Dana E. Moody v. PennyMac Loan Services, LLC, et al.

2018 DNH 066

• Court: District Court, D. New Hampshire
• Decided: March 27, 2018
• Docket: 16-cv-021-JL
• Status: Published

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Dana E. Moody

v. Civil No. 16-cv-021-JL Opinion No. 2018 DNH 066 PennyMac Loan Services, LLC, et al.

MEMORANDUM ORDER

In this twice-consolidated action, pro se plaintiff Dana E.

Moody alleges that PennyMac Loan Services, LLC, PennyMac

Holdings, LLC, and PennyMac Mortgage Investment Trust Holdings

I, LLC,1 violated state and federal law with respect to a

mortgage on property Moody co-owned in New Boston, New

Hampshire. Broadly speaking, Moody’s eight-count consolidated

complaint2 alleges three categories of claims. In four counts,

Moody alleges that PennyMac undertook actions with respect to

the mortgage that violated New Hampshire common and statutory

law, resulting in pecuniary harm to Moody and his property being

sold at a foreclosure auction. In two other counts, Moody

alleges that PennyMac violated federal and state debt collection

practices law. And in the remaining two counts, Moody alleges

1 As the defendants do not distinguish between one another in a way that would impact the determinations in this Memorandum Order, the court will refer to them singularly as PennyMac. 2 Consolidated Complaint (doc. no. 69) (“Compl.”). violations of the Real Estate Settlement Practices Act

(“RESPA”), 12 U.S.C. § 2601 et seq.

The court has subject-matter jurisdiction over this action

by virtue of Moody’s federal statutory claims. See 28 U.S.C. §

1331. As the parties are diverse and the amount in controversy

exceeds $75,000, this matter also falls within this court’s

diversity jurisdiction. See 28 U.S.C. § 1332(a). PennyMac

moves to dismiss the complaint in its entirety for failure to

state a claim. See Fed. R. Civ. P. 12(b)(6). Alternatively,

PennyMac contends this action should be dismissed because Moody

failed to join a necessary party. See Fed. R. Civ. P. 12(b)(7).

The court grants PennyMac’s motion to dismiss pursuant to

Rule 12(b)(6) in part. The court dismisses Moody’s common-law

fraud claim, as it fails to meet the heightened pleading

requirements under Rule 9(b). The court likewise dismisses

Moody’s claim brought under N.H. Rev. Stat. Ann. § 479:25,

because Moody concedes that this count does not constitute an

independent claim. The court also dismisses Moody’s wrongful

foreclosure claim, concluding that it is time-barred under N.H.

Rev. Stat. Ann. § 479:25, II(c) and II-a. The court similarly

dismisses Moody’s breach of contract claim insofar as it

challenges the validity of the foreclosure and the notice

PennyMac provided Moody of the foreclosure sale, concluding that

such arguments, too, are untimely under § 479:25. Lastly, the

2 court dismisses Moody’s claim under 12 C.F.R. § 1024.40 because

§ 1024.40 does not confer a private right of action and, in any

event, Moody has failed to state a violation of that section.

PennyMac’s motion is otherwise denied. At this stage of

the litigation, Moody has pleaded facts that support his breach

of contract claim on bases not impacted by § 479:25. Moody has

also alleged that PennyMac engaged in conduct violating the

federal Fair Debt Collections Practices Act (“FDCPA”) and its

state counterpart, the New Hampshire Unfair, Deceptive or

Unreasonable Collection Practices Act (“UDUCPA”). Similarly,

Moody’s RESPA claims other than the one brought under § 1024.40

present issues of law and fact that preclude their dismissal at

this juncture. And finally, to the extent brought under Rule

12(b)(7), the court denies PennyMac’s motion, as its joinder

arguments present issues that cannot be resolved on the present

record.

Rule 12(b)(6)

A. Applicable legal standard

“A pleading that states a claim for relief must contain,”

among other things, “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ.

P. 8(a)(2). To satisfy this requirement, a plaintiff must

include “factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

3 misconduct alleged.” Martinez v. Petrenko, 792 F.3d 173, 179

(1st Cir. 2015). In ruling on a motion to dismiss under Rule

12(b)(6), the court accepts as true all well-pleaded facts set

forth in the complaint and draws all reasonable inferences in

the plaintiff’s favor. See, e.g., Martino v. Forward Air, Inc.,

609 F.3d 1, 2 (1st Cir. 2010). In light of Moody’s pro se

status, the court liberally construes his pleadings. See

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

Although the court ordinarily will not consider documents

outside the pleadings in ruling on a motion to dismiss, “[w]hen

the complaint relies upon a document, whose authenticity is not

challenged, such a document merges into the pleadings and the

court may properly consider it under a Rule 12(b)(6) motion to

dismiss.” Alternative Energy, Inc. v. St. Paul Fire and Marine

Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001). Moody attaches

thirty exhibits to his complaint and cites to each in the

complaint itself. PennyMac does not dispute their authenticity.

Accordingly, these documents, in conjunction with the factual

allegations in the complaint, inform the following background.

B. Background

In 2006, Moody and Aaron McKenzie refinanced their home in

New Boston, New Hampshire.3 They executed a promissory note

3 Compl. (doc. no. 69) ¶ 7.

4 secured by a mortgage on the property.4 In 2010, CitiMortgage,

which at that time owned the note and serviced the mortgage,5

sold the note and assigned the servicing rights to PennyMac.6

On May 1, 2012, Moody and McKenzie entered into a loan

modification with PennyMac under the Home Affordable

Modification Program (“HAMP”).7 On August 22, 2013, after they

both lost their jobs, PennyMac approved an unemployment

forbearance program.8 This program permitted Moody and McKenzie

to make reduced payments as long as they were actively seeking

employment, with the first payment due on October 1, 2013.9 The

program had a minimum term of twelve months or until the Moody

and McKenzie reestablished employment, whichever occurred

sooner.10 Once they were again employed, Moody and McKenzie

would have to apply for a subsequent HAMP modification to clear

up any resulting deficiency.11

4 Id. ¶¶ 7-8. 5 Id. ¶¶ 11-12. 6 Id. ¶ 18. 7 See id. ¶¶ 24-26. 8 Id. ¶¶ 27-30; Compl. Ex. 4 (doc. no. 69-4). 9 Compl. (doc. no. 69) ¶¶ 29, 31; Compl. Ex. 4 (doc. no. 69-4) at 1-2. 10 Compl. (doc. no. 69) ¶ 31; Compl. Ex. 4 (doc. no. 69-4) at 2. 11 Compl. (doc. no. 69) ¶ 29.

