Bulpitt et al v. Carrington Mortgage Services, LLC et al
ORDER denying 23 Motion for Reconsideration re: 22 Order on Motion for Summary Judgment; denying 24 Motion for Reconsideration re: 22 Order on Motion for Summary Judgment; denying 26 Motion for Reconsideration re: 22 Order on Motion for Summary Judgment; denying 35 Motion for Leave to File Memorandum of Law; granting 25 Motion to Amend 1 Notice of Removal. (Amended Pleadings due by 9/8/2017.) The Final Pretrial scheduled for 9/21/17 is cancelled. The Trial scheduled for 10/3/17 is continued and will be rescheduled, if necessary, after the defendant's dispositive motion is resolved. 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 184
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 in state court
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.
defendants removed the case to this court and moved for summary
The court granted the motion for summary judgment in
favor of the defendants except for the plaintiffs’ claim under
Regulation X of the Real Estate Settlement Procedures Act
(“RESPA”) in Count III.
The plaintiffs filed a motion for reconsideration of that
part of the summary judgment order which held that they had not
alleged a claim under Regulation B of the Equal Credit
Opportunity Act (“ECOA”) and held that equitable relief is not
available under RESPA.
In the alternative, the plaintiffs
sought leave to amend the complaint.
The plaintiffs then filed
a separate motion to amend their complaint and a second motion
for reconsideration that again asserts a claim under Regulation
B, challenges the court’s ruling on equitable relief, and argues
that they properly alleged a claim under the Fair Debt
Collection Practices Act (“FDCPA”).
The defendants object to the plaintiffs’ motions.
defendants also filed a motion for reconsideration of that part
of the summary judgment order that did not dismiss the RESPA
Regulation X claim to the extent the claim was based on a loan
modification application made in 2013.
The plaintiffs object to
the defendants’ motion.1
Motions for Reconsideration
Reconsideration of an order is “‘an extraordinary remedy
which should be used sparingly.’”
Palmer v. Champion Mtg., 465
F.3d 24, 30 (1st Cir. 2006) (quoting 11 Charles Alan Wright et
al., 11 Federal Practice and Procedure § 2810.1 (2d ed. 1995)).
For that reason, reconsideration is “appropriate only in a
limited number of circumstances: if the moving party presents
newly discovered evidence, if there has been an intervening
To avoid unnecessary delay, the defendants’ motion to file a
reply to the plaintiffs’ objection is denied.
change in the law, or if the movant can demonstrate that the
original decision was based on a manifest error of law or was
clearly unjust.” United States v. Allen, 573 F.3d 42, 53 (1st
Cir. 2009; see also LR 7.2(d).
A motion for reconsideration cannot succeed when the moving
party is attempting “to undo its own procedural failures” or
“advanc[ing] arguments that could and should have been presented
Allen, 573 F.3d at 53.
A motion for reconsideration
also is not a means to reargue matters that were considered and
rejected in the previous order.
Biltcliffe v. CitiMortgage,
Inc., 772 F.3d 925, 930 (1st Cir.2014) (internal quotation marks
Plaintiffs’ Motions for Reconsideration
The plaintiffs’ motions are considered together to address
the issues the plaintiffs’ raise in both motions.
plaintiffs asked for a hearing on the second motion, they did
not provide any reasons why a hearing would be of assistance to
As a result, no hearing was held.
The plaintiffs contend that the court erred in concluding
“that Reg B was not asserted in the Complaint.”
misstates the court’s order.
As the court noted in the summary
judgment order, the plaintiffs cited Regulation B in the
introduction section of their complaint but failed to allege any
facts to support a claim under Regulation B or to allege a claim
in any of the three counts in the complaint.2
object to reconsideration, arguing that no claim under
Regulation B was pleaded.
Merely asserting a regulation in the introduction to the
complaint does not allege a cause of action.
See Fed. R. Civ.
Therefore, the plaintiffs provide no grounds to
support reconsideration of that part of the summary judgment
The plaintiffs argue that because they could have pursued
equitable remedies under their state law claims, which they
agreed could not avoid summary judgment, they are entitled to
equitable remedies under RESPA.
