Pruden v. CitiMortgage, Inc. et al

Filing 57

///ORDER granting as to Counts I and III and granting in part as to Count II 43 Motion for Summary Judgment; denying as moot 52 Motion to Strike 51 Surreply to Reply. So Ordered by District Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Juliet E. Pruden
v.

Civil No. 12-cv-452-LM
Opinion No. 2014 DNH 115

CitiMortgage, Inc.
O R D E R
In a case that has been removed from the Grafton County
Superior Court, and that arises from the manner in which
CitiMortgage, Inc. (“CMI”) handled various matters related to
the servicing of her mortgage, Juliet Pruden asserts claims for:
breach of the implied covenant of good faith and fair dealing
(Count I), violation of chapter 358-C of the New Hampshire
Revised Statutes Annotated (“RSA”) (Count II), and negligent
infliction of emotional distress (Count III).
is CMI’s motion for summary judgment.

Before the court

Pruden objects.

court heard oral argument on May 9, 2014.

The

For the reasons that

follow, CMI’s motion for summary judgment is granted in part and
denied in part.
Summary-Judgment Standard
“Summary judgment is appropriate when there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.”

Ponte v. Steelcase Inc., 741 F.3d

310, 319 (1st Cir. 2014) (quoting Cortés–Rivera v. Dept. of
Corr., 626 F.3d 21, 26 (1st Cir. 2010)); see also Fed. R. Civ.
P. 56(a).

When ruling on a motion for summary judgment, the

court must “view[] the entire record ‘in the light most
hospitable to the party opposing summary judgment, indulging all
reasonable inferences in that party’s favor.’”

Winslow v.

Aroostook Cty., 736 F.3d 23, 29 (1st Cir. 2013) (quoting Suarez
v. Pueblo Int’l, Inc., 229 F.3d 49, 53 (1st Cir. 2000)).
“The object of summary judgment is to ‘pierce the
boilerplate of the pleadings and assay the parties’ proof in
order to determine whether trial is actually required.’”

Dávila

v. Corp. de P.R. para la Diffusión Púb., 498 F.3d 9, 12 (1st
Cir. 2007) (quoting Acosta v. Ames Dep’t Stores, Inc., 386 F.3d
5, 7 (1st Cir. 2004)).

“[T]he court’s task is not to weigh the

evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.”

Noonan v. Staples,

Inc., 556 F.3d 20, 25 (1st Cir. 2009) (citations and internal
quotation marks omitted).
“The nonmovant may defeat a summary judgment motion by
demonstrating, through submissions of evidentiary quality, that
a trialworthy issue persists.”

Sánchez-Rodríguez v. AT&T

Mobility P.R., Inc., 673 F.3d 1, 9 (1st Cir. 2012) (quoting
Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006)).
Thus, “[c]onclusory allegations, improbable inferences, and
2

unsupported speculation, are insufficient to establish a genuine
dispute of fact.”

Travers v. Flight Servs. & Sys., Inc., 737

F.3d 144, 146 (1st Cir. 2013) (quoting Triangle Trading Co. v.
Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999)).

“Rather,

the party seeking to avoid summary judgment must be able to
point to specific, competent evidence to support his [or her]
claim.”

Sánchez-Rodríguez, 673 F.3d at 9 (quoting Soto-Ocasio

v. Fed. Ex. Corp., 150 F.3d 14, 18 (1st Cir. 1998)) (internal
quotation marks omitted).
Background
In accordance with LR 56.1(a), CMI has incorporated into
its memorandum “a short and concise statement of material facts,
supported by appropriate record citations, as to which [it]
contends there is no genuine issue to be tried.”

Pruden’s

memorandum in opposition does not include, in its text, the
statement of material facts required by LR 56.1(b).

Rather, she

has attached to her objection an affidavit in which she presents
a brief narrative and then takes issue with or elaborates on 26
of the 39 paragraphs in CMI’s statements of undisputed facts.1
However, in her surreply, she backtracks a bit by conceding that
the facts in twelve of the paragraphs she had challenged in her
affidavit are actually undisputed.
1

Then, while she indicates

In addition to stating facts, Pruden’s affidavit also
includes a fair amount of legal argument.
3

that she disputes the statements in fourteen paragraphs, she
substantively addresses only six of them.2

In the face of this

unorthodox approach to LR 56.1(b), the court will do its best to
outline the undisputed facts of this case.
In June of 2007, Pruden gave a promissory note (“first
note”) to Cousins Home Lending, Inc. (“Cousins”) in exchange for
a loan of $345,824.

Repayment of the first note was secured by

a mortgage (first mortgage).

Immediately after Pruden gave the

first note, it was made payable to CMI, and servicing of the
first mortgage was transferred to CMI.

Also in June of 2007,

Pruden received a second loan from Cousins, in the amount of
$64,800.

She gave Cousins a second promissory note, repayment

of which was secured by a second mortgage on the property that
secured repayment of the first loan.

The second note and

mortgage were transferred from Cousins to CMI under the same
terms as the first note and mortgage.

Pruden used the proceeds

from both loans to purchase the property that secured her
repayment of those loans.
2

Two of those objections are not based upon admissible
evidence that runs counter to evidence produced by CMI. Rather,
they simply state that Pruden “is uncertain about the statements
in [paragraphs] 37 and 38 because she is not privy to the
accounting” on which they are based. Pl.’s Surreply (doc. no.
51) 1. The remaining four challenges do not identify record
evidence that contradicts evidence produced by CMI but are more
in the nature of elaborations that add other evidence to place
CMI’s evidence in context or to support inference that is
contrary to the one CMI would have the court draw from the
evidence it produced.
4

With regard to the first note, it appears to be undisputed
that in October of 2008, in anticipation of impending financial
difficulties, Pruden contacted CMI to see about modifying her
first mortgage before she reached the point of default.

It also

appears to be undisputed that the CMI employee with whom Pruden
spoke informed her that CMI would not consider a mortgage
modification until she had missed three payments.3

Based upon

that conversation, Pruden missed her next three payments.
doing so, she defaulted.

By

After her default, Pruden entered into

a forbearance agreement with CMI, signed a temporary repayment
plan with a term of six months, and made all the payments
required thereunder.
In late September of 2009, Pruden signed a document titled
“Home Affordable Modification Trial Period Plan” (“TPP”) that
had been proffered to her by CMI.

The TPP agreement begins with

the following statement:
If I am in compliance with this Trial Period Plan
. . . and my representations in Section 1 continue to
be true in all material respects, then the Lender will
provide me with a Home Affordable Modification
Agreement . . . , as set forth in Section 3, that
would amend and supplement (1) the Mortgage on the
Property and (2) the Note secured by the Mortgage.
Second Am. Compl., Ex. C (doc. no. 36-3), at 1.

One of the

representations in Section 1 states, in pertinent part: “I am
3

As to the purpose and effect of that statement, Pruden
says that the CMI employee told her to miss three payments while
CMI says that he merely explained to her the circumstances under
which it would consider a request to modify a mortgage.
5

providing or already have provided documentation for all income
that I receive . . . .”

Id. (emphasis in the original).

Pruden

made the payments required by her TPP for the full three-month
term of that agreement, and continued to make those same
payments for approximately five more months.

Then, however, CMI

began to rebuff Pruden’s attempts to pay anything other than the
full payment required under the original note.

In the face of

CMI’s refusal to accept and/or credit anything other than a full
pre-TPP payment, Pruden stopped making payments on her first
mortgage in approximately June of 2010.
Pruden’s attempt to move from her TPP to a HAMP
modification, starting upon the termination of her TPP in
December of 2009, has resulted in multiple denials, but, as of
yet, no HAMP modification.

