Bradley v. Wells Fargo Bank, N.A.
Filing
163
ORDER denying 106 Motion for Summary Judgment. So Ordered by Judge Paul J. Barbadoro.(jna)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jeffrey Bradley
v.
Case No. 12-cv-127-PB
Opinion No. 2015 DNH 163
Wells Fargo Bank, N.A., et al.
MEMORANDUM AND ORDER
Jeffrey Bradley sued Wells Fargo Bank and Ocwen Loan
Servicing1 to recover damages he suffered after he lost his home
to foreclosure.
Bradley alleges that the defendants, after
foreclosing on his home, installed a padlock on one of his
doors, removed personal property from the home, and threw it
into a dumpster that they had placed on the property.
He now
seeks damages for wrongful self-help eviction, conversion, and
intentional infliction of emotional distress under New Hampshire
law.
The defendants have moved for summary judgment.
For the
reasons that follow, I deny their motion and conclude that
I refer to Wells Fargo and Ocwen collectively as the
“defendants” in this Memorandum and Order. Bradley’s amended
complaint also names Legacy Landscape Company and Mark Murray as
defendants. Here, however, only Wells Fargo and Ocwen have
moved for summary judgment, and so I use the term “defendants”
to refer to these two firms.
1
Bradley is entitled to a jury trial.
I.
BACKGROUND
In November 2004, Bradley and his then wife, Teresa
Bradley, took out a $143,000 loan secured by a mortgage on their
home in Epping, New Hampshire.
The loan and mortgage were
assigned to Wells Fargo in its capacity as trustee of a
securitized mortgage trust.
In August 2010, Ocwen began
servicing the mortgage on Wells Fargo’s behalf.2
In February
2011, Wells Fargo foreclosed on Bradley’s home after Bradley
defaulted on the mortgage.
It then purchased the property at a
foreclosure sale that it held on April 27, 2011.
After Wells Fargo acquired the property, Ocwen engaged
Altisource Solutions, Inc. to provide post-foreclosure services
at the home, including inspection, maintenance, and cleaning.3
Neither side has fully explained the corporate relationship
between Wells Fargo and Ocwen, both of which Bradley names as
defendants in this action. Neither defendant, however, argues
at summary judgment that they are not liable for the other’s
conduct. Thus, I assume for purposes of summary judgment that
Wells Fargo and Ocwen would both be liable to Bradley if he
prevails on his claims.
2
Neither side has fully explained the corporate relationship
between Altisource and the defendants. But beyond one
conclusory statement that Altisource was their “third-party
vendor,” Doc. No. 106-1 at 9, the defendants offer no developed
2
3
Altisource, in turn, hired Legacy Landscape Company, an outside
firm, to inspect the property and determine whether anyone was
still residing in the home or whether the property was ready to
be cleaned out and secured.
A Legacy employee visited the
property on May 2, 2011 to conduct this inspection.
On May 12, 2011, Altisource again hired Legacy to both
clean out and secure the property, which entailed “installing a
combination lock on an exterior door and ensuring that [the]
other doors [were] locked.”
Doc. No. 106-1 at 7.
Legacy
visited the home on the same day to perform these services.
During its visit, it installed a padlock on one of the home’s
doors and removed some of Bradley’s personal property inside the
home and disposed of it in a dumpster that had, at some point,
been brought to the property.
The padlock appears to have
remained unlocked after the visit, however, and other doors into
argument that they are not liable for Altisource’s conduct.
Instead, their briefing makes clear that their arguments turn on
their relationship with Legacy, not with Altisource. See Doc.
Nos. 106-1 at 9-10, 12-16, 122 at 3-6. Moreover, Bradley has
pointed to facts suggesting that Altisource may be a subsidiary
of the defendants, and the defendants have not sufficiently
rebutted Bradley’s contention for purposes of their current
motion. See Doc. No. 114-1 at 7-8. For these reasons, I
proceed on the assumption that the defendants make no argument
for summary judgment based on any absence of liability for
Altisource’s conduct.
3
the home remained unlocked as well.
By August 8, neither of the defendants had received any
further contact from Bradley regarding the property.
On that
day, Legacy visited the property again to finish cleaning out
and securing the home.
