United States District Court, D. New Hampshire
Henry L. Farrin, Jr.
Nationstar Mortgage LLC Opinion No. 2016 DNH 178
C. Borison, Esq.
Kyle Deak, Esq.
A. Holland, Esq.
C. Lynch, Esq.
J. Pappas, Esq.
B. Phillips, Esq.
Kenneth Stout, Esq.
McCafferty United States District Judge.
Farrin brings suit alleging that Nationstar Mortgage LLC
(“Nationstar”) violated New Hampshire's
Unfair, Deceptive, or Unreasonable Collection Practices Act
(RSA 358-C); the Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681b; and the Fair
Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692e. Farrin alleges that, while serving in
Afghanistan, Nationstar sent him several letters and left him
numerous voicemails in an effort to collect on his mortgage
debt, which had been discharged in bankruptcy. Farrin also
alleges that the efforts to collect his discharged mortgage
debt continued even after he returned from Afghanistan, and
that Nationstar unlawfully accessed his credit report.
Nationstar moves for summary judgment on all claims. Farrin
objects to the motion on the grounds that material factual
disputes preclude summary judgment.
court shall grant summary judgment if 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 dispute is one that a
reasonable fact-finder could resolve in favor of either party
and a material fact is one that could affect the outcome of
the case.” Flood v. Bank of Am. Corp., 780
F.3d 1, 7 (1st Cir. 2015). The court credits the evidence
that supports the non-moving party and draws all reasonable
inferences in his favor. Burns v. Johnson, 829 F.3d
1, 8 (1st Cir. 2016). Therefore, in reviewing a motion for
summary judgment, the court's function is not
“‘to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine
issue for trial.'” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
October 16, 2007, Henry Farrin obtained a loan of $229, 900
and signed a note with Taylor, Ben & Whitaker Mortgage
Co. as lender that was secured by a mortgage on his property
in Epsom, New Hampshire. A second lien was recorded on the
property in 2008 by Robert and Jerelyn Hill for $143, 582.
2010, Farrin had experienced personal and financial
difficulties and was unable to make the mortgage payments. He
unsuccessfully sought a modification of the loan from Ocwen
Loan Servicing, LLC. He then vacated the property in March
2010 and surrendered the property to Ocwen in October 2010.
Ocwen changed the locks on the house and put a notice in the
window.Ocwen did not foreclose on the mortgage.
February 7, 2012, Farrin filed for bankruptcy under Chapter
7. He received a discharge on June 6, 2012. In December 2012,
Ocwen asked Farrin to waive his rights under the
Servicemembers Civil Relief Act (“SCRA”) and to
consent to foreclosure. In response, Farrin offered Ocwen a
deed to the property in lieu of a foreclosure. Ocwen did not
accept a deed in lieu of a foreclosure because of the
Hills' lien on the property. Ocwen apparently made no
further efforts to resolve the foreclosure issue.
2007, Farrin has served as the supply sergeant for medevac
units in the New Hampshire National Guard. In April 2013,
Farrin was deployed to Afghanistan; he returned in January
16, 2013, while Farrin was in Afghanistan, Nationstar became
the servicer on Farrin's mortgage. Nationstar sent Farrin
a letter on May 31, 2013, to inform him of the change in
servicers. Thereafter and until June 2015, Nationstar sent
Farrin monthly statements of his mortgage account, which
included disclaimers that the statement was not intended as
an attempt to collect a discharged debt. Nationstar also sent
Farrin other correspondence about contact information at
Nationstar, insurance on the property, foreclosure options,
tax statements, and notices about the SCRA. Some of the
notices included disclaimers stating that the notice was an
attempt to collect a debt unless the debt had been discharged
in bankruptcy and then the notice was for informational
January 2014, when Farrin returned from Afghanistan, he found
“tons” of messages on his cell phone from
Nationstar that stated the call was an attempt to collect a
debt. Nationstar's records show that the calls were for
collection purposes. Nationstar made a total of ninety-nine
calls to Farrin's cell phone, called his office telephone
fifty times, and sent him thirty letters. He told
Nationstar to stop contacting him, but the communications
continued. Farrin believed that Nationstar was trying to
collect the outstanding balance on the loan from him, despite
the bankruptcy discharge.
31, 2014, Nationstar obtained Farrin's consumer credit
report. Nationstar characterizes its action as a “soft
pull” of credit information, which allows it to access
certain information, such as Farrin's current and former
address and whether he is in the military, but does not
become public or negatively impact Farrin's credit.
Nationstar asserts that it obtained Farrin's credit
report for “account review purposes.”
March 25, 2015, Farrin brought suit against Nationstar. He
alleges that Nationstar's actions, including the
telephone calls and written communications, violated RSA
358-C, the FDCPA, and FCRA.
moves for summary judgment on all claims. It asserts that
that neither the FDCPA nor RSA 358-C prohibits its
communications with Farrin and that a portion of Farrin's
FDCPA claim is time barred. Nationstar further contends that,
because it obtained Farrin's credit reports for a
permissible purpose, it did not violate FCRA. Farrin objects
on all grounds but does not address the statute of
submitted two declarations from O.E. “Gene” Mays,
II, one in support of its motion for summary judgment, see
doc. no. 20-2 (“first Mays declaration”)
and one in support of its reply. See doc. no. 24-2
(“second Mays declaration”). Farrin contends that
the court should disregard both declarations because they are
based on “information and belief” and not on
personal knowledge. He also argues that the court should
disregard the first Mays declaration for the additional
reason that it conflicts with Mays's deposition
court considers both declarations in ruling on
Nationstar's motion for summary judgment. Although both
declarations conclude with the statement that the declaration
is true to the best of Mays's “information and
belief, ” both specifically state that the information
in the declarations is based on Mays's personal
knowledge. Therefore, the declarations are acceptable. See
HMC Assets, LLC v. Conley, No. CV 14-10321-MBB, 2016
WL 4443152, at *2 (D. Mass. Aug. 22, 2016); Rios Colon v.
United States, 928 F.Supp.2d 388, 391 (D.P.R. 2012).
also argues that the first Mays declaration conflicts with
his deposition testimony and, therefore, should be
disregarded as a “sham.” Specifically, Farrin
notes that Mays testified at his deposition that Nationstar
pulled Farrin's credit report for “skip
tracing” purposes, but stated in his declaration that
Nationstar pulled the report for “account review
purposes.” Farrin has not explained why Mays's
statement in his declaration conflicts with his deposition
testimony, rather than “merely explains, or amplifies
upon” the testimony. Gillen v. Fallon Ambulance
Serv., 283 F.3d 11, 26 (1st Cir. 2002). Therefore, the
court considers both declarations.
first argues that some of its communications to Farrin, those
that occurred before March 25, 2014, cannot be considered for
purposes of the FDCPA claim because they are barred by the
one-year statute of limitations. See 15 U.S.C §
1692k(d). Farrin failed to respond to the limitations defense
except to say in his surreply that he “did not and does
not waive claims for FDCPA violations prior to March 25,
2014.” Doc. no. 26 at 2. Nationstar also challenges the
FDCPA claim on the merits.
Statute of Limitations
the FDCPA, suit must be filed “within one year from the
date on which the violation occurs.” § 1692k(d);
McCarthy v. WPB Partners, LLC, No. 16-cv-081-LM,
2016 WL 4014581, at *7 (D.N.H. July 26, 2016). An FDCPA claim
arising from collection letters may accrue on the date when
the letter was mailed or received. Simard ...