With regard to denials, the summary-

judgment record includes:
a letter dated December 16, 2010, that denied Pruden’s
application for a HAMP modification because it was
incomplete, due to Pruden’s failure to provide
requested documents, see Def.’s Mem. of Law, Ex. A,
Pt. 6 (doc. no. 43-7), at 0144-47;
a letter dated August 23, 2011, that identified the
income information CMI used in denying Pruden a HAMP
modification, see id. at 0150-51;
a letter dated December 23, 2011, signed by Judy
Caruso, that denied Pruden’s request for
reconsideration of a denial of an application for a
HAMP modification, see id. at 0153;
a letter dated July 24, 2012, that denied Pruden’s
application for a HAMP modification, based upon
underwriting that demonstrated that her post6

modification debt-to-income ratio fell outside
acceptable guidelines, which require that housing
expenses be less than or equal to 42% of the
borrower’s gross income, see id. at 0154-57;
a letter dated July 25, 2012, signed by Ron Mitchell
and providing approximately seven pages of supporting
data and explanation, that denied Pruden’s request for
hardship assistance and/or a HAMP modification, on
grounds that CMI was “unable to create an affordable
payment equal to 31% of [her] reported monthly gross
income without changing the terms of [her] loan beyond
the requirements of the program,” id. at 0158; see
generally id. at 0158-68;
a letter dated October 22, 2012, that denied Pruden’s
application for a Citi Supplemental Modification, on
grounds that “[t]he principal forbearance amount
exceeds the limit available under this program,” id.,
Pt. 7 (doc. no. 43-8), at 0175; see generally id. at
0175-76;
a letter dated October 26, 2012, that denied Pruden’s
application for a HAMP modification on grounds that
CMI was “unable to create an affordable payment equal
to 31% of [her] reported monthly gross income without
changing the terms of [her] loan beyond the
requirements of the program,” id. at 0177; see
generally id. at 0177-78; and
a letter dated November 7, 2012, providing
approximately six pages of supporting data and
explanation, that denied Pruden’s request for hardship
assistance and/or a HAMP modification, on grounds that
CMI was “unable to create an affordable payment equal
to 31% of [her] reported monthly gross income without
changing the terms of [her] loan beyond the
requirements of the program,” id. at 0181; see
generally id. at 0181-90;
a letter dated November 13, 2012, denying Pruden’s
application for a Citi Supplemental Modification on
grounds that “[t]he principal forbearance amount
exceeds the limit available under this program,” id.
at 191; see generally id. at 0191-92.

7

In her surreply, which CMI has moved to strike, Pruden refers to
two letters written by CMI in March of 2013.

In the first

letter, which was sent to Pruden, CMI indicated that it had
approved her request for a repayment plan.

In the second

letter, which was drafted but never sent, CMI indicated that it
had approved Pruden for a HAMP modification.

While the

admissibility of those two letters is the subject of CMI’s
pending motion to strike, there is nothing in the rules of
evidence to preclude the court from observing that those letters
may suggest the possibility of a settlement.
Pruden’s second amended complaint includes more than 100
paragraphs describing her interactions with CMI, starting in
October of 2008.

Those interactions have involved more than 30

named employees and any number of other unnamed employees
communicating back and forth with Pruden via telephone, FAX,
regular mail, and e-mail.

The complaint’s narrative both

describes a process that was cumbersome, unpleasant, and
extremely frustrating to Pruden, and also sheds an unflattering
light on several different aspects of CMI’s basic competence.
But, of course, summary judgment does not test the allegations
in a plaintiff’s complaint; it assays the parties’ proof.
Dávila, 498 F.3d at 12.

See

Accordingly, the court turns to the

summary-judgment record to describe the relevant details of
CMI’s handling of Pruden’s request for a HAMP modification.
8

Without specifying dates, Pruden has produced evidence that
CMI repeatedly lost documents, failed to ask her to resend them,
and then denied one or more of her applications for a mortgage
modification because of missing paperwork.
Attach. 1, Pruden Aff. (doc. no. 47-1) ¶ 16.

See Pl.’s Obj.,
She has also

testified, albeit in a somewhat conclusory and/or nonspecific
way, that: (1) “CMI drew out the review process, creating an
arrearage so great that she could neither cure it, nor combined
with the lower property values due to the recession, obtain
refinancing to cover the arrearage,”4 id. ¶ 30; see also id. ¶
36E; (2) at some unspecified time, both the HAMP Solutions
Center and the New Hampshire Banking Commission examined the
paperwork Pruden had submitted to CMI “and found inconsistencies
in CMI’s calculations or other evidence of [its] mishandling of
the review,” id. ¶ 35;5 see also id. ¶¶ 16, 38 (more general
testimony that CMI’s conduct compelled Pruden to call in third
parties to assist her); (3) CMI denied her requests to review
4

Regarding how the arrearage became so large that Pruden
could not cure it, she testified at her deposition that during
the time when she was not making payments on her first mortgage,
she was spending money on improvements to the mortgaged
property, and that the amount of money she spent on those
improvements was approximately the same amount as the mortgage
payments she was not making. See Def.’s Mem. of Law, Ex. A, Pt.
3, Pruden Dep. (doc. no. 43-4) 159:15-160:8, Dec. 12, 2013.
5

Pruden’s affidavit does not cite any documents authored by
either the Solutions Center or the Banking Commission stating
those conclusions, and the record does not appear to include any
such documents.
9

the information it used to determine her eligibility for a
modification see id. ¶ 36J; (4) CMI took more than 30 days to
review her applications, despite assurances that the review
process should take about 30 days to complete, see id. ¶ 38; and
(5) at some point, Caruso threatened to report Pruden to the IRS
for sending CMI tax returns that were different from those she
had filed with the IRS, see id. ¶ 41.
In addition to the foregoing, Pruden’s affidavit includes
more specific evidence that:
as of May of 2010, CMI had not concluded its review of
her HAMP application and had stopped considering it,
on grounds that it was missing documents, see Pl.’s
Obj., Attach. 1, Pruden Aff. (doc. no. 47-1) ¶ 31;
between September of 2010, when her account was
referred to CMI’s Executive Response Unit (“ERU”), and
September of 2012, she did not receive the regular
communications from CMI she had been promised, CMI
frequently replaced the employee who was assigned to
be her designated contact, and she was contacted by
CMI departments other that the ERU, which had been
designated as her sole point of contact with CMI; see
id. ¶ 40;
the documents CMI said it lacked when it issued its
December 16, 2010, denial were actually in its
possession at the time it said it did not have them,
see id. ¶ 36A, and the HAMP Solutions Center had to
intervene to help correct CMI’s error, see id.;
Caruso’s December 23, 2011, denial of Pruden’s request
for reconsideration was issued just 24 hours after
Pruden had submitted additional paperwork, see id. ¶
36D;
in connection with December 23 denial, Caruso refused
to speak with Pruden any further and directed her to
contact the HAMP Solutions Center instead, see id. ¶
38;
10

Pruden did contact the Solutions Center, which
intervened again on her behalf, see id. ¶ 36D;
the July 24, 2012, denial was based on an erroneous
calculation of her income, see id. ¶ 36E;
CMI’s Ron Mitchell would not return her phone calls
and e-mails concerning the income calculation on which
the July 24 denial was based, see id. ¶ 36F;
CMI issued the October 22, denial before it received
additional documentation from Pruden that it knew to
be on the way, see id. ¶ 36G;
CMI issued the October 26 denial before it received
certain necessary documents such as bank statements
and profit-and-loss statements, see id. ¶ 10;
CMI issued the November 7 denial before it received
Pruden’s checking-account statements and her profitand-loss statements, see id. ¶ 11;
CMI’s November 7 letter states that it had relied upon
Pruden’s savings statements, while no such statements
ever existed, see id. ¶ 11; and
the income and property-value calculations on which
CMI based its November 7 denial were inconsistent with
previously calculated determinations of her income and
the value of her property, see id. ¶ 36H.
Pruden has also produced evidence of other objectionable conduct
by CMI, but that conduct is either described in a conclusory
way, see Travers, 737 F.3d at 146, or is conduct that took place
while CMI was carrying out activities other than considering
Pruden’s request for a HAMP modification, such as handling her
second mortgage and her default on her first mortgage.
With regard to a month’s worth of “pesky hang-up phone
calls” Pruden alleges she received from CMI, it is undisputed
11

that Pruden “never spoke to an individual or individuals who
allegedly made” them, Def.’s Mem. of Law (doc. no. 43-1) ¶ 34.
But, Pruden has produced undisputed evidence that after each
hang-up call, her caller-identification device displayed the
same telephone number, and that when she called that number on
numerous occasions, she reached CMI’s collections department.
See Pl.’s Obj., Attach, 1, Pruden Aff. (doc. no. 47-1) ¶ 41.
Turning briefly to the second note, in the spring of 2009,
CMI granted Pruden a modification of her second mortgage.