They also assert that the
Declaratory Judgment Act and the court’s inherent authority
empower the court to impose equitable remedies under RESPA.
plaintiffs are mistaken.
As explained in the summary judgment
Because the plaintiffs are represented by counsel, they are
not entitled to lenient consideration that might pertain to
parties proceeding pro se.
order, no equitable relief is available under RESPA.
doc. no. 22, at 10.
In the motion for summary judgment, Carrington asserted
that it was not a debt collector for purposes of FDCPA because a
foreclosure sale without attempting to collect a deficiency is
not debt collection activity.
In their objection, the
plaintiffs argued only that Carrington collects debts on behalf
of Deutsche Bank and did not dispute that a mortgage foreclosure
sale is not debt collection within the meaning of the FDCPA.
Citing Harry v. Countrywide Home Loans Inc., 215 F. Supp. 3d
183, 187 (D. Mass. 2016), the court noted that generally
foreclosure is not debt collection activity and concluded that
the plaintiffs had not shown a triable issue as to whether
Carrington was a debt collector in his case.
The plaintiffs now seek reconsideration of that decision.
They assert a new theory, without citation to authority or
explanation, that “[b]y its very nature under [15 U.S.C. §
1692(f)(6)] foreclosure constitutes a prohibited debt collection
Even if reconsideration were appropriate based on a
new theory that could and should have been raised in the
parties’ objection to summary judgment, the plaintiffs have not
shown that their new theory would succeed.
Section 1692(f)(6) applies to “debt collectors.”
discussed in the prior order, Carrington demonstrated that it is
not a debt collector within the meaning of the FDCPA.
addition, § 1692(f)(6) prohibits “nonjudicial action to effect
dispossession or disablement of property” in only three
The plaintiffs have not addressed those
circumstances or shown that any occurred in this case.
the plaintiffs have not shown that summary judgment on the FDCPA
claim against Carrington was based on a manifest error of law or
Defendants’ Motion for Reconsideration
The defendants move for reconsideration of the court’s
decision not to grant summary judgment on Count III.
complaint, the plaintiffs alleged that they “had submitted a
complete loss mitigation application to Deutsche Bank or its
servicer well before the first step in the foreclosure process
Complaint, doc. no. 1-1, ¶ 6.
further alleged that the foreclosure was begun while they
thought their application was still under consideration and
“without first using ‘reasonable diligence to collect
information needed to complete the application’ (indeed without
any contact of Borrowers by Deutsche Bank throughout 2014).”
(internal quotation is not attributed to a source in the
The plaintiffs contend that those actions were
taken in violation of RESPA Regulation X.
Despite the allegations pertaining to a failure to act
through 2014, the defendants assumed that the plaintiffs were
alleging that the defendants violated Regulation X by conducting
the foreclosure sale after the plaintiffs filed a request for
mortgage assistance in November of 2015.
Based on that
assumption, the defendants moved for summary judgment, asserting
that they did not violate Regulation X based on the November of
2015 request for mortgage assistance.
Although the plaintiffs’
objection to summary judgment focused primarily on matters that
were not material to the motion, Gary Bulpitt’s affidavit
submitted in support of the objection addressed their 2013
application for a loan modification.
The defendants fully demonstrated that the plaintiffs could
not prove a claim that the defendants violated Regulation X
based on the 2015 request for mortgage assistance.
they did not address the 2013 application for loan modification.
Because the plaintiffs’ claim in Count III was based on the 2013
application, the court denied the motion for summary judgment on
The defendants move for reconsideration of that part of the
They contend that the plaintiffs only raised the 2013
application in response to the motion for summary judgment and
therefore did not plead that claim.
They further contend that
“the Court made a clear error of law by failing to dismiss this
claim as the section of Regulation X at issue was not effective
at the time the 2013 Application was submitted and cannot be
In response, the plaintiffs argue that
it is unsettled whether Regulation X applies in this case.
Although the plaintiffs’ complaint is far from a model of
clarity, the Regulation X claim in Count III, as alleged in the
complaint, is based on the 2013 loan modification application.
