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Pickering v. Citizens Bank, N.A.

United States District Court, D. New Hampshire

July 31, 2019

Clinton W. Pickering
v.
Citizens Bank, N.A.

          ORDER

          JOSEPH A. DICLERICO, JR. UNITED STATES DISTRICT JUDGE.

         Opinion 2019 DNH 119 ORDER Clinton W. Pickering brought suit in state court after Citizens Bank, N.A. foreclosed on his home and conducted a foreclosure sale of the property. Citizens Bank removed the case to this court and has moved for summary judgment. Pickering filed an objection, and Citizens Bank filed a reply.

         Standard of Review

         Summary judgment is appropriate when “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); see also Thomas v. Harrington, 909 F.3d 483, 490 (1st Cir. 2019). For purposes of summary judgment, the court considers the facts in the light most favorable to the plaintiff and draws all reasonable inferences in his favor. Roy v. Correct Care Solutions, LLC, 914 F.3d 52, 57 (1st Cir. 2019). “An issue is genuine if it can be resolved in favor of either party, and a fact is material if it has the potential of affecting the outcome of the case.” Leite v. Gergeron, 911 F.3d 47, 52 (1st Cir. 2018) (internal quotation marks omitted). “A genuine issue of material fact only exists if a reasonable factfinder, examining the evidence and drawing all reasonable inferences helpful to the party resisting summary judgment, could resolve the dispute in that party's favor.” Town of Westport v. Monsanto Co., 877 F.3d 58, 64-65 (1st Cir. 2017) (internal quotation marks omitted); Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir. 2015).

         In this district, a motion for summary judgment must be accompanied by 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). The opposing party must also provide statement of material facts supported by record citations. LR 56.1(b). “All 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.

         Pickering did not provide a statement of material facts.[1]Therefore, to the extent the facts provided by Citizens Bank are properly supported, they are deemed to be admitted by Pickering.

         Background

         Pickering borrowed $200, 000 from Citizens Bank on July 29, 2006, and the loan was secured by a mortgage on property located at 515 Old Bartlett Road, Conway, New Hampshire. Citizens Bank has filed copies of the note and mortgage. In July of 2016, Pickering failed to make his monthly mortgage payment.[2]

         Citizens Bank submitted documents to show Pickering's payment history through 2017. Although the recitation of payments from the initiation of the loan through December of 2013 are clear, the printouts of transactions thereafter are not. In any case, counsel for Citizens Bank sent Pickering a letter dated February 1, 2017, that stated he was in default on the note and that he could cure the default by paying the amount due for the period from July of 2016 through January of 2017, late charges, other fees, and “MTGR Rec Corp Adv.”[3]

         Instead of curing the default as explained in the notice, Pickering sent checks for the usual mortgage payment amounts in March, April, May, July, August, September, October, and November of 2017. Those checks were returned to him each month with a letter that explained the check was being returned due to the delinquent status of his loan, a telephone No. to call to discuss payment arrangements, and the total amount due that had to be paid to make the loan current.

         Pickering's daughter, Wendy McCollum, provided an affidavit in which she explained that the mortgaged property had been purchased by her great grandfather and left to her father and his siblings. McCollum states that Pickering used the loan to buy his siblings' shares of the property. Neither she nor her brother were able to keep in close communication with their father.

         McCollum states that Pickering had a stroke in 2017 that caused her to fly to New Hampshire from California. She contacted Citizens Bank and was notified of the mortgage balance and the accrued interest and that her father had to pay a certain amount before the loan would be reinstated. She states that Citizens Bank sent a modification packet to her father, but the foreclosure occurred before the deadline for him to submit the paperwork.

         Pickering received packages from Citizens Bank with letters dated October 27, 2017, and November 1, 2017. In those letters, Citizens Bank explained that it required Pickering to send documentation in order to be considered for relief. The letters set November 26 and then December 1, 2017, as the deadlines for Pickering to send the required documentation. McCollum said that she and her husband could have helped her father make the necessary payments.

         Citizens Bank shows that Pickering received the notice of foreclosure on September 25, 2017, and that he signed for the certified delivery. A foreclosure sale was held by auction on November 14, 2017. Citizens Bank conveyed the property to itself on November 30, 2017, by foreclosure deed and recorded the deed. The deed was recorded with the Carroll County Register of Deeds on December 13, 2017. Paul Wheeler, a real estate broker in the area, left Pickering an undated note with his telephone number, stating that the bank had foreclosed and providing options for Pickering to leave the property.

         Pickering brought suit in state court in January of 2018. Citizens Bank removed the case to this court in March of 2018. Pickering brings the following claims: I. Violation of the Dodd-Frank Act 120-Day Rule; II. Wrongful Foreclosure; III. Breach of Contract; IV. Negligence; V. Fraud; and VI. Unjust Enrichment.

         Discussion

         Citizens Bank moves for summary judgment on all six claims in Pickering's complaint. In support, Citizens Bank contends that no violation of Regulation X of the Dodd-Frank Act occurred, that RSA 479:25, II(c) bars the wrongful foreclosure claim, and that Pickering lacks evidence to prove the claims alleged in Counts II through VI. In response, Pickering argues that his poor health, the loss mitigation packages, and other circumstances preclude summary judgment on some of his claims.

         A. ...


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