Bulpitt v. Carrington Mortgage Services, LLC

          Steven J. Dutton, Esq.

          Henry Klementowicz, Esq.

          William C. Sheridan, Esq.

          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 have moved for summary judgment on the remaining claims in the case. The plaintiffs object.

         Standard of Review

         In the order issued on September 6, 2017, the court granted the defendants leave to file a dispositive motion, either a motion to dismiss or a motion for summary judgment, on the plaintiffs' remaining claims.^[1] In response, the defendants filed a motion for summary judgment, document no. 41, pursuant to Federal Rule of Civil Procedure 56. In the defendants' attached memorandum in support of the motion, however, they represent that the motion was intended both to seek dismissal under Rule 12(b)(6) and summary judgment under Rule 56, without explaining why they were proceeding under both rules.^[2] To avoid unnecessary confusion, the court treats the motion as one seeking summary judgment under Rule 56.

         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).

         The purpose of summary judgment is to determine whether a trial is necessary. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “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)). If the moving party provides evidence to show that the nonmoving party cannot prove a claim, the burden shifts to the nonmoving party to show that there is at least a genuine and material factual dispute that precludes summary judgment. Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st Cir. 2013).

         In this district, “[a] memorandum in support of a summary judgment motion shall incorporate a short and concise statement of material facts, supported by appropriate record citations, as to which the moving party contends there is no genuine issue to be tried.” LR 56.1(a). “A memorandum in opposition to a summary judgment motion shall incorporate a short and concise statement of material facts, supported by appropriate record citations, as to which the adverse party contends a genuine dispute exists so as to require a trial.” LR 56.1(b). Importantly, “[a]ll properly supported material facts set forth in the moving party's factual statement may be deemed admitted unless properly opposed by the adverse party.” Id.

         The Bulpitts, who are represented by counsel, failed to provide record citations in their statement of facts.^[3] The requirements of Rule 56.1 were explained in the court's order granting in part and denying in part the defendants' previous motion for summary judgment. See Doc. no. 22. Despite that explanation, the Bulpitts' counsel again failed to comply with the rules.

         Pursuant to Local Rule 56.1(b), the court is authorized to deem the defendants' properly supported facts to be admitted by the Bulpitts, as occurred for purposes of the previous motion for summary judgment. Because the Bulpitts submitted Gary Bulpitt's affidavit and several documents with their memorandum in opposition to the motion, however, the court will consider those exhibits in deciding the defendants' motion for summary judgment.

         Background In April of 2005, Gary Bulpitt obtained a loan from New Century Mortgage Corporation to buy property in Atkinson, New Hampshire. As security for the loan, both Gary and Carolyn Bulpitt signed a mortgage on the property to New Century. The Bulpitts did not make the mortgage payment that was due in July of 2011 and did not make any payments after that time.

         Deutsche Bank is the trustee for the New Century Home Equity Trust 2005-3, which holds the Bulpitts' mortgage, and Carrington is the mortgage servicer. Carrington sent the Bulpitts letters in 2013 that advised them of opportunities for loan assistance. The letters included Request for Mortgage Assistance (“RMA”) forms.

         Carrington received a RMA form from Gary Bulpitt on September 12, 2013, and sent him a letter acknowledging receipt of the form. A second letter was sent the same day that notified Gary Bulpitt that the RMA was incomplete and requested additional documents and information to be sent by October 12, 2013.^[4] Carrington represents that it received no response within that time from the Bulpitts.^[5]

         Gary Bulpitt states in his affidavit that he sent an email to Carrington with three documents attached on October 10, 2013. He did not provide a copy of the email or the documents he believes he sent. He represents that the documents were the first three documents listed in the prior notice and that the fourth document, presumably the HOA billing statements, did not apply.

         On October 14, 2013, the defendants sent a second notice that the RMA was incomplete, listing the same four categories of documents as in the September 12 notice. In that notice, the defendants set a deadline of October 29, 2013, to send the listed documents. Gary Bulpitt states in his affidavit that he sent an email to Carrington at 8:46 am on October 29 “with [a]vailable requested information” and “repeated statement re non-applicable status of other requested documents, ” but he did not provide a copy of that email. Carrington represents that it did not receive a response from the Bulpitts before the deadline.

         On October 30, 2013, the defendants notified Gary Bulpitt that his RMA had been denied because his request for modification was incomplete. That letter explained that Bulpitt could submit “an appeal for reconsideration by submitting written evidence that the denial was in error to CMS [Carrington] within 30 calendar days from the date of this letter.” In his affidavit, Gary Bulpitt represents that he sent an email to Carrington on November 29, 2013, with attachments of updated versions of the previously submitted documents in response to the October 30 notice.^[6] The copy of the November 29 email provided with the objection states: “Hi Shirley, I believe I have found my mistake. I have sent the Complete!!Homeowners policy as requested. and an updated P&I Gary.” There is no response in the record from Carrington.

         The defendants began foreclosure proceedings in November of 2015. The Bulpitts received notice of the foreclosure sale to be held on December 3, 2015, and filed a petition to enjoin the sale. On November 24, 2015, Gary Bulpitt sent Deutsche Bank a request for mortgage assistance, which was denied the next day. The foreclosure auction was held on December 3, 2015, and the property was sold to Deutsche Bank for $215, 360.00.

         The Bulpitts filed suit against Carrington and Deutsche Bank in state court in July of 2016. In the complaint, the plaintiffs alleged 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. Although the Bulpitts mentioned the Equal Credit Opportunity Act (“ECOA”) and Regulation B in the introduction to the complaint, they did not allege a claim based on Regulation B. The defendants moved for summary judgment.

         In response to the defendants' motion for summary judgment, the plaintiffs initially argued that New Hampshire law does not provide a statute of limitations for federal claims, a matter not raised by the defendants' motion for summary judgment. In their surreply, however, the Bulpitts acknowledged that they could not prove their claims in Count I or their claims against Deutsche Bank in Count II, leaving a claim under the FDCPA against Carrington in Count II and claims against both defendants in Count III.

         The court granted summary judgment in favor of the defendants on Counts I and II, and on Count III to the extent it was based on the request for mortgage assistance in November of 2015. Because the defendants did not address Gary Bulpitt's request for mortgage assistance in 2013 as a trigger for ...