Bulpitt et al v. Carrington Mortgage Services, LLC et al
///ORDER granting in part 11 Motion for Summary Judgment. The defendants motion is granted on Counts I and II. The only claim remaining in the case is Count III, which is limited to the claim that the defendants violated Regulation X, § 1024.41(f)(2) and § 1024.41(g). So Ordered by Judge Joseph A. DiClerico, Jr.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Gary D. Bulpitt and
Carolyn L. Bulpitt
Civil No. 16-cv-399-JD
Opinion No. 2017 DNH 134
Carrington Mortgage Services, LLC
and Deutsche Bank National Trust
Company, as Trustee for the New Century
Home Equity Trust 2005-3
O R D E R
Gary D. and Carolyn L. Bulpitt brought suit against
Carrington Mortgage Services, LLC (“Carrington”) and Deutsche
Bank National Trust Company, as Trustee for the New Century
Home Equity Trust 2005-3 (“Deutsche Bank”) after the foreclosure
sale of their home in Atkinson, New Hampshire.
move for summary judgment on the grounds that the plaintiffs
cannot prove any of their claims.
The plaintiffs object to
Standard of Review
Summary judgment is appropriate when the moving party
“shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
“A genuine dispute is one that a
reasonable fact-finder could resolve in favor of either party
and a material fact is one that could affect the outcome of the
Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir.
The facts and reasonable inferences are taken in the
light most favorable to the nonmoving party.
of Quincy, 835 F.3d 192, 202 (1st Cir. 2016).
McGunigle v. City
“On issues where
the movant does not have the burden of proof at trial, the
movant can succeed on summary judgment by showing ‘that there is
an absence of evidence to support the nonmoving party's case.’”
OneBeacon Am. Ins. Co. v. Commercial Union Assurance Co. of
Canada, 684 F.3d 237, 241 (1st Cir. 2012) (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 325 (1986)).
Under the local rules in this district, memoranda in
support of and in opposition to a motion for summary judgment
must “incorporate a short and concise statement of material
facts, supported by appropriate record citations” to show
undisputed and disputed facts.
supported material facts set forth in the moving party’s factual
statement may be deemed admitted unless properly opposed by the
Carrington and Deutsche Bank included a properly supported
statement of material facts in their memorandum in support of
their motion for summary judgment.
The plaintiffs, who are
represented by counsel, filed the affidavit of Gary Bulpitt as a
separate document the day before they filed their objection to
The plaintiffs did not include any statement
of material facts in support of their objection to summary
As a result, the plaintiffs have not opposed the
defendants’ factual statement which is deemed to be admitted.
Gary Bulpitt obtained a loan in the amount of $196,875.00
from New Century Mortgage Company and signed a note for that
amount in April of 2005.
Gary and Carolyn Bulpitt signed a
mortgage on their property in Atkinson, New Hampshire, as
security for the loan.
Gary Bulpitt states in his affidavit
that the loan was accelerated in February of 2011.
was transferred to Deutsche Bank by an assignment dated March
Beginning in July of 2011, the plaintiffs failed to pay the
monthly installments due on the loan and mortgage.
states in his affidavit that he began a twelve-month
forebearance plan on December 1, 2012, which ended on November
Although Bulpitt also states that “the bank” made
certain promises as part of the forebearance plan, he did not
provide a copy of the plan to support his interpretation.
Bulpitt states that he submitted applications for assistance
under the Home Affordable Modification Program in 2013, which
“the bank” rejected on October 30, 2013.
Bulpitt contends that
he appealed that decision within the time allowed but has not
received a determination of his appeal.
On November 5, 2015, Deutsche Bank provided notice to the
plaintiffs that their mortgaged property would be sold at public
auction on December 3, 2015.
In response, on November 24, 2015,
Gary Bulpitt sent Deutsche Bank a request for mortgage
Deutsche Bank rejected the request the next day
because the foreclosure sale was scheduled to be held within
seven business days of when Deutsche Bank received the request.
The plaintiffs did not file a petition to enjoin the foreclosure
Deutsche Bank advertised the foreclosure sale three times
during November of 2015 in the New Hampshire Union Leader.
foreclosure sale was held on December 3, 2015, as scheduled.
Deutsche Bank purchased the property for $215,360.00.
