Moore, et a l . V . MERS, et a l . CV-10-241-JL 4/25/13
UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Angela Jo Moore and M . Porter Moore
v. Civil N o . 10-cv-241-JL Opinion N o . 2013 DNH 065 Mortgage Electronic Registration Systems, Inc., et a l .
MEMORANDUM ORDER
In this action, which alleges impropriety in the servicing
of a mortgage loan, pro se plaintiffs Angela Jo and M . Porter
Moore press six counts against the current and former servicers
of their loan, foreclosure counsel, and a handful of entities
claiming to hold their mortgage and associated note.1 The Moores
seek damages for allegedly unlawful debt collection practices and
fraud, and a declaration that the defendants can not enforce the
note. This court has diversity jurisdiction over this matter
between the Moores, who are New Hampshire citizens, and the
defendants, various out-of-state entities, under 28 U.S.C. § 1332
(diversity) since the amount in controversy exceeds $75,000. The
court also has jurisdiction under 28 U.S.C. § 1331 (federal
1 The Moores’ Third Amended Complaint contained seventeen counts. On the defendants’ motion, the court dismissed eleven. See Moore v . Mortg. Elec. Registration Sys., Inc., 848 F. Supp. 2d 107 (D.N.H. 2012). question) and 1367 (supplemental jurisdiction) by virtue of the
Moores’ claims under various federal statutes.
The defendants have filed three separate motions for summary
judgment. See Fed. R. Civ. P. 5 6 . After hearing oral argument,
the court grants the motions. As explained in more detail below,
the Moores have not proffered admissible evidence creating a
dispute of material fact as to any of their claims in this case,
nor have they shown that a genuine dispute of material fact
exists as to defendant Deutsche Bank National Trust Company’s
possession of (and, hence, right to enforce) their note.
I. Applicable legal standard
Summary judgment is appropriate where “the movant shows that
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). A dispute is “genuine” if it could reasonably be
resolved in either party’s favor at trial. See Estrada v . Rhode
Island, 594 F.3d 5 6 , 62 (1st Cir. 2010) (citing Meuser v . Fed.
Express Corp., 564 F.3d 5 0 7 , 515 (1st Cir. 2009)). A fact is
“material” if it could sway the outcome under applicable law.
Id. (citing Vineberg v . Bissonnette, 548 F.3d 5 0 , 56 (1st Cir.
2008)). In analyzing a summary judgment motion, the court “views
all facts and draws all reasonable inferences in the light most
2 favorable to the non-moving party.” Id. The following facts are
set forth accordingly.
II. Background
In late 2006, plaintiff Angela Jo Moore refinanced the
mortgage on the Sandwich, New Hampshire home she shares with her
husband, plaintiff M . Porter Moore, receiving a loan in the
amount of $452,000 from WMC Mortgage Corporation. Only Mrs.
Moore signed the promissory note for the loan, but both Moores
executed a mortgage granting a security interest in the property
to Mortgage Electronic Registration Systems, Inc., or “MERS,” as
nominee for WMC. Defendant Saxon Mortgage Services, Inc. began
servicing the loan early the following year.
Mrs. Moore began to experience difficulty making her loan
payments in 2008, and defaulted in October of that year; since
then, she has made no payments on the loan. Mrs. Moore’s default
prompted Saxon to retain defendant Harmon Law Offices to initiate
foreclosure proceedings against the property. It also prompted a
flurry of exchanges between Saxon and the Moores regarding the
possibility of a loan modification or other option to prevent
foreclosure. In August 2009, Saxon offered Mrs. Moore a trial
modification under the federal government’s Home Affordable
Modification Program (“HAMP”). The Moores chose not to accept
that offer.
3 Shortly thereafter, defendant Ocwen Loan Servicing LLC
acquired the servicing rights to the loan. Harmon continued to
pursue foreclosure, on Ocwen’s behalf. Mrs. Moore wrote to Ocwen
on December 7 , 2009, not long after the transfer of servicing,
requesting that it verify her debt and send her “ALL
documentation regarding this matter.” Harmon responded, on
Ocwen’s behalf, within two months, enclosing a payment history of
the Moores’ account dating back to December 2007 and a
reinstatement quote. Apparently dissatisfied with this response,
on March 2 3 , 2010, Mrs. Moore sent Ocwen a second letter, which
purported to be a “Qualified Written Request” under the Real
Estate Settlement Procedures Act, 12 U.S.C. § 2605 et seq., and
requested “copies of all documents pertaining to the origination
and servicing of the mortgage.” Ocwen did not acknowledge
receipt o f , or otherwise respond t o , this letter.