In

December of 2012, CMI erroneously placed a charge of $84 on her
second-mortgage account, but then corrected its mistake.6

Pruden

stopped making payments on the second mortgage in January of
2013, and has made no payments since then.
On November 12, 2012, Pruden filed an action in the Grafton
County Superior Court seeking to enjoin the sale of her house at
a foreclosure auction.

After the case was removed to this

court, Pruden filed two amended complaints.

In the second one,

filed on May 15, 2013, Pruden asserts claims for breach of the
implied covenant of good faith and fair dealing, violation of
RSA ch. 358-C, and negligent infliction of emotional distress.

6

CMI states, as an undisputed fact, that it corrected its
mistake “promptly.” Def.’s Mem. of Law (doc. no. 43-1) ¶ 12.
In her surreply, Pruden takes issue, pointing to her testimony
that it took CMI two months to correct its mistake and that it
did not do so until she filed a complaint with the Office of the
Comptroller of the Currency.
12

Discussion
CMI moves for summary judgment on each of Pruden’s three
claims.

The court discusses each in turn.

A. Count I: Implied Covenant of Good Faith and Fair Dealing
In Count I, Pruden claims that CMI breached the implied
covenant of good faith and fair dealing by engaging in a
“pattern of repeated and deliberate mishandling of her account,
careless pursuit of foreclosure, false reporting to credit
bureaus, and failure to properly process her applications for a
loan modification.”

Second Am. Compl. (doc. no. 36) ¶ 138.

As

for relief, she “seeks an order from this Court compelling [CMI]
to properly process a loan modification application, to document
and disclose all calculations used by underwriting, and to fully
explain a properly formulated decision.”

Id. ¶ 139.

CMI argues

that it is entitled to summary judgment because the implied
covenant on which Pruden relies did not require it to modify her
loan.

Plaintiff responds by pointing out that the conduct on

which Count I is based is not CMI’s failure to give her a loan
modification but, rather, CMI’s “deliberate or indifferent
mishandling of her applications over the years.”

Pl.’s Mem. of

Law (doc. no. 47-25) 5.
In New Hampshire, “[i]n every agreement, there is an
implied covenant that the parties will act in good faith and
fairly with one another.”

Birch Broad., Inc. v. Capitol Broad.
13

Corp., 161 N.H. 192, 198 (2010) (citing Livingston v. 18 Mile
Point Drive, Ltd., 158 N.H. 619, 624 (2009)).

Of the three

categories of good-faith duties implied into every New Hampshire
contract, Pruden relies upon one: the parties’ obligation to act
fairly when exercising their discretion in performing under
their agreement.

See Birch Broadcasting, 161 N.H. at 198.

As

for the contours of that obligation, the New Hampshire Supreme
Court has described the applicable rule:
[U]nder an agreement that appears by word or silence
to invest one party with a degree of discretion in
performance sufficient to deprive another party of a
substantial proportion of the agreement’s value, the
parties’ intent to be bound by an enforceable contract
raises an implied obligation of good faith to observe
reasonable limits in exercising that discretion,
consistent with the parties’ purpose or purposes in
contracting.
Centronics Corp v. Genicom Corp., 132 N.H. 144, 143 (1989).
While that rule “is comparatively narrow, its broader function
is to prohibit behavior inconsistent with the parties’ agreedupon common purpose and justified expectations as well as ‘with
common standards of decency, fairness and reasonableness,’”
Birch Broadcasting, 161 N.H. at 198 (quoting Livingston, 158
N.H. at 624)).
Here, Pruden’s implied-covenant claim cannot get off the
starting line because the agreement that Pruden identifies as
incorporating the implied covenant on which she is suing, i.e.,
the first note and mortgage, did not vest CMI, or its
14

predecessors in interest, with any discretion in performance.
As the New Hampshire Supreme Court explained in Centronics:
A claim for relief from a violation of the implied
covenant of good faith contractual performance
therefore potentially raises four questions:
1. Does the agreement ostensibly allow to or
confer upon the defendant a degree of discretion
in performance tantamount to a power to deprive
the plaintiff of a substantial proportion of the
agreement’s value?
132 N.H. at 143-44.

Under the note and mortgage, Cousins’ only

promised performance was to lend Pruden a sum of money, and the
agreement does not appear to have conferred any discretion upon
Cousins with regard to its performance of that obligation.
Moreover, regardless of the amount of discretion the agreement
may have conferred upon Cousins, any such discretion had been
exercised before CMI ever entered the picture because, at the
time CMI acquired the note and mortgage, Cousins had fully
performed all the obligations on its side of the agreement.
That is, before CMI acquired the note and mortgage, Pruden had
received everything she was due under that agreement.

Thus, CMI

was never in a position to deprive Pruden of any of the
agreement’s value, much less a substantial proportion of it.
Accordingly, CMI is entitled to judgment as a matter of law on
Pruden’s claim under the implied covenant of good faith and fair
dealing.

Cf. Farah v. Fed. Nat’l Mortg. Ass’n, No. 13-CV-11787,

2014 WL 1305069, at *4 (E.D. Mich. Mar. 31, 2014) (“Because the
15

implied duty of good faith and fair dealing must relate to an
actual underlying contract, rather than negotiations to modify a
contract, Plaintiffs have failed to state a breach of contract
claim based on the implied duty of good faith and fair
dealing.”).
In her surreply, Pruden cites Young v. Wells Fargo Bank,
N.A. for the proposition that, under the right circumstances, a
borrower in her position could maintain a claim for breach of
the implied covenant of good faith and fair dealing based upon a
covenant implied into a TPP, see 717 F.3d 224, 237-39 (1st Cir.
2013).

Here, however, that legal principal is inapplicable,

given that Pruden’s surreply is the first indication that she
might be basing Count I upon a covenant implied into her TPP
rather than one implied into her first note and mortgage.

There

might even be sufficient evidence in this case to go to trial on
an implied-covenant claim based upon CMI’s conduct in responding
to Pruden’s attempts to move from her TPP to a HAMP modification
– a matter on which the court offers no opinion – Pruden cannot
avoid summary judgment based upon a legal claim first introduced
in a surreply.
B. Count II: RSA ch. 358-C
In Count II, Pruden claims that CMI violated four separate
provisions of RSA ch. 358-C, New Hampshire’s Unfair, Deceptive
or Unreasonable Collection Practices Act (“UDUCPA”).
16

CMI moves

for summary judgment on grounds that: (1) foreclosure is not
collection activity under the UDUCPA; and (2) Pruden can present
no admissible evidence that it engaged in any of the acts
prohibited by the UDUCPA.7

Pruden disagrees, categorically.

