Wenzel, et al. v. National Creditors Connection, Inc., et al.

2018 DNH 084

• Court: District Court, D. New Hampshire
• Decided: April 20, 2018
• Docket: 16-cv-481-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Sasha Wenzel and Eric Daneault

v. Civil No. 16-cv-481-LM Opinion No. 2018 DNH 084 National Creditors Connection, Inc. and Carrington Mortgage Services

O R D E R

Sasha Wenzel and Eric Daneault brought suit in New

Hampshire Superior Court, Hillsborough County against defendants

Carrington Mortgage Services (“Carrington”) and National

Creditors Connection, Inc. (“National Creditors”), alleging that

Carrington’s unlawful conduct in mishandling their loan payments

forced them into default on their mortgage agreement.

Plaintiffs also alleged that Carrington and National Creditors

violated federal and state law in their efforts to collect on

plaintiffs’ debt. Defendants removed the case to this court and

move for summary judgment on all of plaintiffs’ claims.

Plaintiffs object.

STANDARD OF REVIEW

A movant is entitled to summary judgment if it “shows that

there is no genuine dispute as to any material fact and [that

it] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In reviewing the record, the court construes all

facts and reasonable inferences in the light most favorable to

the nonmovant. Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108,

115 (1st Cir. 2013).

“On issues where the movant does not have the burden of

proof at trial, the movant can succeed on summary judgment by

showing ‘that there is an absence of evidence to support the

nonmoving party's case.’” OneBeacon Am. Ins. Co. v. Commercial

Union Assur. Co. of Canada, 684 F.3d 237, 241 (1st Cir. 2012)

(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

If the moving party provides evidence to show that the nonmoving

party cannot prove a claim, the burden shifts to the nonmoving

party to show that there is at least a genuine dispute as to a

factual issue that precludes summary judgment. Woodward v.

Emulex Corp., 714 F.3d 632, 637 (1st Cir. 2013).

Under the Local Rules of this district, “[a] memorandum in

support of a summary judgment motion shall incorporate a short

and concise statement of material facts, supported by

appropriate record citations, as to which the moving party

contends there is no genuine issue to be tried.” LR 56.1(a).

“A memorandum in opposition to a summary judgment motion shall

incorporate a short and concise statement of material facts,

supported by appropriate record citations, as to which the

adverse party contends a genuine dispute exists so as to require

2 a trial.” LR 56.1(b). Importantly, “[a]ll properly supported

material facts set forth in the moving party’s factual statement

may be deemed admitted unless properly opposed by the adverse

party.” Id.

BACKGROUND1

On December 17, 2007, plaintiffs executed a promissory note

in favor of SurePoint Lending abn First Residential Mortgage

Network, Inc. (“SurePoint”) in exchange for a loan in the amount

of $235,480. The note was secured by a mortgage on plaintiffs’

home in Manchester, New Hampshire.

Plaintiffs timely submitted their first four monthly

payments due under the note. They failed to make their fifth

monthly payment, or any payment due under the note thereafter.

On April 22, 2011, Mortgage Electronic Registration

Systems, Inc. (“MERS”), as SurePoint’s nominee, assigned the

mortgage to BAC Home Loans Servicing, L.P. (“BAC”). On February

2, 2012, MERS, as BAC’s nominee, assigned the mortgage to Bank

of America, N.A. (“Bank of America”). Bank of America was also

the servicer of the loan.

1 The facts are summarized from defendants’ statement of material facts offered in support of their motion for summary judgment, see LR 56.1, and from exhibits included with the parties’ filings. These facts are not in dispute unless noted.

3 On December 5, 2012, plaintiffs and Bank of America entered

into a loan modification agreement (the “first loan modification

agreement”). At that time, plaintiffs were 54 months in arrears

on their loan. Plaintiffs made the first 14 payments required

under the first loan modification agreement, but, beginning with

their payment due on February 1, 2014, they failed to make the

next nine payments.

In November 2014, plaintiffs and Bank of America executed a

second loan modification agreement. Plaintiffs submitted their

first payment under the second agreement on time, but were late

on their second payment and fell behind by two months. Since

that time, plaintiffs made 33 payments, all of which have been a

minimum of 60 days late.2

I. Service Responsibilities Transferred to Carrington

On June 10, 2016, Bank of America sent plaintiffs a notice

that servicing responsibilities of their mortgage loan would be

transferred to Carrington on July 1, 2016. See doc. no. 1-1 at

16-19. At some point in July, Carrington sent plaintiffs a

“Notice of Servicing Transfer.” The Notice of Servicing

Wenzel asserts that she made all payments after the November 2

2014 payment “over the phone” after receiving a “regular phone call” from Bank of America. Doc. no. 41-1 at ¶ 3. It is not clear from the record precisely how the payment was made “over the phone.”

