Dionne et al v. Federal National Mortgage Association et al

Filing 37

///ORDER granting in part and denying in part 23 Motion to Dismiss; denying without prejudice 29 Motion to Compel; denying without prejudice 30 Motion to Compel. The motion to dismiss is granted as to Counts VI, VII, and VIII, denied as to Counts I, III, IV, and V, and granted in part and denied in part as to Count II. The Dionnes may refile motions to compel, bearing in mind that material related to Counts VI, VII, and VIII is no longer relevant to this case. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jason S. Dionne, et al.
v.

Civil No. 15-cv-056-LM
Opinion No. 2016 DNH 093

Federal National Mortgage
Association and
JPMorgan Chase Bank, N.A.
O R D E R
Plaintiffs originally filed this mortgage foreclosure
dispute in the New Hampshire Superior Court, Hillsborough
County, Southern District.

Defendants Federal National Mortgage

Association (“Fannie Mae”) and JPMorgan Chase Bank, N.A.
(“Chase”) removed the lawsuit to this court and now move to
dismiss it.

Plaintiffs object.

The Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), the court
must accept the factual allegations in the complaint as true,
construe reasonable inferences in the plaintiff’s favor, and
“determine whether the factual allegations in the plaintiff’s
complaint set forth a plausible claim upon which relief may be
granted.”

Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st

Cir. 2014) (citations and internal quotation marks omitted).

A

claim is facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Analyzing

plausibility is “a context-specific task” in which the court
relies on its “judicial experience and common sense.”

Id. at

679.
Background1
Denise Dionne has lived at her home at 40 Tallant Road in
Pelham, New Hampshire (the “property”) since 1977.

In 2005,

Denise added her son, Jason Dionne, to the property’s deed.

In

2006, Denise, Jason, and Jason’s wife, Kathy Dionne
(collectively, the “Dionnes”), took out a loan, which was
secured by a mortgage on the property.

The mortgage states that

Mortgage Electronic Registration Systems, Inc. (“MERS”) is the
mortgagee as nominee for the lender, Domestic Bank.
MERS assigned the mortgage and note to Washington Mutual
Bank (“Mutual Bank”) in 2008.

Chase obtained the mortgage and

note when it acquired Mutual Bank later in 2008.
assigned the mortgage to Fannie Mae.

In 2010, Chase

Chase also acted as the

loan servicer at all times relevant to this case.

The Dionnes

allege that they were in default on their obligations under the

The facts are summarized from the Dionnes’ amended
complaint (doc. no. 21), and the exhibits attached thereto. See
Trans-Spec Truck Serv. v. Caterpillar, Inc., 524 F.3d 315, 321
(1st Cir. 2008).
1

2

note when Mutual Bank and Chase obtained the loan, and when
Chase began servicing the loan.
In 2010, the Dionnes’ loan was modified after they fell
behind on their loan payments.

Sometime after the 2010 loan

modification, the Dionnes again fell behind on their modified
loan payment obligations.
In August 2014, Chase sent the Dionnes2 a letter informing
them that “the foreclosure sale date has been rescheduled” for
October 1, 2014.3

Doc. no. 21-2 at 1.

Chase did not serve or

deliver the letter via registered or certified mail.

The letter

did not inform the Dionnes of their right to petition the New
Hampshire Superior Court to enjoin the sale.
After receiving the letter informing them of the
rescheduled foreclosure date, the Dionnes completed a loss
mitigation application (which they downloaded from Chase’s
website) seeking a modification of their loan.

Kathy faxed the

application to Chase on August 25, 2014.4

The various communications from Chase are addressed to
either Denise or both Denise and Jason. For simplicity, the
court will refer to the recipients of the communications as “the
Dionnes.”
2

The amended complaint does not contain any allegations
that the Dionnes had been notified of a foreclosure sale prior
to August 2014.
3

Denise authorized Kathy to communicate with Chase on her
behalf. Doc. no. 21 at ¶ 36.
4

3

Chase acknowledged receiving the Dionnes’ application in a
letter dated August 27, 2014.

See doc. no. 21-3.

The letter

requested additional documents and stated that Chase would make
a determination of eligibility within 30 days of receiving the
additional documents.

Kathy contacted Chase and determined that

the missing documents were pay stubs and a proof of benefits
statement.

Soon thereafter, Kathy sent the additional documents

to Chase.
On October 2, 2014, Chase sent the Dionnes a “Notice of
Intent to Foreclose,” which stated that Chase may accelerate the
loan and commence foreclosure proceedings if they failed to cure
the default.5

See doc. no. 21-4.

On October 3, 2014, Chase sent

the Dionnes a second letter acknowledging receipt of their loss
mitigation application.

See doc. no. 21-5.

Like the August 27

letter, the October 3 letter stated that the application was
incomplete.

The Dionnes allege, however, that “the letter

further includes a ‘document status’ which stated that nothing
was needed from the Dionnes at that time.”

Doc. no. 21 at ¶ 39.

On October 7, 2014, the Dionnes received two letters from
Chase.

The first, like the October 3 letter, stated that the

Dionnes’ loss mitigation application was incomplete.
no. 21-6.

See doc.

The Dionnes allege that the first letter again

It is unclear as to why the foreclosure sale did not take
place as scheduled on October 1, 2014.
5

4

indicated in the “document status” section that nothing was
needed from them.

The letter stated that Chase needed to

receive a completed application by November 6, 2014, and that it
would contact the Dionnes within 30 days of receiving the
missing documents.
In the second October 7, 2014 letter, Chase again stated
that the loss mitigation application was incomplete.
no. 21-7.

See doc.

The “document status” section of the second letter

stated that pay stubs and a benefits statement or letter were
received, but that both were incomplete or not legible.
5.

The letter requested another copy of those documents.

Id. at
The

letter also listed the November 6, 2014 deadline, and stated
that Chase would contact the Dionnes within 30 days of receiving
the missing documents.
Kathy called Chase shortly after receiving the October 7
letters.

Chase informed her that she needed to provide

statements showing she received “SSDI deposits” into her account
and a printout for deposits and purchases made with her food
stamp card.
2014.

Kathy faxed those documents to Chase on October 17,

The Dionnes allege that as of that date (October 17),

their loss mitigation application was complete.
Chase, however, sent the Dionnes two additional letters
stating that their loss mitigation application was incomplete.
Chase sent such letters on October 18 and 21, 2014.
5

See doc.

nos. 21-9 and 21-10.