On March 1 5 , 2010, Ocwen contacted M r . Moore by e-mail to
inform him that a foreclosure sale was scheduled for March 1 8 ,
2010, and that the sale would not be postponed unless the Moores
submitted an application for a HAMP modification. The Moores did
s o , and the sale was postponed. After reviewing the Moores’
application, Ocwen noted that certain documents were missing and
requested those documents by both mail and telephone. The Moores
4 did not provide the requested documents, and, on June 7 , 2010,
their application was denied.
In the meantime–-specifically, on February 4 , 2010--MERS
assigned the Moores’ mortgage to Deutsche Bank National Trust
Company, as trustee for a securitized mortgage trust. The
assignment recited an effective date of November 1 6 , 2009 (the
same day Ocwen acquired the servicing rights from Saxon). At
some point, Deutsche Bank also came into possession of the
Moores’ note, which bears an indorsement in blank signed by Alex
Arguella, who purports to be an assistant secretary of WMC.
The Moores filed this action in Carroll County Superior
Court on May 1 7 , 2010, seeking to enjoin a foreclosure sale that,
their original complaint alleged, was scheduled for May 2 0 , 2010.
The defendants removed to this court on June 2 1 , 2010. No
foreclosure has occurred, and the Moores continue to reside in
the subject property.
III. Analysis
As already mentioned, see supra n.1 & accompanying text, the
Moores’ Third Amended Complaint (hereinafter “complaint”)
originally contained seventeen counts, only six of which remain
pending before the court. The remaining counts allege violations
of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C.
§ 2605 et seq., the Fair Debt Collection Practices Act (“FDCPA”),
5 15 U.S.C. § 1692 et seq., and the New Hampshire Unfair, Deceptive
or Unreasonable Collection Practices Act (“UDUCPA”), N.H. Rev.
Stat. Ann. § 358-C; negligent misrepresentation; fraud; and
“avoidance of note,” which the court previously interpreted as
seeking a declaratory judgment that the defendants may not
enforce the promissory note against the Moores. See Moore, 848
F. Supp. 2d at 136-37. As discussed below, defendants have
demonstrated that there is no genuine dispute as to any fact
material to any of these claims, and their motions for summary
judgment are granted in full.
A. Real Estate Settlement Procedures Act
Count 4 of the complaint, brought against Ocwen only, claims
that Ocwen violated RESPA by failing to acknowledge receipt o f ,
or otherwise respond t o , the Moores’ March 2 3 , 2010 letter, which
purported to be a “Qualified Written Request.”2 See 12 U.S.C.
2 Count 4 also alleges that Mrs. Moore’s “December 0 7 , 2009 letter to Ocwen was a clear Qualified Written Request” under RESPA, and that Ocwen’s response to that letter violated RESPA. Third Am. Compl. (document n o . 47) at 8 9 . Unsurprisingly, then, Ocwen’s motion for summary judgment also addresses that letter. In their objection to Ocwen’s motion, the Moores ridicule Ocwen for this, characterizing Ocwen’s argument as “incoherent” and stating that “it’s clear on its face that the December 7 , 2009 letter was never intended to be a qualified written request but a request for debt verification.” Pls.’ O b j . to Ocwen Mot. for Summ. J. (document n o . 129) at 6. The court interprets this change in the Moores’ position as a waiver of any RESPA claim they might have based upon the December 7 , 2009 letter, and analyzes Count 4 accordingly.
6 § 2605(e). Ocwen argues that it is entitled to summary judgment
on this count because (1) the letter was not, in fact, a
Qualified Written Request as defined in RESPA, (2) even if it
was, the Moores suffered no actual damages as a result of Ocwen’s
violation, and (3) M r . Moore cannot recover under RESPA because
he is not the borrower named in the note. The second argument is
persuasive, and the court therefore need not address either of
Ocwen’s alternative arguments.
In relevant part, RESPA requires the servicer of a
federally-related mortgage loan to acknowledge receipt of a
borrower’s Qualified Written Request within 20 business days, id.
§ 2605(e)(1)(A), and to provide certain information to the
borrower within 60 business days, id. § 2605(e)(2). If the
servicer fails to fulfill these obligations, it may be held
liable for “any actual damages to the borrower as a result of the
failure.”3 Id. § 2605(f)(1)(A). As this court explained in its
previous order on defendants’ motions to dismiss, “actual
damages” within the meaning of this provision may include damages
for emotional distress, which the Moores identified in their
complaint as the only type of damages they suffered due to
3 RESPA also permits recovery of statutory damages “in the case of a pattern or practice of noncompliance.” 12 U.S.C. § 2605(f)(1)(B). That provision is not at play in this case. See Moore, 848 F. Supp. 2d at 122.
