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Faiella v. Federal National Mortgage Association

United States District Court, D. New Hampshire

December 13, 2017

Ralph Faiella
Federal National Mortgage Association

          Benjamin M. Greene, Esq.

          Amy B. Hackett, Esq.

          David Himelfarb, Esq.

          William C. Sheridan, Esq.


          Joseph A. DiClerico, Jr. United States District Judge.

         Ralph Faiella brought a plea of title action in state court against Federal National Mortgage Association (“Fannie Mae”) and Green Tree Servicing LLC, now known as Ditech Financial LLC (“Ditech”), which was removed to this court. Following prior motion practice, Faiella's remaining claims are for negligent misrepresentation and deceit against Fannie Mae. Fannie Mae moves for summary judgment on both claims and moves to strike Faiella's requests for certain damages and attorney's fees. Faiella objects.

         Fannie Mae also moves to strike certain statements in the affidavit Faiella filed in support of his opposition to Fannie Mae's motion for summary judgment. Faiella did not file an objection to this motion.

         I. Motion to Strike

         In support of his objection to Fannie Mae's motion for summary judgment, Faiella attached his own affidavit. Doc. no. 87-2. In that affidavit, Faiella asserts numerous details concerning the servicing of his loan by Ditech, including his interactions with his account representative, Latosha C.[1] Fannie Mae moves to strike several of Faiella's statements, arguing that they are not admissible. Faiella objects.

         Whether an affidavit is admissible for summary judgment purposes is governed by Federal Rule of Civil Procedure 56. Under Rule 56, “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). “[P]ersonal knowledge is the touchstone” of the admissibility analysis. Perez v. Volvo Car Corp., 247 F.3d 303, 315-16 (1st Cir. 2001). In addition, an affidavit's statements “must concern facts as opposed to conclusions, assumptions, or surmise” to be admissible. Id. at 316. Finally, because Rule 56 “requires a scalpel not a butcher knife, ” a court must only strike the portions of an affidavit that are inadmissible, while crediting the remaining portions. HMC Assets, LLC v. Conley, No. CV 14-10321-MBB, 2016 WL 4443152, at *2 (D. Mass. Aug. 22, 2016) (quoting Perez, 247 F.3d at 315).

         Fannie Mae has identified several statements in Faiella's affidavit that it contends are inadmissible. Several of those statements concern Faiella's personal knowledge of his interactions with Ditech and its representatives and are, therefore, likely admissible under Rule 56. Nevertheless, other statements appear to be inadmissible.

         For example, Faiella makes statements about the internal workings of Ditech's servicing systems without explaining how that information is within his personal knowledge. Further, Faiella asserts that the repayment amount on his mortgage statement was incorrect, which is a conclusion that is unsupported by any facts in the record. In any case, the court need not parse the affidavit because, as discussed below, the challenged statements are not material to the court's resolution of Fannie Mae's summary judgment motion.

         II. Motion for Summary Judgment

         Fannie Mae moves for summary judgment on Faiella's remaining negligence and deceit claims, arguing that they are barred by the economic loss doctrine and the Merrill doctrine. Alternatively, Fannie Mae moves to strike Faiella's claims for certain damages. Faiella objects, contending that his claims are not barred by either doctrine. In addition, Faiella argues that he is entitled to emotional distress damages based on the underlying conduct alleged in the case.

         On November 14, 2017, Fannie Mae notified the court of its intent to reply to Faiella's objection. In a procedural order, the court granted Fannie Mae leave to file a reply no later than November 27, 2017 and leave for Faiella to file a surreply no later than December 7, 2017. Doc. no. 91. As the record in this case demonstrates, the plaintiff's counsel repeatedly has missed deadlines and filed “emergency” motions for extensions of time. Because of that pattern and the resulting delay in the case, the court ordered that the deadlines for defendants' reply and for the plaintiff's surreply were “ABSOLUTE.” Doc. no. 91 at 1. The parties did not object to the absolute deadlines.

         Despite that order, the plaintiff's counsel filed his surreply on December 11, several days after the court's absolute deadline of December 7. Because plaintiff failed to meet the deadline as ordered, the court will not consider plaintiff's surreply. Therefore, the court will rule on the pending motion for summary judgment based on the record as of December 5, 2017.

         Legal Standard

         Summary judgment is appropriate where 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 dispute is ‘genuine' if the record permits a sensible factfinder to decide it in either party's favor.” Eldridge v. Gordon Bros. Grp., L.L.C., 863 F.3d 66, 77 (1st Cir. 2017). “And a fact is ‘material' if its existence or nonexistence ‘might affect the outcome of the suit under the governing law.'” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In conducting its review, the court draws “all reasonable inferences in favor of the nonmoving party while ignoring conclusory allegations, improbable inferences, and unsupported speculation.” Young v. Wells Fargo Bank, N.A., 828 F.3d 26, 31 (1st Cir. 2016) (internal quotation marks omitted). Where, as here, the party moving for summary judgment bears the burden of proof on an issue, it “cannot attain summary judgment unless the evidence [it] provides on that issue is conclusive.” Asociacion de Suscripcion Conjunta del Seguro de Responsabilidad Obligatorio v. Juarbe-Jimenez, 659 F.3d 42, 50 (1st Cir. 2011).

         Factual Background

         In July 2007, Faiella obtained a loan secured by a mortgage on a condominium property in Plaistow, New Hampshire. The note, which was originally payable to Bank of America, N.A., was subsequently assigned to Fannie Mae. In September 2013, Ditech began servicing the mortgage loan on behalf of Fannie Mae.

         A. Foreclosure

         Faiella fell behind on his mortgage payments in the middle of 2015. Faiella then received a letter from Ditech informing him that he should contact his “special point of contact, ” Latosha C., to obtain a correct reinstatement amount. At around the same time, Fannie Mae's counsel sent Faiella a foreclosure notice informing him that a foreclosure sale had been scheduled for October 16, 2015.

         Faiella called Latosha C. on September 9, 2015. Latosha C. informed Faiella that he could cure the default by sending Ditech a payment for $6, 167. Faiella sent a check for the reinstatement amount that Latosha C. had provided. On September 28, 2015, Faiella received a letter from the bank returning his check and informing him that the payment was for the incorrect amount. The ...

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