Both letters stated that pay stubs and a

benefits statement or letter were received, but that both were
incomplete or not legible.

Both letters listed the November 6,

2014 deadline, and stated that Chase would contact the Dionnes
within 30 days of receiving the missing documents.

Frustrated

that Chase kept claiming that the documents were illegible,
Kathy faxed the documents to herself and confirmed that the
faxed copies of the documents were legible.
Kathy contacted Chase regarding the supposedly illegible
documents.

Chase told Kathy to send pay stubs for the

August/September period, so that it could make a determination
on the Dionnes’ application as of the time it was originally
submitted.
On November 5, 2014, the Dionnes sent Chase paper copies
via overnight mail of the August/September pay stubs Chase had
requested.

In a letter dated November 8, 2014, Chase again

notified the Dionnes that their application was not complete.
See doc. no. 21-12.

The letter stated that Chase had not

received a completed application by the November 6, 2014
deadline, but that it may still be able to review the Dionnes’
request for assistance if they were to send Chase the missing
information immediately.

Despite stating that the request was

incomplete, the “document status” section of the letter listed
several required documents, and stated for each that “[t]here is
6

nothing needed from you at this time for this document.”

Doc.

no. 21-12 at 4-5.
On November 18, 2014, Harmon Law Office (“Harmon”) sent a
letter to the Dionnes on behalf of Chase and Fannie Mae.

Harmon

notified the Dionnes that their loan “had been accelerated and
failure to reinstate would result in foreclosure.”
at ¶ 55.

Doc. no. 21

The letter further stated that “this office is

attempting to collect a debt and that any information obtained
will be used for that purpose.”

Id.

The letter did not notify

the Dionnes of their right to petition the court to enjoin the
foreclosure.
On November 19, 2014, Chase sent the Dionnes another letter
stating that their loss mitigation application was incomplete.
See doc. no. 21-15.

As with the November 8 letter, the November

19 letter stated that Chase had not received a completed
application by the November 6, 2014 deadline, but that it may
still be able to review the Dionnes’ request for assistance if
they were to send Chase the missing information immediately.
Unlike the November 8 letter, however, the “document status”
section of the November 19 letter listed the pay stubs as
incomplete or not legible, and requested that the Dionnes send
Chase another copy.

See id. at 8.

In a letter dated November 23, 2014, Chase notified the
Dionnes that a foreclosure sale had been rescheduled for January
7

12, 2015.

See doc. no. 21-17.

Chase did not serve or deliver

the letter via registered or certified mail.

The letter did not

inform the Dionnes of their right to petition the court to
enjoin the foreclosure sale.6
On December 11, 2014, Harmon delivered a foreclosure notice
to the Dionnes on behalf of Chase and Fannie Mae.
21-18.

See doc. no.

The notice informed the Dionnes that a foreclosure sale

was scheduled for January 12, 2015, at 1:00 p.m., and that they
had the right to petition the court to enjoin the foreclosure
sale.

This notice was the first time the Dionnes were notified

of their right to petition the court to enjoin the foreclosure
sale.
On January 7, 2015, Kathy called Chase and spoke with Kathy
Goulden (“Goulden”), a Chase representative.

Goulden told Kathy

that Chase had not made a decision on the loss mitigation
application, that she could not “confirm all options to avoid
foreclosure had been exhausted,” and that she would request that
the foreclosure sale be stopped.

Doc. no. 21 at ¶ 66.

Goulden

also asked Kathy to send her copies of the August/September pay

The amended complaint alleges that Chase sent two letters,
dated November 23 and November 24, 2014, rescheduling the
foreclosure sale and states that both are attached to the
amended complaint as exhibit 17. However, the Dionnes attached
to the amended complaint only an incomplete copy of the November
23 letter, and did not attach a copy of the November 24 letter.
See doc. no. 21-17.
6

8

stubs, the same documents Kathy had sent to Chase via overnight
mail on November 5, 2014.
On January 9, 2015, Kathy spoke with a Chase
representative, who informed her that the August/September pay
stubs, as well other documents included with the Dionnes’ loss
mitigation application, were “stale” because they were over 90
days old.

That same day, Kathy faxed another completed loss

mitigation application to Chase.

See doc. no. 21-19.

On January 10, 2015, Kathy spoke with a Chase
representative who informed her that the Dionnes’ loss
mitigation application was complete.

The Dionnes also received

a letter from Chase dated that same day, which stated that Chase
had not received a completed application by the November 6, 2014
deadline, but that it may still be able to review the Dionnes’
request for assistance if they were to send Chase the missing
information immediately.

See doc. no. 21-20.

Despite stating

that the request was incomplete, the “document status” section
of the letter listed several required documents, and stated for
each that “[t]here is nothing needed from you at this time for
this document.”

Id. at 4-5.

The Dionnes do not allege that they heard anything further
from Chase about Goulden’s statement that she would make a
request to stop the foreclosure.

In a letter from Chase dated

June 10, 2015 (doc. no. 21-20 at 1) Chase wrote in bold letters:
9

Your request for mortgage assistance doesn’t stop the
foreclosure process or sale. Do not ignore any
notices.
Despite being aware that “they could submit a petition on
their own with the court to stop the foreclosure because Chase
had not provided them with an answer on the loss mitigation
application,” (doc. no. 21 at ¶ 73), the Dionnes did not file a
petition to enjoin the foreclosure sale scheduled for January
12, 2015.

On January 12, an auctioneer appeared at the property

to conduct the foreclosure sale.

Kathy called Chase, Fannie

Mae, and Harmon, but each told Kathy that they could not stop
the foreclosure sale.

The foreclosure sale took place as

scheduled, and Fannie Mae purchased the property at the sale.
Discussion
Denise and Jason Dionne filed this action in state court
seeking an order voiding the foreclosure.

Defendants removed

the action to this court and filed a motion to dismiss (doc. no.
5).

In an order dated June 16, 2015, the court denied

defendants’ motion.

The Dionnes then amended their complaint

(doc. no. 21), adding Kathy as a plaintiff and asserting eight
counts against defendants: three against both Chase and Fannie
Mae (Counts II, IV, and VII); three against only Chase (Counts
I, III, and V); and two against only Fannie Mae (Counts VI and
VIII).

