never actually received any of these letters and claims that he had no prior notice of the sale.
At the foreclosure sale, which occurred on April 27, 2011, PSA Trustee – the foreclosing party - purchased Bradley’s home for $175, 000. Doc. No. 83-7. The foreclosure deed is dated May 18, 2011, but it was not recorded until July 20, 2011. On May 1 and May 14, PSA Trustee and Ocwen, through hired agents, entered the property, locked Bradley out of his home by placing a padlock on his door, and destroyed his possessions, including many irreplaceable items of sentimental value. On October 14, 2011, Ocwen, acting on behalf of PSA Trustee, sold the property to an unrelated third party for $95, 099.00. In 2006, Bradley’s property was determined to have an appraised value of $285, 000. Doc. No. 79.
II. STANDARD OF REVIEW
Summary judgment is appropriate when the record reveals “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). An issue is considered genuine if the evidence allows a reasonable jury to resolve the point in favor of the nonmoving party, and a fact is considered material if it “is one ‘that might affect the outcome of the suit under the governing law.’” United States v. One Parcel of Real Prop. with Bldgs., 960 F.2d 200, 204 (1st Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a ...