4 Transfer is dated July 11, 2016, and Carrington asserts that it

mailed the notice on or around that date. Wenzel states in an

affidavit that she did not receive the notice until July 26,

2016. See doc. no. 41-1 at ¶ 5.

On July 26, 2016, Wenzel called Carrington, explained to a

representative that she had just received paperwork from

Carrington indicating that it was her new loan servicer on that

same date, and attempted to make a monthly payment over the

phone. Wenzel explained to the representative that she had been

two months behind in her mortgage payments “forever” but that

Bank of America always allowed her to make a one-month payment

over the phone.3 The representative informed Wenzel that because

her paperwork showed her as being at least two months behind on

her payments (for May and June 2016), Carrington could not

accept one month’s payment over the phone, and she would need to

mail the payment or submit it online. During the call, the

representative told Wenzel that she needed to update her contact

information, including her telephone number. Wenzel provided

3 It is undisputed that both Wenzel and Daneault are parties to both the note and mortgage. In their communications, however, Wenzel, Carrington, and National Creditors alternate between referring to the loan and mortgage as pertaining to both Wenzel and Daneault or Wenzel only. The parties do not address this issue, and the court notes it here only for the sake of clarity.

5 her cell phone number, which she stated was her only telephone

number.4

During that same call, Wenzel told the Carrington

representative that the paperwork she had received listed her

outstanding balance as $244,672.23, but that she believed this

information was incorrect. Wenzel stated that paperwork from

Bank of America showed that her outstanding balance was

$243,053.15. The representative confirmed that Wenzel’s

outstanding balance was $243,053.15.

Three days later, on July 29, 2016, Carrington sent

plaintiffs a notice of intent to foreclose. The notice stated

that Carrington had not received the payment due on May 1, 2016,

and that the amount required to cure the delinquency was

$5,502.30. See doc. no. 1-1 at 21-23.

Wenzel subsequently mailed in a monthly payment, and

Carrington accepted it on August 9, 2016, as plaintiffs’ payment

for May. Shortly thereafter, Wenzel mailed in a second payment,

which Carrington accepted on August 31, 2016, as plaintiffs’

payment for June.

At some point, Wenzel sent in a third payment, which she

asserts Carrington “initially rejected, and held, before [it

was] eventually accepted and cashed.” Doc. no. 41-1 at ¶ 8.

4 Wenzel did not specify that the number she gave was her cell phone number, but rather that it was her only number.

6 Carrington acknowledges that it accepted Wenzel’s July payment

on September 30, 2016, and applied it to plaintiffs’ outstanding

balance. Plaintiffs have made no further loan payments since

that time.

II. Debt Collection Efforts

From July 28 through October 11, 2016, Carrington made

seven calls on different dates to Wenzel’s cell phone.

Carrington left two short voicemails on Wenzel’s phone, on

August 18 and 19.

On August 5, 2016, Carrington provided plaintiffs’ address,

but not Wenzel’s phone number, to National Creditors. That same

day, National Creditors sent a Debt Validation Notice to Wenzel

at plaintiffs’ address. The notice advised that National

Creditors was acting on behalf of Carrington, and stated that

Carrington’s records showed that Wenzel owed a debt to Bank of

America of $7,336.40 as of August 5, 2016. The letter advised

Wenzel that unless she disputed the validity of the debt within

30 days of receipt of the notice, National Creditors would

assume the debt to be valid. Wenzel did not contact National

Creditors to dispute the debt.

On August 8, 2016, National Creditors, on Carrington’s

behalf, sent a field agent to plaintiffs’ home. The field agent

rang the doorbell and knocked on the door, but no one answered.

7 The agent left a contact letter in a sealed personal and

confidential envelope. The letter, which had Carrington’s name

and address in the header, stated that plaintiffs owed $7,336.40

as of August 5, 2016, and stated that it “is imperative that you

contact a representative at the telephone number listed below

immediately upon receipt of this letter.” Doc. no. 35-2 at 2.