Defendants move to dismiss the amended complaint in its

10

entirety (doc. no. 23).

The Dionnes object (doc. no. 24).

The

court addresses each count separately below.
I.

Count I: Real Estate Settlement Procedures Act
In Count I of their amended complaint, the Dionnes allege

that Chase violated Regulation X of the Real Estate Settlement
and Procedures Act (“RESPA”), 12 C.F.R. § 1024.41, by (1)
conducting a foreclosure sale prior to acting on their complete
loss mitigation application and (2) failing to act with
reasonable diligence by repeatedly asking them for documents
that they had already submitted to Chase.7
A.

Conducting the Foreclosure

In relevant part, RESPA provides that
[i]f a servicer receives a complete loss mitigation
application more than 37 days before a foreclosure
sale, then, within 30 days of receiving a borrower’s
complete loss mitigation application, a servicer
shall: (i) [e]valuate the borrower for all loss
mitigation options available to the borrower; and (ii)
[p]rovide the borrower with a notice in writing
stating the servicer’s determination . . . .
12 C.F.R. § 1024.41(c).

RESPA further provides that “[i]f a

borrower submits a complete loss mitigation application after a
servicer has made the first notice or filing required by

The amended complaint alleges five separate violations of
RESPA, which fall into the two categories of conduct listed
above.
7

11

applicable law for any . . . foreclosure process but more than
37 days before a foreclosure sale, a servicer shall not . . .
conduct a foreclosure sale . . . .”

Id. § 1024.41(g).

Defendants advance two arguments in support of dismissing
the Dionnes’ RESPA claim based on the foreclosure sale.

First,

they argue that the Dionnes did not submit a complete loss
mitigation application more than 37 days before the foreclosure
sale.

This argument is unavailing.

RESPA provides that “[a] complete loss mitigation
application means an application in connection with which a
servicer has received all the information that the servicer
requires from a borrower in evaluating applications for the loss
mitigation options available to the borrower.”

§ 1024.41(b)(1).

The Dionnes allege that they provided all of the information
that Chase requested, often providing documents multiple times
as Chase could not locate items they had previously submitted.
The Dionnes also allege that the application was complete on or
before October 17, 2014, more than the required 37 days before
the scheduled foreclosure.

Doc. no. 21 at ¶ 44.

These

allegations are sufficient to support a claim that the Dionnes
submitted a complete loss mitigation application more than 37
days prior to the foreclosure sale.
Defendants’ second argument is that the timing of events
precludes relief as to a RESPA claim based on the foreclosure
12

sale.

They assert that the notices of foreclosure the Dionnes

received in August and December of 2014 were not the “first”
such notices.

In support, defendants attach as an exhibit to

their motion to dismiss a notice of foreclosure from Harmon to
Denise dated May 2, 2012.

See doc. no. 23-6.

Defendants argue

that this notice precludes any relief under RESPA for a claim
arising out of the foreclosure sale.
Even if the court could consider the May 2, 2012 notice for
purposes of the motion to dismiss, that notice is not
dispositive of the Dionnes’ RESPA claim based on the
foreclosure.

The Dionnes pled violations of 12 C.F.R. §

1024.41(f)(2) and § 1024.41(g) in the alternative.

Section

1024.41(f)(2) prohibits a loan servicer from foreclosing under
certain circumstances if the borrower submits a complete loss
mitigation application before the servicer has made “the first
notice or filing required by applicable law” for a non-judicial
foreclosure.

Section 1024.41(g) prohibits a servicer from

foreclosing under certain circumstances if a borrower has
submitted a complete loss mitigation application after “the
servicer has made the first notice of filing required by law.”
Thus, even if defendants had shown that the 2012 notice was the
first foreclosure notice, which would preclude relief under

13

§ 1024.41(f)(2), that would not be dispositive of the Dionnes’
claim based on defendants’ alleged violation of § 1024.41(g).8
The amended complaint plausibly alleges that the Dionnes
timely submitted a complete loss mitigation application, and
that Chase violated RESPA by conducting a foreclosure sale prior
to acting on the application.

Therefore, defendants are not

entitled to dismissal of the Dionnes’ RESPA claim based on the
foreclosure.
B.

Reasonable Diligence

Although defendants urge dismissal of Count I in its
entirety, they do not address the Dionnes’ RESPA claim based on
Chase’s failure to exercise reasonable diligence.

RESPA

provides that a “servicer shall exercise reasonable diligence in
obtaining documents and information to complete a loss
mitigation application.”

12 C.F.R. § 1024.41(b)(1).

The

Dionnes allege that Chase violated this regulation by repeatedly
requesting documents they had already submitted multiple times,
and by requesting documents even when it had previously told the

To the extent defendants intended to argue that the 2012
notice is also dispositive of the Dionnes’ claim based on
§ 1024.41(g), that argument is not sufficiently developed.
Defendants cite no legal authority to support the contention
that if a lender issues a second foreclosure notice prior to
receiving a loss mitigation application, a borrower is precluded
from asserting his rights under § 1024.41(g).
8

14

Dionnes that it did not need anything further from them.
Further, Chase claimed certain faxed documents were illegible,
but the Dionnes verified that faxed copies of those documents
were legible.

These allegations set forth a plausible claim

that Chase did not exercise reasonable diligence in obtaining
documents and information to complete the Dionnes’ loss
mitigation application.
Accordingly, defendants’ motion to dismiss is denied as to
Count I.
II.

Count II: Equal Credit Opportunity Act (“ECOA”)
In Count II, the Dionnes allege two violations of the ECOA,

15 U.S.C. § 1691.

They allege that Chase and Fannie Mae failed

to notify the Dionnes of action on their loss mitigation
application within thirty days of receiving the application in
violation of § 1691(d)(1).

They also allege that Chase and

Fannie Mae failed to provide written notification denying their
loss mitigation application as required by § 1691(d)(2).
Defendants move to dismiss the ECOA claim arguing first that the
Dionnes failed to allege an “adverse action” as required to
state a claim under § 1691(d), and second, that the Dionnes
cannot state an ECOA claim because defendants satisfied their
ECOA obligations by notifying the Dionnes that their application
was incomplete.

15

A.

Section 1691(d)(1)

Defendants first contend that the conduct complained of in
the amended complaint, denying the Dionnes’ loss mitigation
application after they were in default of their loan, is not an
“adverse action” under § 1691(d)(1).