CMI’s second argument is partially meritorious.
The UDUCPA provides, as a general prohibition, that “[n]o
debt collector shall collect or attempt to collect a debt in an
unfair, deceptive or unreasonable manner as defined in this
chapter.”

RSA 358-C:2.

Thus,

[t]o recover under . . . the UDUCPA, [Pruden] must
show that: “(1) [she has] been the object of
collection activity arising from a consumer debt; (2)
the defendant attempting to collect the debt qualifies
as a ‘debt collector’ under the Act; and (3) the
defendant has engaged in a prohibited act or has
failed to perform a requirement imposed by the [Act].”
Beadle v. Haughey, [No. Civ. 04-272-SM] . . ., 2005 WL
300060[, at *2] (D.N.H. Feb. 9, 2005); see also, e.g.,
Gilroy v. Ameriquest Mortg. Co., 632 F. Supp. 2d 132,
134–37 (D.N.H. 2009).
Moore v. Mortg. Elec. Reg. Sys., Inc., 848 F. Supp. 2d 107, 124
(D.N.H. 2012).

Regarding the third element of a UDUCPA claim,

the statute describes twelve different prohibited acts, see RSA
358-C:3, four of which figure into Pruden’s claims in this case.
The court begins by considering the first element of
Pruden’s claim and then turns to the third element.

7

At oral argument, CMI gave up a third contention, i.e.,
that it is not a debt collector within the meaning of the
UDUCPA.
17

1. Nature of CMI’s Activities
CMI argues that it cannot be liable to Pruden under the
UDUCPA because none of the acts that form the basis for her
claims were collection activities.

The court cannot agree.

In support of its motion for summary judgment, CMI has
produced evidence that: (1) in a letter from CMI to Pruden dated
December 15, 2008, CMI noted “the serious nature of the default
in [her] payments,” Def.’s Mem. of Law, Ex. A, Pt. 5 (doc. no.
43-6), at 0133,8 and also included the following notation: “This
is an attempt to collect a debt . . . .” id.; and (2) CMI sent
Pruden at least four more letters or other documents that
included some version of a statement that the letter was “an
attempt to collect a debt,” see id. at 0138 (Pruden’s TPP,
executed on Sept. 25, 2009); id., Ex. A, Pt. 9 (doc. no. 43-8),
at 0175 (letter of Oct. 22, 2012, denying Pruden’s request for a
Citi Supplemental Modification), 0177 (letter of Oct. 26, 2012,
denying Pruden’s request for a HAMP modification), and 0191
(letter of Nov. 13, 2012, denying Pruden’s request for a Citi
Supplemental Modification).

To paraphrase Judge Laplante’s

order in Moore, “[f]or [CMI] to argue that it was not engaged in
debt collection is, to put it charitably, unsupportable,” 848 F.
Supp. 2d at 125 (citing Pettway v. Harmon Law Offices, P.C., No.
8

The page numbers used in citations to parts of Exhibit A
other than Pruden’s deposition are those that appear at the
bottom of each page, in the center.
18

03-CV-10932-RGS, 2005 WL 2365331, at *5 & n.10 (D. Mass. Sept.
27, 2005)) ; Maxwell v. Fairbanks Capital Corp. (In re Maxwell),
281 B.R. 101, 119 (Bankr. D. Mass. 2002)).

After having

represented its activities on so many occasions as debt
collection, CMI cannot now retreat from that characterization of
what it was doing when it was dealing with Pruden.
2. The Merits
Having rejected CMI’s argument that it did not engage in
collection activities in its dealings with Pruden, the court
turns to CMI’s argument that the eleven factual bases for the
claims Pruden asserts in Count II are not prohibited acts under
RSA 358-C:3.

Rather than proceeding in the order in which CMI’s

conduct is discussed in Pruden’s second amended complaint, the
court organizes its discussion on the basis of the four
prohibited acts for which Pruden seeks to hold CMI liable.
a. RSA 358-C:3, I(a)
The UDUCPA describes the first prohibited act on which
Pruden bases count II as “causing a telephone to ring or
engaging any person in telephone conversation repeatedly or
continuously or at unusual times or at times known to be
inconvenient with the intent to abuse, oppress or harass any
person at the called number.”

RSA 358-C:3, I(a).

to the elements of her claim, Pruden

19

With regard

must prove that: (1) [CMI], in an “attempt to collect
a debt”; (2) orally communicated or attempted to
orally communicate with her “by causing a telephone to
ring[,] or engaging [her] in telephone conversation[s]”; (3) “repeatedly or continuously or at
unusual times or at times known to be inconvenient”;
(4) “with the intent to abuse, oppress or harass” her.
RSA 358–C:3, I(a).
Gilroy, 632 F. Supp. 2d at 134.
Pruden claims that CMI violated RSA 358-C:3, I(a), by
“engag[ing] in a campaign of calling [her] twice daily for a
period of about a month, as detailed in paragraph 83.”
Am. Compl. ¶ 155.

Second

Paragraph 83, in turn, makes the following

allegation:
Pruden then received several calls from the [CMI]
Collections Department. Pruden repeatedly informed
these employees that her loan modification request was
under review by the [CMI] Executive Response Unit and
that any communications from [CMI] should come from
that office. The collections calls were received
twice daily until they ceased after about a month.
During this time, Pruden did not receive any
communication from the [CMI] Executive Response Unit.
Id. ¶ 83.

At her deposition, Pruden testified that between mid

August and mid September of 2012, she received at least one
“hang-up” call each day from the CMI collections department.
See Def.’s Mem. of Law, Ex. A, Pt. 2, Pruden Dep. (doc. no. 433) 125:23–130:18, Dec. 12, 2013.
CMI moves for summary judgment on this component of Count
II, arguing that Pruden cannot prove that she received the calls
in the first place or that they originated from the CMI
collections department.

The court does not agree.
20

A reasonable

factfinder could conclude, from Pruden’s own testimony, as
reflected in her deposition, that she received at least 30 hangup calls over the course of approximately one month.

A

reasonable factfinder could also conclude that the calls came
from CMI’s collections department, given Pruden’s testimony that
she recognized the telephone number displayed by her calleridentification device as being the number of the CMI collections
department, see Pruden Dep. 128:6, and that when she called that
number she reached the CMI collections department, see id.
128:8-11; Pl.’s Obj., Attach. 1, Pruden Aff. (doc. no. 47-1) ¶
41.
The real battle concerns the fourth element of Pruden’s
claim, i.e., whether CMI made those calls with the intent to
abuse, oppress, or harass her.

In the context of a claim under

the federal Fair Debt Collection Practices Act (“FDCPA”), the
jurisprudence of which is relevant to deciding claims under the
UDUCPA, see Gilroy, 632 F. Supp. 2d at 136, Judge Sargus
explained that ordinarily, it is for the factfinder to determine
whether a debt collector’s conduct evinces an intent to abuse,
oppress, or harass a debtor, see Durthaler v. Accounts
Receivable Mgmt., Inc., 854 F. Supp. 2d 485, 488 (S.D. Ohio
2012) (quoting Harvey v. Great Seneca Fin. Corp., 453 F.3d 324,
330 (6th Cir. 2006); citing Jeter v. Credit Bureau, 760 F.2d
1168, 1179 (11th Cir. 1985)).

Moreover, “courts [are to]
21

consider whether ‘the nature of telephone calls, including their
frequency, substance, or the place to which they are made,
provides grounds to infer [a] debt collector’s intent to annoy,
abuse, or harass without any other evidence of a debt
collector’s motive in calling.”

Durthaler, 854 F. Supp. 2d at

489 (quoting Brown v. Hosto & Buchan, PLLC, 748 F. Supp. 2d 847,
852 (W.D. Tenn. 2010)).