5 Moody secured employment in January 2014.12 As McKenzie

remained unemployed, however, he and Moody continued to make

payments under the unemployment forbearance program.13 In April

2014, PennyMac sent Moody and McKenzie a notice of default and

intent to accelerate.14 Upon receipt of this notice, Moody and

McKenzie contacted PennyMac, which indicated that the notice was

a mere formality and assured them that they would not lose the

property while making payments as required under the

unemployment forbearance program.15

McKenzie found a job in June 2014.16 He and Moody started

the HAMP modification process, but were delayed in submitting

the application as they waited for paystubs from McKenzie’s new

employer.17 On June 23, 2014, they received a letter from

PennyMac returning their June 1, 2014 payment.18 The letter,

dated June 18, 2014, indicated that PennyMac was returning the

payment because it was insufficient to make a full payment and

12 Id. ¶ 33. 13 Id. ¶¶ 33-35. 14 Id. ¶ 34; Compl. Ex. 7 (doc. no. 69-7). 15 Compl. (doc. no. 69) ¶ 35. 16 Id. ¶ 36. 17 Id. 18 Id. ¶ 37; Compl. Ex. 8 (doc. no. 69-8).

6 was not made with certified funds.19 PennyMac had accepted and

applied each of the previous eight payments, none of which was

made in full or with certified funds.20

On June 25, 2014, Moody and McKenzie received a letter from

an attorney at Marinosci Law Group, P.C.21 The letter indicated

that Marinosci represented PennyMac and advised Moody and

McKenzie that they were in default of the note and that PennyMac

had accordingly elected to accelerate.22 Though dated June 13,

2014, tracking information from the United States Postal Service

indicates that the letter was not sent until June 23, 2014.23

On June 26, 2014, Moody and McKenzie submitted their HAMP

application to PennyMac.24 Along with their application, they

included a certified bank check in the same amount PennyMac

19 Compl. (doc. no. 69) ¶ 37; Compl. Ex. 8 (doc. no. 69-8) at 1. 20 Compl. (doc. no. 69) ¶ 38. 21 Id. ¶ 39; Compl. Ex. 9 (doc. no. 69-9). 22 Compl. Ex. 9 (doc. no. 69-9) at 1-2. 23 Compl. (doc. no. 69) ¶ 40; Compl. Ex. 10 (doc. no. 69-10) at 1. 24The complaint is ambiguous as to whether this application was submitted on June 26, 2014, or July 6, 2014. Compare Compl. (doc. no. 69) ¶ 36 with id. ¶¶ 42-43. In his objection, Moody clarifies that he and McKenzie submitted the application on June 26, 2014. See Obj. (doc. no. 72) at 8.

7 previously rejected as insufficient.25 PennyMac accepted this

payment and applied it against the mortgage on June 30, 2014,

indicating that it received the HAMP application no later than

that date.26

On July 8, 2014, McKenzie received a notice of sale

indicating that the property would be sold at auction on July

22, 2014, at 10:00 AM.27 Tracking data indicates that this

notice was sent on June 27, 2014.28 In light of the July 4

holiday, however, McKenzie did not receive the notice until July

2014.29 Moody, who by this time was incarcerated,30 did not

receive the notice of sale until July 16, 2014.31

On July 17, 2014, Moody started making “frantic” calls to

PennyMac attempting to stop the foreclosure sale.32 During these

calls, Moody “specifically disputed the existence of a default,

25 Compl. (doc. no. 69) ¶ 45. 26 Id. 27 Id. ¶ 48; Compl. Ex. 11 (doc. no. 69-11). 28 Compl. (doc. no. 69) ¶ 49; Compl. Ex. 12 (doc. no. 69-12). 29 Compl. (doc. no. 69) ¶ 51. 30Though Moody does not mention his incarceration in the complaint, his objection makes clear that he was incarcerated at the time the notice of sale was sent. See, e.g., Obj. (doc. no. 72) at 3. 31 Compl. (doc. no. 69) ¶ 52. 32 Id. ¶ 53.

8 disputed the amount of the debt [reflected in the notice of

default and notice of acceleration], and emphasized that a loss

mitigation application had been submitted.”33 PennyMac

ultimately indicated that it would review the loss-mitigation

application, obtain a verification of the default and debt, and

issue a reply.34 PennyMac refused to postpone or cancel the

foreclosure.35 On July 21, 2014, Moody contacted various state

agencies and attorneys in an attempt to stop the foreclosure.36

On July 22, 2014, the property sold at a foreclosure

auction for $286,448.00.37 As of that date, Moody and McKenzie

had made all payments as required under the unemployment

forbearance plan.38 PennyMac did not respond to their loss-

mitigation application prior to the foreclosure sale.39 The

33Id. ¶ 54. Throughout their filings, both parties refer to the HAMP modification application submitted on June 26, 2014, as a “loss-mitigation application.” The court will do the same in this Memorandum Order so as to distinguish this application from the earlier modification. 34 Compl. (doc. no. 69) ¶ 55. 35 Id. ¶ 56. 36 Id. ¶ 57-58. 37 Id. ¶¶ 59, 65. 38 Id. ¶ 61. 39 Id. ¶ 59.

9 foreclosure deed was recorded on August 28, 2014.40 Following

the foreclosure, Moody alleges that he was “devastated . . . and

therefore was not physically, emotionally, or financially able

to pursue the matter.”41

In January 2015, Moody and McKenzie received an Acquisition

or Abandonment of Secured Property, Form 1099-A, which indicated

a principal balance of $549,892.07 and a fair market value of

$286,448.00, leaving a deficiency of $263,444.07.42 The

following month, Moody received a letter from Stawiarski &

Associates, P.C., advising Moody that it was “deemed to be a

debt collector” under the FDCPA, that it was “attempting to

collect a debt,” and that it was “acting solely in its capacity

as a debt collector.”43 Stawiarski further advised Moody that it

represented PennyMac and indicated that Moody owed PennyMac a

deficiency balance of $294,258.57 on the mortgage, of which

$281,052.93 was unpaid principal and $13,205.64 was unpaid

40Though Moody does not provide this date in the complaint, he does include it in his objection. See Obj. (doc. no. 72) at 4. PennyMac does not appear to dispute this allegation. 41 Compl. (doc. no. 69) ¶ 63. 42 Id. ¶¶ 63, 65; Compl. Ex. 13 (doc. no. 69-13) at 1. 43 Compl. (doc. no. 69) ¶ 66; Compl. Ex. 14 (doc. no. 69-14) at 1.