The court agrees that this

conduct does not meet the definition of an “adverse action.”
The ECOA specifically excludes from the definition of an adverse
action the “refusal to extend additional credit under an
existing credit arrangement where the applicant is delinquent or
otherwise in default, or where such additional credit would
exceed a previously established credit limit.”

§ 1691(d)(6).

The lack of an adverse action, however, does not entitle
defendants to dismissal of the Dionnes’ § 1691(d)(1) claim.
Section 1691(d)(1) provides as follows:
(d) Reason for adverse action; procedure applicable;
“adverse action” defined
(1) Within thirty days (or such longer reasonable time
as specified in regulations of the Bureau for any
class of credit transaction) after receipt of a
completed application for credit, a creditor shall
notify the applicant of its action on the application.
15 U.S.C. § 1691(d)(1).

The plain language of § 1691(d)(1) does

not require an adverse action; rather, it requires a creditor to
notify the applicant within 30 days of “its action” on “a

16

completed application for credit . . . .”9

“Under Section 1691,

an ‘adverse action’ triggers a creditor’s obligation to provide
a statement of reasons [under § 1691(d)(2)], not its obligation
to provide a determination within thirty days [under §
1691(d)(1)], which is triggered by the completion of the
application for credit.”

Green v. Cent. Mortg. Co., No. 3:14-

CV-04281-LB, 2015 WL 7734213, at *17 (N.D. Cal. Dec. 1, 2015)
(quoting MacDonald v. Wells Fargo Bank, N.A., No. 14–cv–04970–
HSG, 2015 WL 1886000, at *3 (N.D. Cal. Apr. 24, 2015)).
Here, the Dionnes allege that Chase failed to notify them
of action taken on their completed loss mitigation application
within 30 days of Chase’s receipt of it.

These allegations are

sufficient to survive defendants’ motion to dismiss the §
1691(d)(1) claim.
Defendants next argue that even if the ECOA required them
to “take action” on the Dionnes’ application within 30 days,
they complied with that deadline by notifying the Dionnes that
their application was incomplete.
mark.

This argument misses the

The notification required under § 1691(d)(1) concerns

notice of action taken on a completed application.

In addition to taking “adverse action” on a completed
application, a creditor could also approve or offer a
counteroffer to the application. See 12 C.F.R. §
202.9(a)(1)(i).
9

17

The Dionnes concede that Chase notified them that their
application was incomplete at various times in August and
October 2014.

They allege, however, that they supplied the

requested information and that on October 17, 2014, their loss
mitigation application was complete.

Doc. no. 21 at ¶ 44.

They

also allege that as of January 12, 2015, when defendants
foreclosed on their home, defendants had not notified them of
any action defendants had taken on their completed loss
mitigation application.

Id. at ¶¶ 63, 76-77.

These facts are

sufficient to state a claim that defendants violated §
1691(d)(1).10
B.

Section 1691(d)(2)

Section 1691(d)(2) provides:
(d) Reason for adverse action; procedure applicable;
“adverse action” defined
. . . .

The regulations implementing § 1691(d) contain a separate
section entitled “Incomplete Applications” that deals with
notice regarding incomplete applications. See 12 C.F.R. §
202.9(c). That regulation further supports the viability of the
Dionnes’ § 1691(d)(1) claim. It states that “[i]f the applicant
supplies the requested information within the designated time
period,” the creditor “shall take action on the application” and
provide notice of such action within 30 days. 12 C.F.R. §
202.9(c)(2).
10

18

(2) Each applicant against whom adverse action is
taken shall be entitled to a statement of reasons for
such action from the creditor . . . .
§ 1691(d)(2).
As discussed above, the ECOA specifically excludes from the
definition of an “adverse action” the refusal to grant a loss
mitigation application to a borrower who, like the Dionnes, is
in default.

See § 1691(d)(6).

Because denying a loss

mitigation application to a borrower who is in default is not an
“adverse action” under the ECOA, the Dionnes cannot assert a
claim under § 1691(d)(2).
Accordingly, defendants’ motion is granted to the extent it
seeks dismissal of the Dionnes’ ECOA claim based on a violation
of § 1691(d)(2).

The motion is denied to the extent it seeks

dismissal of the claim based on § 1691(d)(1).
III. Count III: Fair Debt Collection Practices Act (“FDCPA”)
In Count III, the Dionnes allege that Chase violated the
FDCPA, 15 U.S.C. §§ 1692 et. seq., by threatening to foreclose,
and then foreclosing, on the property when Chase did not have a
right to possess the property.

See 15 U.S.C. § 1692f(6)(A).

state a claim under the FDCPA, plaintiffs must allege that:
(1) they have 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 FDCPA.
19

To

LaCourse v. Ocwen Loan Servicing, LLC, No. 14-cv-013-LM, 2015 WL
1565250, at *9 (D.N.H. Apr. 7, 2015) (citing Moore v. Mortg.
Elec. Registration Sys., Inc., 848 F. Supp. 2d 107, 113 (D.N.H.
2012)).

Defendants move to dismiss the Dionnes’ FDCPA claim,

arguing that the Dionnes have failed to allege facts that
satisfy any of the three elements of an FDCPA claim.
A.

Collection Activity

Defendants argue that the Dionnes have not sufficiently
alleged the first element because Chase was not engaged in
collection activity, but was instead prosecuting a foreclosure
against the Dionnes.

Defendants correctly note that the

majority of courts that have addressed the issue have held that
foreclosing on a mortgage is not debt collection activity for
purposes of the FDCPA.

See, e.g., Beadle v. Haughey, No. Civ.

04-272-SM, 2005 WL 300060, at *3 (D.N.H. Feb. 9, 2005).
However, “the case law is not uniform on this point.”

Moore,

848 F. Supp. 2d at 125 n.11 (collecting cases).
In addition, the Dionnes’ FDCPA claim is based on
§ 1692f(6)(A), which prohibits “[t]aking or threatening to take
any nonjudicial action to effect dispossession or disablement of
property if there is no present right to possession of the
property . . . .”

Courts uniformly recognize that even if

foreclosing on a mortgage is not debt collection activity as a
20

general matter for purposes of the FDCPA, it is debt collection
activity for purposes of § 1692f(6).