The telephone number listed on the letter was Carrington’s

contact information. After the August 8, 2016 visit to the

home, National Creditors had no contact, by phone or otherwise,

with plaintiffs.

DISCUSSION

Plaintiffs bring seven claims against Carrington only:

Violation of the Real Estate Settlement Procedures Act

(“RESPA”), 12 U.S.C. § 2601 et seq. (Count I); Negligent

Misrepresentation (Count II); Breach of the Covenant of Good

Faith and Fair Dealing (Count III); Violation of the Telephone

Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 (Count IV);

Two Counts of Violation of the Fair Debt Collection Practices

Act (“FDCPA”), 15 U.S.C. § 1692 et seq. (Counts V and VII); and

“Standing” (Count IX). They also allege two counts against both

Carrington and National Creditors: Violation of the FDCPA (Count

VI); and Negligent Infliction of Emotional Distress (Count

8 VIII). Defendants move for summary judgment on all claims.

I. Defendants’ Affidavits

In support of their motion for summary judgment, defendants

submitted affidavits from Elizabeth Ostermann, a Vice President

for Carrington5 (doc. no. 34) and Mark Hunt, Custodian of Records

and Director of Compliance for National Creditors (doc. no. 35).

These affidavits provide support for the statement of undisputed

facts included with defendants’ motion for summary judgment.

Plaintiffs assert that pursuant to Federal Rule of Civil

Procedure 37(c)(1), the court should not consider these

affidavits because Ostermann and Hunt were not identified in

defendants’ initial disclosures, and defendants only disclosed

their identities shortly before the close of discovery.6 They

argue that defendants acted in bad faith and that the late

disclosure was highly prejudicial to plaintiffs because they had

no opportunity to depose these witnesses.

Ostermann’s affidavit states that her exact title is “Vice 5

President, Default.” Doc. no. 34 at ¶ 2.

Rule 37(c)(1) provides, in relevant part: “If a party fails 6

to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion . . . unless the failure was substantially justified or is harmless.”

9 Plaintiffs fail to provide any legitimate basis for their

assertion that defendants acted improperly or in bad faith or

that plaintiffs suffered any prejudice. Although defendants did

not identify Ostermann or Hunt in their initial disclosures,

they supplemented those disclosures on October 24, 2017.7 See

doc. no. 48-1. Consistent with their pattern during the course

of this litigation, plaintiffs could have, but did not, seek to

depose either Ostermann or Hunt prior to the close of discovery

on November 17, 2017. See doc. nos. 20 & 23 (detailing

plaintiffs’ failure to seek discovery throughout the

litigation).

The case on which plaintiffs rely and attach to their

objection, Rigby v. Philip Morris USA Inc. et al., No. 16-16831

(11th Cir. Oct. 23, 2017), does not support their argument. In

Rigby, the Eleventh Circuit held that the district court did not

abuse its discretion in excluding affidavits offered by

plaintiff in his objection to defendants’ motion for summary

judgment. The Eleventh Circuit noted that plaintiff

supplemented his disclosures and identified his witnesses “only

after the discovery period had ended and defendants had filed

7 Under the scheduling order, the parties were not required to serve initial disclosures. See doc. no. 9 at 2, approved as modified in doc. no. 10. Defendants provided disclosures to plaintiffs as a matter of courtesy.

10 their motion for summary judgment.” Doc. no. 41-2 at 4

(emphasis added).

Here, in contrast, defendants disclosed Ostermann’s and

Hunt’s names and the topics about which they have knowledge in a

timely fashion. Plaintiffs had the opportunity to depose these

witnesses, but, consistent with their behavior throughout this

litigation, made no effort to do so. Plaintiffs’ argument that

the court should exclude the affidavits under Federal Rule of

Civil Procedure 37 is unavailing.8

II. RESPA (Count I)

In their complaint, plaintiffs allege that Carrington

violated RESPA, and specifically 12 U.S.C. § 2605, in the

following ways: 1) Carrington did not send plaintiffs a timely

notice of transfer of servicing of the loan; 2) Carrington added

late fees during the 60-day “grace period” after the transfer

date; and 3) Carrington continued to add late fees despite

receiving payments before their due date, and returned

plaintiffs’ monthly mortgage payments. See doc. no. 1-1 at ¶¶

30-35. Defendants argue that they are entitled to summary

judgment because the evidence in the record shows that

8 Although plaintiffs have failed to put forth a legitimate basis for excluding Ostermann’s or Hunt’s affidavits, the court notes that, with limited exceptions discussed below, plaintiffs do not dispute the facts set forth in those affidavits.

