United States District Court, District of New Hampshire
Juliet E. Pruden
CitiMortgage, Inc. Opinion No. 2014 DNH 115
Joseph A. Farside, Jr., Esq.
Donald E. Frechette, Esq.
Alexander G. Henlin, Esq.
Scott C. Owens, Esq.
Peter S. Wright, Jr., Esq.
Landya McCafferty, United States District Judge.
In a case that has been removed from the Grafton County Superior Court, and that arises from the manner in which CitiMortgage, Inc. (“CMI”) handled various matters related to the servicing of her mortgage, Juliet Pruden asserts claims for: breach of the implied covenant of good faith and fair dealing (Count I), violation of chapter 358-C of the New Hampshire Revised Statutes Annotated (“RSA”) (Count II), and negligent infliction of emotional distress (Count III). Before the court is CMI’s motion for summary judgment. Pruden objects. The court heard oral argument on May 9, 2014. For the reasons that follow, CMI’s motion for summary judgment is granted in part and denied in part.
“Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Ponte v. Steelcase Inc., 741 F.3d 310, 319 (1st Cir. 2014) (quoting Cortés–Rivera v. Dept. of Corr., 626 F.3d 21, 26 (1st Cir. 2010)); see also Fed.R.Civ.P. 56(a). When ruling on a motion for summary judgment, the court must “view the entire record ‘in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party’s favor.’” Winslow v. Aroostook Cty., 736 F.3d 23, 29 (1st Cir. 2013) (quoting Suarez v. Pueblo Int’l, Inc., 229 F.3d 49, 53 (1st Cir. 2000)).
“The object of summary judgment is to ‘pierce the boilerplate of the pleadings and assay the parties’ proof in order to determine whether trial is actually required.’” Dávila v. Corp. de P.R. para la Diffusión Púb., 498 F.3d 9, 12 (1st Cir. 2007) (quoting Acosta v. Ames Dep’t Stores, Inc., 386 F.3d 5, 7 (1st Cir. 2004)). “[T]he court’s task is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009) (citations and internal quotation marks omitted).
“The nonmovant may defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists.” Sánchez-Rodríguez v. AT&T Mobility P.R., Inc., 673 F.3d 1, 9 (1st Cir. 2012) (quoting Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006)). Thus, “[c]onclusory allegations, improbable inferences, and unsupported speculation, are insufficient to establish a genuine dispute of fact.” Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 146 (1st Cir. 2013) (quoting Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999)). “Rather, the party seeking to avoid summary judgment must be able to point to specific, competent evidence to support his [or her] claim.” Sánchez-Rodríguez, 673 F.3d at 9 (quoting Soto-Ocasio v. Fed. Ex. Corp., 150 F.3d 14, 18 (1st Cir. 1998)) (internal quotation marks omitted).
In accordance with LR 56.1(a), CMI has incorporated into its memorandum “a short and concise statement of material facts, supported by appropriate record citations, as to which [it] contends there is no genuine issue to be tried.” Pruden’s memorandum in opposition does not include, in its text, the statement of material facts required by LR 56.1(b). Rather, she has attached to her objection an affidavit in which she presents a brief narrative and then takes issue with or elaborates on 26 of the 39 paragraphs in CMI’s statements of undisputed facts.However, in her surreply, she backtracks a bit by conceding that the facts in twelve of the paragraphs she had challenged in her affidavit are actually undisputed. Then, while she indicates that she disputes the statements in fourteen paragraphs, she substantively addresses only six of them. In the face of this unorthodox approach to LR 56.1(b), the court will do its best to outline the undisputed facts of this case.
In June of 2007, Pruden gave a promissory note (“first note”) to Cousins Home Lending, Inc. (“Cousins”) in exchange for a loan of $345, 824. Repayment of the first note was secured by a mortgage (first mortgage). Immediately after Pruden gave the first note, it was made payable to CMI, and servicing of the first mortgage was transferred to CMI. Also in June of 2007, Pruden received a second loan from Cousins, in the amount of $64, 800. She gave Cousins a second promissory note, repayment of which was secured by a second mortgage on the property that secured repayment of the first loan. The second note and mortgage were transferred from Cousins to CMI under the same terms as the first note and mortgage. Pruden used the proceeds from both loans to purchase the property that secured her repayment of those loans.