See Beadle, 2005 WL

300060, at *3 (noting that “foreclosure has been held to be debt
collection” in certain circumstances, such as in claims brought
pursuant to § 1692f(6)); see also Brown v. SunTrust Bank, No.
2:14-CV-0014-RWS-JSA, 2014 WL 4925719, at *16 (N.D. Ga. Sept.
30, 2014) (“[T]he actions taken by STB in this case in
foreclosing on the Property would generally not be considered
‘debt collection activity’ under the FDCPA, except for a claim
brought under § 1692f(6).”); Jara v. Aurora Loan Servs., LLC,
No. C 11-00419 LB, 2011 WL 6217308, at *5 (N.D. Cal. Dec. 14,
2011) (“[W]hile a non-judicial foreclosure action generally does
not constitute a ‘debt collection activity’ under the FDCPA, an
exception to this rule exist[s] for claims under 15 U.S.C. §
1692f(6).”) (internal quotation marks and citation omitted).
Therefore, the amended complaint adequately alleges that Chase
was engaged in debt collection activity for purposes of §
1692f(6).
B.

Debt Collector

Defendants argue that Chase is not a “debt collector” under
the FDCPA because the Dionnes were not in default on their loan
when Chase was assigned the loan or took over as the loan
servicer.

See, e.g., Crepeau v. JP Morgan Chase Bank, N.A., No.

21

11-cv-125-JL, 2011 WL 6937508, at *5 (D.N.H. Dec. 5, 2011)
(“term ‘debt collector’ does not include consumer’s creditors, a
mortgage servicing company, or an assignee of a debt, as long as
the debt was not in default at the time it was assigned”)
(internal quotation marks and citation omitted).

The Dionnes’

amended complaint, however, alleges that their “loan was in
default at the time . . . Chase obtained the loan, and/or when
Chase took on the servicing of the [] loan.”
12.

Doc. no. 21 at ¶

These allegations are sufficient at this stage to allege

that Chase was a debt collector under the FDCPA.
C.

Prohibited Act

Finally, defendants argue that the Dionnes have failed to
allege that Chase engaged in a prohibited act under the FDCPA.
The FDCPA prohibits a debt collector from “[t]aking or
threatening to take any nonjudicial action to effect
dispossession or disablement of property if there is no present
right to possession of the property claimed as collateral
through an enforceable security interest.”
(6)(A).

15 U.S.C. § 1692f

As explained above, the Dionnes have stated a plausible

claim that RESPA prohibited Chase from foreclosing on the
property before notifying them of action taken on their loss
mitigation application.

At this stage of the litigation, this

allegation is sufficient to satisfy the “prohibited act” element

22

of the FDCPA.11

As such, the Dionnes have alleged a viable claim

against Chase for violating § 1692f(6).
Accordingly, defendants’ motion to dismiss is denied as to
Count III.

IV.

Count IV: Unfair Deceptive, or Unreasonable Collection
Practices Act (“UDUCPA”)
In Count IV, the Dionnes allege that Chase and Fannie Mae

violated New Hampshire’s UDUCPA, N.H. Rev. Stat. Ann. (“RSA”)
§ 358-C, by threatening to foreclose on the property when they
did not have a right to possess the property.
The UDUCPA “is the ‘state-law analog’ to the federal
FDCPA.”

LaCourse, 2015 WL 1565250, at *12 (internal quotation

marks and citation omitted).

Similar to a claim under the

FDCPA, in order to recover under the UDUCPA, a plaintiff must
show that 1) the plaintiff has “been the object of collection
activity arising from a consumer debt”; 2) the defendant is a
debt collector as defined by the UDUCPA; and 3) “the defendant
has engaged in a prohibited act or has failed to perform a

Defendants do not address whether the RESPA violations
the Dionnes allege are sufficient to deprive them of a “right to
possession of the property” under § 1692f(6)(A). The court
assumes without deciding that the alleged RESPA violations are
sufficient to show that defendants had no right to possess the
property. To the extent defendants contend otherwise, they may
raise that argument in a properly supported motion for summary
judgment.
11

23

requirement imposed by the” UDUCPA.

Pruden v. CitiMortgage,

Inc., No. 12–cv–452–LM, 2014 WL 2142155, at *8 (D.N.H. May 23,
2014) (internal quotation marks and citations omitted).

“Given

the dearth of case law on the UDUCPA, FDCPA cases are useful in
interpreting the UDUCPA because the FDCPA contains provisions
similar to the UDUCPA.”

LaCourse, 2015 WL 1565250, at *12

(internal citations, quotation marks, and alteration omitted).
Defendants argue that the amended complaint fails to allege a
plausible UDUCPA claim against them because the Dionnes do not
sufficiently allege that defendants are debt collectors or that
they engaged in a prohibited act.
With respect to the “debt collector” element, the Dionnes
base their claim on actions taken by Harmon as agent for Fannie
Mae and Chase.

Relying on case law interpreting the FDCPA,

defendants argue that the UDUCPA does not allow for vicarious
liability of a principal for actions of an agent.

However,

[w]hen courts have ruled that creditors are not
vicariously liable under the FDCPA for the conduct of
their debt collectors, they typically base those
rulings on an understanding that the FDCPA limits
liability to debt collectors. But, the FDCPA and the
UDUCPA define the term “debt collector” differently,
and the UDUCPA definition is substantially broader.
Doucette v. GE Capital Retail Bank, No. 14-cv-012-LM, 2014 WL
4562758, at *3 (D.N.H. Sept. 15, 2014) (internal citations
omitted).

Under the UDUCPA, a debt collector is “[a]ny person

who by any direct or indirect action, conduct or practice
24

enforces or attempts to enforce an obligation that is owed or
due, or alleged to be owed or due, by a consumer as a result of
a consumer credit transaction.”
added).

RSA 358–C:1, VIII(a) (emphasis

“As a result, a creditor that is not a debt collector

for purposes of the FDCPA could qualify as a debt collector
under the UDUCPA . . . .”

Doucette, 2014 WL 4562758, at *3.

Thus, even if Fannie Mae and Chase are not themselves debt
collectors under the FDCPA, they may be vicariously liable for
Harmon’s actions on their behalf under the UDUCPA.
Defendants next argue that the Dionnes have not alleged
that defendants engaged in a prohibited act under the UDUCPA.
The Dionnes’ UDUCPA claim is based on RSA 358-C:3, III, which
prohibits a debt collector from “[t]hreaten[ing] to take any
unlawful action or action which the debt collector in the
regular course of business does not take.”

