UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Jeffrey Bradley
v. Civil No. 12-cv-127-PB Opinion No. 2014 DNH 112 Wells Fargo Bank, N.A.
MEMORANDUM AND ORDER
On March 3, 2014, I entered a Memorandum and Order granting
in part and denying in part a Motion for Summary Judgment
brought by Wells Fargo as Trustee for a Pooling and Service
Agreement (“PSA Trustee”) and Ocwen Loan Servicing, LLC.
Bradley v. Wells Fargo Bank, N.A., 2014 DNH 041, 17; Doc. No.
86. PSA Trustee seeks reconsideration of my decision on three
separate grounds. I consider each in turn.
I. STANDARD OF REVIEW
Because final judgment has not been rendered, I consider
this motion under Local Rule 7.1(d), requiring that motions for
reconsideration “demonstrate that the order was based on a
manifest error of fact or law.” Reconsideration is “‘an
extraordinary remedy which should be used sparingly.’” Town of
Wolfeboro v. Wright-Pierce, 2014 DNH 013, 4 (quoting Fabrica de Muebles J.J. Alvarez, Inc. v. Inversiones Mendoza, Inc., 682
F.3d 26, 31 (1st Cir. 2012) (internal quotation marks omitted).
II. ANALYSIS
A. Notice
PSA Trustees assert that I overlooked evidence mandating a
contrary result when I found that it failed to satisfy its
statutory duties to notify Bradley of the postponements of the
foreclosure sale. In support, PSA Trustee relies on the
confirmatory affidavit to the foreclosure deed, which states
that the postponements were publically announced at the property
on each previously scheduled foreclosure date, as required by
statute. See N.H. Rev. Stat. Ann. § 479:25; Doc. No. 77-9.1 PSA
Trustee included the confirmatory affidavit in its summary
judgment exhibits, but did not rely on it in its summary
judgment briefing.2
1 The confirmatory affidavit, submitted under oath by Erika L. Vogel on July 12, 2011, states: “at the auction sale on March 9, 2011 pursuant to said notice . . . the sale was postponed by public proclamation to April 6, 2011 at 1:00 p.m., at which time and place, upon the mortgaged premises, the sale was postponed by public proclamation to April 27, 2011, at 1:00 p.m. . . . .” Doc No. 77-9. 2 Bradley notes that the affidavit was “raised for the first time in a motion to reconsider.” Although a motion to reconsider is not a proper time to “advance arguments that could and should have been presented [previously],” Town of Wolfeboro, 2014 DNH 2 Bradley contends that the affidavit does not amount to
sufficient evidence because the affiant, Erika Vogel, does not
claim personal knowledge of the postponements, in violation of
Federal Rule of Civil Procedure 56(c)(4) (requiring that
affidavits for summary judgment motions be “made on personal
knowledge.”). PSA Trustee responds by arguing that the
affidavit is nevertheless admissible under Federal Rule of
Evidence 803(15), the hearsay exception covering statements in
documents that affect an interest in property.
Rule 803(15) is an exception to the hearsay rule for
statements “contained in a document that purports to establish
or affect an interest in property if the matter stated was
relevant to the document’s purpose – unless later dealings with
the property are inconsistent with the truth of the statement or
the purport of the document.” The Rule permits statements that
would otherwise be hearsay if (1) they are contained within a
document that affects an interest in property; (2) the
statements are relevant to the purport of the document; and (3)
any dealings with the property subsequent to the document’s
creation have not been inconsistent with the truth of the
013, 4, I nevertheless exercise my discretion in considering the evidentiary value of the confirmatory affidavit. If I did not rule on the confirmatory affidavit now, PSA Trustee could invoke it at trial, which would be a waste of judicial resources if it can currently be deemed admissible. 3 statements. U.S. v. Boulware, 384 F.3d 794, 807 (9th Cir.
2004). Other courts have noted that the Rule also requires that
the document meet standards of authenticity and trustworthiness.
See Silverstein v. Chase, 260 F.3d 142, 149 (2d Cir. 2001); U.S.
v. Weinstock, 863 F. Supp. 1529, 1533-34 (D. Utah 1994).
Here, the confirmatory affidavit was recorded as a required
part of the foreclosure process. See N.H. Rev. Stat. Ann.