They allege that Deutsche Bank did not contact them during all
of 2014, which could only apply to the 2013 application and not
to the application submitted in November of 2015.
allege that the defendants violated Regulation X based on an
application submitted well before foreclosure began, which would
not be the November of 2015 request.
The defendants also argue that the court should have
dismissed sua sponte the Regulation X claim, based on the 2013
application, because the applicable parts of Regulation X were
not in effect until after the 2013 loan modification application
It is not the function of the court to raise
grounds to support a motion for summary judgment that are not
raised by the moving party, particularly when, as here, those
parties are represented by counsel.
Therefore, the defendants have not shown grounds to
reconsider the summary judgment order.
Motion to Amend
The plaintiffs move to amend to add a claim in Count III
under Regulation B.
Although the proposed amended complaint
includes Count I and Count II, as pleaded in the original
complaint, those claims have been dismissed on summary judgment
and cannot be revived by amendment now.
Similarly, to the
extent the plaintiffs are seeking equitable relief under RESPA
in Count III, that claim also has been dismissed.
In the proposed amended complaint, the plaintiffs have
added allegations to address a claim under Regulation B.3
Beginning at paragraph 22, there are new allegations as to
provisions of Regulation B regarding notification.
The defendants object to the motion to amend because the
plaintiffs failed to meet the requirements of Local Rule 15.1
and because the plaintiffs failed to move to amend the
scheduling order under Federal Rule of Civil Procedure 16(b)(4).
Local Rule 15.1(a)(ii) and (iii) require parties moving to
amend to identify any new factual allegations and to explain why
those were not included in the original filing. The plaintiffs
have done neither here.
The defendants also argue that the motion to amend should be
denied because the claims are futile.
The plaintiffs did not
respond to the defendants’ objection.
The defendants are correct that the plaintiffs did not meet
the requirements of Local Rule 15.1 or Rule 16(b)(4).
omissions could support denying the motion to amend, which would
leave the original complaint as the operative complaint with one
claim remaining in Count III.
The defendants also assert,
however, that the claims are futile.
Rather than address the claims in the context of futility,
the better approach in this case is to address the claims in the
proposed amended complaint, which are the claims asserting
violations of Regulation B and Regulation X, on the merits
through a dispositive motion.
For that reason, the plaintiffs
are granted leave to amend the complaint to add a claim under
Regulation B in Count III, and the defendants are granted leave
to file a dispositive motion to challenge the viability of the
Regulation B and Regulation X claims in Count III.
For the foregoing reasons, the plaintiffs’ motions for
reconsideration (documents nos. 23 and 26) are denied.
defendants’ motion for reconsideration (document no. 24) is
The defendants’ motion for leave to reply (document no.
35) is denied.
The plaintiffs’ motion to amend (document no. 25) is
granted as follows:
The plaintiffs are granted leave to amend their complaint
to add a claim in Count III that the defendants violated
The claims in Count III, for purposes of the
amended complaint, are that the defendants violated Regulation B
and Regulation X based on the plaintiffs’ 2013 loan modification
application and the foreclosure in 2015.
The claims in Counts I
and II and the claim for equitable relief under RESPA in Count
III remain dismissed.
The plaintiffs shall file the amended complaint as a
separate document on or before September 8, 2017, and once filed
the amended complaint will become the operative complaint in the
The defendants are granted leave to file a dispositive
motion, either a motion to dismiss or a motion for summary
judgment, on the remaining Regulation B and Regulation X claims
in Count III.
The dispositive motion shall be filed within
fourteen days after the amended complaint is filed.
plaintiffs shall respond to the motion as provided under the
local rules of this district and the Federal Rules of Civil
If the case is not resolved by dispositive motion, a date
will be set for the defendants to file an answer to the amended
complaint and a new discovery plan will be ordered.
which is scheduled for the period beginning on October 3, 2017,
is continued and will be rescheduled, if necessary, after the
defendants’ dispositive motion is resolved.
The final pretrial
conference scheduled for September 21, 2017, is cancelled.
Joseph DiClerico, Jr.
United States District Judge
September 6, 2017
Steven J. Dutton, Esq.
Henry Klementowicz, Esq.
William C. Sheridan, Esq.
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