7 Ocwen’s alleged RESPA violations. Moore, 848 F. Supp. 2d at 122-
23. To recover such damages, though, a plaintiff “must present
specific evidence to establish a causal link between the
financing institution’s violation and their injuries.” McLean v .
GMAC Mortg. Corp., 398 F. App’x 4 6 7 , 471 (11th Cir. 2010).
Assuming without deciding that the March 2 3 , 2010 letter was
a Qualified Written Request, the Moores have proffered no
evidence that they actually suffered emotional damages “as a
result of” Ocwen’s alleged failure to respond to that letter;
indeed, M r . Moore acknowledged at oral argument that they had no
proof of any such damages. The only damage Mrs. Moore identified
in her deposition testimony was a gluten allergy she developed in
May of 2009 due to stress. This, however, was months prior to
the alleged qualified written request and, indeed, before Ocwen
even began servicing her loan. Similarly, M r . Moore testified
that he began taking medication for stress, but this, again,
occurred before Ocwen’s acquisition of servicing rights.4
Neither plaintiff testified that these conditions were enhanced
4 The Moores’ discovery responses also claimed that they paid $15,000 in attorneys’ fees due in part to Ocwen’s noncompliance, but the Moores do not claim in their complaint or their objection that they can recover that amount as damages under RESPA. In any event, “attorney’s fees for bringing a RESPA suit are not actual damages under the statute.” Kassner v . Chase Home Fin., LLC, N o . 11-cv-10643, 2012 WL 260392, *7 (D. Mass. Jan. 2 7 , 2012) (citing cases).
8 or exacerbated by Ocwen’s conduct. Accordingly, they cannot
serve as the basis for the Moores’ RESPA claim. C f . McDermott v .
Marcus, Errico, Emmer & Brooks, P.C., N o . 09-cv-10159, 2012 WL
5878665, *49 (D. Mass. Nov. 2 0 , 2012) (plaintiff could not
recover actual damages for emotional distress under consumer
protection statute where, among other things, “[h]e began taking
Valium and Paxil years before” defendant’s non-compliance). In
the absence of any evidence that the Moores suffered actual
damages as a result of Ocwen’s alleged RESPA violations, summary
judgment is granted to Ocwen on Count 4 .
B. Fair Debt Collection Practices Act
Count 5 of the Moores’ complaint seeks to recover from Ocwen
and Harmon for alleged violations of the FDCPA. The Moores
allege that both defendants violated 15 U.S.C. §§ 1692e & 1692f–-
which prohibit, respectively, using “false, deceptive, or
misleading representation[s] or means” and “unfair or
unconscionable means” while attempting to collect a debt. See
Third Am. Compl. (document n o . 47) ¶ 9 6 . They further allege
that Ocwen violated 15 U.S.C. § 1692g “by failing to properly
verify the debt, charging [the Moores] a fee for the information
and failing to cease any and all collection efforts once [they]
requested verification of [the] debt.” Id. ¶ 9 7 . Both
defendants have moved for summary judgment, arguing that the
9 undisputed material facts conclusively establish that they are
not liable for any of the alleged violations. The court agrees.
1. 15 U.S.C. §§ 1692e & 1692f
As just mentioned, 15 U.S.C. §§ 1692e & 1692f prohibit a
debt collector’s use of “false, deceptive, or misleading
representation[s] or means” and “unfair or unconscionable means.”
There is no benefit to be had from reciting at length Ocwen’s and
Harmon’s various interactions with the Moores while those
defendants attempted to collect the Moores’ mortgage debt. It
suffices to say that the defendants have done so in their
memoranda in support of summary judgment, and that the facts
recited in those memoranda, which are supported by admissible
evidence and undisputed by the Moores, do not reveal any conduct
even remotely approaching “false, deceptive, or misleading” or
“unfair or unconscionable.”
The Moores suggest that “the act of attempting to collect
(and then enforce through foreclosure) a debt not actually owed
to any of the parties seeking to collect on it . . . meets the
standard o f , at a minimum, acting unfairly.” Pls.’ O b j . to
Harmon Mot. for Summ. J. (document n o . 128) at 4 . Even assuming
that is an accurate statement of law, it does not help the Moores
here, as they have presented no evidence whatsoever that could
enable a reasonable finder of fact to conclude that their debt
10 was “not actually owed to any of the parties” on whose behalf
Ocwen and Harmon were attempting to collect i t . While the Moores
assert that “[t]o date, none of the parties have proven they had
or have the right to enforce the Note,”5 that turns the burden of
proof on its head: the defendants are not required to prove that
they did not violate the FDCPA; rather, the Moores must prove
that they did. And, as just discussed, they have identified no
evidence to that effect.