§ 479:26 (requiring affidavits to set forth “fully and
particularly” the acts surrounding foreclosure). It is also
clearly a document affecting an interest in property containing
statements relevant to the document’s purpose. Bradley has
brought forth no evidence of any inconsistent subsequent
dealings. He argues that a lack of personal knowledge makes the
document untrustworthy, but this argument is insufficient
especially given that New Hampshire requires that such documents
“shall be evidence on the question whether the power of sale was
duly executed.” Id. See also Blackburn v. Deutsche Bank Trust
Co., No. 09-E-0229, 2011 WL 4428712 * n.5 (N.H. Super. 2011)
(citing New Hampshire analogue to 803(15) in finding
confirmatory affidavit admissible for the truth of the
statements therein). I thus grant PSA Trustee’s motion for
reconsideration on Count IV, Bradley’s claim that he did not
receive proper notice of the foreclosure sale. 4 B. Deficiency Judgment
PSA Trustee next argues that I should have granted its
motion for summary judgment on its deficiency judgment
counterclaim because Bradley failed to submit evidence properly
opposing its affidavits and supporting documents. In my initial
order, I acknowledged that PSA Trustee submitted an affidavit
purporting to show that Bradley owed $258,223.60. I then found
that Bradley challenged the stated amount owed and raised an
argument that the predecessors unreasonably delayed the
foreclosure sale in breach of the duty of good faith and fair
dealing. I denied PSA Trustee’s motion for summary judgment
because I determined that material facts pertaining to the
motion remained in genuine dispute. In denying the motion, I
took no position on Bradley’s good faith and fair dealing
argument.
My opinion does not change upon reconsideration. Bradley
objected to the amount owed.3 To counter this rejection, PSA
Trustee must submit additional facts beyond a bald statement of
the amount owed to show how they arrived at its accounting.
3 PSA Trustee argues that Bradley’s objection is “mere allegation, speculation, or unsupported denial” and is thus insufficient to counter its affidavit. I reject this argument because I find PSA Trustee’s affidavit too conclusory in submitting an amount owed with no further evidence of how it arrived at this figure. 5 Potential material facts exist concerning the accounting of
Bradley’s mortgage. As such, I am unwilling to find that PSA
Trustee submitted sufficient information to establish summary
judgment on its deficiency judgment claim.
PSA Trustee in the alternative asks that I grant a judgment
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Jeffrey Bradley
v. Civil No. 12-cv-127-PB Opinion No. 2014 DNH 112 Wells Fargo Bank, N.A.
MEMORANDUM AND ORDER
On March 3, 2014, I entered a Memorandum and Order granting
in part and denying in part a Motion for Summary Judgment
brought by Wells Fargo as Trustee for a Pooling and Service
Agreement (“PSA Trustee”) and Ocwen Loan Servicing, LLC.
Bradley v. Wells Fargo Bank, N.A., 2014 DNH 041, 17; Doc. No.
86. PSA Trustee seeks reconsideration of my decision on three
separate grounds. I consider each in turn.
I. STANDARD OF REVIEW
Because final judgment has not been rendered, I consider
this motion under Local Rule 7.1(d), requiring that motions for
reconsideration “demonstrate that the order was based on a
manifest error of fact or law.” Reconsideration is “‘an
extraordinary remedy which should be used sparingly.’” Town of
Wolfeboro v. Wright-Pierce, 2014 DNH 013, 4 (quoting Fabrica de Muebles J.J. Alvarez, Inc. v. Inversiones Mendoza, Inc., 682
F.3d 26, 31 (1st Cir. 2012) (internal quotation marks omitted).
II. ANALYSIS
A. Notice
PSA Trustees assert that I overlooked evidence mandating a
contrary result when I found that it failed to satisfy its
statutory duties to notify Bradley of the postponements of the
foreclosure sale. In support, PSA Trustee relies on the
confirmatory affidavit to the foreclosure deed, which states
that the postponements were publically announced at the property
on each previously scheduled foreclosure date, as required by
statute. See N.H. Rev. Stat. Ann. § 479:25; Doc. No. 77-9.1 PSA
Trustee included the confirmatory affidavit in its summary
judgment exhibits, but did not rely on it in its summary
judgment briefing.2
1 The confirmatory affidavit, submitted under oath by Erika L. Vogel on July 12, 2011, states: “at the auction sale on March 9, 2011 pursuant to said notice . . . the sale was postponed by public proclamation to April 6, 2011 at 1:00 p.m., at which time and place, upon the mortgaged premises, the sale was postponed by public proclamation to April 27, 2011, at 1:00 p.m. . . . .” Doc No. 77-9. 2 Bradley notes that the affidavit was “raised for the first time in a motion to reconsider.” Although a motion to reconsider is not a proper time to “advance arguments that could and should have been presented [previously],” Town of Wolfeboro, 2014 DNH 2 Bradley contends that the affidavit does not amount to
sufficient evidence because the affiant, Erika Vogel, does not
claim personal knowledge of the postponements, in violation of
Federal Rule of Civil Procedure 56(c)(4) (requiring that
affidavits for summary judgment motions be “made on personal
knowledge.”). PSA Trustee responds by arguing that the
affidavit is nevertheless admissible under Federal Rule of
Evidence 803(15), the hearsay exception covering statements in
documents that affect an interest in property.
