Pickering v. Citizens Bank, N.A.

Filing 30

///ORDER granting 22 Motion for Summary Judgment. Clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Clinton W. Pickering
v.

Civil No. 18-cv-229-JD
Opinion 2019 DNH 119

Citizens Bank, N.A.
O R D E R
Clinton W. Pickering brought suit in state court after
Citizens Bank, N.A. foreclosed on his home and conducted a
foreclosure sale of the property.

Citizens Bank removed the

case to this court and has moved for summary judgment.
Pickering filed an objection, and Citizens Bank filed a reply.

Standard of Review
Summary judgment is appropriate when “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); see also

Thomas v. Harrington, 909 F.3d 483, 490 (1st Cir. 2019).

For

purposes of summary judgment, the court considers the facts in
the light most favorable to the plaintiff and draws all
reasonable inferences in his favor.

Roy v. Correct Care

Solutions, LLC, 914 F.3d 52, 57 (1st Cir. 2019).

“An issue is

genuine if it can be resolved in favor of either party, and a
fact is material if it has the potential of affecting the

outcome of the case.”

Leite v. Gergeron, 911 F.3d 47, 52 (1st

Cir. 2018) (internal quotation marks omitted).

“A genuine issue

of material fact only exists if a reasonable factfinder,
examining the evidence and drawing all reasonable inferences
helpful to the party resisting summary judgment, could resolve
the dispute in that party’s favor.”

Town of Westport v.

Monsanto Co., 877 F.3d 58, 64-65 (1st Cir. 2017) (internal
quotation marks omitted); Flood v. Bank of Am. Corp., 780 F.3d
1, 7 (1st Cir. 2015).
In this district, a motion for summary judgment must be
accompanied by a “short and concise statement of material facts,
supported by appropriate record citations, as to which the
moving party contends there is no genuine issue to be tried.”
LR 56.1(a).

The opposing party must also provide statement of

material facts supported by record citations.

LR 56.1(b).

“All

properly supported material facts set forth in the moving
party’s factual statement may be deemed admitted unless properly
opposed by the adverse party.”

Id.

Pickering did not provide a statement of material facts.1
Therefore, to the extent the facts provided by Citizens Bank are
properly supported, they are deemed to be admitted by Pickering.

1

Pickering is represented by counsel.
2

Background
Pickering borrowed $200,000 from Citizens Bank on July 29,
2006, and the loan was secured by a mortgage on property located
at 515 Old Bartlett Road, Conway, New Hampshire.
has filed copies of the note and mortgage.

Citizens Bank

In July of 2016,

Pickering failed to make his monthly mortgage payment.2
Citizens Bank submitted documents to show Pickering’s
payment history through 2017.

Although the recitation of

payments from the initiation of the loan through December of
2013 are clear, the printouts of transactions thereafter are
not.

In any case, counsel for Citizens Bank sent Pickering a

letter dated February 1, 2017, that stated he was in default on
the note and that he could cure the default by paying the amount
due for the period from July of 2016 through January of 2017,
late charges, other fees, and “MTGR Rec Corp Adv.”3
Instead of curing the default as explained in the notice,
Pickering sent checks for the usual mortgage payment amounts in
March, April, May, July, August, September, October, and

While counsel for Pickering says that he disputes Citizens
Bank’s evidence that he failed to make mortgage payments, he
lacks a cancelled check or any other evidence to show that he
did make payments.
2

Although Citizens Bank has not made it entirely clear, it
appears that Pickering did not make mortgage payments after July
of 2016.
3

3

November of 2017.

Those checks were returned to him each month

with a letter that explained the check was being returned due to
the delinquent status of his loan, a telephone number to call to
discuss payment arrangements, and the total amount due that had
to be paid to make the loan current.
Pickering’s daughter, Wendy McCollum, provided an affidavit
in which she explained that the mortgaged property had been
purchased by her great grandfather and left to her father and
his siblings.

McCollum states that Pickering used the loan to

buy his siblings’ shares of the property.

Neither she nor her

brother were able to keep in close communication with their
father.
McCollum states that Pickering had a stroke in 2017 that
caused her to fly to New Hampshire from California.

She

contacted Citizens Bank and was notified of the mortgage balance
and the accrued interest and that her father had to pay a
certain amount before the loan would be reinstated.