10 interest.44 Though unable at that time to access any loan

documents, Moody believed that these amounts were inconsistent

with the terms of the loan, particularly given that they

differed from the amounts included in the Form 1099-A.45

The mortgage was subsequently paid off for $247,076.07.46

Of this amount, $229,185.14 was applied to principal and

$17,890.93 was applied to escrow.47 On December 15, 2015, the

mortgage was officially discharged.48

As Moody recovered from physical, emotional, and financial

trauma, he began investigating the foreclosure and PennyMac’s

servicing of the mortgage.49 On February 25, 2015, Moody sent

PennyMac the first in a series of letters requesting documents

from PennyMac and/or asserting errors Moody believed PennyMac

made in servicing the mortgage.50 Moody sent additional letters

44Compl. Ex. 14 (doc. no. 69-14) at 1; Compl. (doc. no. 69) ¶ 67. 45 Compl. (doc. no. 69) ¶ 68. 46Id. ¶ 69. There is no indication in the record how this occurred. 47 Compl. (doc. no. 69) ¶ 69. 48 Id. 49 Id. ¶ 70. 50See generally id. ¶¶ 71-93. With a few exceptions, Moody attaches the letters, PennyMac’s acknowledgments, and PennyMac’s responses (such as they exist) to his complaint. The February

11 on April 27, 2015, August 10, 2015, October 13, 2015, and March

23, 2016.51 PennyMac acknowledged receipt of all five letters52

and responded substantively to the first two.53 PennyMac did not

provide a substantive response to the letters dated August 10

and October 13, 2015.54 On May 3, 2015, PennyMac’s counsel in

this case sent Moody a letter purporting to respond to the March

23, 2016 letter.55

25, 2015 letter is attached to the complaint as exhibit 15. See Compl. Ex. 15 (doc. no. 69-15). 51Compl. Exs. 17, 20, 23, 25 (doc. nos. 69-17, 69-20, 69-23, 69- 25). Moody also sent a letter to Marinosci on September 8, 2015, requesting five categories of documents. See Compl. Ex. 22 (doc. no. 69-22). While Moody discusses this letter in the complaint, and attaches the letter as an exhibit, he concedes in his objection to the motion to dismiss that this letter is without legal significance. See Obj. (doc. no. 72) at 10-11. As such, the court need not further address the September 8, 2015 letter. 52Compl. Exs. 18, 21, 24, 26 (doc. nos. 69-18, 69-21, 69-23, 69- 25). Though Moody does not attach PennyMac’s acknowledgment of the February 25, 2015 letter, there does not appear to be any dispute that such acknowledgement was sent. 53 Compl. Exs. 16, 19 (doc. nos. 69-16, 69-19). 54 Compl. (doc. no. 69) ¶¶ 86, 92. 55PennyMac attaches a portion of this letter to its motion to dismiss. Mot. to Dismiss Ex. 4 (doc. no. 70-4) at 2-3. PennyMac provides the full letter as an attachment to its earlier motion to dismiss Moody’s second-amended complaint, see doc. no. 58-3, which was mooted by the consolidated complaint, see Sept. 25, 2017 Endorsed Order.

12 In reviewing the information PennyMac provided in response

to the February 25 and April 27, 2015 letters, Moody determined

that PennyMac had committed several errors while servicing the

mortgage.56 Among other things, these errors included incorrect

principal and interest calculations and an inaccurate

amortization schedule under the 2012 modification.57 Moody

accordingly filed a complaint with the New Hampshire Banking

Department, reporting these errors.58 In its initial responses

to Moody’s complaint, dated September 4 and December 9, 2015,

PennyMac indicated that it had reviewed the mortgage account and

had not identified any errors.59 PennyMac attached updated loan

history statements to each response.60 The Banking Department

thereafter independently determined that the monthly payments

and amortization table under the 2012 modification were

incorrect and sent its findings to PennyMac.61 In a letter dated

56 See Compl. (doc. no. 69) ¶¶ 79-82. 57 Id. ¶ 81. 58 Id. ¶ 82. 59 Id. ¶ 100. 60 Id. 61 Id. ¶ 101.

13 February 10, 2016, PennyMac acknowledged these errors and sent

Moody a refund check and updated loan history statement.62

Moody did not deposit the refund check, instead electing to

review the documents PennyMac provided with its September 4 and

December 9, 2015 responses to the Banking Department.63 In doing

so, Moody identified additional errors and concluded that the

refund check was for the incorrect amount.64 Moody returned the

refund check to the Banking Department, which sent the check to

PennyMac and demanded a response.65 In a letter dated August 25,

2016, PennyMac admitted to a calculation error and issued a

corrected refund check, which Moody reviewed and deposited.66

PennyMac also provided Moody with an updated loan history

statement.67

After depositing the refund check, Moody reviewed the last

of the documents PennyMac provided with its February 10 and

August 25, 2016 letters.68 Moody identified several additional

62 Id. ¶ 102. 63 Id. ¶ 103. 64 Id. ¶¶ 104-105. 65 Id. ¶ 106. 66 Id. ¶ 107. 67 Id. 68 Id. ¶ 108.

14 errors in these documents.69 These errors, along with errors

Moody previously identified but PennyMac did not correct,

resulted in Moody making overpayments on the mortgage account or

otherwise not being credited for amounts to which he was

entitled.70 Moody seeks, among other things, to recover these

amounts as part of this lawsuit.71

C. Analysis

As previously mentioned, Moody broadly alleges three

categories of claims. The first category, comprising Moody’s

breach of contract (Count 1), fraud (Count 2), wrongful

foreclosure (Count 3), and § 479:25 (Count 5) claims, challenges

PennyMac’s conduct up to and including the foreclosure. The

second category alleges violations of federal (Count 6) and

state (Count 7) debt collection practices laws. The third

category alleges violations of RESPA for failure to maintain

contact with Moody and provide Moody with accurate information

(Count 4), for failure to review Moody and McKenzie’s loss-

mitigation application prior to foreclosing on the property

69 Id. 70 Id. ¶ 109. 71The complaint contains a detailed discussion of each purported error. See Compl. (doc. no. 69) ¶¶ 111–126. In the interest of brevity, and because the specifics of each error do not impact the resolution of PennyMac’s motion, the court does not list them here.

15 (also Count 4), and for failure to adequately respond to

numerous qualified written requests that Moody sent after the

foreclosure (Count 8). Guided by these categories, the court

considers each of Moody’s claims in turn.

1. Breach of contract (Count 1)

Moody alleges that PennyMac breached the loan agreement by

failing to service the mortgage in accordance with the agreement

and by foreclosing on the property without the authority to do

so. PennyMac contends that § 479:25, II(c) bars this count, as

Moody did not seek to enjoin the foreclosure prior to the

foreclosure sale. PennyMac further argues that to the extent

Moody challenges the notice or manner of notice it provided of

the foreclosure sale, this claim is untimely under § 479:25, II-

a. Alternatively, PennyMac contends that Moody has failed to

adequately plead breach of contract.