The plaintiffs brought suit in state court in July of 2016.
In the complaint, the plaintiffs allege claims for equitable
relief from the foreclosure sale, Count I; violation of the New
Hampshire Unfair, Deceptive, or Unreasonable Collection
Practices Act (“UDUCPA”) and the federal Fair Debt Collection
Practices Act (“FDCPA”), Count II; and violation of Regulation X
of the Real Estate Settlement Procedures Act (“RESPA”), Count
The defendants removed the case to this court.
The defendants move for summary judgment on all of the
In support, the defendants assert that the
plaintiffs are barred from challenging the foreclosure sale
because they failed to seek an injunction, they cannot prove a
lack of good faith or due diligence in conducting the
foreclosure sale, they cannot prove a violation of either the
UDUCPA or the FDCPA, and they cannot prove a violation of
Regulation X of RESPA.
In their objection, the plaintiffs
argued at length that RSA 479:25, II does not provide a statute
of limitations for claims under RESPA, but failed to address the
In their surreply, the plaintiffs have conceded that they
cannot prove their claims in Count I or their claims against
Deutsche Bank in Count II.
As a result, the defendants are
entitled to summary judgment on all claims in Count I and on the
claims against Deutsche Bank in Count II.
represent that their remaining claims are a violation of the
FDCPA against Carrington, alleged in Count II, and violations of
RESPA against both defendants, alleged in Count III.1
Surreply, doc. no. 21, at 1-2.
Although the plaintiffs referenced the Truth in Lending Act
in their objection, they acknowledge in their surreply that they
did not bring a claim under the Truth in Lending Act. See doc.
no. 21, at 3, n.5.
Count II – FDCPA - Carrington
The FDCPA governs the practices of debt collectors.
v. Verizon N.E. Inc., 595 F.3d 26, 41 (1st Cir. 2010).
collector under the FDCPA is a person or entity who regularly
collects debts that are owed to someone else.
15 U.S.C. §
Generally, enforcement of a security interest through
foreclosure on a mortgage is not debt collection activity for
purposes of the FDCPA.
Harry v. Countrywide Home Loans Inc.,
215 F. Supp. 3d 183, 187 (D. Mass. 2016).
Carrington contends that it is not a debt collector within
the meaning of the FDCPA because its foreclosure sale of the
property, without seeking to recover any deficiency from the
plaintiffs, was not debt collection activity.
did not address the issue of Carrington’s status as a debt
collector in their objection.
In their surreply, the plaintiffs
state that Carrington was in the loan servicing business, which
involved collecting debts on behalf of Deutsche Bank, but do not
dispute that a mortgage foreclosure sale is not debt collection
within the meaning of the FDCPA.
Therefore, the plaintiffs provide no grounds to support
their FDCPA claim against Carrington and concede that they
cannot prove a violation of the FDCPA by Deutsche Bank.
plaintiffs do not pursue their claim under RSA 358-C.
defendants are entitled to summary judgment on all claims in
Count III – RESPA – Carrington and Deutsche Bank
The plaintiffs allege that the defendants violated RESPA by
conducting the foreclosure sale of the property after they
submitted an application for loan modification.
that the sale violated Regulation X, 12 C.F.R. § 1024.41(f)(2)
The defendants move for summary judgment on the ground
that the RESPA claims fail because the alleged violations of
Regulation X did not occur in this case.
The defendants also
challenge the damages claimed by the plaintiffs.
As a threshold issue, the parties address different actions
as triggers for Regulation X.
The complaint provides no detail
about the loan modification application that the plaintiffs
allege triggered Regulation X protection.
In his affidavit
submitted in support of his objection, however, Gary Bulpitt
discusses a loan modification application that he represents he
Although the plaintiffs mentioned the Equal Credit
Opportunity Act and Regulation B, 12 C.F.R. 1002.1, et seq., in
the introduction to their complaint, they did not bring a claim
under the Equal Credit Opportunity Act. Instead, the claim in
Count III alleges only a violation of RESPA, Regulation X.
Because the plaintiffs are represented by counsel, the court
will not liberally construe their complaint to incorporate
claims that were not properly pleaded.
submitted in October of 2013.3
was denied on October 30, 2013.