2. 15 U.S.C. § 1692g
The Moores’ claim against Ocwen under 15 U.S.C. § 1692g,
though also ill-fated, requires somewhat more discussion.
Subsection (a) of this provision requires a debt collector,
“[w]ithin five days after the initial communication with a
consumer in connection with the collection of any debt,” to send
the consumer a written notice containing certain information,
including a notice of the consumer’s right to dispute the debt or
request other information within 30 days of receipt. 15 U.S.C.
§ 1692g(a). Subsection (b) provides that if the consumer
disputes the debt or requests such information within that 30-day
period, “the debt collector shall cease collection of the debt,
or any disputed portion thereof,” until it verifies the debt or
provides the requested information. Id. § 1692g(b).
5 But see infra Part II.E.
11 The court must confess some confusion as to which of these
subsections serves as the basis of the Moores’ § 1692g claim. The
complaint’s references to Ocwen “failing to properly verify the
debt” and “failing to cease any and all collection efforts once
[the Moores] requested verification of [the] debt” suggest that
subsection (b) is at issue. Ocwen, however, has addressed
subsection (a) in its memorandum, and the Moores have not
disagreed with or sought to correct this understanding. This
distinction i s , in any event, irrelevant, as the Moores’ claim
fails no matter which subsection it involves.
Insofar as the Moores’ claim arises from Ocwen’s alleged
failure to send a notice as required by subsection ( a ) , it fails
because the Moores had already been provided with the requisite
notice. It is undisputed that on July 2 7 , 2009, Harmon, acting
on behalf of Saxon, sent the Moores a letter that complied in all
respects with § 1692g(a). 6 The majority of courts to examine the
6 In pertinent part, the letter informed the Moores that Harmon was attempting to collect a debt in the amount of $493,555.36 owed to MERS. It continued: Unless you, within thirty days after receipt of this notice, dispute the validity of the debt or any portion thereof, the debt will be assumed to be valid by this office. If you notify this office in writing within the thirty-day period that the debt, or any portion thereof, is disputed, this office will obtain verification of the debt or a copy of the judgment against you, if any, and a copy of such verification or judgment will be mailed to you by this office. Upon your written request within the thirty-day period, this
12 issue have concluded that “one communication with proper
validation notice is all that is required for each debtor when
contacted by the first debt collector, no matter how long the
line of debt collectors to follow.” Waters v . J.C. Christensen &
Assocs., Inc., N o . 08-cv-11795, 2011 WL 1344452, *11 (D. Mass.
Mar. 4 , 2011); see also Oppong v . First Union Mortg. Corp., 566
F. Supp. 2d 395, 403-04 (E.D. P a . 2008); Nichols v . Byrd, 435 F.
Supp. 2d 1101, 1107 (D. Nev. 2006); Senftle v . Landau, 390 F.
Supp. 2d 453, 473 (D. Md. 2005). This court agrees with that
conclusion.
As those courts have observed, Congress, in drafting
§ 1692g(a), used the definite article “the” when describing which
“initial communication” would trigger the notice requirement.
See Waters, 2011 WL 1344452 at * 1 1 ; Nichols, 435 F. Supp. 2d at
1106-07; Senftle, 390 F. Supp. 2d at 473. “The” indicates that
there can be but one “initial communication” with any given
consumer; were multiple “initial communications” a possibility,
Congress would likely have employed the indefinite article “an,”
or perhaps the possessive “its” (to refer to each debt
collector’s first communication with the consumer). O r , as the
office will provide you with the name and address of the original creditor, if different from the current creditor. Letter of July 2 7 , 2009 (document n o . 123-7). This information is exactly what the statute requires. See 15 U.S.C. § 1692g(a).
13 Senftle court observed, Congress could have explicitly required
both “initial and successive debt collectors to provide the
§ 1692g(a) validation notice,” and in fact “made such
distinctions in § 1692e(11) when it distinguished between initial
and subsequent communications to a debtor on a given debt.” Id.
(emphasis omitted).