The court turns first to § 479:25. This statute “sets

forth the procedures for mortgage foreclosure through the power

of sale.” Bank of N.Y. Mellon v. Dowgiert, 169 N.H. 200, 204

(2016) (citation omitted). “Those procedures require, among

other things, that the foreclosing party give notice of the

foreclosure to the mortgagor.” Id. (citing N.H. Rev. Stat. Ann.

§ 479:25, I). “[Section] 479:25, II requires that notice be

served upon the mortgagor or sent by registered or certified

mail to his last known address at least 25 days before the

16 foreclosure sale.” Id. (ellipsis, brackets, and internal

quotation marks omitted) (quoting N.H. Rev. Stat. Ann. § 479:25,

II). “The statute also requires that, in the notice, the

foreclosing party advise the mortgagor of his right to petition

the superior court to enjoin the scheduled foreclosure sale.”

Id. (ellipsis and internal quotation marks omitted) (quoting

N.H. Rev. Stat. Ann. § 479:25, II).

A mortgagor exercising his right to petition the superior

court must “institute such petition . . . prior to sale.” N.H.

Rev. Stat. Ann. § 479:25, II(c). Failure to do so “bar[s] any

action or right of action of the mortgagor based on the validity

of the foreclosure,” id., when that action is premised on “facts

which the mortgagor knew or should have known soon enough to

reasonably permit the filing of a petition prior to the sale,”

Murphy v. Fin. Dev. Corp., 126 N.H. 536, 540 (1985).

Additionally, “[n]o claim challenging the form of notice, manner

of giving notice, or the conduct of the foreclosure shall be

brought by the mortgagor . . . after one year and one day from

the date of the recording of the foreclosure deed for such

sale.” N.H. Rev. Stat. Ann. § 479:25, II-a.

Moody does not dispute that he did not seek to enjoin the

foreclosure prior to the foreclosure sale. Instead, he raises a

litany of arguments as to why this is not fatal to his breach of

17 contract claim. With one exception, Moody’s arguments do not

overcome this statutory preclusion.

First, Moody argues that § 479:25 only bars claims based on

a mortgagee’s failure to adhere to the specific terms of that

statute. Moody does not cite, and the court cannot find, any

support for this proposition. Rather, Moody’s reading is

inconsistent both with the plain language of statute, see N.H.

Rev. Stat. Ann. § 479:25, II(c) (barring “any action or right of

action . . . based on the validity of the foreclosure”

(emphasis added)), and state and federal decisions applying its

terms, see, e.g., Bank of N.Y. Mellon, 169 N.H. at 205-06

(holding that a plea of title constitutes an “action or right of

action” under § 479:25, II(c)); Butterfield v. Deutsche Bank

Nat’l Trust, 2017 DNH 054, 4 (Barbadoro, J.) (ruling that §

479:25, II(c) barred a breach of contract claim). The court

therefore declines to read § 479:25 so narrowly.

Next, Moody avers that he did not possess sufficient

information to challenge the foreclosure prior to the sale. To

this end, Moody notes that he did not determine the extent of

PennyMac’s servicing errors until after the foreclosure

occurred. But Moody himself concedes that he and McKenzie

received a notice of default from Marinosci in advance of the

sale. He similarly notes, both in his complaint and the

objection to the motion to dismiss, that he called PennyMac

18 after receiving the notice of sale to dispute the default and

attempted to stop the foreclosure. Thus, Moody, by his own

admission, knew the essential facts underlying his claim —

namely, that PennyMac elected to foreclose on the property based

on the mistaken belief that Moody and McKenzie were in default —

prior to the foreclosure sale. That Moody did not determine the

full extent of the errors leading to that mistaken belief until

later does not save his claim.72

Perhaps recognizing this shortcoming, Moody alternatively

argues that he did not receive the notice of sale with

72By holding in Murphy that § 479:25, II(c) bars claims based on facts the mortgagor “knew or should have known soon enough to reasonably permit the filing of a petition prior to the sale,” the New Hampshire Supreme Court in essence read into that statute the discovery rule applicable to New Hampshire’s general three-year statute of limitations for personal actions, see N.H. Rev. Stat. Ann. § 508:4, I (“[An] action shall be commenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.”). In the latter context, it is well-established that “[t]he discovery rule is not intended to toll the statute of limitations until the full extent of the plaintiff’s injury has manifested itself.” Feddersen v. Garvey, 427 F.3d 108, 113 (1st Cir. 2005) (quoting Furbush v. McKittrick, 149 N.H. 426, 431 (2003)). Decisions in this district imply that this concept equally extends to § 479:25, II. See, e.g., Khawaja v. Bank of N.Y. Mellon, 2014 DNH 195, 7 (Barbadoro, J.) (finding that the plaintiffs “knew the essential facts that underlie [their] claim[] more than four months before the [foreclosure sale].” (emphasis added)); People's United Bank v. Mountain Home Developers of Sunapee, LLC, 858 F. Supp. 2d 162, 170 (D.N.H. 2012) (holding that § 479:25, II(c) barred a post-foreclosure claim challenging the validity of a foreclosure even when damages only became measurable after the foreclosure sale).

19 sufficient time to petition the superior court prior to the

foreclosure. Setting aside that Moody has not explained why he

did not receive the notice of sale until eleven days after it

was sent, this argument is barred by § 479:25, II-a. Per that

statute, claims challenging the form and manner of notice must

be brought within “one year and one day of the date of the

recording of the foreclosure deed . . . .” N.H. Rev. Stat. Ann.

§ 479:25, II-a. Moody concedes in his objection that the

foreclosure deed was recorded on August 28, 2014. He did not

file the first iteration of this action until December 21,

2015.73 Thus, Moody’s arguments with respect to notice are

untimely.74

73 See Not. of Removal Ex. 1 (doc. no. 1-1) at 4. 74Moody asks the court to read into § 479:25, II-a the “knew or should have known” language applied under § 479:25, II(c). He does not provide any precedential support for this request, and both the New Hampshire Supreme Court and this court have strictly construed the “one year and one day” requirement. See Dowgiert, 169 N.H. at 205 (holding that § 479:25, II-a applied to a contention that “the foreclosure notice was inadequate because it was not received when [the defendant] was incarcerated”); Brown v. Wells Fargo Home Mortg., 2017 DNH 094, 9 (“FNMA submits, and plaintiffs do not dispute, that it recorded the foreclosure deed in question on October 21, 2015, over one year and one day before plaintiff filed the instant action on November 28, 2016.”). Even were the court to apply such a rule, however, Moody does not argue that he was somehow delayed in discovering inadequacies in the notice PennyMac provided. His notice arguments would therefore still be time- barred.