With regard to the first note, it appears to be undisputed that in October of 2008, in anticipation of impending financial difficulties, Pruden contacted CMI to see about modifying her first mortgage before she reached the point of default. It also appears to be undisputed that the CMI employee with whom Pruden spoke informed her that CMI would not consider a mortgage modification until she had missed three payments. Based upon that conversation, Pruden missed her next three payments. By doing so, she defaulted. After her default, Pruden entered into a forbearance agreement with CMI, signed a temporary repayment plan with a term of six months, and made all the payments required thereunder.
In late September of 2009, Pruden signed a document titled “Home Affordable Modification Trial Period Plan” (“TPP”) that had been proffered to her by CMI. The TPP agreement begins with the following statement:
If I am in compliance with this Trial Period Plan . . . and my representations in Section 1 continue to be true in all material respects, then the Lender will provide me with a Home Affordable Modification Agreement . . ., as set forth in Section 3, that would amend and supplement (1) the Mortgage on the Property and (2) the Note secured by the Mortgage.
Second Am. Compl., Ex. C (doc. no. 36-3), at 1. One of the representations in Section 1 states, in pertinent part: “I am providing or already have provided documentation for all income that I receive . . . .” Id. (emphasis in the original). Pruden made the payments required by her TPP for the full three-month term of that agreement, and continued to make those same payments for approximately five more months. Then, however, CMI began to rebuff Pruden’s attempts to pay anything other than the full payment required under the original note. In the face of CMI’s refusal to accept and/or credit anything other than a full pre-TPP payment, Pruden stopped making payments on her first mortgage in approximately June of 2010.
Pruden’s attempt to move from her TPP to a HAMP modification, starting upon the termination of her TPP in December of 2009, has resulted in multiple denials, but, as of yet, no HAMP modification. With regard to denials, the summary-judgment record includes:
a letter dated December 16, 2010, that denied Pruden’s application for a HAMP modification because it was incomplete, due to Pruden’s failure to provide requested documents, see Def.’s Mem. of Law, Ex. A, Pt. 6 (doc. no. 43-7), at 0144-47;
a letter dated August 23, 2011, that identified the income information CMI used in denying Pruden a HAMP modification, see Id. At 0150-51;
a letter dated December 23, 2011, signed by Judy Caruso, that denied Pruden’s request for reconsideration of a denial of an application for a HAMP modification, see Id. at 0153;
a letter dated July 24, 2012, that denied Pruden’s application for a HAMP modification, based upon underwriting that demonstrated that her post- modification debt-to-income ratio fell outside acceptable guidelines, which require that housing expenses be less than or equal to 42% of the borrower’s gross income, see Id. At 0154-57;
a letter dated July 25, 2012, signed by Ron Mitchell and providing approximately seven pages of supporting data and explanation, that denied Pruden’s request for hardship assistance and/or a HAMP modification, on grounds that CMI was “unable to create an affordable payment equal to 31% of [her] reported monthly gross income without changing the terms of [her] loan beyond the requirements of the program, ” Id. at 0158; see generally Id. at 0158-68;
a letter dated October 22, 2012, that denied Pruden’s application for a Citi Supplemental Modification, on grounds that “[t]he principal forbearance amount exceeds the limit available under this program, ” id., Pt. 7 (doc. no. 43-8), at 0175; see generally Id. at 0175-76;
a letter dated October 26, 2012, that denied Pruden’s application for a HAMP modification on grounds that CMI was “unable to create an affordable payment equal to 31% of [her] reported monthly gross income without changing the terms of [her] loan beyond the requirements of the program, ” Id. at 0177; see generally Id. at 0177-78; and
a letter dated November 7, 2012, providing approximately six pages of supporting data and explanation, that denied Pruden’s request for hardship assistance and/or a HAMP modification, on grounds that CMI was “unable to create an affordable payment equal to 31% of [her] reported monthly gross income without changing the terms of [her] loan beyond the requirements of the program, ” Id. at 0181; see generally Id. at 0181-90;
a letter dated November 13, 2012, denying Pruden’s application for a Citi Supplemental Modification on grounds that “[t]he principal forbearance amount exceeds the limit available under this program, ” Id. at 191; see generally Id. at 0191-92.