The Dionnes allege

that Harmon threatened to bring a foreclosure action on behalf
of Fannie Mae and Chase for failure to pay an amount due,
despite Fannie Mae’s and Chase’s lack of authority to
foreclose.12

See doc. nos. 21-14 and 21-18.

Construing all

As discussed above, the Dionnes have alleged sufficient
facts to state a plausible claim that RESPA prohibited Chase and
Fannie Mae from foreclosing on their property. See supra Part
I. Although the Dionnes bring their RESPA claim against only
Chase, they allege that Chase acted as an agent of Fannie Mae.
Doc. no. 21 at ¶ 6. Therefore, the Dionnes have alleged that
Fannie Mae did not have a lawful right to foreclose on the
property for purposes of the UDUCPA.
12

25

reasonable inferences in the Dionnes’ favor, defendants
threatened to foreclose on the property despite not having a
lawful right to do so.

These allegations are sufficient to

satisfy the third element of the UDUCPA.

Therefore, the Dionnes

have plausibly alleged a claim against Chase and Fannie Mae
under the UDUCPA.
Accordingly, defendants’ motion to dismiss is denied as to
Count IV.
V.

Count V: Consumer Protection Act
In Count V, the Dionnes allege that Fannie Mae violated the

New Hampshire Consumer Protection Act (“CPA”), RSA 358-A, by
engaging in unfair conduct during the course of the Dionnes’
efforts to complete their loss mitigation application and in
Fannie Mae’s efforts to foreclose on the property.

Defendants

argue that they are entitled to dismissal of the Dionnes’ CPA
claim because Fannie Mae is exempt from liability under the CPA.
Section 358–A:3, I provides that “[t]rade or commerce that
is subject to the jurisdiction of . . . federal banking or
securities regulators who possess the authority to regulate
unfair or deceptive trade practices” is exempt from the
provisions of the CPA.

“[F]or regulation to fall within the

purview of RSA 358–A:3, I, it ha[s] to be comprehensive and
ha[s] to protect consumers from the same fraud and unfair

26

practices as the CPA.”

Rainville v. Lakes Region Water Co., 163

N.H. 271, 276 (2012) (citing Averill v. Cox, 145 N.H. 328, 33233 (2000)).

“The burden of proving exemptions from the

provisions of [the CPA] by reason of paragraph[ ] I . . . of
this section shall be upon the person claiming the exemption.”
RSA 358–A:3, V.
Defendants argue that Fannie Mae is subject to the
jurisdiction of the Federal Housing Finance Agency (“FHFA”), and
that the regulations codified under 12 C.F.R. §§ 1200-1299,
grant the FHFA the authority to regulate unfair or deceptive
trade practices.

The Dionnes agree that Fannie Mae is regulated

by the FHFA, but they contend that the FHFA does not have the
authority to regulate the type of conduct subject to the CPA.
12 C.F.R. 1200.1(a), titled “Scope and authority,”
describes the FHFA as follows:
FHFA is responsible for the supervision and regulation
of the Federal National Mortgage Corporation (Fannie
Mae). . . . FHFA is charged with ensuring that the
regulated entities: Operate in a safe and sound
manner, including maintaining adequate capital and
internal controls; foster liquid, efficient,
competitive, and resilient national housing finance
markets; comply with the Safety and Soundness Act and
their respective authorizing statutes, and rules,
regulations and orders issued under the Safety and
Soundness Act and the authorizing statutes; and carry
out their respective statutory missions through
activities and operations that are authorized and
consistent with the Safety and Soundness Act, their
respective authorizing statutes, and the public
interest.

27

Other than a reference to carrying out its oversight authority
in “the public interest,” this regulation does not contain any
reference to the FHFA’s authority to protect consumers from its
regulated entities’ deceptive or unfair practices.

Further, the

regulations as a whole, see 12 C.F.R. §§ 1200-1299, contain no
grant of power “to protect consumers from the same fraud and
unfair practices as the CPA.”

Rainville, 163 N.H. at 276.

Defendants point to 12 C.F.R. § 1233.1 as an example of a
regulation that grants the FHFA the authority to regulate Fannie
Mae for unfair or deceptive practices.

That regulation requires

each regulated entity to report to FHFA upon discovery
that it has purchased or sold a fraudulent loan or
financial instrument, or suspects a possible fraud
relating to the purchase or sale of any loan or
financial instrument. In addition, each regulated
entity must establish and maintain internal controls,
policies, procedures, and operational training to
discover such transactions.
Id.

As the Dionnes correctly point out, this regulation

authorizes the FHFA to monitor fraudulent transactions entered
into by Fannie Mae.

It does not authorize the FHFA to protect

consumers from deception, fraud, and unfair trade practices
committed by Fannie Mae.

Defendants cite no case law supporting

their argument that the FHFA’s regulatory authority exempts them
from the Dionnes’ CPA claim, and the court has been unable to
locate any.

Defendants have failed to carry their burden to

28

show that the exemption set forth in RSA 358-A:3, I, applies to
this case.
Accordingly, defendants’ motion to dismiss Count V is denied.
VI.

Count VI: Breach of the Implied Covenant of Good Faith and
Fair Dealing
In Count VI, the Dionnes allege that Fannie Mae violated

the implied covenant of good faith and fair dealing in the
mortgage agreement because of its mishandling of and failure to
consider their loss mitigation application and the foreclosure
sale that followed.

Defendants move to dismiss the Dionnes’

claim, arguing that failure to consider a loss mitigation
application before foreclosing on a property does not violate
the covenant of good faith and fair dealing in the mortgage
agreement.
In New Hampshire, every agreement includes “an implied
covenant that the parties will act in good faith and fairly with
one another.”

Birch Broad., Inc. v. Capitol Broad. Corp., 161

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

The New Hampshire Supreme

Court has observed that:
[T]here is not merely one rule of implied good-faith
duty, but a series of doctrines, each of which serves
a different function. The various implied good-faith
obligations fall into three general categories: (1)
contract formation; (2) termination of at-will
employment agreements; and (3) limitation of
discretion in contractual performance.
29

Id. (citations omitted).