11 Carrington did not take any of the actions plaintiffs allege in

support of their RESPA claim and that, regardless, there is no

evidence that plaintiffs suffered any damages from Carrington’s

alleged RESPA violations. See Bulmer v. MidFirst Bank, FSA, 59

F. Supp. 3d 271, 279 (D. Mass. 2014) (“To succeed on a

compensatory claim, a plaintiff must demonstrate both a

violation of the statute and actual damages caused by the RESPA

violation.”). The court addresses each of plaintiffs’

allegations below.

A. Notice of Servicing Transfer

Plaintiffs first allege that Carrington failed to provide

timely notice of the transfer of servicing responsibilities of

their loan. Under RESPA, “[e]ach transferee servicer to whom

the servicing of any federally related mortgage loan is

assigned, sold, or transferred shall notify the borrower of any

such assignment, sale, or transfer.” 12 U.S.C. § 2605(c)(1).

The “notice required under paragraph (1) shall be made to the

borrower not more than 15 days after the effective date of

transfer of the servicing of the mortgage loan (with respect to

which such notice is made).” Id. at § 2605(c)(2)(A).

Defendants argue that the undisputed evidence in the record

shows that Carrington sent plaintiffs the required notice of

transfer within 15 days of July 1, 2016, the effective date of

12 the transfer. But defendants themselves appear confused as to

the date Carrington sent the notice.

The notice of transfer is dated July 11, 2016. See doc.

no. 34-5 at 2-3. Defendants assert in their memorandum in

support of their summary judgment motion that Carrington sent

the notice on that same date, relying on Ostermann’s affidavit.

See doc. no. 33 at 10. The statement in the affidavit upon

which defendants rely, however, merely refers to the date of the

letter itself, and does not provide the date that Carrington

sent the notice. See doc. no. 34 at ¶ 14. Later in their

memorandum, defendants state that Carrington mailed the notice

of transfer “on or about July 18, 2016”—a date outside of the

15-day deadline. See doc. no. 33 at 14 (“Indeed, indisputable

evidence shows that on or about July 18, 2016, [Carrington] sent

Plaintiffs notice to the Subject Property address that the

Subject Loan’s servicing had been transferred from [Bank of

America] to [Carrington].”). Then, in their reply brief,

defendants represent that “the Subject Loan’s servicing notes

unequivocally establish Carrington sent the servicing transfer

notice on July 16, 2016, which is fifteen days (15) after the

July 1, 2016 effective day of transfer.”9 Doc. no. 48 at 5.

9 Defendants provided numerous pages of servicing notes with their summary judgment motion. They do not, however, cite the specific pages of the servicing notes to support this statement.

13 Even if defendants had settled on a single date that

Carrington sent the notice, plaintiffs provide evidence that

Carrington failed to comply with the 15-day deadline. On July

26, 2016, Wenzel called Carrington and stated that she received

on that date a package from Carrington, which included the

notice of transfer. In her affidavit, Wenzel states that she

received the notice on July 26, 2016.

On the basis of this conflicting record, a genuine issue of

material fact exists as to whether Carrington complied with its

obligations under § 2605(c).10

B. Late Fees Within 60 Days of Service Transfer

Plaintiffs next allege that Carrington “failed to treat the

Plaintiffs’ payments as required by 12 U.S.C. 2605(d) during the

60 day period beginning at the effective date of the transfer.”

Doc. no. 1-1 at ¶ 32. Because of the confusion that can result

when a new loan servicer takes over, RESPA protects debtors who

make timely payments to the predecessor servicing company for a

10 Defendants briefly contend in their reply brief that they should be entitled to summary judgment on this portion of plaintiffs’ RESPA claim because plaintiffs’ allegations concerning the notice of transfer in their complaint suggest that plaintiffs did not receive the notice at all. The court declines to impose such strict pleading requirements on plaintiffs, particularly in light of plaintiffs’ discovery responses which make clear that plaintiffs allege they received the required notice in an untimely fashion.

14 period of 60 days after the transfer. Plaintiffs’ allegation

appears to be that Carrington improperly added late fees and/or

other fees during that 60-day grace period.