It is undisputed that the defendants
never sent Bradley a notice to quit or otherwise invoked the New
Hampshire summary eviction procedure after the foreclosure.
During this period, Bradley lived at the home only
intermittently.
He had moved out in January 2011 after
separating from his wife.
Between January 2011 and May 12,
2011, he would return to the property at times to retrieve his
disc jockey equipment and at other times to spend the night at
the home.
period.
Otherwise, he stayed at his mother’s home during this
He continued to keep personal property at the home,
however, and maintained it as his legal residence and continued
to receive mail there.
Upon learning of Legacy’s visit to the
property on May 12, 2011, he consulted the local police, who
advised him against returning to the property because it had
been foreclosed.
For that reason, Bradley did not visit the
property again after May 12.
4
II.
STANDARD OF REVIEW
Summary judgment is appropriate when the record reveals “no
genuine dispute as to any material fact and [that] the movant is
entitled to judgment as a matter of law.”
56(a).
Fed. R. Civ. P.
The evidence submitted in support of the motion must be
considered in the light most favorable to the nonmoving party,
drawing all reasonable inferences in its favor.
See Navarro v.
Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001).
A party seeking summary judgment must first identify the
absence of any genuine dispute of material fact.
v. Catrett, 477 U.S. 317, 323 (1986).
Celotex Corp.
A material fact “is one
‘that might affect the outcome of the suit under the governing
law.’”
United States v. One Parcel of Real Prop. with Bldgs.,
960 F.2d 200, 204 (1st Cir. 1992) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
If the moving party
satisfies this burden, the nonmoving party must then “produce
evidence on which a reasonable finder of fact, under the
appropriate proof burden, could base a verdict for it; if that
party cannot produce such evidence, the motion must be granted.”
Ayala–Gerena v. Bristol Myers–Squibb Co., 95 F.3d 86, 94 (1st
Cir. 1996); see Celotex, 477 U.S. at 323.
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III.
ANALYSIS
Bradley presents three claims: (1) wrongful self-help
eviction; (2) conversion; and (3) intentional infliction of
emotional distress.
The defendants argue that summary judgment
is warranted for all three claims because Bradley improperly
seeks to hold them liable for Legacy’s alleged misconduct.
They
also contend that even if they can be held liable for Legacy’s
alleged wrongdoing, they are nevertheless entitled to summary
judgment because Bradley has failed to produce sufficient
evidence in support of his three claims to withstand their
summary judgment challenge.
A.
I address these arguments in turn.
Vicarious Liability
The defendants first argue that they cannot be held liable
on any of Bradley’s claims because Legacy was acting as an
independent contractor when it cleaned out and secured Bradley’s
home following the foreclosure.
As they see it, a principal who
engages an independent contractor cannot be held liable for what
the independent contractor does in fulfilling that engagement.
I reject this argument because it fundamentally confuses
the concepts of direct and vicarious liability.4
Section 212 of
To be fair, Bradley’s brief opposing summary judgment suffers
from the same confusion. Accepting the false premise that
6
4
the Restatement (Second) of Agency5 states, in relevant part:
A person is subject to liability for the consequences
of another’s conduct which results from his directions
as he would be for his own personal conduct if, with
knowledge of the conditions, he intends the conduct,
or if he intends its consequences . . . .
Restatement (Second) of Agency § 212 (emphasis added).
Comment
a to Section 212 explains:
The rule stated in this Section is not dependent upon
the law of agency but results from the general rule,
stated in the Restatement of Torts, that one causing
and intending an act or result is as responsible as if
he had personally performed the act or produced the
result. . . . If one intends a particular result to
follow from his conduct and the result follows, it is
immaterial that the particular way in which it is
accomplished was unintended.
Id. § 212 cmt. a (emphasis added).
The defendants concede that, “[o]n May 12, 2011, Legacy
picked up a . . . work order issued by Altisource . . . for the
‘initial services bundle’” for the property.
Doc. No. 106-1 at
vicarious liability is at issue here, Bradley argues that Wells
Fargo is vicariously liable for Legacy’s conduct for two dubious
reasons: first, because it ratified Legacy’s actions after the
fact, and second, because it owed a non-delegable duty to
Bradley under New Hampshire law. Because I conclude that the
record here would support a finding of direct liability against
Wells Fargo, I need not address these arguments.
