United States District Court, D. New Hampshire
Gary D. 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
J. Dutton, Esq.
William C. Sheridan, Esq.
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 have moved for
summary judgment on the remaining claims in the case. 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. 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. To avoid unnecessary confusion, the court
treats the motion as one seeking summary judgment under Rule
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).
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).
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.
Bulpitts, who are represented by counsel, failed to provide
record citations in their statement of facts. 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.
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.
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.
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.
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. Carrington represents that it received no
response within that time from the Bulpitts.
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
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.
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. 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.
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.
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.
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.
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