20 Moody also argues, once again in the alternative, that

§ 479:25 does not apply because he and McKenzie relied on

PennyMac’s representation that the foreclosure sale would not

occur while their loss-mitigation application was pending.

Moody cites Dionne v. Federal National Mortgage Association, 110

F. Supp. 3d 338 (D.N.H. 2015), in support of this argument. In

Dionne, Judge McCafferty declined to dismiss an action under

§ 479:25 when the plaintiffs plausibly alleged that they opted

against filing suit because one defendant promised that the

foreclosure sale would not go forward while the plaintiffs’

loss-mitigation application was pending. 110 F. Supp. 3d at

343. Here, the complaint contains no similar allegation.

Rather, Moody alleges that PennyMac expressly told him, just

days before the foreclosure sale, that it would not postpone or

cancel the sale, and that following this representation, Moody

took additional (ultimately unsuccessful) steps to stop the

foreclosure. Moody therefore has not plausibly alleged that

PennyMac ever represented that it would delay or cancel the

foreclosure, let alone that he relied upon such a

representation.

Finally, Moody argues that even if § 427:25 bars his breach

of contract claim to the extent it challenges the validity of

the foreclosure, he has still alleged a breach of contract

independent from the foreclosure proceedings. The court agrees.

21 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.” Axenics, Inc. v. Turner

Constr. Co., 164 N.H. 659, 668 (2013) (brackets and citation

omitted). Moody alleges that PennyMac committed errors with

respect to the mortgage that violated the terms of the loan

agreement, and that those errors resulted in Moody making

overpayments on the mortgage account or otherwise not being

credited for amounts to which he was entitled. As these

allegations challenge neither the validity of the foreclosure

nor the notice, manner of notice, or conduct of the foreclosure,

they are not barred by § 479:25. And, when assumed true, they

state a plausible breach of contract claim. Count 1 may

therefore proceed insofar as Moody seeks to recover for

pecuniary harm, other than the loss of the property, caused by

PennyMac’s breach of the loan agreement.75

75PennyMac suggests in a footnote in its memorandum that Moody’s state-law claims may be barred by the three-year limitations period under N.H. Rev. Stat. Ann. § 508:4, I. See Defendants’ Mem. (doc. no. 70-1) at 6 n. 5. The court is disinclined to grant relief based on an underdeveloped argument contained in a single footnote. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”).

22 2. Fraud (Count 2)

In Count 2, Moody alleges that PennyMac’s conduct up to and

including the foreclosure constituted fraud. PennyMac contends

that Moody has failed to meet Rule 9(b)’s heightened standard

for pleading fraud. The court agrees.

“In alleging fraud or mistake, a party must state with

particularity the circumstances constituting fraud or mistake.”

Fed. R. Civ. P. 9(b). “This means that a complaint rooted in

fraud must specify the who, what, where, and when of the

allegedly false or fraudulent representations.” Moore v. Mortg.

Elec. Registration Sys., Inc., 848 F. Supp. 2d 107, 130 (D.N.H.

2012) (citation omitted). Further, “Rule 9(b) requires not only

specifying the false statements and by whom they were made but

also identifying the basis for inferring scienter.” N. Am.

Catholic Educ. Programming Found., Inc. v. Cardinale, 567 F.3d

8, 13 (1st Cir. 2009). A plaintiff may not generally aver “the

defendant’s ‘knowledge’ of material falsity unless the complaint

also sets forth specific facts that make it reasonable to

believe that defendant knew that a statement was materially

false or misleading.” Id.

Construing his complaint liberally, Moody appears to

contend that PennyMac committed fraud both in foreclosing on the

property and in servicing the mortgage. As it relates to the

foreclosure, Moody has at least arguably alleged that PennyMac

23 falsely represented both that it would not foreclose while Moody

and McKenzie were making timely payments under the unemployment

forbearance plan and, later, that Moody and McKenzie were in

default of the mortgage when they were not. But even assuming

the falsity of these statements, Moody has not identified any

basis to infer that PennyMac knew that they were false or

misleading at the time they were made. He has therefore failed

to allege that PennyMac made these misrepresentations with the

requisite scienter to sustain a fraud claim under Rule 9(b).

Moody’s claim with respect to the servicing is more

deficient still. Moody contends that PennyMac’s numerous

servicing errors “cumulatively constitute a pattern or practice

of fraudulent behavior . . . .”76 Though Moody alleges the

servicing errors in detail, he does not point to any false or

fraudulent representation attributable to PennyMac, let alone

facts from which the court might infer PennyMac knew its

statements were false or misleading. Thus, to the extent

Moody’s fraud claim rests upon the servicing errors, he has

failed to meet either of Rule 9(b)’s pleading requirements.77

76 Compl. (doc. no. 69) ¶ 110. 77The complaint contains other stray references to fraud. See, e.g., Compl. (doc. no. 69) ¶¶ 135, 155, 159, 162, 164. As these references are bereft of factual support, they are “not entitled to the assumption of truth,” Maldonado v. Fontanes, 568 F.3d

24 3. Wrongful foreclosure (Count 3)

In Count 3, Moody alleges that PennyMac wrongfully

foreclosed in violation of New Hampshire common law. PennyMac

contends that § 479:25 bars this claim. In response, Moody

raises the same arguments he raised with respect to Count 3.

Moody’s wrongful foreclosure claim comprises four

substantive paragraphs. In the first three, Moody challenges

PennyMac’s authority to foreclose. Section 479:25, II(c)

equally applies to these arguments for the reasons discussed

supra Part I.C.1. Thus, Count 3 is untimely to the extent it

challenges the validity of the foreclosure.

Moody also alleges that “[t]he sale price accepted by

[PennyMac] at the foreclosure auction was not adequate of [sic]

the value of the real property.”78 Construed liberally, this can

be read as an allegation that PennyMac failed to exercise good

faith and due diligence in obtaining a fair price for the

property at the foreclosure. See Murphy, 126 N.H. at 540–45

(discussing this duty). As such claims cannot, by their very

nature, be brought prior to the foreclosure sale, courts in this

district have concluded that they are not subject to § 479:25,

263, 268 (1st Cir. 2009) (citation omitted), and accordingly do not save Count 2. 78 Compl. (doc. no. 69) ¶ 141.

25 II(c). See, e.g., People's United Bank v. Mountain Home

Developers of Sunapee, LLC, 858 F. Supp. 2d 162, 168 (D.N.H.

2012); Butterfield, 2017 DNH 054, 4 n. 3 (citing Dugan v.

Manchester Fed. Sav. & Loan Ass’n, 92 N.H. 44, 44 (1942)). But

even so, this claim remains time-barred by § 479:25, II-a, as it

challenges the conduct of the foreclosure sale and was not

brought within one year and one day of the date PennyMac

recorded the foreclosure deed. See id. (“No claim

challenging . . . the conduct of the foreclosure shall be

brought by the mortgagor . . . after one year and one day from

sale.”).

