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848 F. Supp. 2d 107
D.N.H.
2012
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Background

  • 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)
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Case Details

Case Name: Moore v. Mortgage Electronic Registration System, Inc.
Court Name: District Court, D. New Hampshire
Date Published: Jan 27, 2012
Citations: 848 F. Supp. 2d 107; 2012 DNH 021; 2012 DNH 21; 2012 U.S. Dist. LEXIS 9713; 2012 WL 253834; Civil No. 10-cv-241-JL
Docket Number: Civil No. 10-cv-241-JL
Court Abbreviation: D.N.H.
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