In her surreply, which CMI has moved to strike, Pruden refers to two letters written by CMI in March of 2013. In the first letter, which was sent to Pruden, CMI indicated that it had approved her request for a repayment plan. In the second letter, which was drafted but never sent, CMI indicated that it had approved Pruden for a HAMP modification. While the admissibility of those two letters is the subject of CMI’s pending motion to strike, there is nothing in the rules of evidence to preclude the court from observing that those letters may suggest the possibility of a settlement.
Pruden’s second amended complaint includes more than 100 paragraphs describing her interactions with CMI, starting in October of 2008. Those interactions have involved more than 30 named employees and any number of other unnamed employees communicating back and forth with Pruden via telephone, FAX, regular mail, and e-mail. The complaint’s narrative both describes a process that was cumbersome, unpleasant, and extremely frustrating to Pruden, and also sheds an unflattering light on several different aspects of CMI’s basic competence. But, of course, summary judgment does not test the allegations in a plaintiff’s complaint; it assays the parties’ proof. See Dávila, 498 F.3d at 12. Accordingly, the court turns to the summary-judgment record to describe the relevant details of CMI’s handling of Pruden’s request for a HAMP modification.
Without specifying dates, Pruden has produced evidence that CMI repeatedly lost documents, failed to ask her to resend them, and then denied one or more of her applications for a mortgage modification because of missing paperwork. See Pl.’s Obj., Attach. 1, Pruden Aff. (doc. no. 47-1) ¶ 16. She has also testified, albeit in a somewhat conclusory and/or nonspecific way, that: (1) “CMI drew out the review process, creating an arrearage so great that she could neither cure it, nor combined with the lower property values due to the recession, obtain refinancing to cover the arrearage, ” Id. ¶ 30; see also Id. ¶ 36E; (2) at some unspecified time, both the HAMP Solutions Center and the New Hampshire Banking Commission examined the paperwork Pruden had submitted to CMI “and found inconsistencies in CMI’s calculations or other evidence of [its] mishandling of the review, ” Id. ¶ 35; see also Id. ¶¶ 16, 38 (more general testimony that CMI’s conduct compelled Pruden to call in third parties to assist her); (3) CMI denied her requests to review the information it used to determine her eligibility for a modification see Id. ¶ 36J; (4) CMI took more than 30 days to review her applications, despite assurances that the review process should take about 30 days to complete, see Id. ¶ 38; and (5) at some point, Caruso threatened to report Pruden to the IRS for sending CMI tax returns that were different from those she had filed with the IRS, see Id. ¶ 41.
In addition to the foregoing, Pruden’s affidavit includes more specific evidence that:
as of May of 2010, CMI had not concluded its review of her HAMP application and had stopped considering it, on grounds that it was missing documents, see Pl.’s Obj., Attach. 1, Pruden Aff. (doc. no. 47-1) ¶ 31;
between September of 2010, when her account was referred to CMI’s Executive Response Unit (“ERU”), and September of 2012, she did not receive the regular communications from CMI she had been promised, CMI frequently replaced the employee who was assigned to be her designated contact, and she was contacted by CMI departments other that the ERU, which had been designated as her sole point of contact with CMI; see Id. ¶ 40;
the documents CMI said it lacked when it issued its December 16, 2010, denial were actually in its possession at the time it said it did not have them, see Id. ¶ 36A, and the HAMP Solutions Center had to intervene to help correct CMI’s error, see id.;
Caruso’s December 23, 2011, denial of Pruden’s request for reconsideration was issued just 24 hours after Pruden had submitted additional paperwork, see Id. ¶ 36D;
in connection with December 23 denial, Caruso refused to speak with Pruden any further and directed her to contact the HAMP Solutions Center instead, see Id. ¶ 38;
Pruden did contact the Solutions Center, which intervened again on her behalf, see Id. ¶ 36D;
the July 24, 2012, denial was based on an erroneous calculation of her income, see Id. ¶ 36E;
CMI’s Ron Mitchell would not return her phone calls and e-mails concerning the income calculation on which the July 24 denial was based, see Id. ¶ 36F;
CMI issued the October 22, denial before it received additional documentation from Pruden that it knew to be on the way, see Id. ¶ 36G;
CMI issued the October 26 denial before it received certain necessary documents such as bank statements and profit-and-loss ...