The court acknowledges that other courts have reached the
opposite conclusion. See, e.g., Stair ex rel. Smith v . Thomas &
Cook, 254 F.R.D. 1 9 1 , 196-97 (D.N.J. 2008). This court
respectfully disagrees with the conclusion reached in those
cases, which follows from concerns “that the FDCPA’s purpose–-‘to
eliminate abusive debt collection practices’–-would be undermined
if subsequent debt collectors were excused from complying with
the requirements contained in section 1692g.” Id. (internal
citation omitted). Such concerns cannot justify a departure from
the straightforward language of the statute, and they are, in any
event, unfounded. “Once the validation information is provided
. . . , and once the debtor is made aware of his rights at the
time the collection process begins, it would serve no purpose to
require that the same information be given again and again, each
time the servicing function was passed from one [debt collector]
to another.” Waters, 2011 WL 1344452 at *11 (quoting Oppong, 566
F. Supp. 2d at 4 0 4 ) . Because the Moores had already received a
14 § 1692g(a) validation notice from Harmon in the summer of 2009,
Ocwen was not required to send a new notice to the Moores when it
undertook its efforts to collect their debt.
It follows from this conclusion that Ocwen cannot have
violated subsection (b) by failing to “properly verify the debt”
and “cease any and all collection efforts” after receiving the
Moores’ request for debt verification. Subsection (b) requires a
debt collector to fulfill these obligations only “[i]f the
consumer notifies the debt collector in writing within the
thirty-day period” following his or her receipt of the validation
notice. 15 U.S.C. § 1692g(b). The Moores admit that they “did
not seek to have the debt validated until December 7 , 2009,”
Pls.’ Opp. to Ocwen Mot. for Summ. J. (document n o . 129) at 8–-
more than four months after Harmon’s validation notice was sent,
and, therefore, three months after the statutory deadline. So
the Moores’ letter did not require Ocwen to observe § 1692g(b)’s
requirements, and it cannot be held liable for its alleged
failure to do s o .
C. Count 6 - New Hampshire Unfair, Deceptive or Unreasonable Collection Practices Act
Count 6 of the complaint alleges that Ocwen violated the
UDUCPA “by causing a telephone to ring or engaging any person in
telephone conversation repeatedly or continuously or at unusual
15 times known to be inconvenient with the intent to abuse, oppress
or harass.”7 Third Am. Compl. (document n o . 47) at ¶ 105
(quoting N.H. Rev. Stat. Ann. § 358-C:3). Ocwen argues that the
Moores have no competent, admissible evidence in support of this
claim. The court agrees.
The only evidence in the summary judgment record regarding
the number, frequency, date, or time of any phone calls to the
Moores is a handwritten log that appears to list, in non-
chronological order, the dates and times of more than 40
telephone calls between December 8 , 2009 and January 1 9 , 2010
(i.e., an average of roughly one per day over that period of
time). The log relates that the calls generally occurred in the
mornings, no earlier than 8 a.m., that the latest call occurred
just before 5 p.m., that there were often multiple calls on the
same day–-sometimes just minutes apart–-and that many of the
calls were either missed or hang-ups. There is no indication
about the telephone numbers from which the calls were made, or
7 Count 6 also advances a UDUCPA claim against Harmon, but the court dismissed that claim on Harmon’s motion under Rule 12(b)(6). See Moore, 848 F. Supp. 2d at 125-26. In addition, that count alleges that Ocwen violated the UDUCPA “[b]y repeatedly attempting to contact the Plaintiffs, knowing that a loan modification application was in process.” Third Am. Compl. (document n o . 47) at ¶ 104. The Moores’ objection does not pursue that theory, and the court does not, in any event, see how merely contacting a debtor after the debtor has requested a modification to the debt (which is the worst the evidence before the court shows) conceivably violates the UDUCPA.
16 received, or the length and subject-matter of the calls that were
answered. The court takes the Moores to rely on the log as a
record of calls that Ocwen made to them, though there is no
actual testimony to that effect in the record.
Assuming for the sake of argument that the pattern of calls
related in the log would make out a claim under the UDUCPA (and
that Ocwen actually placed the calls), the Moores cannot rely
upon the log to support such a claim. As defendants argue, it is
an out-of–court statement offered “to prove the truth of the
matter asserted” (i.e., that calls were actually received on the
dates and at the times in question), Fed. R. Evid. 801(c), and
therefore qualifies as inadmissible hearsay under Rule 802 of the
Federal Rules of Evidence unless it falls within some exception
to or exemption from the hearsay rule. See, e.g., Pugliese v .
Prof’l Recovery Serv., Inc., N o . 09-cv-12262, 2010 WL 2632562, *5
(E.D. Mich. June 2 9 , 2010) (striking similar call log from
summary judgment record as hearsay). The Moores have not
identified any such exception or exemption (and, indeed, maintain
that they do not seek “to enter their call log into evidence,”
Pls.’ O b j . to Ocwen Mot. for Summ. J. (document n o . 129) at 9 ) .