That is, in addition to the sheer

number of calls, “the nature, extent, and context of the calls
are also important” considerations when inferring a debt
collector’s intent.

Durthaler, 854 F. Supp. 2d at 491 (quoting

Hicks v. Am.’s Recovery Solutions, LLC, 816 F. Supp. 2d 509, 515
(N.D. Ohio 2011)).
At oral argument, CMI devoted considerable attention to its
argument that this case involves fewer telephone calls than
several other cases in which courts declined to infer an intent
to harass.

And, indeed, “[a] remarkable volume of telephone

calls is permissible under FDCPA jurisprudence.”

Zortman v.

J.C. Christensen & Assocs., Inc., 870 F. Supp. 2d 694, 707 (D.
Minn. 2012) (citations omitted).

However, “[c]ourts generally

agree that there is no bright line rule regarding the number of
calls which creates the inference of intent.”

Durthaler, 854 F.

Supp. 2d at 489 (quoting Hicks, 816 F. Supp. 2d at 515)
(internal quotation marks and brackets omitted).

22

The problem

with CMI’s reliance upon its call-counting cases is that none of
them appear to involve the kind of calls at issue here.
CMI argues that the fact that Pruden is complaining about
hang-up calls works in its favor, because the silence of the
people who made those calls makes it impossible to infer their
intent.

To be sure, the FDCPA hang-up-call jurisprudence

includes cases ruling that: (1) no intent to harass could be
inferred when a defendant produced undisputed evidence that
automated hang-up calls “were the unintended product of software
used to avoid leaving a message on an answering machine,” Isaac
v. RMB, Inc., No. 2:12-cv-2030-TMP, 2014 WL 1278096, at *5 (N.D.
Ala. Mar. 27, 2014); (2) a debt collector did not incur
liability under FDCPA provisions requiring debt collectors to
identify themselves, and to identify themselves as debt
collectors, when it placed the equivalent of a hang-up call to
an answering machine, resulting in twenty-seconds of dead air,
see Garza v. MRS BPO, LLC, Civ. Action No. H-12-1057, 2012 WL
3527072, at *2-3 (S.D. Tex. Aug. 15, 2012); (3) for purposes of
the FDCPA, “[a] hang-up call is not a communication,” Zortman,
870 F. Supp. 2d at 706; and (4) “it is clear that not leaving a
message [on a debtor’s voice mail] is not the type of harassing,
oppressive, or abusive conduct that violates the [FDCPA],”
Druschel v. CCB Credit Servs., Inc., No. 8:10-cv-838-T-33TBM,
2011 WL 2681637, at *7 (M.D. Fla. June 14, 2011) (quoting Waite
23

v. Fin. Recovery Servs., Inc., No. 8:09-cv-02336-T-33AEP, 2010
WL 5209305 n.9 (M.D. Fla Dec. 16, 2010); citing Udell v. Kan.
Counselors, Inc., 313 F. Supp. 2d 1135, 1143 (D. Kan. 2004).
And there is even a case in which a court has ruled that absent
“evidence such that a reasonable juror could conclude that
[hang-up] calls were caused by [a debt collector] with an intent
to harass . . . [the debtor’s] mere allegations of hang up calls
[was] insufficient to survive summary judgment.”

Bey v. Daimler

Chrysler Servs. of N. Am., LLC, No. Civ. 04-6186(RBK), 2006 WL
361385, at *10 (D.N.J. Feb. 15, 2006).
On the other hand, in Langdon v. Credit Management, LP,
Judge Walker determined that the plaintiff had stated a claim
under the FDCPA equivalent of RSA 358-C:3, I(a), by alleging
that a debt collector “constantly and continuously placed
collection calls, often placed two (2) or more collection calls
in a single day and [hung] up the phone when Plaintiff or the
answering machine answer[ed],” No. C 09-3286 VRW, 2010 WL
3341860, at *2 (N.D. Cal. Feb. 24, 2010)
and citation to the record omitted).

(brackets, ellipses,

And, in Carman v. CBE

Group, Inc., Judge Robinson identified deliberate hang-up calls
as potentially harassing conduct under the FDCPA, see 782 F.
Supp. 2d 1223, 1232 (D. Kan. 2011).
Here, the court has no difficulty determining that a
reasonable factfinder could infer an intent to harass from
24

Pruden’s deposition testimony that she received at least 30
hang-up calls from CMI over the course of a month.

When a debt

collector calls a debtor and says something about the debt, that
is evidence that the intent behind the call is to collect the
debt.

But no such presumption of a permissible intent attaches

to a hang-up call.

The only reasonable inference of intent that

may be drawn concerning a deliberate hang-up call is that the
caller intended to vex the person he or she was calling.

Where,

as here, Pruden has produced undisputed evidence that she
received at least 30 telephone calls that could have had no
purpose other than to harass her, CMI has failed to demonstrate
that Pruden cannot establish the fourth element of her claim
under RSA 358-C:3, I(a).
With regard to the third element of Pruden’s claim, which
pertains to repeated or continuous telephone calls, “the term
repeatedly means calling with excessive frequency under the
circumstances . . . .”

Durthaler, 854 F. Supp. 2d at 489

(quoting Hicks, 816 F. Supp. 2d at 515; citing McVey v. Bay Area
Credit Serv., No. 4:10–CV–359–A, 2010 WL 2927388, at *6 (N.D.
Tex. July 26, 2010); Federal Trade Comm’n Staff Commentary on
the Fair Debt Collection Practices Act, 53 Fed. Reg. 50097))
(internal quotation marks omitted).

CMI does not appear to

contest Pruden’s ability to establish the third element of her
claim but, to the extent it does, the court’s analysis of the
25

fourth element is dispositive.

Given the court’s determination

that there can be no good purpose for a deliberate hang-up call,
virtually any number of such calls would be excessive under the
circumstances.
Accordingly, CMI is not entitled to judgment as a matter of
law on the portion of Count II that asserts a claim under RSA
358-C:3, I(a).
b. RSA 358-C:3, III
The second prohibited act on which Pruden bases a claim is
“[t]hreaten[ing] to take any unlawful action or action which the
debt collector in the regular course of business does not take.”
RSA 358-C:3, III.

Pruden asserts that CMI made two separate

threats that run afoul of RSA 358-C:3, III.

The court considers

each in turn.
July 15, 2010, demand letter.

By letter dated July 15,

2010, CMI informed Pruden that it had previously sent her a
letter of default, that she had yet to cure the default, that
the deadline for doing so was approaching, and that if she
failed to do so, CMI would sent her account to an attorney to
begin foreclosure proceedings.
14-13).

See Am. Compl., Ex. 12 (doc. no.

Pruden claims that

when [she] received the demand letter dated July 15,
2010 . . . the statement that the note would be
accelerated and foreclosure proceedings would commence
was a threat to take unlawful action or action which
the debt collector in the regular course of business
26

does not take since she was involved in a repayment
plan and should not have been deemed to be in default.
Second Am. Compl. ¶ 151.

CMI argues that it is entitled to

summary judgment on this component of Count II because it is
undisputed that when it sent the demand letter, Pruden was in
default, and Pruden has identified no authority for the
proposition that, at the time CMI sent the letter, it would have
been unlawful for it to foreclose on Pruden’s mortgage.

In her

objection, and without citing any legal authority, Pruden
responds:
The fact that Pruden had not made a payment in
previous years does not take away from the fact that
Pruden was in a repayment plan with CMI. As a result,
the demand letter dated July 15, 2010, accelerating
the note and commencing foreclosure proceedings was a
threat to take unlawful action or action which the
debt collector in the regular course of business does
not take.
Pl.’s Mem. of Law (doc. no. 47-25) 14-15.