New Hampshire follows the Restatement (Second) of Agency.
Cutter v. Town of Farmington, 126 N.H. 836, 840 (1985).
5
7
7 (emphasis added).
The “initial services bundle,” the
defendants explain, included services for “securing” the
property, which entailed “installing a combination lock on an
exterior door and ensuring that other doors are locked.”
Id.
The bundle also included services to “clean[] out” the property.
Id.
It is undisputed, therefore, that Altisource itself – and,
by extension, the defendants6 - directed Legacy to perform
“cleaning” and “securing” services at the property after the
foreclosure.
A reasonable factfinder could conclude from this
undisputed direction to Legacy that the defendants intended
Legacy to both place a padlock on one of the home’s exterior
doors and dispose of any personal property that remained inside
the home.
A reasonable factfinder, in other words, could
conclude on this record that the defendants intended either the
wrongful acts that Bradley alleges Legacy to have performed or
the consequences that those alleged acts caused.
Restatement (Second) of Agency § 212.
See
That finding would render
the defendants directly, not vicariously, liable for Legacy’s
conduct regardless of whether they ever formed an agency
6
See supra note 3.
8
relationship with Legacy.
See id. § 212 cmt. a.
Because the
record would support this finding of direct liability, the
doctrine of vicarious liability provides the defendants with no
basis for summary judgment.
With the defendants’ overarching vicarious liability
argument rejected, I turn to their specific arguments for
summary judgment on each of Bradley’s three claims.
B.
Wrongful Self-Help Eviction
Bradley alleges that the defendants wrongfully used self-
help to evict him from the property after the foreclosure sale.
New Hampshire law considers a homeowner who remains in a home
lost to foreclosure to be a tenant at sufferance, and the New
Hampshire Supreme Court has held that “a purchaser at a
foreclosure sale may not use self-help to evict a tenant at
sufferance.”
Evans v. J Four Realty, LLC, 164 N.H. 570, 574,
576 (2013); see also Greelish v. Wood, 154 N.H. 521, 527 (2006).
Instead, a foreclosure sale purchaser must employ the summary
procedure prescribed by chapter 540 of the New Hampshire Revised
Statutes to evict a tenant at sufferance from foreclosed
property.
See N.H. Rev. Stat. Ann. § 540:12 (providing for
“purchaser [of property] at a mortgage foreclosure sale” to
“recover possession” of property held by tenant at sufferance);
9
Evans, 164 N.H. at 576-77.
The defendants argue that they are entitled to summary
judgment on Bradley’s wrongful eviction claim for two reasons.
First, through questionable synthesis of New Hampshire Supreme
Court cases that address this cause of action, they argue that a
wrongful eviction claim in the post-foreclosure context requires
the purchaser to have “deprived [the tenant at sufferance] of
access” to the property.7
See Doc. No. 106-1 at 19.
The acts of
placing an unlocked padlock on one of the home’s doors and of
removing chattels from the home into a dumpster, the defendants
maintain, did not wholly deprive Bradley of access to the
property because at least one door to the home remained
unlocked, allowing Bradley to reenter the home even after
Legacy’s visit.
The New Hampshire Supreme Court’s decision in Greelish v.
Wood defeats this argument.
154 N.H. 521 (2006).
There, the
record established that, after a foreclosure, the foreclosure
The defendants additionally suggest that a claim for wrongful
self-help eviction can also lie under New Hampshire law where a
foreclosure purchaser “forcibly remove[s]” a tenant at
sufferance from the property. Doc. No. 106-1 at 19. But
because the record does not suggest that the defendants ever
sought to forcibly remove Bradley from the property, I need not
address this potential basis for liability here.
10
7
purchaser “park[ed] a truck across the driveway to block access
to the premises,” “park[ed] a vehicle within inches of the steps
leading to the porch also to block access,” and “remov[ed]
without permission an unregistered vehicle that [the former
homeowner] was storing on the property.”
154 N.H. at 522.
Beyond these acts, nothing in the decision suggests that the
purchaser completely barred the tenant at sufferance from
entering the home.
See id.