She states

that Citizens Bank sent a modification packet to her father, but
the foreclosure occurred before the deadline for him to submit
the paperwork.
Pickering received packages from Citizens Bank with letters
dated October 27, 2017, and November 1, 2017.

In those letters,

Citizens Bank explained that it required Pickering to send

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documentation in order to be considered for relief.

The letters

set November 26 and then December 1, 2017, as the deadlines for
Pickering to send the required documentation.

McCollum said

that she and her husband could have helped her father make the
necessary payments.
Citizens Bank shows that Pickering received the notice of
foreclosure on September 25, 2017, and that he signed for the
certified delivery.
November 14, 2017.

A foreclosure sale was held by auction on
Citizens Bank conveyed the property to

itself on November 30, 2017, by foreclosure deed and recorded
the deed.

The deed was recorded with the Carroll County

Register of Deeds on December 13, 2017.

Paul Wheeler, a real

estate broker in the area, left Pickering an undated note with
his telephone number, stating that the bank had foreclosed and
providing options for Pickering to leave the property.
Pickering brought suit in state court in January of 2018.
Citizens Bank removed the case to this court in March of 2018.
Pickering brings the following claims:

I. Violation of the

Dodd-Frank Act 120-Day Rule; II. Wrongful Foreclosure; III.
Breach of Contract; IV. Negligence; V. Fraud; and VI. Unjust
Enrichment.

5

Discussion
Citizens Bank moves for summary judgment on all six claims
in Pickering’s complaint.

In support, Citizens Bank contends

that no violation of Regulation X of the Dodd-Frank Act
occurred, that RSA 479:25, II(c) bars the wrongful foreclosure
claim, and that Pickering lacks evidence to prove the claims
alleged in Counts II through VI.

In response, Pickering argues

that his poor health, the loss mitigation packages, and other
circumstances preclude summary judgment on some of his claims.

A.

Dodd-Frank Act – Claim I
In Claim I, Pickering alleged: “Under the Dodd-Frank Act,

the Plaintiff had to be 120 days behind on his mortgage payments
before the Bank could start a foreclosure proceeding.”
1-1, at 6.

Doc.

Pickering did not cite any provision of the Dodd-

Frank Act to support his claim.

Citizens Bank interpreted the

allegations in Claim I to invoke the protection of Regulation X,
12 C.F.R. § 1024.41(f).

In response, without citing any

specific statute, regulation, case, or other authority in
support, Pickering states that Citizens Bank could not foreclose
on the property until either review of the loss mitigation
package was complete or a 120-day waiting period elapsed,
whichever was later.

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1. Section 1024.41(f)
The court agrees with Citizens Bank that Pickering’s
allegations in support of Claim I appear to be aimed at
Regulation X, § 1024.41(f).

That regulation prohibits a loan

servicer from making a first notice or filing required for a
foreclosure sooner than 120 days after the mortgage payments
have been delinquent.

§ 1024.41(f)(1).

When Pickering did not

make his mortgage payment by July 1, 2016, when it was due, the
payment became delinquent ten days later, on July 11, 2016.

See

Note, Doc. no. 22-3, at *2.
Under § 1024.41(f)(1), the waiting period expired 120 days
later, in mid-November of 2016.

Citizens Bank sent Pickering

notice of default in February of 2017 and sent notice of
foreclosure in September of 2017.

Therefore, no violation of

§ 1024.41(f)(1) occurred.

2.

Section 1024.41(g)

In response to the motion for summary judgment, Pickering
changed theories and argued that Citizens Bank was required to
wait for 120 days or until review of the loan modification
application was complete before foreclosing.

Pickering does not

explain what would trigger the 120-day waiting period.

He

argues that because the deadlines for submitting the loan

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modification applications were after the date of the
foreclosure, review of an application had not occurred when
Citizens Bank foreclosed.
In its reply, Citizens Bank interpreted the new claim as
invoking § 1024.41(g) and argued that Pickering failed to show a
violation.

Pickering did not file a surreply, and therefore, he

did not respond to Citizens Bank’s argument under § 1024.41(g).
Section 1024.41(g) provides that if a borrower submits a
completed loss mitigation application after the loan servicer
has made the first required notice or filing for foreclosure and
the complete application is submitted more than 37 days before
the date of the foreclosure the servicer is prohibited from
conducting a foreclosure sale unless an exception applies.