Like many similarly situated

plaintiffs, the Dionnes understand their claim to fall within
the third category of cases described in Birch, which involves
limits on the discretion a party may exercise when performing
its contractual obligations.

See Rouleau v. U.S. Bank, N.A.,

No. 14–cv–568–JL, 2015 WL 1757104, at *3 (D.N.H. Apr. 17, 2015);
see also Moore, 848 F. Supp. 2d at 127.

The function of that

category “is to prohibit behavior inconsistent with the parties’
agreed-upon common purpose and justified expectations as well as
‘with common standards of decency, fairness and reasonableness.’”

Birch, 161 N.H. at 198 (quoting Livingston, 158 N.H. at

624).
Here, the mortgage expressly provides that, in the event
the Dionnes default on the mortgage, the lender may exercise the
statutory power of sale.

Doc. no. 21-1 at ¶ 22.

Thus, Fannie

Mae’s exercise of that right is consistent with the parties’
“agreed-upon common purpose and justified expectations . . . .”
Birch, 161 N.H. at 198.

As such, Fannie Mae’s foreclosure in

accordance with the terms of the mortgage cannot serve as the
basis for a claim for breach of the implied covenant of good
faith and fair dealing.

See Rouleau, 2015 WL 1757104, at *5;

see also Moore, 848 F. Supp. 2d at 129.

30

In addition, to the extent the Dionnes base their claim on
Fannie Mae’s failure, through Chase, to properly consider or
handle the Dionnes’ loss mitigation application, that claim is
without merit.

“[T]he covenant of good faith and fair dealing

in a loan agreement cannot be used to require the lender to
modify or restructure the loan.”

Moore, 848 F. Supp. 2d at 130;

see also Douglas v. U.S. Bank Nat’l Assoc., No. 13-cv-101-LM,
2013 WL 1890728, at *5 (D.N.H. May 6, 2013) (implied covenant of
good faith and fair dealing does not require lender to consider
or grant a loan modification application).
Accordingly, Count VI is dismissed.
VII. Count VII: “Fraud-Misrepresentation”
In Count VII, the Dionnes allege that Chase and Fannie Mae
made fraudulent statements when (1) they repeatedly informed the
Dionnes that their loss mitigation application was incomplete;
and (2) Goulden told Kathy that she would request that the
foreclosure sale be canceled.

Defendants move to dismiss Count

VII arguing, among other things, that the Dionnes’ fraud claim
is barred by the economic loss doctrine.
“The economic loss doctrine is a judicially-created
remedies principle that operates generally to preclude
contracting parties from pursuing tort recovery for purely
economic or commercial losses associated with the contract

31

relationship.”

Wyle v. Lees, 162 N.H. 406, 410 (2011) (internal

quotation marks and citation omitted).

“[T]he rule precludes a

harmed contracting party from recovering in tort unless he is
owed an independent duty of care outside the terms of the
contract.”

Id.

In other words, “representations made during

the course of the contract’s performance and related to the
subject matter of the contract . . . are so bound up in ‘the
performance of the contract’ as to be barred by the economic
loss doctrine.”

Schaefer v. Indymac Mortg. Servs., 731 F.3d 98,

109 (1st Cir. 2013).
Where the existence of such an additional duty is
claimed, “[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.”
Schaefer v. IndyMac Mortg. Servs., No. 12-cv-159-JD, 2012 WL
4929094, at *3 (D.N.H. Oct. 16, 2012) (quoting Seymour v. N.H.
Sav. Bank, 131 N.H. 753, 759 (1989)) aff’d, 731 F.3d 98 (1st
Cir. 2013).
In Schaefer, the plaintiff alleged that OneWest Bank was
liable to him for negligent and intentional misrepresentation
because it provided him with conflicting information about which
fax number to use to send OneWest information required to
complete a loan modification application.

The court held that

the economic loss doctrine barred the plaintiff’s claims because
he
32

[f]ail[ed] to allege facts suggesting OneWest’s
“voluntary assumption of activities beyond those
traditionally associated with the normal role of a
money lender.” Seymour, 131 N.H. at 759 . . . .
Representations made in a letter concerning Schaefer’s
application for a loan modification “relate entirely
to the defendants’ attempts to collect Schaefer’s
mortgage debt . . . which falls squarely within the
normal role of a lender.”
Schaefer, 2012 WL 4929094, at *4 (alterations omitted) (citing
Moore, 848 F. Supp. 2d at 133; L’Esperance v. HSBC Consumer
Lending, Inc., No. 11-cv-555-LM, 2012 WL 2122164, at *15–16
(D.N.H. June 12, 2012)).
Like the plaintiff in Schaefer, the Dionnes allege that
defendants made misrepresentations in connection with the
Dionnes’ efforts to obtain a loan modification and prevent a
foreclosure sale.

The first alleged group of misrepresentations

(i.e., defendants’ repeated statements that the Dionnes’ loss
mitigation application was incomplete) are related to
defendants’ attempts to collect the Dionnes’ mortgage debt.
Schaefer, 2012 WL 4929094, at *4.

See

Therefore, the economic loss

doctrine bars the Dionnes’ fraud claim based on those alleged
misrepresentations.
The remaining alleged misrepresentation (i.e., Goulden’s
statement that she would request that the foreclosure sale be
canceled) “concern[s] the process by which the lenders would
decide whether to exercise their contractual right to foreclose
on the mortgage,” and, like the complaint in Schaefer, the
33

amended complaint here “alleges that the lenders misrepresented
the circumstances under which they would agree to forego that
contractual right.”

Schaefer, 731 F.3d at 109.

Such a claim

focuses on the performance of the contract and is therefore
barred by the economic loss doctrine.
Accordingly, Count VII is dismissed.
VIII. Count VIII:

Violation of RSA 479:25

In Count VIII, the Dionnes allege that Fannie Mae (through
Chase and Harmon) failed to comply with RSA 479:25 when it sent
them foreclosure notices on August 12, 2014, November 23, 2014,
November 24, 2014, and December 11, 2014.13

The Dionnes allege

that none of the notices was served on them or sent by
registered or certified mail.

They additionally allege that,

except for the December 11 notice, the notices failed to advise
them of their right to petition the court to enjoin the
foreclosure sale as required by RSA 479:25, II.

