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Bulpitt v. Carrington Mortgage Services, LLC

United States District Court, D. New Hampshire

September 6, 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 2017 DNH 184

          ORDER

          Joseph DiClerico, Jr. United States District Judge

         Gary D. and Carolyn L. Bulpitt brought suit in state court 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 removed the case to this court and moved for summary judgment. The court granted the motion for summary judgment in favor of the defendants except for the plaintiffs' claim under Regulation X of the Real Estate Settlement Procedures Act (“RESPA”) in Count III.

         The plaintiffs filed a motion for reconsideration of that part of the summary judgment order which held that they had not alleged a claim under Regulation B of the Equal Credit Opportunity Act (“ECOA”) and held that equitable relief is not available under RESPA. In the alternative, the plaintiffs sought leave to amend the complaint. The plaintiffs then filed a separate motion to amend their complaint and a second motion for reconsideration that again asserts a claim under Regulation B, challenges the court's ruling on equitable relief, and argues that they properly alleged a claim under the Fair Debt Collection Practices Act (“FDCPA”).

         The defendants object to the plaintiffs' motions. The defendants also filed a motion for reconsideration of that part of the summary judgment order that did not dismiss the RESPA Regulation X claim to the extent the claim was based on a loan modification application made in 2013. The plaintiffs object to the defendants' motion.[1]

         I. Motions for Reconsideration

         Reconsideration of an order is “‘an extraordinary remedy which should be used sparingly.'” Palmer v. Champion Mtg., 465 F.3d 24, 30 (1st Cir. 2006) (quoting 11 Charles Alan Wright et al., 11 Federal Practice and Procedure § 2810.1 (2d ed. 1995)). For that reason, reconsideration is “appropriate only in a limited number of circumstances: if the moving party presents newly discovered evidence, if there has been an intervening change in the law, or if the movant can demonstrate that the original decision was based on a manifest error of law or was clearly unjust.” United States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009; see also LR 7.2(d).

         A motion for reconsideration cannot succeed when the moving party is attempting “to undo its own procedural failures” or “advanc[ing] arguments that could and should have been presented earlier.” Allen, 573 F.3d at 53. A motion for reconsideration also is not a means to reargue matters that were considered and rejected in the previous order. Biltcliffe v. CitiMortgage, Inc., 772 F.3d 925, 930 (1st Cir.2014) (internal quotation marks omitted).

         A. Plaintiffs' Motions for Reconsideration

         The plaintiffs' motions are considered together to address the issues the plaintiffs' raise in both motions. Although the plaintiffs asked for a hearing on the second motion, they did not provide any reasons why a hearing would be of assistance to the court. LR 7.1(d). As a result, no hearing was held.

         1. Regulation B

         The plaintiffs contend that the court erred in concluding “that Reg B was not asserted in the Complaint.” That contention misstates the court's order. As the court noted in the summary judgment order, the plaintiffs cited Regulation B in the introduction section of their complaint but failed to allege any facts to support a claim under Regulation B or to allege a claim in any of the three counts in the complaint.[2] The defendants object to reconsideration, arguing that no claim under Regulation B was pleaded.

         Merely asserting a regulation in the introduction to the complaint does not allege a cause of action. See Fed.R.Civ.P. 8(a). Therefore, the plaintiffs provide no grounds to support reconsideration of that part of the summary judgment order.

         2. Equitable Relief

         The plaintiffs argue that because they could have pursued equitable remedies under their state law claims, which they agreed could not avoid summary judgment, they are entitled to equitable remedies under RESPA. They also assert that the Declaratory Judgment Act and the court's inherent authority empower the court to impose equitable remedies under RESPA. The plaintiffs are mistaken. As ...


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