The court does not

agree.
To begin, the July 15 letter neither accelerated the note
nor commenced foreclosure proceedings.

Moreover, Pruden was not

in a repayment plan with CMI as of July 15, 2010.

She had

entered a forbearance agreement with CMI that covered the first
six months of 2009, had a TPP that ran for approximately the
last three months of 2009, and had been under consideration for
a HAMP modification since early 2010.

But, in July of 2010,

Pruden was not operating under any repayment plan.
27

Moreover,

Pruden has identified no authority for the proposition that
under the circumstances of this case, the July 15 letter
threatened unlawful action.
Finally, as to the second basis for potential liability,
threats to take action that CMI does not take in the regular
course of business, neither side has produced any evidence.
But, Pruden herself has produced the TPP which specifies, among
other things, that: (1) CMI agreed to suspend foreclosure
activities during the term of the TPP but reserved the right to
resume them upon termination of the TPP; (2) by accepting
payments under the TPP, CMI did not waive its right to
accelerate the loan or foreclose upon the property securing the
mortgage; and (3) all of the terms of the note and mortgage
remained in full force and effect.
(doc. no. 47-7), at 2-3.

See Pl.’s Obj., Attach. 7

Thus, there would appear to be no

basis for a claim that CMI threatened, in the July 15 letter, to
take action that it does not take in the regular course of its
business.
Accordingly, as to this component of Count II, CMI is
entitled to judgment as a matter of law.
July 23, 2012, application packet cover letter.

Pruden

claims that
[w]hen [CMI] informed [her] that foreclosure
proceedings may proceed simultaneously with the HAMP
evaluation . . . this was a threat to take unlawful
action or action which the debt collector in the
28

regular course of business does not take, in violation
of NH RSA 358-C:3, VII.
Second Am. Compl. ¶ 156.

While Pruden cites RSA 358-C:3, VII,

the conduct she identifies as the basis for her claim is conduct
prohibited by RSA 358-C:3, III, rather than 358-C:3, VII.

The

court proceeds accordingly.
In its motion for summary judgment on this component of
Count II, CMI understood Pruden to be basing her claim on an
allegedly false statement, in violation of RSA 358-C:3, VII, but
at oral argument, it recognized the claim to be one for making a
threat to take unlawful action, in violation of RSA 358-C:3,
III.

Pruden does not address the June 23 letter in her

objection to summary judgment.
Pruden is not entitled to bring this component of Count II
to trial.

Neither the second amended complaint nor Pruden’s

objection to summary judgment includes a citation to the July 23
letter, the court has been unable to locate it in the summaryjudgment record, and Pruden says nothing about it in her
affidavit.

In other words, there is simply no evidence to

present to a factfinder.

Accordingly, CMI is entitled to

judgment as a matter of law on this component of Count II.
c. RSA 358-C:3, VII
The majority of Pruden’s statutory claims are based upon
the prohibition against “[m]ak[ing] any material false

29

representation or implication of the character, extent or amount
of [a] debt, or of its status in any legal proceeding.”
358-C:3, VII.

RSA

Pruden claims that CMI made seven different false

representations.
CMI argues that it is entitled to summary judgment on all
seven of the false-statement claims in Count II because Pruden
does not challenge the accuracy of its statements but, rather,
challenges its right to send her letters concerning the
possibility of foreclosure while it was reviewing her
applications for mortgage modifications.

Pruden objects in a

similarly generalized way, contending that while a borrower is
under consideration for a HAMP modification, letters concerning
foreclosure are forbidden by a HAMP directive that was
promulgated by the U.S. Department of the Treasury.9

In Pruden’s

view, any statement by a mortgage servicer to a borrower during
the course of a HAMP evaluation that mentions default or the
possibility of foreclosure is necessarily a false representation
within the meaning of RSA 358-C:3, VII.

She concludes: “Since

Pruden’s loan should not have been in the default status, CMI’s
communication through demand letters was a false or [sic]
material misrepresentation regarding the ‘character, extent, or
9

The directive Pruden quotes in her memorandum of law does
not forbid communications concerning foreclosure; it says that
“servicers should not proceed with a foreclosure sale until the
borrower has been evaluated for the program . . . .” Doc. no.
47-25, at 15.
30

amount’ of Pruden’s debt.”
16.

Pl.’s Mem. of Law (doc. no. 47-25)

At oral argument, CMI moved beyond its generalized position

and made specific arguments concerning each of the allegedly
false statements at issue.
Statement of default and threat of foreclosure.

Pruden

claims: “Each time [CMI] informed [her] that she was in default
and that foreclosure was imminent when she was participating in
a [CMI] arranged payment plan [that information was] a material
false representation or implication of the character, extent or
amount of a debt, or of its status in any legal proceeding.”
Second Am. Compl. ¶ 146.

CMI says that the statements to which

Pruden refers in that paragraph are all true.

Be that as it

may, paragraph 146 of Pruden’s second amended complaint lacks
the specificity necessary to state a claim.

See Katz v.

Pershing, LLC, 672 F.3d 64, 73 (1st Cir. 2012) (citation
omitted).

Beyond that, in her objection to summary judgment,

she has produced no evidence that would create a triable issue
of fact.

See Sánchez-Rodríguez, 673 F.3d at 9.

Accordingly, as

to this component of Count II, CMI is entitled to judgment as a
matter of law.
April 30, 2009, demand letter.

In a letter dated April 30,

2009, which fell midway through the term of Pruden’s forbearance
agreement, CMI notified Pruden that her mortgage account was
still delinquent and asked her to pay a balance due of
31

$13,591.21 plus $45 in delinquency fees.
(doc. no. 14-12).

See Am. Compl., Ex. 11

Pruden claims: “By sending [her] a demand

letter to pay $13,591, including $45 in delinquency expenses
when she was in full compliance with the six-month payment plan
. . . [CMI] . . . made a material false representation or
implication of the character, extent, or amount of [her] debt.”
Second Am. Compl. ¶ 147.
Pruden’s claim fails because the allegedly false
representation was not false, based upon the following provision
in the forbearance agreement:
You will continue to receive collection letters,
however, as long as you make forbearance payments
according to the schedule on this letter you may
disregard those letters. . . . The loan will remain
in a delinquent status until the payments under this
Forbearance agreement are made in full.
Def.’s Mem. of Law, Ex. A, Pt. 5 (doc. no. 43-6), at 0134.
Because the forbearance agreement plainly stated that Pruden’s
loan would remain in a delinquent status until the payments
thereunder were made in full, CMI did not make a false statement
by telling Pruden, during the term of the forbearance agreement,
that her loan was delinquent.

No matter how confused or alarmed

Pruden may have been when she received the April 30 demand
letter, the forbearance agreement provided ample warning that
she would continue to receive collection letters during the term
of the agreement.

Because Pruden’s loan was delinquent when she

32

received a letter from CMI telling her so, CMI is entitled to
judgment as a matter of law on this component of Count II.
October 1, 2009, letter.

Pruden claims that in a letter

dated October 1, 2009, a date that coincided with the starting
date of her TPP, she “was wrongfully informed that her mortgage
account was delinquent; that the payment due on October 1, 2009
had not been received; and that she owed $24,964, including a
delinquency fee of $120 [which] was a material misstatement of
the character, extent, or amount of [her] debt.”
Compl. ¶ 148.

Second Am.

At oral argument, CMI contended that none of the

statements alleged in paragraph 148 were false.

This component

of Count II faces an even more fundamental problem.

Pruden has

not produced the letter on which this claim is based, and the
court could locate neither: (1) the letter itself; nor (2) any
mention of it in Pruden’s affidavit.

Accordingly, Pruden has

failed to produce evidence sufficient to take a claim based upon
the October 1 letter to the factfinder.

