United States District Court, D. New Hampshire
Gary D. Bulpitt and Carolyn L. Bulpitt
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
DiClerico, Jr., United States District Judge
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.
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)).
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).
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
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.
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.
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.
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.
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.
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.
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 ...