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 2017 DNH 184
DiClerico, Jr. United States District Judge
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.
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”).
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.
Motions for 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).
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).
Plaintiffs' Motions for Reconsideration
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.
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. The defendants object to reconsideration,
arguing that no claim under Regulation B was pleaded.
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.
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 ...