United States District Court, D. New Hampshire
Benjamin M. Greene, Esq.
William C. Sheridan, Esq.
A. DiClerico, Jr. United States District Judge.
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
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.
Motion to Strike
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
Fannie Mae moves to strike several of Faiella's
statements, arguing that they are not admissible. Faiella
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).
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.
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 for Summary Judgment
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.
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.
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.
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).
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
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.
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 ...