That entitles CMI to

judgment as a matter of law on this component of Count II.
November 20, 2009, letter.

Pruden claims that on November

20, 2009, she received a letter from CMI telling her that
“because she had not kept the terms of the forbearance plan with
us, we have cancelled it,” Second Am. Compl. ¶ 149, and that
because “she was fully performing the plan then in effect, [the
foregoing] statement was a false representation or implication
33

of the character, extent or amount of [her] debt,” id. ¶ 150.
CMI is entitled to judgment as a matter of law on this claim for
the same reasons that apply to the claim based upon the October
1 letter.10
Statement that CMI could not stop the foreclosure sale.
Pruden claims: “By stating that [CMI] could not stop the
foreclosure sale and that only the Harmon Law Office had that
ability, [CMI] made a material false representation or
implication of the character, extent, or amount of [her] debt,
or of its status in any legal proceeding.”
152.

Second Am. Compl. ¶

Pruden does not indicate why the foregoing statement was

false but, more importantly, has produced no evidence that
anyone from CMI ever even made it.

Because there is no

trialworthy issue, CMI is entitled to judgment as a matter of
law on this component of Count II.
Denial of Pruden’s request for modification.

By letter

dated December 16, 2010, CMI denied Pruden’s application for a
HAMP modification, and explained that it was “unable to offer
10

Having determined that CMI is entitled to judgment as a
matter of law due to Pruden’s failure to produce any evidence
concerning the content of the October 1 and November 20 letters,
the court recognizes the possibility of a viable claim arising
from those letters. That is, they could have been worded in a
way that falsely implied that the character of Pruden’s debt was
that it was subject to satisfaction through immediate
foreclosure rather than being subject to delayed satisfaction in
the form of foreclosure only upon termination of Pruden’s TPP.
But without the necessary evidence, the court’s ability to
envision a viable claim is insufficient to stave off summary
judgment.
34

[her] a Home Affordable Modification because [she] did not
provide [CMI] with the documents [it] requested.”
Ex. 14 (doc. no. 14-15), at 1.

Am. Compl.,

Pruden claims: “By denying [her]

request for loan modification because she did not provide the
requested documents . . . [CMI] made a material false
representation of the status of [her] debt in a legal
proceeding.”

Second Am. Compl. ¶ 153.

Because CMI’s review of Pruden’s application for a HAMP
modification was not a legal proceeding, nothing CMI said about
that application had anything to do with the status of a debt in
a legal proceeding.

However, even if Pruden’s application for a

HAMP modification had been a legal proceeding, CMI said nothing
false about its status.
it was denied.

The status of the application was that

The validity of the denial has no bearing on the

accuracy of CMI’s statement that the application had been
denied.

In other words, if the application had been invalidly

denied, that would not falsify CMI’s statement that the
application had, in fact, been denied.
The bottom line is this: CMI is entitled to judgment as a
matter of law on this component of Count II.
Conflicting reports.

Pruden claims: “By providing

conflicting reports of whether the case was opened or closed
. . . [CMI] made a material false representation of the status
of [her] debt in a legal proceeding.”
35

Second Am. Compl. ¶ 154.

Pruden does not appear to have produced any evidence regarding
the conflicting reports on which the claim in paragraph 154 is
based, and she does not direct the court to any.

Beyond that,

the status of her application for a HAMP modification had
nothing to do with the status of a debt in a legal proceeding.
CMI is entitled to judgment as a matter of law on this component
of Count II.
d. RSA 358-C:3, X
The final prohibited act on which Pruden bases a claim is
“[c]ollect[ing] or attempt[ing] to collect any interest or other
charge, fee or expense incidental to the principal obligation
unless such interest or incidental fee, charge or expense is
expressly authorized by the agreement creating the obligation
and legally chargeable to the debtor.”

RSA 358-C:3, X.

The summary-judgment record includes undisputed evidence
that: (1) as of December of 2012, Pruden was current on her
second mortgage; (2) a statement of account activity pertaining
to that mortgage, that was dated December 17, 2012, listed
“delinquency expenses” of $84, see Pl.’s Obj., Attach. 11 (doc.
no. 47-11); (3) the statement defines “delinquency expenses” as
“third-party expenses such as property inspection fees, property
preservation costs, appraisal costs, and attorney fees incurred
by CMI as a result of default,” id.; (4) in a letter dated
December 28, sent in response to Pruden’s inquiry about those
36

expenses, CMI told Pruden the charge was valid, see id., Attach.
13 (doc. no. 47-13); (5) the charge was removed from Pruden’s
account in late February of 2013, see Pl.’s Obj., Attach. 1,
Pruden Aff. (doc. no. 47-1) ¶ 25; and (6) by letter dated March
11, CMI informed Pruden that it should not have charged her the
$84 fee, see id., Attach. 16 (doc. no. 47-16).

In addition,

Pruden has produced evidence that, at some point, a CMI employee
told her over that phone “that there should not have been an
appraisal ordered since [her] account was current and not in
default.”

Pl.’s Obj., Attach. 1, Pruden Aff. (doc. no. 47-1) ¶

24.
The court also notes that throughout the process of
resolving this issue, CMI treated the $84 charge as a bit of a
moving target by: (1) referring to it as a delinquency expense
in the December 17 notice; (2) telling Pruden, in a telephone
conversation, that the charge was for an appraisal; and (3)
telling Pruden, in a letter dated March 11, “that the fee that
was assessed was not for a delinquency fee[] or an appraisal fee
as you suggested in your complaint [to the Consumer Financial
Protection Bureau]

but rather [was for] a Broker Price

Opinion,” Pl.’s Obj., Attach. 16 (doc. no. 47-16).
Getting back to the legal question at hand, Pruden claims
that “[w]hen [CMI] added a delinquency charge of $84.00 to [her]
second mortgage account, which account was in good standing
37

. . ., [CMI] was collecting or attempting to collect a charge,
fee, or expense incident to the principal obligation which was
not legally chargeable to the debtor, in violation of NH RSA
358-C3, X.”

Second Am. Compl. ¶ 157.

CMI appears to concede

that its conduct violated RSA 358-C:3, X, and the undisputed
evidence fully supports such a concession.

Even so, CMI argues

that it is entitled to summary judgment on this component of
Count II because it immediately acknowledged its mistake and
corrected it.

The court does not agree.

CMI appears to rely upon one of the two affirmative
defenses available under the UCUCPA:
[A] debt collector shall not be held liable in any
action brought under this chapter for a violation if
the debt collector shows by a preponderance of the
evidence that:
(a) The violation was a result of a
computation error in billing and within 15 days
of notification or discovery of said error the
debt collector notified the debtor of such error
and corrected such error.
RSA 358-C:4, II.

That defense does not entitle CMI to judgment

as a matter of law for several reasons.

First, the defense is

available to a debt collector whose “violation was a result of a
computation error in billing” (emphasis added).
was not one of computation.

Here, the error

This is not a case in which CMI

charged Pruden’s account with a delinquency fee of $84 when it
should have charged her a different amount.

Rather, by its own

admission, CMI should not have charged Pruden any delinquency
38

fee at all.

Moreover, RSA 358-C:4, II(a), gives debt collectors

15 days to acknowledge and correct a computation error and here,
when the 15-day window closed, at least some CMI employees were
still adhering to the erroneous position that the $84 fee had
been properly charged to Pruden’s account and, in any event,
even if some CMI employee did acknowledge, within the 15-day
window, that CMI should not have charged Pruden for an
appraisal, it is undisputed that the error was not corrected
until sometime in February, long after the 15-day window had
closed.

Accordingly, CMI’s affirmative defense fails.

