United States District Court, D. New Hampshire
MCCAFFERTY UNITED STATES DISTRICT JUDGE
case that was removed from the New Hampshire Superior Court,
Rockingham County, Samuel and Lisa Hynes bring suit against
New Penn Financial, LLC d/b/a Shellpoint Mortgage Servicing
(“Shellpoint”) and the Bank of New York Mellon
f/k/a The Bank of New York, as Trustee for the Certificate
Holders of CWABS, Inc. Asset Backed Certificate Series
2007-13 (“Bank of New York”), alleging claims
arising out of defendants' alleged misrepresentations in
connection with their mortgage agreement and a loan
modification agreement. Plaintiffs also allege that
defendants acted in bad faith and without due diligence in
connection with the foreclosure sale of plaintiffs' home,
which resulted in the home being sold at below fair market
value. Defendants move for summary judgment on all of
plaintiffs' claims. Plaintiffs object in part.
movant is entitled to summary judgment if it “shows
that there is no genuine dispute as to any material fact and
[that it] is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In reviewing the record, the court
construes all facts and reasonable inferences in the light
most favorable to the nonmovant. Kelley v. Corr. Med.
Servs., Inc., 707 F.3d 108, 115 (1st Cir. 2013).
2007, plaintiffs executed a promissory note in favor of
Countrywide Home Loans, Inc. (“Countrywide”) in
the amount of $115, 000 in connection with refinancing a
loan. That same day, plaintiffs granted a mortgage on their
home in Londonderry, New Hampshire (the
“property”) to Countrywide to secure the loan,
with Mortgage Electronic Registration Systems, Inc. as the
mortgagee in its capacity as nominee for Countrywide. The
mortgage was eventually assigned to Bank of New York, with
Shellpoint acting as the loan servicer. Plaintiffs defaulted
on their obligations under the mortgage and last made a
mortgage payment in March 2017. On November 6, 2017,
plaintiffs received a Notice of Foreclosure for the property,
which listed a sale date of December 27, 2017.
December 7, 2017, plaintiffs retained the services of a
“loss mitigation specialist” named Douglas
Mesquita to help apply for mortgage assistance. Mesquita
assisted plaintiffs in their efforts to obtain a loan
modification agreement, contacting Shellpoint several times
and submitting paperwork on plaintiffs' behalf.
before the date of the scheduled foreclosure sale, and after
submitting a completed application for a loan modification
agreement on plaintiffs' behalf to Shellpoint, Mesquita
spoke with a Shellpoint representative and requested that the
sale be postponed. The representative explained several times
that she had submitted a request for the foreclosure sale to
be postponed but could not guarantee that it would be
foreclosure sale took place as scheduled on December 27,
2017. There was “snow on the ground and a forecast high
well below freezing at 18 degrees.” Doc. no. 13 at
¶ 32. Bank of New York purchased the property for $127,
639. This action followed.
assert six claims: two counts of breach of the duty of good
faith and due diligence arising out of the foreclosure sale
(Counts I and II); breach of the covenant of good faith and
fair dealing in the mortgage agreement (Count III); negligent
misrepresentation (Count IV); promissory or equitable
estoppel (Count V); and “standing” (Count VI).
Defendants move for summary judgment on all of
III-VI arise out of plaintiffs' allegations in their
amended complaint that Shellpoint represented to Mesquita
that the foreclosure sale would not take place as scheduled.
In their summary judgment motion, defendants pointed to
evidence in the record, including plaintiffs' and
Mesquita's deposition testimony, as well as audio
recordings of a phone call between Mesquita and a Shellpoint
representative, which shows that Shellpoint never made such a
their objection, plaintiffs acknowledge this evidence and
agree that defendants are entitled to judgment on Counts
III-VI. Therefore, ...