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Mudge v. Bank of America, N.A.

United States District Court, D. New Hampshire

August 27, 2014

John J. Mudge, Jr. and Lisa Mudge,
Bank of America, N.A. and TD Bank, N.A Opinion No. 2014 DNH 179


JOSEPH A. DiCLERICO, Jr., District Judge.

John and Lisa Mudge brought suit in state court against Bank of America, N.A. ("Bank of America") and TD Bank, N.A. ("TD Bank") alleging claims that arose from the defendants' conduct in handling the Mudges' mortgages and in attempting to foreclose on their home. TD Bank removed the case to this court.[1] The Mudges and Bank of America have each moved for summary judgment.

Standard of Review

Cross motions for summary judgment proceed under the same standard applicable to all motions for summary judgment, but the motions are addressed separately. Sun Capital Partners III, LP v. New England Teamsters & Trucking Indus. Pension Fund , 724 F.3d 129, 138 (1st Cir. 2013). When the party moving for summary judgment bears the burden of proof on an issue, that party "cannot prevail unless the evidence that he provides on that issue is conclusive." E.E.O.C. v. Union Indep. de la Autoridad de Acueductos y Alcantarillados de P.R. , 279 F.3d 49, 55 (1st Cir. 2002) (internal quotation marks omitted). In addition, Federal Rule of Civil Procedure 56 requires that a motion for summary judgment be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). Therefore, an absence of evidence weighs against the party with the burden of proof. Sanchez-Rodriguez v. AT&T Mobility R.P., Inc. , 673 F.3d 1, 14 (1st Cir. 2012).

Summary judgment is appropriate when "the movant shows that there is 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). "A genuine issue is one that can be resolved in favor of either party, and a material fact is one which has the potential of affecting the outcome of the case." Jakobiec v. Merrill Lynch Life Ins. Co. , 711 F.3d 217, 223 (1st Cir. 2013) (internal quotation marks omitted). In deciding a motion for summary judgment, the court draws all reasonable factual inferences in favor of the nonmovant. Kenney v. Floyd , 700 F.3d 604, 608 (1st Cir. 2012).


In 2003, John and Lisa Mudge entered into a loan which was secured by a mortgage on the Mudges' home at 57 Sterling Avenue in Hooksett, New Hampshire. Bank of America was at all relevant times the loan servicer of the mortgage.

In June of 2009, when the Mudges encountered difficulty making their monthly mortgage payments, they attempted to obtain from Bank of America a mortgage modification agreement. Bank of America informed the Mudges that they could not discuss a mortgage modification unless they were in arrears. The Mudges then stopped making their monthly mortgage payments.

The Mudges allege that over the next several years, Bank of America refused to cooperate with them in their efforts to obtain a modification. Specifically, the Mudges allege that Bank of America repeatedly lost documents they submitted regarding modification and refused mortgage payments because, Bank of America stated, they were only partial payments. Although Bank of America eventually offered them a trial modification, the Mudges allege that the terms of the modification were either not sufficiently conveyed to them or were identical to the terms of their original payment plan.

Bank of America referred the home to foreclosure in September of 2011. On November 28, 2011, the Merrimack County Superior Court granted the Mudges' petition to enjoin the foreclosure. Bank of America subsequently moved in the superior court to vacate the injunction. The superior court granted the motion on April 22, 2013, and the Mudges' motion to reconsider the order was denied on May 23, 2013. This action followed.

After the complaint in this action was filed, as demonstrated by the record evidence, the Mudges sold their home in October of 2013. The proceeds of the sale fully paid off the loan secured by the mortgage.[2]


The Mudges bring claims against Bank of America for breach of contract (Count I), negligent misrepresentation (Count II), and breach of the covenant of good faith and fair dealing (Count IV).[3] The Mudges and Bank of America move for summary judgment.

I. The Mudges' Motion for Summary Judgment

In support of their motion for summary judgment, the Mudges contend that Bank of America has not provided the location of the original note and that the photocopy of the note that has been provided "does not satisfy the criteria required by New Hampshire law in several critical ways." They argue that, therefore, "the foreclosure request and all subsequent collection claims should be void." The Mudges also argue that Bank of America's failure to provide the note and other documents, its initiation of foreclosure proceedings, and its failure to timely respond to inquiries establish that Bank of America breached the implied covenant of good faith and fair dealing. In addition, the Mudges contend that Bank of ...

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