Rule 803(15) is an exception to the hearsay rule for
statements “contained in a document that purports to establish
or affect an interest in property if the matter stated was
relevant to the document’s purpose – unless later dealings with
the property are inconsistent with the truth of the statement or
the purport of the document.” The Rule permits statements that
would otherwise be hearsay if (1) they are contained within a
document that affects an interest in property; (2) the
statements are relevant to the purport of the document; and (3)
any dealings with the property subsequent to the document’s
creation have not been inconsistent with the truth of the
013, 4, I nevertheless exercise my discretion in considering the evidentiary value of the confirmatory affidavit. If I did not rule on the confirmatory affidavit now, PSA Trustee could invoke it at trial, which would be a waste of judicial resources if it can currently be deemed admissible. 3 statements. U.S. v. Boulware, 384 F.3d 794, 807 (9th Cir.
2004). Other courts have noted that the Rule also requires that
the document meet standards of authenticity and trustworthiness.
See Silverstein v. Chase, 260 F.3d 142, 149 (2d Cir. 2001); U.S.
v. Weinstock, 863 F. Supp. 1529, 1533-34 (D. Utah 1994).
Here, the confirmatory affidavit was recorded as a required
part of the foreclosure process. See N.H. Rev. Stat. Ann.
§ 479:26 (requiring affidavits to set forth “fully and
particularly” the acts surrounding foreclosure). It is also
clearly a document affecting an interest in property containing
statements relevant to the document’s purpose. Bradley has
brought forth no evidence of any inconsistent subsequent
dealings. He argues that a lack of personal knowledge makes the
document untrustworthy, but this argument is insufficient
especially given that New Hampshire requires that such documents
“shall be evidence on the question whether the power of sale was
duly executed.” Id. See also Blackburn v. Deutsche Bank Trust
Co., No. 09-E-0229, 2011 WL 4428712 * n.5 (N.H. Super. 2011)
(citing New Hampshire analogue to 803(15) in finding
confirmatory affidavit admissible for the truth of the
statements therein). I thus grant PSA Trustee’s motion for
reconsideration on Count IV, Bradley’s claim that he did not
receive proper notice of the foreclosure sale. 4 B. Deficiency Judgment
PSA Trustee next argues that I should have granted its
motion for summary judgment on its deficiency judgment
counterclaim because Bradley failed to submit evidence properly
opposing its affidavits and supporting documents. In my initial
order, I acknowledged that PSA Trustee submitted an affidavit
purporting to show that Bradley owed $258,223.60. I then found
that Bradley challenged the stated amount owed and raised an
argument that the predecessors unreasonably delayed the
foreclosure sale in breach of the duty of good faith and fair
dealing. I denied PSA Trustee’s motion for summary judgment
because I determined that material facts pertaining to the
motion remained in genuine dispute. In denying the motion, I
took no position on Bradley’s good faith and fair dealing
argument.
My opinion does not change upon reconsideration. Bradley
objected to the amount owed.3 To counter this rejection, PSA
Trustee must submit additional facts beyond a bald statement of
the amount owed to show how they arrived at its accounting.
3 PSA Trustee argues that Bradley’s objection is “mere allegation, speculation, or unsupported denial” and is thus insufficient to counter its affidavit. I reject this argument because I find PSA Trustee’s affidavit too conclusory in submitting an amount owed with no further evidence of how it arrived at this figure. 5 Potential material facts exist concerning the accounting of
Bradley’s mortgage. As such, I am unwilling to find that PSA
Trustee submitted sufficient information to establish summary
judgment on its deficiency judgment claim.
PSA Trustee in the alternative asks that I grant a judgment
of a deficiency, with the exact amount to be determined at
trial. I decline to do so, finding that material facts exist on
this issue, making it more properly suited for resolution with
additional evidence at a later date.
C. Intentional Infliction of Emotional Distress
PSA Trustee argues that Bradley’s allegations, even if
true, are insufficient to support a claim for intentional
infliction of emotional distress. In support, it cites the same
case it had previously cited in its reply, Neenan v.
Citimortgage, Inc., 2013 DNH 163, 15-16. PSA Trustee also
argues that “after diligent search” it could not find any New
Hampshire precedent finding eviction activities, conversion, or
conduct resulting in property damage as sufficient to support an
intentional infliction of emotional distress claim.
PSA Trustee raises no manifest error of law nor fact.
Neenan is distinguishable on its facts,4 and the existence or
4 In Neenan, for instance, the plaintiff knew of the foreclosure prior to the sale, and the bank had granted her permission to 6 non-existence of a New Hampshire case on this topic does not
determine the claim’s validity. I again emphasize that based on
these facts, I consider this to be a close case in which a
reasonable jury could potentially find PSA Trustee’s conduct to
be extreme and outrageous. See Doc. No. 86.
III. CONCLUSION
For the reasons expressed above, I grant PSA Trustee’s
motion for reconsideration, Doc. No. 89, in part and deny it in
part.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
May 20, 2014
cc: Ruth A. Hall, Esq. Terrie L. Harman, Esq. Christopher J. Fischer, Esq. William Philpot, Jr., Esq. John S. McNicholas, Esq.
enter the property after the sale. 2013 DNH 163, 15-16. 7