The log could potentially be admitted under Rule 803(5) as a
recorded recollection. For that to be the case, though, the
Moores would need to show that the log “is on a matter [they]
17 once knew about but now cannot recall well enough to testify
fully and accurately,” that it “was made or adopted . . . when
the matter was fresh in [their minds],” and that it “accurately
reflects [their] knowledge.” Fed. R. Evid. 803(5). The Moores
have not argued that these factors are present, and from the
record before the court, it is not possible to arrive at that
conclusion. There i s , for example, no indication that the log
was made “when the matter was fresh” in the Moores’ minds; to the
contrary, M r . Moore testified that although he “would try and
write [the calls] down as they happened,” he was not always able
to do s o , and created the log by going “back into my phone, . . .
through my call records and find[ing] the missed calls or the
hang-ups.”
Because the record does not permit the court to conclude
that the log falls within any exception or exemption to the
hearsay rule, the court cannot consider i t . See, e.g., Dávila v .
Corporación de Puerto Rico para la Difusión Pública, 498 F.3d 9,
17 (1st Cir. 2007) (“It is black-letter law that hearsay evidence
cannot be considered on summary judgment.”). And, as noted, the
log is the only evidence in the record before the court that
arguably permits a conclusion that Ocwen called the Moores
“repeatedly or continuously or at unusual times known to be
inconvenient,” as alleged in the complaint. The Moores could
18 have submitted affidavits attesting to their recollection of the
number of frequency of calls Ocwen made to them–-or, at the very
least, to the factors necessary to conclude that the log
qualifies as a recorded recollection under Rule 803(5). They
could have submitted deposition testimony on these topics. They
did not do either of these things, though, and in the absence of
any admissible evidence that Ocwen violated the UDUCPA, the court
is constrained to grant summary judgment to Ocwen on Count 6.
D. Counts 8 & 11 - Fraud and negligent misrepresentation
Counts 8 and 11 of the Moores’ complaint advance claims
against Saxon and Ocwen for common-law fraud and negligent
misrepresentation.8 Both counts allege that these defendants
made misrepresentations about loan modifications while servicing
Mrs. Moore’s loan; the thrust of the Moores’ allegations is that
Saxon and Ocwen both falsely stated that they were considering
Mrs. Moore for a loan modification, and that the Moores took
various actions in reliance on these statements. See Third Am.
Compl. (document n o . 47) ¶¶ 123-24, 147-50; see also Moore, 848
F. Supp. 2d at 130-32. As defendants’ motions for summary
judgment point out, there is no evidence confirming these
8 Insofar as Counts 8 and 11 alleged fraud and negligent misrepresentation by other defendants, the court previously dismissed those counts. See Moore, 848 F. Supp. 2d at 130-32.
19 allegations, and in fact, the record evidence shows that Saxon
actually offered Mrs. Moore a loan modification–-which she
declined.8 See supra Part I I .
Perhaps recognizing the futility of their claim that the
defendants misled them about the availability of a loan
modification, the Moores’ objections to the defendants’ motions
attempt to recast their fraud and negligent misrepresentation
claims. The Moores now claim that Saxon and Ocwen falsely
represented that “they had a right to collect on and enforce the
Note on behalf of Defendant Deutsche [Bank],” which, the Moores
say, did not hold Mrs. Moore’s note at that time. See Pls.’ O b j .
to Ocwen Mot. for Summ. J. (document n o . 129) at 1 1 ; see
generally Pls.’ O b j . to Saxon Mot. for Summ. J. (document n o .
130). The Moores have presented no evidence substantiating this
assertion–-which the court finds somewhat dubious given the
uncontroverted evidence that Deutsche Bank presently holds the
note, see infra Part III.E.–-and it is too late for the Moores to
8 The Moores’ objection to Ocwen’s motion suggests that “Ocwen’s own servicing records . . . show [that it] continued to encourage Plaintiffs to seek a loan modification when [it] reasonably knew [that it] had no intention of doing anything more than continuing to request information already provided to [it] to buy [itself] more time as the Plaintiffs slipped deeper into default.” Pls.’ O b j . to Ocwen Mot. for Summ. J. (document n o . 129) at 1 1 . Having reviewed all 32 barely legible pages of servicing records the Moores cite, the court was unable to find anything remotely corroborating this assertion.
20 hitch their wagon to another star in any event. A party may not
“raise new and unadvertised theories of liability for the first
time in opposition to a motion for summary judgment.” Calvi v .