4. N.H. Rev. Stat. Ann. § 479:25 (Count 5)

Through Count 5, Moody purports to allege violations of

§ 479:25. Yet Moody concedes, both in the complaint and in his

objection, that he does not seek damages under this count, and

merely brings it to support his other claims.79 In light of

these concessions, the court declines to construe Count 5 as an

independent claim for relief. The court dismisses Count 5 on

this basis.

79 See Compl. (doc. no. 69) ¶ 152; Obj. (doc. no. 72) at 2.

26 5. Debt collection practices (Counts 6 and 7)

In Counts 6 and 7, Moody alleges that PennyMac collected

and/or attempted to collect debts from Moody to which it was not

entitled. Before turning to the substance of these claims, the

court must address a preliminary matter with respect to Count 6.

In the complaint, Moody purports to bring Count 6 under the

Truth in Lending Act (“TILA”).80 PennyMac contends, among other

things, that “TILA does not relate to or regulate debt

collection after origination of the loan,” and that Count 6 is

accordingly untimely under TILA’s one-year limitations period.81

In his objection, Moody again references TILA, but notes that he

intended to allege violations of 15 U.S.C. § 1692.82 PennyMac

correctly notes in its reply that 15 U.S.C. § 1692 falls under

the FDCPA, not TILA, and argues that “[n]othing in the

[c]onsolidated [c]omplaint gave [PennyMac] any notice that the

claim was pleaded under the FDCPA . . . .”83 PennyMac therefore

urges the court to ignore what it characterizes as Moody’s “new

allegations.”84 In response, Moody moves to “clarify” the

80 Compl. (doc. no. 69) at 13, ¶ 141. 81 Defendants’ Mem. (doc. no. 70-1) at 7. 82 Obj. (doc. no. 72) at 8-9. 83 Defendants’ Reply (doc. no. 75) at 3-4. 84 Id. at 4.

27 complaint to include an explicit reference to 15 U.S.C. § 1692

in his title to Count 6.85

While it is true that the complaint references TILA rather

than the FDCPA, the court is disinclined to elevate form over

substance and dismiss Count 6 on this basis. “The policy behind

affording pro se plaintiffs liberal interpretation is that if

they present sufficient facts, the court may intuit the correct

cause of action, even if it was imperfectly pled.” Ahmed v.

Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997); cf. Castro v.

United States, 540 U.S. 375, 381 (2003) (noting that federal

courts sometimes recharacterize pro se filings to avoid

“unnecessary dismissal[s]” and “inappropriately stringent

application of formal labeling requirements”). In Count 6,

Moody specifically asserts that PennyMac “is a debt collector,”

which “illegally attempted to collect, and actually collected[,]

money from [Moody] that was [it] was not owed . . . .”86 This

language supports a reasonable conclusion that Moody sought to

bring a debt collection practices claim. That Count 7, brought

under the “state-law analog” to FDCPA, Moore, 848 F. Supp. 2d at

123, contains nearly identical language only enhances this

85See Mot. to Clarify (doc. no. 76). PennyMac objects to this motion. See Obj. to Mot. to. Clarify (doc. no. 77). 86 Compl. (doc. no. 69) ¶ 155.

28 suggestion. And Moody’s citation in his objection to 15 U.S.C.

§ 1692 provides further clarity still. In light of these facts,

and mindful that pro se filings should be read “with an extra

degree of solicitude,” Moore, 484 F. Supp. 2d at 122 n. 8, the

court construes Count 6 to be brought under the FDCPA.87

The court turns, then, to the claims themselves. “To

succeed on a claim under the FDCPA, a plaintiff must show that

‘(1) [he] was the object of collection activity arising from

consumer debt, (2) defendants are debt collectors as defined by

the FDCPA, and (3) defendants engaged in an act or omission

prohibited by the FDCPA.’” Farrin v. Nationstar Mortg. LLC,

2016 DNH 178, 9 (quoting Jones v. Experian Information

Solutions, No. 14–10218–GAO, 2016 WL 3945094, at *3 (D. Mass.

July 19, 2016)). New Hampshire’s UDUCPA similarly “bars a debt

collector from ‘collecting or attempting to collect a debt in an

unfair, deceptive or unreasonable manner as defined [by the

UDUCPA].” Moore, 848 F. Supp. 2d at 125 (brackets omitted)

(quoting N.H. Rev. Stat. Ann. § 358-C:2). An attempt to collect

a debt is unfair, deceptive, or unreasonable if, among other

things, the debt collector “[m]akes any material false

87The court accordingly denies Moody’s motion to clarify (doc. no. 76) as moot.

29 representation or implication of the character, extent or amount

of the debt . . . .” N.H. Rev. Stat. Ann. § 358-C:3, VII.

Seemingly relying on its argument that the court should

“not consider” Count 6 under the FDCPA, PennyMac fails to

address whether Moody adequately pleads a violation of that

statute. The court therefore declines to dismiss Count 6,

albeit without prejudice to PennyMac raising this argument at

the Rule 56 stage.

PennyMac does raise substantive arguments with respect to

Count 7: namely, that Moody neither invokes a specific section

of the UDUCPA that he believes PennyMac violated nor points to

facts otherwise demonstrating that PennyMac collected or

attempted to collect a debt in an unfair, deceptive, or

unreasonable manner. In response, Moody contends, inter alia,

that he has alleged that in attempting to collect on the

mortgage, PennyMac “falsely represented the amount of the

debt . . . .”88 At this stage in the proceedings, Moody has the

better argument. In the complaint, Moody alleges that following

the foreclosure, Stawiarski sent Moody a letter seeking to

collect the deficiency balance on the mortgage. In this letter,

Stawiarski indicated that it had been retained by PennyMac, and

advised Moody it was “deemed to be a debt collector” under the

88 Obj. (doc. no. 72) at 9.

30 FDCPA, that it was “attempting to collect a debt,” and that it

was “acting solely in its capacity as a debt collector.”89 Moody

disputes the amount of the deficiency balance sought, which he

contends was based on servicing errors. Construing these

allegations liberally, Moody has alleged that PennyMac, through

Stawiarski, falsely represented the extent or amount of the

deficiency when attempting to collect the deficiency balance.

Moody has therefore stated a claim under § 358-C:3, VII.

6. RESPA (Count 4)

In Count 4, Moody asserts two distinct RESPA violations.