He states that his application
Bulpitt further states that the
bank agreed to give him thirty days to appeal and that he
submitted an appeal on November 28, 2013.
that the bank never acted on his appeal.
The plaintiffs argue
that the 2013 loan modification application was still pending
when the defendants conducted the foreclosure sale of their
property in December of 2015.
The defendants assumed that the plaintiffs were relying on
their request for mortgage assistance that was submitted on
November 24, 2015, as the ground for their RESPA claim.
it is hard to understand why the plaintiffs would request
mortgage assistance if they had an application for loan
Further, the plaintiffs provide no
documentation to support Gary Bulpitt’s representations about
the process used for the 2013 application.
plaintiffs rely on the October of 2013 application and the
In their reply, the defendants assert that the plaintiffs
provided “zero admissible evidence to support their claims” in
response to the defendants’ motion for summary judgment. They
do not object to or even address Gary Bulpitt’s affidavit,
however. See Fed. R. Civ. P. 56(c)(2). As a result, the
defendants failed to show that the affidavit cannot be
considered in opposition to summary judgment. See GonzalezBermudez v. Abbott Labs. PR Inc., 214 F. Supp. 3d 130, 137
appeal, and the defendants did not address that application,
despite the representations in Gary Bulpitt’s affidavit.
As the defendants explain in detail in their motion for
summary judgment and their reply, the plaintiffs’ November of
2015 request did not trigger Regulation X protections because it
was submitted after the plaintiffs received notice of the
foreclosure sale and less than thirty-seven days before the
The plaintiffs do not dispute that result.
Therefore, the defendants are entitled to summary judgment to
the extent Count III was based on the request for mortgage
assistance made in November of 2015.
The defendants, however, did not address the plaintiffs’
RESPA claim based on an application submitted by Gary Bulpitt in
October of 2013.
Because the defendants do not seek summary
judgment on the plaintiffs’ claim based on the 2013 application,
that part of Count III avoids summary judgment.
In the complaint, the plaintiffs ask for an award of money
damages and also ask the court to declare the foreclosure void,
to rescind the foreclosure deed as void, to quiet title in the
property in the plaintiffs, and to enjoin the bank “from
alienating its interest in Plaintiffs’ Residence, in any way
until further order of this court.”
The defendants challenge
the relief sought, other than money damages, on the ground that
those remedies are not available under RESPA.
assert in their surreply that the court can grant the equitable
relief they seek under the Declaratory Judgment Act.
Relief under RESPA is limited to actual money damages,
along with a prevailing plaintiff’s costs and fees, so that
equitable relief is not available.
12 U.S.C. § 2605(f).
v. Wells Fargo Home Mortg., 2016 WL 3440591, at *3 (D.N.H. June
20, 2016); see also Pacifico v. Nationstar Mortg., LLC, 2017 WL
1213662, at *3 (E.D. Mich. Feb. 10, 2017); Roosevelt Cayman
Asset Co II v. Mercado, 2016 WL 3976627, at *4 (D.P.R. July 22,
2016); Odum v. Specialized Loan Servicing, 2016 WL 4582070, at
*6 (N.D. Ga. July 5, 2016).
Therefore, the plaintiffs’ requests
for equitable relief are not available under RESPA.
The plaintiffs’ reliance on relief available under the
Declaratory Judgment Act, 28 U.S.C. § 2201, is inapposite to
The plaintiffs brought suit in state court where
state law, not federal law, applies.
More importantly, the
plaintiffs did not allege a claim under state law for a
declaratory judgment and did not amend their complaint to bring
a claim for a declaratory judgment under § 2201.
plaintiffs have not sought a declaratory judgment, and the
equitable relief they request is not available under RESPA.
For the foregoing reasons, the defendants’ motion for
summary judgment (document no. 11) is granted on Counts I and
The only claim remaining in the case is Count III, which is
limited to the claim that the defendants violated Regulation X,
§ 1024.41(f)(2) and § 1024.41(g), by conducting the foreclosure
sale while an appeal of the denial of an application for loan
modification, filed in October of 2013, remained pending.
equitable relief is available under Count III.
Joseph DiClerico, Jr.
United States District Judge
July 10, 2017
Steven J. Dutton, Esq.
Henry Klementowicz, Esq.
William C. Sheridan, Esq.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?