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Bulpitt v. Carrington Mortgage Services, LLC

United States District Court, D. New Hampshire

July 10, 2017

Gary D. Bulpitt and Carolyn L. Bulpitt
v.
Carrington Mortgage Services, LLC and Deutsche Bank National Trust Company, as Trustee for the New Century Home Equity Trust 2005-3 Opinion No. 2017 DNH 134

          ORDER

          Joseph DiClerico, Jr., United States District Judge

         Gary D. and Carolyn L. Bulpitt brought suit against Carrington Mortgage Services, LLC (“Carrington”) and Deutsche Bank National Trust Company, as Trustee for the New Century Home Equity Trust 2005-3 (“Deutsche Bank”) after the foreclosure sale of their home in Atkinson, New Hampshire. The defendants move for summary judgment on the grounds that the plaintiffs cannot prove any of their claims. The plaintiffs object to summary judgment.

         Standard of Review Summary judgment is appropriate when the moving party “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 facts and reasonable inferences are taken in the light most favorable to the nonmoving party. McGunigle v. City of Quincy, 835 F.3d 192, 202 (1st Cir. 2016). “On issues where the movant does not have the burden of proof at trial, the movant can succeed on summary judgment by showing ‘that there is an absence of evidence to support the nonmoving party's case.'” OneBeacon Am. Ins. Co. v. Commercial Union Assurance Co. of Canada, 684 F.3d 237, 241 (1st Cir. 2012) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

         Under the local rules in this district, memoranda in support of and in opposition to a motion for summary judgment must “incorporate a short and concise statement of material facts, supported by appropriate record citations” to show undisputed and disputed facts. LR 56.1. “All properly supported material facts set forth in the moving party's factual statement may be deemed admitted unless properly opposed by the adverse party.” LR 56.1(b).

         Carrington and Deutsche Bank included a properly supported statement of material facts in their memorandum in support of their motion for summary judgment. The plaintiffs, who are represented by counsel, filed the affidavit of Gary Bulpitt as a separate document the day before they filed their objection to summary judgment. The plaintiffs did not include any statement of material facts in support of their objection to summary judgment. As a result, the plaintiffs have not opposed the defendants' factual statement which is deemed to be admitted.

         Background

         Gary Bulpitt obtained a loan in the amount of $196, 875.00 from New Century Mortgage Company and signed a note for that amount in April of 2005. Gary and Carolyn Bulpitt signed a mortgage on their property in Atkinson, New Hampshire, as security for the loan. Gary Bulpitt states in his affidavit that the loan was accelerated in February of 2011. The mortgage was transferred to Deutsche Bank by an assignment dated March 16, 2011.

         Beginning in July of 2011, the plaintiffs failed to pay the monthly installments due on the loan and mortgage. Gary Bulpitt states in his affidavit that he began a twelve-month forebearance plan on December 1, 2012, which ended on November 1, 2013. Although Bulpitt also states that “the bank” made certain promises as part of the forebearance plan, he did not provide a copy of the plan to support his interpretation. Bulpitt states that he submitted applications for assistance under the Home Affordable Modification Program in 2013, which “the bank” rejected on October 30, 2013. Bulpitt contends that he appealed that decision within the time allowed but has not received a determination of his appeal.

         On November 5, 2015, Deutsche Bank provided notice to the plaintiffs that their mortgaged property would be sold at public auction on December 3, 2015. In response, on November 24, 2015, Gary Bulpitt sent Deutsche Bank a request for mortgage assistance. Deutsche Bank rejected the request the next day because the foreclosure sale was scheduled to be held within seven business days of when Deutsche Bank received the request. The plaintiffs did not file a petition to enjoin the foreclosure sale.

         Deutsche Bank advertised the foreclosure sale three times during November of 2015 in the New Hampshire Union Leader. The foreclosure sale was held on December 3, 2015, as scheduled. Deutsche Bank purchased the property for $215, 360.00.

         The plaintiffs brought suit in state court in July of 2016. In the complaint, the plaintiffs allege claims for equitable relief from the foreclosure sale, Count I; violation of the New Hampshire Unfair, Deceptive, or Unreasonable Collection Practices Act (“UDUCPA”) and the federal Fair Debt Collection Practices Act (“FDCPA”), Count II; and violation of Regulation X of the Real Estate Settlement Procedures Act (“RESPA”), Count III. The defendants removed the case to this court.

         Discussion

         The defendants move for summary judgment on all of the plaintiffs' claims. In support, the defendants assert that the plaintiffs are barred from challenging the foreclosure sale because they failed to seek an injunction, they cannot prove a lack of good faith or due diligence in conducting the foreclosure sale, they cannot prove a violation of either the UDUCPA or the FDCPA, and they cannot prove a violation of Regulation X of RESPA. In their objection, the plaintiffs argued at length that RSA 479:25, II does not provide a statute of limitations for claims under RESPA, but failed to address the other claims.

         In their surreply, the plaintiffs have conceded that they cannot prove their claims in Count I or their claims against Deutsche Bank in Count II. As a result, the defendants are entitled to summary judgment on all claims in Count I and on the claims against Deutsche Bank in Count II. The plaintiffs represent that their remaining claims are a violation of the FDCPA against Carrington, alleged in Count II, and ...


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