First, Moody contends that PennyMac violated 12 C.F.R. § 1024.40

by “fail[ing] to maintain contact with [Moody] and to provide

[Moody with] accurate information . . . .”90 Next, Moody avers

that PennyMac violated 12 C.F.R. § 1024.41 by failing to review

his and McKenzie’s loss-mitigation application prior to

foreclosing on the property. PennyMac does not address

§ 1024.40 in either its motion to dismiss or its reply to

Moody’s objection. PennyMac contends that Moody fails to state

a claim under § 1024.41 because Moody and McKenzie did not

submit their loss-mitigation application more than 37 days

89 Compl. Ex. 14 (doc. no. 69-14) at 1. 90 Compl. (doc. no. 69) ¶ 144.

31 before the foreclosure sale. The court considers each provision

in turn.

Generally speaking, § 1024.40 requires that mortgage

servicers enact certain policies and procedures to govern their

communications with delinquent borrowers. See 10 C.F.R.

§ 1024.40(a)–(b). Courts addressing this provision have

routinely held that it does not confer a private right of

action. See, e.g., Joussett v. Bank of Am., N.A., No. CV 15-

6318, 2016 WL 5848845, at *5 (E.D. Pa. Oct. 6, 2016) (no private

right of action under § 1024.40); Brown v. Bank of N.Y. Mellon,

No. 1:16-CV-194(LMB/IDD), 2016 WL 2726645, at *2 (E.D. Va. May

9, 2016) (same); Schmidt v. PennyMac Loan Servs., LLC, 106 F.

Supp. 3d 859, 868 (E.D. Mich. 2015) (same); see also Cilien v.

U.S. Bank Nat'l Ass'n, 687 F. App'x 789, 792 n. 2 (11th Cir.

2017) (noting in dicta that “the regulations set forth in

sections 1024.39 and 1024.40 provide no private cause of

action”). Courts so hold because, unlike other sections of 12

C.F.R. § 1024, section 1024.40 does not contain language

authorizing a borrower to enforce its terms. Compare, e.g., 12

C.F.R. § 1024.41(a) (“A borrower may enforce the provisions of

this section . . . .”) with id. § 1024.40 (no similar language).

Unable to identify any contrary authority, the court finds these

decisions persuasive. And, in any event, Moody has failed to

state a claim under § 1024.40 because he solely takes umbrage

32 with how PennyMac communicated with him. See Cilien, 687 F.

App’x at 792 (“Plaintiff makes no allegation that U.S. Bank

failed to enact such policies. Instead, Plaintiff asserts that

U.S. Bank failed to provide accurate information to her about

the loss-mitigation process.”); Hines v. Regions Bank, No. 5:16-

CV-01996-MHH, 2018 WL 905364, at *5 (N.D. Ala. Feb. 15, 2018)

(“Hines does not allege that Regions failed to implement

policies . . . . , only that Regions did not achieve those

objectives in handling his mortgage delinquency.”). For these

reasons, the Court dismisses Count 4 to the extent brought under

§ 1024.40.

Under § 1024.41, a servicer is, with certain exceptions,

prohibited from foreclosing “[i]f a borrower submits a complete

loss mitigation application after a servicer has made the first

notice or filing required by applicable law for any judicial or

non-judicial foreclosure process but more than 37 days before a

foreclosure sale . . . .” 12 C.F.R. § 1024.41(g). PennyMac

contends that the earliest Moody alleges he and McKenzie filed

their loss-mitigation application was June 26, 2014, only 26

days before the foreclosure sale. Moody does not dispute this

point, but argues that it was factually impossible for him and

McKenzie to submit a completed loss-mitigation application more

than 37 days before the foreclosure sale, at least in part

33 because Moody did not receive notice of the foreclosure sale

until six days before it occurred.

It is unclear whether RESPA and its associated regulations

provide for relief under such circumstances. The parties offer

no authority on the subject. The court accordingly denies

PennyMac’s motion to dismiss this claim without prejudice to

more thorough argumentation under Rule 56 or Rule 50 at trial.

7. RESPA (Count 8)

“RESPA requires the servicer of a federally-related

mortgage loan to respond to certain borrower inquiries, which

the statute terms ‘qualified written requests.’” O’Connor v.

Nantucket Bank, 992 F. Supp. 2d 24, 34 (D. Mass 2014) (citing 12

U.S.C. § 1605). In Count 8, Moody alleges that the February 25,

2015, April 27, 2015, August 10, 2015, October 13, 2015, and

March 23, 2016 letters constituted qualified written requests

(“QWRs”). He asserts that PennyMac failed to adequately respond

to these letters as required by RESPA.

Before turning to the substance of this claim, the court

must address a few preliminary issues. First, PennyMac argues

that it was under no obligation to respond to Moody’s letters

because they were sent after the foreclosure sale. To this end,

PennyMac asserts, with citations to two cases out of the

Northern District of California, that “a servicing relationship

34 usually ends at the time of the foreclosure sale.”91 Moody has,

however, plausibly alleged in this case that PennyMac retained

servicing rights after the foreclosure. Moody asserts in the

complaint that PennyMac continued to service the mortgage

through at least August 26, 2016.92 Additionally, PennyMac’s

written acknowledgement of Moody’s October 15, 2015 letter,

itself dated October 19, 2015, indicated that PennyMac was “the

current loan servicer.”93 The court accordingly declines to

dismiss this claim based on the servicing relationship at this

stage of the litigation.

PennyMac also argues that three of Moody’s letters — those

dated August 10, 2015, October 13, 2015, and March 23, 2016 —

are untimely under 12 C.F.R. § 1024.36(f)(v)(B) because they

were delivered more than one year after the mortgage loan was

discharged. PennyMac contends that the mortgage was discharged

on July 22, 2014, the date of the foreclosure sale. Moody,

however, alleges that PennyMac, through Stawiarski, attempted to

collect a mortgage deficiency in February 2015. Moody further

alleges that the mortgage was subsequently paid off, and that it

was ultimately discharged on December 15, 2015. Crediting these

91 Defendants’ Mem. (doc. no. 70-1) at 19 n. 9. 92 Compl. (doc. no. 69) ¶ 60. 93 Compl. Ex. 24 (Doc. no. 69-24) at 1.

35 allegations, as the court must at this stage, Moody has alleged

that these three letters were delivered within the one-year

timeframe established by 12 C.F.R. § 1024.36(f)(v)(B).

Nor will the court dismiss Count 8 on its merits. PennyMac

contends that it fully responded to any valid QWRs that Moody

sent. Moody has alleged, however, that he sent QWRs to which

PennyMac did not respond at all, or to which it failed to

adequately respond. He thus pleads facts in support of his QWR

claim.