Section 2605(d) provides:

During the 60-day period beginning on the effective date of transfer of the servicing of any federally related mortgage loan, a late fee may not be imposed on the borrower with respect to any payment on such loan and no such payment may be treated as late for any other purposes, if the payment is received by the transferor servicer (rather than the transferee servicer who should properly receive payment) before the due date applicable to such payment.

(emphasis added); see also 12 C.F.R. § 1024.33(c)(1).11

Plaintiffs do not allege that they made any payment, timely

or otherwise, to Bank of America after July 1, 2016. As a

result, there are no facts alleged to support a claim that

Carrington violated § 2605(d). Defendants are therefore

11 Section 1024.33(c)(1), which is part of RESPA’s Regulation X and is related to § 2605(d), provides:

During the 60-day period beginning on the effective date of transfer of the servicing of any mortgage loan, if the transferor servicer (rather than the transferee servicer that should properly receive payment on the loan) receives payment on or before the applicable due date (including any grace period allowed under the mortgage loan instruments), a payment may not be treated as late for any purpose.

15 entitled to summary judgment on the portion of plaintiffs’ RESPA

claim based on § 2605(d).12

C. Refusal of Payments

Plaintiffs allege that Carrington violated RESPA when it

“charged the Plaintiffs late and other fees despite receiving

payments before their due dates” and because Carrington “went so

far as to return the Plaintiffs’ payments.” Doc. no. 1-1 at ¶¶

33, 34. Although plaintiffs do not make clear in their

complaint or their objection to defendants’ summary judgment

motion what section of RESPA Carrington purportedly violated,

the undisputed evidence in the record establishes that

Carrington did not take any of the actions alleged.

The evidence in the record shows that Carrington did not

charge plaintiffs fees for payments received before their due

dates because there is no dispute that plaintiffs were in

12 In their objection, plaintiffs appear to contend that despite the clear language of § 2605(d) and § 1024.33(c)(1), the court should read RESPA as prohibiting a transferee servicer from imposing any late fees during the 60-day grace period, regardless of whether the borrower mistakenly made a payment during that time to the transferor servicer. They point to the following comment in the Bureau of Consumer Financial Protection’s Supplement to Regulation X: “The prohibition in § 1024.33(c)(1) on treating a payment as late for any purpose would prohibit a late fee from being imposed on the borrower with respect to any payment on the mortgage loan. See RESPA section 6(d) (12 U.S.C. 2605(d)).” To the extent plaintiffs intended to argue that this language is somehow inconsistent with the plain language of both § 2605(d) and § 1024.33(c)(1), they offer no support for that contention.

16 default and were at least two months behind in their payments

when Carrington took over servicing their loan. As Wenzel

herself admits in her affidavit, plaintiffs did not make any

payments to Carrington prior to their due dates. See doc. no.

41-1 at ¶¶ 2-8. In addition, although the complaint alleges

that Carrington returned plaintiffs’ payments, Wenzel states in

her affidavit that all of her payments to Carrington were

“accepted and cashed.” Id. at ¶ 8. Defendants are therefore

entitled to summary judgment on this portion of plaintiffs’

RESPA claim.

D. Damages

There is a genuine issue of material fact as to whether

Carrington violated RESPA by failing to send plaintiffs a notice

of servicing transfer within 15 days of the effective date of

the transfer. A servicer who fails to fulfill its obligations

under RESPA may be held liable for “any actual damages to the

borrower as a result of the failure,” or, “in the case of a

pattern or practice of noncompliance,” statutory damages. 12

U.S.C. § 2605(f)(1). Defendants argue that there is no evidence

in the record that plaintiffs suffered actual damages. They

further contend that there is no evidence in the record of a

pattern or practice of noncompliance.

17 1. Actual Damages

In order to recover actual damages under RESPA, a plaintiff

must be able to prove “specific damages and identify how the

purported RESPA violations caused those damages.” Moore v.

Mortg. Elec. Reg. Sys., Inc., 848 F. Supp. 2d 107, 122 (D.N.H.

2012) (internal quotation marks and citation omitted).

Defendants argue that plaintiffs have failed to allege and

cannot prove any damages whatsoever, and certainly none that

were caused by Carrington’s failure to send a timely notice of

transfer. Plaintiffs argue that they “did indeed suffer actual

damages in the form of increased costs, fees, and penalties.”