A

complete loss mitigation application means that the servicer has
received all of the required information.

§ 1024.41(b)(1).

On September 25, 2017, Pickering received notice that his
property would be sold at public auction on November 14, 2017.
He never submitted a loss mitigation application to Citizens
Bank.

He makes no argument that he is protected under

§ 1024.41(g) or any other part of the Dodd-Frank Act.
Therefore, Citizens Bank is entitled to summary judgment on
Claim I.

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B.

Wrongful Foreclosure – Claim II
Pickering alleges in support of his wrongful foreclosure

claim that Citizens Bank had a duty to work with him to prevent
the foreclosure sale and breached the duty by failing to accept
his payments.

In support of summary judgment, Citizens Bank

contends that it had no duty to work with Pickering and that his
claim is barred by RSA 479:25, II(c).

Pickering argues in his

response that because he had suffered head injuries and strokes
beginning in 2000, he had vision issues that prevented him from
reading letters sent to him by Citizens Bank.

He further argues

that his stroke in May of 2017 caused additional disability that
interfered with his ability to respond.
RSA 479:25, II provides that if a mortgagor fails to
institute a petition to enjoin the scheduled foreclosure sale of
property before the sale, that failure “shall thereafter bar any
action or right of action of the mortgagor based on the validity
of the foreclosure.”

Wrongful foreclosure claims based on facts

that the mortgagor knew or should have known before the
foreclosure sale are barred.

Murphy v. Fin. Dev. Corp., 126

N.H. 536, 540 (1985).
Pickering’s wrongful foreclosure claim is based on Citizens
Bank’s refusal to accept his payments made in March through

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November of 2017.

Because Citizens Bank returned each payment

with explanation about how to cure the default, Pickering was
notified that his payments were not being accepted.

He does not

explain or cite any authority to show why his health and vision
issues obviated his duty to enjoin the foreclosure sale.
addition, his daughter read the letters.

In

Similarly, the same

arguments to show that he did not receive notice of the
foreclosure sale and that the publication notice was
insufficient fail because he signed the return receipt for the
notice on September 25, 2017.
Therefore, the wrongful foreclosure claim is barred by RSA
479:25, II(c).

C.

Breach of Contract, Negligence, Fraud, and Unjust Enrichment
Claims III through VI
Citizens Bank moves for summary judgment on the remaining

state law claims on the merits and, in its reply, asserts that
Pickering has waived those claims by failing to defend them in
response to the motion for summary judgment.

Because the claims

fail on the merits, the court need not address the waiver issue.
Nevertheless, a court is not obligated to make arguments on
behalf of a party, particularly a party represented by counsel,
and may disregard arguments that are not developed.

Coons v.

Indus. Knife Co., Inc., 620 F.3d 38, 44 (1st Cir. 2010).
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1.

Breach of Contract – Claim III

Pickering alleges that Citizens Bank breached “the
contract between the parties by failing to accept legitimate
forms of tender” from him.

Doc. 1-1, at *8.

He also alleges

that Citizens Bank breached “the contract between the parties by
failing to return any surplus escrow funds to the Plaintiff.”
Id.

He states that Citizens Bank’s failure to accept his

payments caused the foreclosure which resulted in the loss of
his home.
Pickering does not identify “the contract between the
parties.”

Assuming that he intended to allege that Citizens

Bank breached either the terms of the note or the terms of the
mortgage, he does not identify any provision that was breached.
Citizens Bank asserts that it had no obligation to accept
payments that were insufficient to reinstate the loan and that
there were no surplus escrow funds.4
“Under New Hampshire law, a breach of contract occurs when
there is a failure without legal excuse to perform any promise
which forms the whole or part of a contract.”

ProDone, Inc. v.

To show that there were no surplus escrow funds, Citizens
Bank cites generally to “Ex. B-3,” which is a twenty-six page
exhibit (doc. no. 22-5) and includes copies of sheets of payment
records that are neither explained nor easily comprehensible.
4

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Basham, --- A.3d ---, 2019 WL 1967686, at *3 (N.H. May 3, 2019).
Pickering has not shown that Citizens Bank made a promise in a
contract to accept his noncompliant payments or to return escrow
funds.