That, in

connection with its apparent concession on the elements of a
claim under RSA 358-C:3, X, means that CMI is not entitled to
judgment as a matter of law on this component of Count II.
e. Count II Summary
Based upon the foregoing, CMI is entitled to judgment as a
matter of law on some but not all of the claims Pruden asserts
in Count II.

Specifically, Pruden has survived summary judgment

on her claims under RSA 358-C:3, I(a) (telephone calls) and RSA
358-C:3, X (attempting to collect unauthorized expense).
C. Negligent Infliction of Emotional Distress
In Count III, Pruden claims that she suffered emotional
distress as a result of CMI’s breaching various duties it owed
her, including duties: (1) “of reasonable care to treat [her]

39

with respect, reasonable punctuality, and accuracy, including
compliance with banking industry standards,” Second Am. Compl. ¶
160; (2) “to safeguard and maintain a file of sensitive
financial data [and] to retrieve and carefully consider this
data before making any decisions regarding her loan or
servicing,” id. ¶ 161; and (3) “to correctly apply underwriting
standards to the financial information assembled on [her] behalf
and to communicate any decisions made in an accurate and timely
manner,” id. ¶ 162.

CMI argues that it is entitled to summary

judgment on Count III because it owed Pruden no duty of care
beyond the terms of the mortgage contract.

Pruden attempts to

stave off summary judgment by relying upon the doctrine of
negligence per se and the existence of a directive promulgated
by HAMP that requires participating mortgage servicers to enter
into a Servicer Participation Agreement (“SPA”) with HAMP that
requires them to “perform the services required under the
Program Documentation and the Agreement in accordance with the
practices, high professional standards of care, and degree of
attention used in a well-managed (servicing) operation.”
Mem. of Law (doc. no. 47-25) 18.

Pl.’s

CMI has the better argument.

“The elements of a claim for negligent infliction of
emotional distress [“NIED”] include: ‘(1) causal negligence of
the defendant; (2) foreseeability; and (3) serious mental and
emotional harm accompanied by objective physical symptoms.’”
40

Tessier v. Rockefeller, 162 N.H. 324, 342 (2011) (quoting
O’Donnell v. HCA Health Servs. of N.H., Inc., 152 N.H. 608, 611
(2005)).

Moreover, “a claim for NIED, like any other negligence

claim, demands the existence of a duty [running] from the
defendant the plaintiff.”

Moore, 848 F. Supp. 2d at 135

(quoting BK v. N.H. Dep’t of Health & Human Servs., 814 F. Supp.
2d 59, 72 (D.H.H. 2011)).

Finally, “[w]hether a duty exists in

a particular case is a question of law.”

Coan v. N.H. Dep’t of

Envtl. Servs., 161 N.H. 1, 8 (2010) (citing Hungerford v. Jones,
143 N.H. 208, 211 (1998)).
In Moore, Judge Laplante dismissed a negligence claim
brought by borrowers against their lender and/or loan servicer
because the borrowers had not established any duty running from
the defendants to them.

See 828 F. Supp. 2d at 133-34.

Along

the way toward reaching that decision, Judge Laplante: (1)
pointed out that a borrower’s contractual relationship with his
lender would typically preclude recovery in tort, see id. at 133
(citing Wyle v. Lees, 162 N.H. 406, 409-10 (2011)); (2)
identified two common-law duties that the New Hampshire Supreme
Court has imposed on lenders, see Moore, 848 F. Supp. 2d at 133
(citing Lash v. Cheshire Cnty. Sav. Bank, Inc., 124 N.H. 435,
438-39 (1984) and Murphy v. Fin. Dev. Corp., 126 N.H. 536, 541
(1985), neither of which is implicated here; and (3) explained
that when a borrower attempts to establish a duty running to it
41

from a lender, “[t]he burden is on the borrower, seeking to
impose liability, to prove the lender’s voluntary assumption of
activities beyond those traditionally associated with the normal
role of a money lender,” Moore, 848 F. Supp. 2d at 133 (quoting
Seymour v. N.H. Sav. Bank, 131 N.H. 753, 759 (1989)).

As to the

Moore plaintiffs’ burden to establish that defendants undertook
activities beyond those of a money lender, Judge Laplante had
this to say:
As to the mortgagees, note-holders, and their loan
servicers named as defendants here — MERS, Saxon,
Ocwen, Deutsche Bank, and the Morgan Stanley
Defendants — the Moores have not alleged facts
demonstrating that any of them [undertook activities
beyond those of a money lender]. Rather, the acts
alleged in the complaint relate entirely to those
defendants’ attempts to collect the Moores’ mortgage
debt and to recoup their investment through
foreclosure, both of which fall squarely within the
normal role of a lender. Though the Moores assert
that Ocwen and Saxon undertook additional duties when
they entered into their HAMP SPAs with the federal
government, this argument runs afoul of at least two
principles of contract law: first, that third parties
may not enforce a contract absent a clear intent to
the contrary and second, that harmed parties may not
pursue tort claims for contractual breaches, see Wyle,
162 N.H. at 409-11. The Moores may not, therefore,
premise a negligence claim upon an alleged breach of
the HAMP SPAs.
848 F. Supp. 2d at 133 (internal cross-reference and parallel
citation omitted).
Pruden recognizes that she may not enforce the SPA against
CMI but, rather, argues that she is merely turning to the SPA to
establish the standard of care she was owed.
42

However, the

standard of care she identifies is a standard of care that
applies to activities that “fall squarely within the normal role
of a lender,” Moore, 848 F. Supp. 2d at 133.

That leaves Pruden

high and dry with respect to identifying a duty running from CMI
to her that is enforceable in tort.

Absent a common-law duty

owed to her, Pruden’s claim for negligent infliction of
emotional distress fails as a matter of law.
The lack of a tort duty also renders Pruden’s reliance upon
the doctrine of negligence per se unavailing.

In New Hampshire,

[w]hen an action exists at common law, the negligence
per se doctrine may define the standard of conduct to
which a defendant will be held as the conduct required
by a particular statute, either instead of or as an
alternative to the reasonable person standard.
Mahan v. N.H. Dep’t of Admin. Servs., 141 N.H. 747, 754 (1997)
(citing Marquay v. Eno, 139 N.H. 708, 713 (1995)).

Leaving

aside the fact that Pruden is attempting to draw a standard of
care not from a statute, but from an agreement between CMI and
HAMP and/or a regulation or directive promulgated by the U.S.
Department of the Treasury, there is a more fundamental problem
with her reliance upon the doctrine of negligence per se.
Negligence per se may be used to establish a standard of care
when an action exists at common law, see id., but where, as
here, there is no negligence action at common law against a
lender for acts undertaken in the normal course of its
activities as a lender, there is no need to establish a standard
43

of care for those acts.

Negligence per se may establish the

nature of a duty, but cannot establish the existence of a duty.
So, to restate, CMI is entitled to judgment as a matter of law
on Count III.
Conclusion
For the reasons detailed above, CMI’s motion for summary
judgment, document no. 43, is granted as to Counts I and III,
and granted in part as to Count II.

Two of the claims in Count

II, however, remain on track for trial: (1) the claim under RSA
358-C:3, I(a), based upon the hang-up calls Pruden alleges she
received from CMI, and (2) the claim under RSA 358-C:3, X, based
upon CMI’s attempt to charge Pruden with a delinquency fee on
her second-mortgage account.
Pruden’s surreply.

Finally, CMI has moved to strike

Because the court has relied upon none of

the material to which CMI objects in its partial denial of CMI’s
summary-judgment motion, its motion to strike, document no. 52,
is denied as moot.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
May 23, 2014
cc:
Joseph A. Farside, Jr., Esq.
Donald E. Frechette, Esq.
Alexander G. Henlin, Esq.
Scott C. Owens, Esq.
Peter S. Wright, Jr., Esq.
44