Doc. no. 41 at ¶ 26.

Viewing the evidence in the light most favorable to

plaintiffs, there is a genuine issue of material fact as to

whether they suffered pecuniary damages from Carrington’s

failure to send a timely notice of transfer. Affording

plaintiffs every reasonable inference, the evidence shows that

Wenzel first received notice of the transfer on July 26, 2016.

She immediately called Carrington and a representative informed

her that unlike Bank of America, it could not accept a one-month

payment over the phone. This caused Wenzel, who suffers from a

disability and does not drive, to have to mail her monthly

payment, which resulted in Carrington receiving it later than it

otherwise would have had it sent a timely notice. There is a

18 genuine issue of material fact as to whether this delay caused

Carrington to add additional fees and costs, and whether it

prevented plaintiffs from bringing their account current.

In short, there is a genuine issue of material fact both as

to whether Carrington sent a timely notice of transfer and, if

not, whether plaintiffs suffered actual damages from

Carrington’s failure to do so.

2. Statutory Damages

Although there is a genuine issue of material fact as to

whether plaintiffs are entitled to actual damages, there is no

such dispute with regard to statutory damages. As mentioned

above, to be entitled to statutory damages, a plaintiff must

show that a defendant engaged in a “pattern or practice of

noncompliance.” § 2605(f)(1).

Plaintiffs allege no facts in their complaint to support a

claim for statutory damages. Nor do they point to any evidence

in the record to support such a claim. Plaintiffs contend that

they will prove that they are entitled to statutory damages

because a pattern or practice “will be shown at trial by the

testimony of Carrington representatives” and “the data available

from the Consumer Financial Protection Bureau.” Doc. no. 41 at

8 n.3. Such speculative assertions are insufficient to create a

genuine issue of material fact. See, e.g., Croskrey v. Ocwen

19 Loan Servicing LLC, No. SACV141318DOCDFMX, 2016 WL 3135643, at

*12 (C.D. Cal. June 2, 2016) (granting summary judgment as to

statutory damages under RESPA because plaintiff pointed to no

concrete facts in the record to support that defendants engaged

in a pattern or practice of noncompliance).

For these reasons, defendants are entitled to summary

judgment on plaintiffs’ RESPA claim to the extent it seeks an

award of statutory damages.

E. Summary

Defendants are entitled to summary judgment as to Count I

except to the extent it is based on Carrington’s violation of §

2605(c) for failure to send a timely notice of transfer as

discussed above.

III. Negligent Misrepresentation (Count II)

Under New Hampshire law, the elements of a claim for

negligent misrepresentation “are a negligent misrepresentation

of a material fact by the defendant and justifiable reliance by

the plaintiff.” Wyle v. Lees, 162 N.H. 406, 413 (2011). In

their complaint, plaintiffs allege that Carrington generally

“made inconsistent, inaccurate, and misleading representations

regarding the mortgage at issue and the payments of the

Plaintiffs.” Doc. no. 1-1 at ¶ 43. Defendants argue that

20 plaintiffs’ negligent misrepresentation claim is barred by the

economic loss doctrine.

The contractual relationship between a lender and a

borrower typically precludes recovery in tort. See Moore, 848

F. Supp. 2d at 133 (citing Wyle, 162 N.H. at 409–10). This

principle, known as the “economic loss doctrine,” is premised on

the theory that “[i]f a contracting party is permitted to sue in

tort when a transaction does not work out as expected, that

party is in effect rewriting the agreement to obtain a benefit

that was not part of the bargain.” Plourde Sand & Gravel Co. v.

JGI E., Inc., 154 N.H. 791, 794 (2007) (internal quotation marks

and citation omitted). Consequently, “the economic loss

doctrine bars negligent misrepresentation claims in a

traditional borrower-lender contractual relationship.” Mader v.

Wells Fargo Bank, N.A., No. 16–cv–309–LM, 2017 WL 177619, at *3

(D.N.H. Jan. 17, 2017); see Julius v. Wells Fargo Bank, N.A.,

No. 16-cv-516-JL, 2017 WL 1592379, at *4 (D.N.H. Apr. 28, 2017).

The New Hampshire Supreme Court has recognized, however,

that “a contracting party may be ‘owed an independent duty of

care outside the terms of the contract.’” Moore, 848 F. Supp.

