United States District Court, D. New Hampshire
JOSEPH DICLERICO, JR.UNITED STATES DISTRICT JUDGE.
Patricia DiCarlo-Fagioli brought a petition in state court to enjoin the scheduled foreclosure sale of her home by JP Morgan Chase Bank (“Chase”). After the state court enjoined the foreclosure sale, Chase removed the case to this court. Chase now moves for summary judgment. DiCarlo-Fagioli did not file a response to the motion for summary judgment.
Standard of Review
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); Santangelo v. New York Life Ins. Co., 785 F.3d 65, 68 (1st Cir. 2015). “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).
Under the local rules of this district, the party moving for summary judgment must file a memorandum in support of the motion that includes a factual statement with appropriate record citations. LR 56.1(a). To oppose summary judgment, the nonmoving party also must file a memorandum that includes a factual statement with appropriate record citations. LR 56.1(b). When the nonmoving party fails to properly oppose the facts in the moving party’s factual statement, the nonmoving party is deemed to have admitted the properly supported facts in the moving party’s factual statement. LR 56.1(b); Fed.R.Civ.P. 56(e)(2).
Because DiCarlo-Fagioli did not file a response to Chase’s motion for summary judgment, she is deemed to have admitted the properly supported facts in Chase’s factual statement.
In 2003, DiCarlo-Fagioli obtained a loan and executed a mortgage on property in Salem, New Hampshire. Chase holds the note and the mortgage. DiCarlo-Fagioli applied for loan modifications in 2009 and 2010.
After those applications were denied, DiCarlo-Fagioli applied for loan modification through the “Making Homes Affordable” program. In November of 2010, Chase offered DiCarlo-Fagioli a three-month trial payment plan. When she completed the trial successfully, Chase sent DiCarlo-Fagioli a permanent loan modification agreement in March of 2011. DiCarlo-Fagioli signed the March agreement and returned it to Chase. Chase did not sign the March agreement, and the agreement was cancelled.
On June 14, 2011, Chase sent DiCarlo-Fagioli a letter to notify her that the March agreement had been cancelled. In December of 2011, Chase sent DiCarlo-Fagioli a new modification agreement with lower payments than the March agreement. Chase did not receive a signed copy of the December agreement from DiCarlo-Fagioli. As a result, Chase sent DiCarlo-Fagioli a letter in February of 2012 to notify her that the December 2011 agreement was denied because she had not returned a signed agreement. After two more failed attempts at loan modification, the Federal Home Loan Mortgage Company, which now holds the mortgage, began foreclosure proceedings on the property in July of 2013.
In her amended complaint, DiCarlo-Fagioli alleges claims of breach of contract and promissory estoppel, arising from Chase’s decision not to approve a loan modification agreement in 2011.Chase moves for summary judgment on the grounds that both claims are time barred and, alternatively, that DiCarlo-Fagioli cannot prove either claim. As noted above, DiCarlo-Fagioli did not file a response to the motion for summary judgment.
A. Statute of Limitations
DiCarlo-Fagioli’s claims of breach of contract and promissory estoppel are governed by New Hampshire’s statute of limitations, RSA 508:4, which applies to “all personal actions” except slander and libel. See, e.g., Sykes v. RBS Citizens, N.A., 2 F.Supp. 3d 128, 139-40 (D.N.H. 2015). Under RSA 508:4, DiCarlo-Fagioli was required to bring her claims “within 3 years of the act or omission complained of” unless the discovery rule would apply or another ground for tolling the ...