Defendants

argue that Count VIII should be dismissed because the claim is
untimely, as the Dionnes failed to file a petition to enjoin the
foreclosure prior to the foreclosure sale, and because the

As discussed above, although the amended complaint
references notices of foreclosure on both November 23 and
November 24, 2014, it attaches as an exhibit only the November
23 notice.
13

34

Dionnes did not suffer any damages as a result of Fannie Mae’s
failure to comply with RSA 479:25.
Under RSA 479:25, a mortgagor seeking to challenge the
validity of a planned foreclosure sale must initiate legal
proceedings before the foreclosure sale occurs.

The statute

provides: “Failure to institute [a petition to enjoin the
foreclosure] . . . prior to sale shall thereafter bar any action
or right of action of the mortgagor based on the validity of the
foreclosure.”

RSA 479:25, II(c); see also Nardone v. Deutsche

Bank Nat’l Trust Co., No. 13-cv-390-SM, 2014 WL 1343280, at *4
(D.N.H. Apr. 4, 2014).

This provision bars actions “based on

facts which the mortgagor knew or should have known soon enough
to reasonably permit the filing of a petition prior to the
sale.”

Murphy v. Fin. Dev. Corp., 126 N.H. 536, 540 (1985).

Here, the Dionnes allegedly received several notices which
did not comply with RSA 479:25, beginning in August 2014.

The

Dionnes also allege that they knew they could file an action to
enjoin the foreclosure sale.

See doc. no. 21 at ¶ 73.

Although

they concede that they failed to do so, they argue that their
failure is excused by Chase’s conduct and communications
preceding the sale that led them to believe that the sale would
not take place.

Specifically, the Dionnes allege that they

believed that Fannie Mae would cancel the foreclosure sale based
on a statement by a Chase representative (Goulden) to Kathy five
35

days before the foreclosure that she “would request the
foreclosure sale be stopped.”

They also allege that during the

days immediately preceding the scheduled foreclosure, Chase once
again solicited a loss mitigation application and, on the eve of
the scheduled foreclosure, communicated to them that the
application was complete.

The Dionnes assert that, based on

Chase’s conduct, they reasonably believed that the foreclosure
sale would not occur on January 12.
To defeat the motion to dismiss, the Dionnes rely on the
court’s previous order denying defendants’ motion to dismiss the
Dionnes’ original complaint.

See doc. no. 16.

In so doing, the

Dionnes ignore three significant differences between the
original complaint and the amended complaint.
First, in the original complaint, the Dionnes alleged that
Chase repeatedly told them that there would be no foreclosure
while a loss mitigation application was pending.

Construed

favorably, this allegation was sufficient to support a claim
that Chase misled the Dionnes into believing the foreclosure
would not occur.

The Dionnes removed this allegation from the

amended complaint.

The amended complaint alleges merely that a

Chase employee told them she would request that the foreclosure
sale be stopped.

That new allegation, even construed favorably

to the plaintiffs, is materially different than the allegation
of affirmative misstatements by Chase in the original complaint.
36

Second, the Dionnes attached as an exhibit to the amended
complaint a January 10, 2015 letter from Chase in which Chase
wrote in bold letters: “Your request for mortgage assistance
doesn’t stop the foreclosure process or sale.
notices.”

Doc. no. 21-20 at 1.

Do not ignore any

The Dionnes did not attach this

document to the original complaint.
Third, the amended complaint contains the following
statement (which was not in the original complaint) about the
Dionne’s pre-foreclosure awareness of their right to file a
petition to enjoin: “[T]he Dionnes believed that they could
submit a petition on their own with the Court to stop the sale
because Chase had not provided them with an answer on the loss
mitigation application.”

Doc. no. 21 at ¶ 73.

Therefore, the

amended complaint asserts that the Dionnes knew they could, but
chose not to, bring a petition to enjoin the foreclosure prior
to the sale.
Unlike the allegations in the original complaint, the
amended complaint does not allege facts sufficient to excuse the
Dionnes’ pre-foreclosure failure to comply with their duty under
RSA 479:25(11)(c) to file a petition to enjoin.

Goulden’s

statement to the Dionnes that she would “request” a cancellation
is insufficient to negate the Dionne’s statutory duty to file a
timely petition — particularly in light of the following factual
assertions in the amended complaint: (a) that Chase separately
37

urged the Dionnes in writing not to construe their pending loss
mitigation application as stopping the foreclosure, doc. no. 2120 at 1; and (b) the Dionnes understood pre-foreclosure that
they could file a petition to enjoin the foreclosure “because
Chase had not provided them with an answer on the loss
mitigation application,” doc. no. 21 at ¶ 73.
In sum, the amended complaint, construed favorably to the
Dionnes, does not plausibly allege that they were unaware of the
factual basis on which to file a petition to enjoin the
foreclosure.

To the contrary, the amended complaint contains

assertions that, prior to the foreclosure, the Dionnes were
aware of their right to file a petition to enjoin and the
factual and legal foundation for such a petition, but elected
not to file it based on their mistaken belief that the
foreclosure sale would not occur.

Under these circumstances,

the Dionnes assumed the risk that they would lose the right to
challenge the foreclosure.

Thus, RSA 479:25(II)(c) bars their

post-foreclosure attempt to void the foreclosure.14
Accordingly, Count VIII is dismissed.

Because the Dionnes’ claim based on RSA 479:25 is barred
by their failure to file a petition to enjoin the foreclosure
prior to the sale, the court does not address defendants’
remaining argument as to that claim.
14

38

Conclusion
For the foregoing reasons, defendants’ motion to dismiss
(doc. no. 23) is granted as to Counts VI, VII, and VIII.
motion is denied as to Counts I, III, IV, and V.

The

The motion is

granted in part and denied in part as to Count II as provided in
this order.
The court notes that the Dionnes have filed two motions to
compel (doc. nos. 29 & 30).
motions.

The court has reviewed both

Several of the discovery requests identified in the

motions appear to seek information that is either irrelevant or
relevant only to the claim for fraud, which is no longer a part
of this case.

Therefore, the motions to compel (doc. nos. 29 &

30) are denied without prejudice.

The Dionnes may refile

motions to compel in light of this order, bearing in mind that
material related to Counts VI, VII, and VIII is no longer
relevant to this case.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
June 14, 2016
cc:

David E. Buckley, Esq.
Gary Goldberg, Esq.
Andrea Bopp Stark, Esq.
Nathan Reed Fennessy, Esq.
39