Based on these facts, the trial
court below concluded that the purchaser had “engaged in a
course of conduct designed to force [the former homeowner] to
leave” the property and, consequently, found the purchaser
liable for wrongful self-help eviction.
See id.
After holding
that foreclosure purchasers may not use self-help to evict a
tenant at sufferance, the New Hampshire Supreme Court upheld the
trial court’s award of damages against the purchaser.
See id.
at 528.
Greelish make clear, therefore, that the critical question
facing a factfinder in a wrongful post-foreclosure eviction
claim is whether the purchaser’s post-foreclosure conduct
evinces a wrongful “course of conduct designed to force [the
former homeowner] to leave” the property, not whether the
purchaser completely barred the former homeowner from accessing
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the property.
See Greelish, 154 N.H. at 522.
Here, as in
Greelish, a reasonable factfinder could infer from Legacy’s
conduct – specifically, the installation of the padlock and the
removal of personal chattels into a dumpster – that the
defendants pursued such a course of conduct.
See id.
And, as
in Greelish, a reasonable factfinder could reach that conclusion
even if it remained technically possible for Bradley to reenter
the home after Legacy’s May 12 visit.
See id. (alleged wrongful
acts of foreclosure purchaser did not include completely barring
tenant at sufferance from property).
Any ability that Bradley
had to reenter the home after May 2011, therefore, does not
itself entitle the defendants to summary judgment as a matter of
law.
If that were so, then a foreclosure purchaser could harass
a tenant at sufferance with impunity as long as a single door
into the foreclosed home remained unlocked.
Such a result would
defy not only common sense, but also the policy favoring orderly
and peaceful eviction that the New Hampshire Supreme Court
endorsed in its decisions.
See Evans, 164 N.H. at 577;
Greelish, 154 N.H. at 526.
The defendants also argue that Bradley cannot bring a
wrongful eviction claim because he was not in possession of the
home, and therefore was not a tenant at sufferance, when the
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disputed events took place.
But Bradley has identified
sufficient facts of evidentiary quality to create a genuine
dispute of material fact regarding his status as a tenant at
sufferance during the relevant period.
Although Bradley did not
spend every night at the home between January and May 2011, he
testified that during this period, he both spent at least some
nights there and visited the home on other occasions to retrieve
his disc jockey equipment.
Dep. 52:10 – 53:16).
See Doc. No. 114-3 at 53-54 (Bradley
Bradley’s ex-wife also testified that the
home remained his legal residence during this period and that he
continued to receive mail there.
(Walker Dep. 42:6 – 10).
See Doc. No. 114-4 at 43
And, of course, Bradley testified that
he kept his personal property inside the home.
114-3 at 117 (Bradley Dep. 116:13 – 15).
See Doc. No.
A reasonable
factfinder could both credit Bradley’s testimony and conclude
that he was a tenant at sufferance when Legacy visited the home
in May 2011.8
The defendants, therefore, are not entitled to
summary judgment on Bradley’s wrongful eviction claim.
That Bradley did not return to the home after May 2011 does not
resolve this genuine dispute of material fact. There is
evidence in the record suggesting that Bradley did not return to
the home because he believed he had lost any legal right to do
so.
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8
C.
Conversion
Bradley’s second claim alleges that the defendants are
liable for conversion because Legacy removed some of his
personal property stored inside the home and threw it into a
dumpster outside the home.
The defendants argue for summary
judgment on this claim for two reasons.
First, they contend
that Bradley has no claim for conversion because “any exercise
of dominion over [Bradley’s] personal property . . . was
appropriate and short-lived, and [the defendants] did not
prohibit [Bradley] from exercising control over the personal
property.”
Doc. No. 106-1 at 21.
the legal standard for conversion.
This argument misconstrues
In New Hampshire, “[a]n
action for conversion is based on the defendant’s exercise of
dominion or control over goods which is inconsistent with the
rights of the person entitled to immediate possession.”
v. Hicks, 119 N.H. 811, 813 (1979).
Rinden
Here, it is undisputed that
a dumpster was placed on the property sometime in May 2011, and
Bradley testified at his deposition that Legacy had removed at
least some items from his daughter’s bedroom into the dumpster
when he visited the home on May 12, 2011.
