848 F. Supp. 2d 107
D.N.H.2012Background
- Moores allege misrepresentations about loan terms, failure to provide loan information, and foreclosing during modification negotiations.
- Loans originated/refinanced in 2006 with WMC Mortgage Corp.; Martins claim the loan was not enrolled in any Fannie Mae program as promised.
- Servicing shifted from Saxon to Ocwen; HAMP modification attempts occur; two earlier letters mention modification but promises/documents go missing.
- Foreclosure notices issued by Harmon on behalf of MERS/Deutsche Bank; state court injunction obtained then stayed after record evidence about paperwork.
- Moores allege RESPA, FDCPA, UDUPCA, and common-law claims; later amended complaints add/remediate defendants and theories.
- Court analyzes res judicata and dismisses many counts while allowing some against Ocwen, Saxon, Harmon, and others to proceed or be dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is there res judicata preclusion? | State court denial of preliminary relief precludes later actions. | State court ruling constitutes final adjudication on merits; thus precludes claims. | Res judicata does not apply; preliminary injunction denial is not a final merits ruling. |
| Are Counts 2 and 3 (TILA/Regulation Z) time-barred against WMC? | Equitable tolling could save claims; discovery delays. | Claims filed well beyond limitations; tolling not applicable. | Counts 2 and 3 time-barred; TILA/state-law claims dismissed against WMC. |
| Does RESPA claim against Ocwen support actual or statutory damages? | Two QWR failures support damages under RESPA. | No pattern of noncompliance and no damages proven. | Actual damages potential exists (emotional distress); statutory damages not shown for pattern; RESPA claim allowed to proceed for actual damages against Ocwen. |
| Are FDCPA/UDUCPA claims viable against Harmon and others? | Harmon engaged in debt collection during foreclosure; FDCPA applies; UDUCPA violated. | Some defendants not engaged in debt collection; insufficient pleadings for UDUCPA. | FDCPA claim survives against Harmon; UDUCPA claim dismissed as to Harmon; FDCPA/UDUCPA claims against other defendants survive where pleaded. |
| Do counts for breach of implied covenant and related duties survive? | Lenders owe implied covenants; modification efforts breach covenant; duties outside contract exist. | No contract with some defendants; SPAs and third-party beneficiary issues bar claims; no independent duty shown. | Counts 7, 10, 12, 13 dismissed; no viable implied covenant claims against those defendants. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading standards for plausibility at Rule 12(b)(6))
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility standard for complaint possible relief)
- Birch Broad., Inc. v. Capitol Broad. Corp., Inc., 161 N.H. 192, 13 A.3d 224 (N.H. 2010) (implied covenant duty scope under New Hampshire law)
- Wyle v. Lees, 162 N.H. 406, 33 A.3d 1187 (N.H. 2011) (duty in lender-borrower relationships; independent duties may exist)
- Murphy v. Fin. Dev. Corp., 126 N.H. 536, 495 A.2d 1245 (N.H. 1985) (lender owes duty to obtain fair price at foreclosure under certain circumstances)
- Speleos v. BAC Home Loans Servicing, LP, 824 F.Supp.2d 226 (D. Mass. 2011) (third-party beneficiary analysis of SPAs in HAMP context)
- Salois v. Dime Sav. Bank of N.Y., FSB, 128 F.3d 20 (1st Cir. 1997) (equitable tolling standards and discovery rules in relation to tolling)