Knox Cnty., 470 F.3d 4 2 2 , 431 (1st Cir. 2006). Summary judgment
is granted to the defendants on Counts 8 and 1 1 .
E. Count 17 - “Avoidance of note”
Finally, in Count 17 of their complaint, the Moores directly
challenge the defendants’ ability to enforce the promissory note,
alleging that they “have been unable or unwilling to provide the
Plaintiffs with evidence that they hold the original of the Note
or Mortgage.” Third Am. Compl. (document n o . 47) at ¶ 184.
Because “[a]ctual possession of the original of the note is a
necessary legal prerequisite to enforcement of the Note,” the
Moores say, none of the defendants may enforce the Note against
them. Id. ¶¶ 185-86. In response to these allegations, Ocwen
and Deutsche Bank have proffered the original promissory note,
indorsed in blank, which, defendants attest, Ocwen holds as
servicer on Deutsche Bank’s behalf.
As this court has previously noted, promissory notes are
negotiable instruments “subject to the provisions of Article 3 of
the Uniform Commercial Code (“UCC”), N.H. Rev. Stat. Ann. § 382-
A:3-101 et seq.” LeDoux v . JP Morgan Chase, N.A., 2012 DNH 1 9 4 ,
11. Under the UCC, when an instrument is indorsed in blank, as
21 the Moores’ note has been, it “becomes payable to bearer and may
be negotiated by transfer of possession alone.” N.H. Rev. Stat.
Ann. § 382-A:3-205(b). That is to say, the bearer becomes a
holder entitled to enforce the instrument. Id. § 382-A:3-301.
Given that Deutsche Bank, through Ocwen, possesses the original,
indorsed note, it would seem that Count 17 necessarily fails.
Cf., e.g., In re Samuels, 415 B.R. 8 , 20 (Bkrtcy. D. Mass. 2009)
(“By virtue of its possession of a note indorsed in blank,
Deutsche Bank is the holder of the note and as such has standing
in this case to seek payment thereof.”).
The Moores--who, it bears noting, have the burden of proving
that defendants do not hold the note–-seek to avoid this
conclusion, but have presented no evidence of their own. They
have not, for example, proffered another note that they purport
is the original, nor have they identified any other person or
entity who claims to actually hold their note. Instead, they
advance a smorgasbord of unpersuasive arguments attacking the
genuineness of the note defendants have proffered, among other
things. To wit:
• They argue that the affiant who attested that the note defendants proffered is in Ocwen’s and Deutsche Bank’s possession cannot authenticate the document because she does not have “personal knowledge of anything having to do with the Moore loan.” Pls.’ O b j . to Ocwen Mot. for Summ. J. (document n o . 129) at 1 2 . The note, however, is commercial paper that is self-authenticating under Federal Rules of Evidence 902(9), and need not be independently authenticated
22 in the absence of a specific denial of its authenticity-- which plaintiffs have not made. See, e.g., In re Cook, 457 F.3d 5 6 1 , 566 (6th Cir. 2006) (A “promissory note is self- authenticating evidence.”); United States v . Varner, 13 F.3d 1503, 1508-09 (11th Cir. 1994) (“Mere production of a note establishes prima facie authenticity and is sufficient to make a promissory note admissible.”).
They observe that Ocwen and Saxon produced multiple copies of the note during discovery, some of which were not indorsed. The Moores apparently take this to show that either the note now in Ocwen’s and Deutsche Bank’s possession is not the original, or the indorsement is fabricated. As defendants argue, though, at most these multiple copies of the note demonstrate “that a photo copy of the note was made at some point prior to the endorsement [sic],” and that the copy made its way into the hands of the loan’s servicers, Ocwen Reply B r . (document n o . 135) at 3 , which casts no serious doubt on the authenticity of the indorsed version of the note. (Notably, the Moores do not contend that Ocwen or Saxon ever represented that the unindorsed notes they produced were copies of the original.)