He also has not shown that Citizens Bank was holding

“surplus” escrow funds.
When faced with a properly supported motion for summary
judgment, the opposing party must provide competent evidence to
show a material factual dispute or competent legal authority to
show that the moving party is not entitled to judgment as a
matter of law.

See Mendez-Laboy v. Abbott Labs, Inc., 424 F.3d

35, 37 (1st Cir. 2005).

Pickering has done neither.

Therefore,

Citizens Bank is entitled to summary judgment on the breach of
contract claim, Count III.

2.

Negligence – Count IV

In support of his negligence claim, Pickering alleges that
Citizens Bank had a duty to accurately account for his payments
and to accurately state the amounts due.

He states that he

disputes the amounts in the mailings that were sent to him.
Citizens Bank challenges the claim for lack of proof and on the
basis of the economic loss doctrine.

Pickering did not respond

to those challenges or provide any evidence to support his
claim.

12

The economic loss rule bars tort recovery for purely
economic loss resulting from the contractual relationship.
Plourde Sand & Gravel Co. v. JGIE, Inc., 154 N.H. 791, 794
(2007); accord Schaefer v. IndyMac Mortg. Servs., 731 F.3d 98,
103 (1st Cir. 2013).

Exceptions to the rule exist when the

defendant has assumed additional duties outside of the
performance required under the contract, id., and when negligent
misrepresentation is used as an inducement to enter the
contract, Wyle v. Lees, 162 N.H. 406, 411 (2011).

Pickering has

not shown that the economic loss rule does not apply or that any
exception to the economic loss rule would save his claim.
In addition, Pickering has not provided evidence to support
his claim.

As a result, he has not shown a material factual

dispute or supporting legal authority to avoid summary judgment.
Therefore, Citizens Bank is entitled to summary judgment on the
negligence claim, Count IV.

3.

Fraud – Count V

Pickering alleges that Citizens Bank committed fraud by
knowingly making false representations that he had not made
monthly mortgage payments when Citizens Bank had rejected his
payments and by knowingly holding “excess surplus funds” that
were available to offset his obligations.

13

Citizens Bank

contends that its representations were true because it notified
Pickering that he was in default, when he was in default, and
the letters stated that the payments were rejected because they
were insufficient to reinstate the loan.

Because Pickering did

not respond to Citizens Banks’ motion on the fraud claim, he
provides no evidence or argument to support the claim.
Under New Hampshire law, “[o]ne who fraudulently makes a
misrepresentation for the purpose of inducing another to act or
to refrain from action in reliance upon it, is subject to
liability to the other in deceit for pecuniary loss caused to
him by his justifiable reliance upon the misrepresentation.”
Tessier v. Rockefeller, 162 N.H. 324, 331-32 (2011) (internal
quotation marks omitted).

An essential element of fraud is that

the representation was made with knowledge of its falsity or
with conscious indifference to the truth.

Id.

Pickering has not shown a material factual dispute about
the truth of the representations made to him.

Therefore,

Citizens Bank is entitled to summary judgment on the claim.

4.

Unjust Enrichment – Claim VI

“Unjust enrichment is an equitable remedy that is available
when an individual receives a benefit which would be
unconscionable for him to retain.”

14

Axenics, Inc. v. Turner

Constr. Co., 164 N.H. 659, 669 (2013).

A claim for unjust

enrichment is not available if there is an enforceable contract
that that covers the subject matter of the claim.

Id.

Pickering alleges that Citizens Bank has been unjustly
enriched by taking surplus funds that were in his escrow account
and by taking his equity in the property.

Citizens Bank

contends Pickering cannot maintain a claim for unjust enrichment
when the terms of the note and the mortgage govern the matters
he alleges.

Again, because Pickering did not respond to the

motion with respect to this claim, he does not refute Citizens
Bank’s challenge.
The note and mortgage, which are contracts between
Pickering and Citizens Bank, cover the parties’ rights and
obligations with respect to the payments and penalties that are
at issue in this case.

Therefore, Pickering cannot bring a

claim for unjust enrichment.

Citizens Bank is entitled to

summary judgment on the unjust enrichment claim.

Conclusion
For the foregoing reasons, Citizens Bank’s motion for
summary judgment (document no. 22) is granted.

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The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.

______________________________
Joseph A. DiClerico, Jr.
United States District Judge
July 31, 2019
cc:

Counsel of Record

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