120-21 (Bradley Dep. 119:14 – 120:5).
See Doc. No. 114-3 at
A reasonable factfinder
could conclude that this removal of Bradley’s personal items
14
into a dumpster was an unauthorized act of control over
Bradley’s property that interfered with Bradley’s rights to that
property.
See Rinden, 119 N.H. at 813.
Thus, although the
defendants’ contention that Legacy exercised only
inconsequential control over Bradley’s personal property may
ultimately persuade a jury to find no liability on the
conversion claim, it does not warrant summary judgment.
Second, the defendants argue that Bradley cannot establish
conversion because he abandoned any personal property that
remained at the home by failing to retrieve it after Legacy’s
May 12 visit.
It is true that, under New Hampshire law,
abandonment is a complete defense to conversion.
N.H. at 814.
Rinden, 119
But in determining whether a claimant has
abandoned allegedly converted property, “[t]he decisive test is
whether the circumstances . . . are indicative of an intention
to abandon” the property.
63 (1976) (emphasis added).
Lawlor v. Town of Salem, 116 N.H. 61,
Here, Bradley denies that he
intended to abandon any of the personal property he kept inside
the home, and so there is no direct evidence of abandonment.
The defendants point to circumstantial evidence in the summary
judgment record that could permit a jury to infer such an
intention.
Bradley, however, has pointed to other facts in the
15
record that weigh against that inference.
18.
See Doc. No. 114-1 at
In particular, he claims that he did not return to the home
not because he intended to abandon his personal property, but
because he thought that doing so would break the law.
See id.
Therefore, a genuine dispute of material fact exists regarding
whether Bradley intended to abandon any of the property that he
alleges the defendants to have converted.
That genuine dispute
precludes summary judgment for the defendants on the conversion
claim.
D.
Intentional Infliction of Emotional Distress
Finally, Bradley claims that the defendants are liable to
him for intentional infliction of emotional distress based on
Legacy’s actions at the property.
The defendants have already
moved for summary judgment on Bradley’s intentional infliction
of emotional distress claim, and I have already denied their
motion twice: in my March 3, 2014 summary judgment order, and
again in my May 20, 2014 order addressing the defendants’ motion
for reconsideration of my March summary judgment order.
Doc. Nos. 86 at 11-13, 99 at 6-7.
See
In my March 2014 summary
judgment order, I expressly held that “[u]sing self-help to
destroy someone’s possessions without prior actual notice and
despite the availability of legal alternatives could be viewed
16
as behavior utterly intolerable in a civilized society.”
No. 86 at 13.
Doc.
The defendants’ present motion for summary
judgment on the intentional infliction of emotional distress
claim offers no new factual or legal arguments that might
persuade me to change this position.
IV.
CONCLUSION
Bradley’s action against the defendants was removed to this
Court in March 2012.
See Doc. No. 1.
Since then, both sides
have expended significant time and resources to litigate what
appears to be, at its core, a simple dispute in both fact and
law.
During this time, I have decided two dispositive motions -
including my March 2014 order addressing the defendants’ first
motion for summary judgment – as well as a motion for
reconsideration of that summary judgment decision.
Nos. 76, 86, 99.
See Doc.
Undeterred, the defendants have now moved for
summary judgment a second time, even reviving an argument
identical to one that they raised, and I rejected, in their
first motion for summary judgment.
More recently, both sides
appear to have raised needless discovery quarrels that do
nothing to facilitate the “just, speedy, and inexpensive
determination of [this] action,” Fed. R. Civ. P. 1.
17
See Doc.
Nos. 113, 153.
The time has now come for this case to either settle or
proceed to a jury trial.
The defendants’ motion for summary
judgment (Doc. No. 106) is denied.
A final pretrial conference
in this case remains scheduled for Wednesday, September 23, 2015
at 2:00 pm, and this case remains docketed for the October 2015
trial period.
All other trial-related deadlines remain as
scheduled on the June 2, 2015 trial notice posted on ECF.
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
August 26, 2015
cc:
Kristina Cerniauskaite, Esq.
Ruth A. Hall, Esq.
Terrie L. Harman, Esq.
Elizabeth M. Lacombe, Esq.
Alexander D. Bono, Esq.
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