They assert that because the indorsement has no date–-which, they candidly acknowledge, is not required by New Hampshire law, see Bolduc v . Beal Bank, SSB, 994 F. Supp. 8 2 , 93 n.10 (D.N.H. 1998)–-the court should view it “with great skepticism and not blindly accept that it was made prior to the start of a foreclosure process.” Pls.’ O b j . to Ocwen Mot. for Summ. J. (document n o . 129) at 1 3 . Here, however, the claim the Moores have advanced in Count 17 is not that the defendants improperly initiated foreclosure without possessing the note--it is that the defendants do not possess the note or have the right to enforce it at present.9 The only fact material to that claim is that the
9 The Moores claim otherwise, asserting that the key question is either “whether or not any of the Defendants had standing to foreclose when they began the non-judicial foreclosure process,” Statement in Supp. of Objs. to Mots. for Summ. J. (document n o . 1 4 0 ) , or “who had the right (or lacked the right) to enforce the Note at the time the action began,” Pls.’ Surreply to Ocwen Mot. for Summ. J. (document n o . 137) at 3 . That is not, however, the claim pleaded in the complaint, and when the court, in its order on the defendants’ motions to dismiss, interpreted Count 17 “as
23 note has been indorsed in blank and Deutsche Bank currently possesses i t ; it is irrelevant when that indorsement occurred.
They seek to paint defendants’ statements as to who currently holds the note as inconsistent, noting that Ocwen stated in its interrogatory responses that the note was in Deutsche Bank’s possession, and that defendants’ memorandum and supporting documents now state at different points that Ocwen, Deutsche Bank, and their counsel are all in possession of the note. Any inconsistency in the defendants’ various statements is imagined: they are all consistent with the understanding that Deutsche Bank is the legal holder of the note; that Ocwen, acting as Deutsche Bank’s agent, actually possesses the physical note; and that Ocwen has temporarily relinquished possession of the note to its counsel in this action for purposes of the present motion.
Finally, they profess that “[a]ccording to the Pooling and Servicing Agreement [associated with the Trust that this loan is alleged to be part of] . . . Wells Fargo and/or LaSalle Bank is supposed to be the document custodian which means that they should be the entities with physical possession [of the note].” Pls.’ O b j . to Ocwen Mot. for Summ. J. (document n o . 129) at 1 5 . But who is “supposed to be” in possession of the note is not relevant to who may enforce i t ; rather, as already discussed, under the UCC a
seeking a declaratory judgment that the defendants may not enforce the note against the Moores,” Moore, 848 F. Supp. 2d at 137--a claim dependent upon defendants’ right to enforce the note at the time of trial–-the Moores did not object or otherwise seek to correct the court’s understanding. As already mentioned, “[i]t is well settled that plaintiffs are generally not permitted to raise brand new theories of their case in opposition to a motion for summary judgment.” Agri-Mark, Inc. v . Niro, Inc., 233 F. Supp. 2d 2 0 0 , 207 (D. Mass. 2002); see also Calvi, 470 F.3d at 431. That rule applies with particular force where, as here, the plaintiffs are on the fourth iteration of their complaint. And even assuming the Moores could shift their theory of recovery at this late juncture, they have presented no evidence that supports their theory that Deutsche Bank did not hold the note at the time of foreclosure or at the time this action began. See supra Part III.D.
24 note indorsed in blank becomes enforceable by the bearer. See N.H. Rev. Stat. Ann. §§ 382-A:3-205(b), 3-301; c f . also Millon v . JPMorgan Chase Bank, N.A., N o . 11-cv-410, 2012 WL 1854785, *5 (W.D. M o . May 2 1 , 2012) (“No genuine issue exists that the note is bearer paper and Deutsche Bank is in possession of i t . Deutsche Bank is thus the holder of the note . . . . [Plaintiff’s] argument that ownership or holder status of the note cannot be traced through the record of securitization documents is irrelevant.”).10
Because the Moores have not shown a genuine issue of
material fact as to Deutsche Bank’s possession of their note,
summary judgment is granted to defendants on Count 1 7 .
IV. Conclusion
For the reasons set forth above, the defendants’ motions for
summary judgment11 are GRANTED. The clerk shall enter judgment
accordingly and close the case.
10 The Moores also point out that the copy of the note filed on the docket in this case “contains redacted information,” and assert that “an original would not have blacked out information.” Pls.’ O b j . to Ocwen Mot. for Summ. J. (document n o . 129) at 1 2 . Even if the premise of this argument were colorable (it is n o t ) , both Rule 4.2(b)(1) of this court’s Supplemental Rules for Electronic Case Filing and Federal Rule of Civil Procedure 5.2(a) required the information in question to be redacted. The Moores do not claim to have been denied access to an unredacted copy of the indorsed note. 11 Documents nos. 123, 1 2 4 , 126.
25 SO ORDERED.
Joseph N . Laplante United States District Judge
Dated: April 2 5 , 2013
cc: Angela Jo Moore (pro se) M . Porter Moore (pro se) David E . Fialkow, Esq. Michael R. Stanley, Esq. Brian S . Grossman, Esq. Peter G. Callaghan, Esq. Scott C . Owens, Esq.