PennyMac concedes that it did not respond to the August 10

and October 13, 2015 letters. But PennyMac contends it did not

need to, because § 1024.36(f)(1) exempted it from responding to

at least some of the requests in those letters. Under

§ 1024.36(f)(1), a servicer need not provide responsive

information when a request is overbroad or unduly burdensome or

seeks, among other things, duplicative or irrelevant

information. See 12 C.F.R. § 1024.36(f)(1)(i)–(v). Section

1024.36(f)(1) does not wholly obviate the need to respond,

however; rather § 1024.36(f)(2) requires a servicer to provide a

borrower written notice “set[ting] forth the basis under

paragraph of [§ 1024.36(f)(1)] upon which the servicer has

[determined that it need not apply].” 12 C.F.R.

§ 1024.36(f)(2). PennyMac does not discuss § 1024.36(f)(2), and

there appears to be only a handful of cases directly addressing

36 this provision. At least one court has stated that

§ 1024.36(f)(2) “make[s] clear that when a servicer determines

that borrower correspondence is not a [QWR] the servicer should

respond justifying its position that is so.” Citibank, N.A. v.

Najda, No. CV 14-13593-GAO, 2017 WL 1186318, at *4 (D. Mass.

Mar. 29, 2017) (citation omitted). And two others have denied

motions to dismiss based on a failure to comply with

§ 1024.36(f)(2). See Mcmahon v. JPMorgan Chase Bank, N.A., No.

2:16-CV-1459-JAM-KJN, 2017 WL 1495214, at *5 (E.D. Cal. Apr. 26,

2017); Martins v. Wells Fargo Bank, N.A., No. CV CCB-16-1070,

2016 WL 7104813, at *8 (D. Md. Dec. 6, 2016). This court does

likewise, without prejudice to PannyMac raising this argument on

a more developed record.

While PennyMac did respond to the other letters, the record

is similarly insufficiently developed for the court to determine

whether these responses fully complied with RESPA. The parties

have provided the responses themselves, but not the documents

PennyMac produced in conjunction with those responses. Without

the benefit of reviewing those documents, the court declines to

rule, in the context of a Rule 12(b)(6) motion, that the

responses themselves were sufficient.

37 Finally, PennyMac contends that Moody has failed to

plausibly allege damages under Count 8.94 RESPA allows for the

recovery of “any actual damages to the borrower” and “any

additional damages, as the court may allow, in the case of a

pattern or practice of noncompliance . . . in an amount not to

exceed $2,000.” 12 U.S.C. § 2605(f)(a)(A)-(B). As to the

latter, this court has previously held that a servicer’s failure

to respond to two letters does not make out a pattern or

practice of noncompliance with RESPA. See Moore, 848 F. Supp.

2d at 122. Here, however, Moody alleges that PennyMac failed to

respond, or to adequately respond, to five letters. Thus, Count

8 may proceed, at least for now, under a “pattern or practice”

theory.

With regards to actual damages, Moody alleges, in each of

his RESPA counts, that PennyMac’s conduct resulted in him, among

other things, “losing [his] real property” and “incurring

emotional distress.”95 This court has previously construed

§ 2605(f)(1)(A) broadly to include “any actual damages to the

borrower” caused by the RESPA violation, including emotional

94Keeping with PennyMac’s decision to present this argument solely with respect to Count 8, the court elects to discuss it here. But given that the court is allowing Moody’s § 1024.41 claim to proceed, that claim, too, can inform the availability of damages under RESPA. 95 Compl. (doc. no. 69) ¶¶ 147, 164.

38 distress. Moore, 848 F. Supp. 2d at 122-23 (emphasis in the

original). Here, Moody has plausibly alleged a causal

connection between PennyMac’s purported violation of § 1024.41

and the loss of his home. He has similarly plausibly alleged

that that violation, as well as PennyMac’s purported failure to

respond to his QWRs, caused him emotional distress. The court

therefore also allows Moody’s RESPA claims to proceed on an

actual damages theory.

Rule 12(b)(7)

The court turns to PennyMac’s contention that Moody failed

to join a necessary party. PennyMac specifically contends that

Moody failed to join McKenzie.96 In response, Moody contends

that he “was precluded from joining [McKenzie] . . . because

during eviction proceedings [in state court], the [d]efendants

coerced [McKenzie] into executing an Agreement For

Judgment . . . in which [McKenzie] gave up [his] rights to be a

party to [this action].”97 Moody attached a copy of the

“Agreement for Judgment” to his objection.98 PennyMac argues for

the first time in its reply that this Agreement bars Moody’s

current action, as he was named as a defendant in the eviction

96 Defendants’ Mem. (doc. no. 70-1) at 19-20. 97 Obj. (doc. no. 72) at 1. 98 See Obj. Ex. 1 (doc. no. 72-1).

39 action and the Agreement includes a broad waiver of future

claims related to the subject property.99

“Failure to join a party under Rule 19 is grounds for

dismissal under Rule 12(b)(7).” Spencer v. Eversource Energy

Serv. Co., 2017 DNH 212, 9. “Rule 19 addresses circumstances in

which a lawsuit is proceeding without particular parties whose

interests are central to the suit.” Picciotto v. Cont'l Cas.

Co., 512 F.3d 9, 15 (1st Cir. 2008). It provides for the

joinder of such “required” parties when feasible. Fed. R. Civ.

P. 19(a)(2). Dismissal is appropriate when the court determines

that the joinder of the “required” parties is not feasible, but

that they are, nonetheless, so “indispensable” that the suit

must not be litigated without them. Fed. R. Civ. P. 19(b).

The court cannot determine, based on the information before

it, whether Moody’s failure to join McKenzie is fatal to his

cause of action. The parties devote limited attention to this

issue in their briefing, and it is unclear from the pleadings

whether McKenzie is a required party, let alone whether he is so

indispensable that this action cannot proceed without him. Nor

is it clear how the Agreement impacts this determination.

PennyMac’s argument that the Agreement bars Moody from bringing

99 See Defendants’ Reply (doc. no. 75) at 1-2.

40 this action, raised for the first time in its reply to Moody’s

objection, is similarly underdeveloped.

The court therefore denies PennyMac’s motion to the extent

it is brought under Rule 12(b)(7), albeit without prejudice to

any party raising arguments related to McKenzie and/or the

Agreement later in this litigation.

Conclusion

For the reasons set forth above, PennyMac’s motion is

GRANTED in part and DENIED in part. As brought under Rule

12(b)(6), the court GRANTS the motion as to Counts 2, 3, and 5,

and GRANTS-IN-PART the motion as to Counts 1 and 4. The court

otherwise DENIES the motion on Rule 12(b)(6) grounds. The court

also DENIES the motion to the extent brought under Rule

12(b)(7).

SO ORDERED.

____________________________ Joseph N. Laplante United States District Judge

Dated: March 27, 2018

cc: Dana E. Moody, pro se Kevin P. Polansky, Esq.