2d at 133 (quoting Wyle, 162 N.H. at 410). Thus, a claim based

on allegations of negligent conduct against a loan servicer

acting on a lender’s behalf may survive where the borrower can

“prove the lender’s voluntary assumption of activities beyond

21 those traditionally associated with the normal role of a money

lender.” Seymour v. N.H. Sav. Bank, 131 N.H. 753, 759 (1989)

(internal quotation marks and citation omitted). However, where

a plaintiff alleges that a loan servicer made misrepresentations

“in the course of performance of the loan agreement,” such

allegations are barred by the economic loss doctrine. Frangos

v. Bank of New York Mellon for Certificateholders of CWABS,

Inc., Asset Back Certificates, Series 2005-AB2, No. 16-cv-436-

LM, 2017 WL 4876284, at *2 (D.N.H. Oct. 27, 2017).

Plaintiffs do not dispute that Carrington’s alleged

misrepresentations were made in connection with the performance

of their obligations under the mortgage agreement.

Nevertheless, they argue that the economic loss doctrine “has

been judicially expanded well beyond its original intent” and

that it should be “controlled for the good of society by

jurisprudence.” Doc. no. 41 at ¶ 30. The court declines

plaintiffs’ invitation to alter the law and to ignore well-

established First Circuit precedent holding that the economic

loss doctrine bars negligent misrepresentation claims against

loan servicers based on similar facts. See Schaefer v. Indymac

Mortg. Servs., 731 F.3d 98, 109 (1st Cir. 2013).13

13 Plaintiffs mistakenly assert that their negligent misrepresentation claim should survive because they have shown that Wenzel suffered emotional distress damages. Even if they had made such a showing, emotional distress damages are not

22 For these reasons, plaintiffs’ negligent misrepresentation

claim is barred by the economic loss doctrine.14 Defendants are

therefore entitled to summary judgment on Count II.

IV. Breach of the Covenant of Good Faith and Fair Dealing (Count III)

The plaintiffs allege in their complaint that Carrington

breached the implied covenant of good faith and fair dealing in

the mortgage agreement by “keeping the Plaintiffs uninformed and

off track with their loan”; “refusing payments immediately upon

a servicing transfer”; and by “ignoring the Plaintiffs’ ability

to pay and refusing to take their payments while they continued

to add interest, late payments, and other fees to the

Plaintiff’s [sic] loans.” Doc. no. 1-1 at ¶ 55. Defendants

available for a negligent misrepresentation claim. See Frangos, 2017 WL 4876284, at *2 n.2 (“Although plaintiff also alleges damages for emotional distress in relation to his negligent misrepresentation claim, ‘plaintiffs cannot recover damages for mental and emotional distress in a claim for negligent misrepresentation.’” (quoting Crowley v. Global Realty, Inc., 124 N.H. 814, 818 (1984)).

14 In their complaint, plaintiffs attempt to invoke an exception to the economic loss doctrine where a negligent misrepresentation is made by a defendant who is in the business of supplying information. See doc. no. 1-1 at ¶¶ 38-41; see also Wyle, 162 N.H. at 410 (noting the exception to the economic loss doctrine). Plaintiffs do not pursue this exception in their objection and it is without merit in any event. See Schaefer, 731 F.3d at 109 (noting the narrow scope of the exception and holding that it reaches “only those representations . . . that relate to a transaction other than the one that constitutes the subject of the contract”).

23 contend that they are entitled to summary judgment because all

of their actions were expressly authorized by the mortgage

agreement.

“In every agreement, there is an implied covenant that the

parties will act in good faith and fairly with each other.”

Birch Broad., Inc. v. Capitol Broad. Corp., Inc., 161 N.H. 192,

198 (2010). “The various implied good-faith obligations fall

into three general categories: (1) contract formation; (2)

termination of at-will employment agreements; and (3) limitation

of discretion in contractual performance.” Id. Plaintiffs

invoke the third category of the breach of that covenant

recognized in New Hampshire: limitation of discretion in

contractual performance.

Whether a plaintiff can show a breach of that particular

duty

turns on three key questions: (1) whether the agreement allows or confers discretion on the defendant to deprive the plaintiff of a substantial portion of the benefit of the agreement; (2) whether the defendant exercised its discretion reasonably; and (3) whether the defendant’s abuse of discretion caused the damage complained of.

Moore, 848 F. Supp. 2d at 129 (internal quotation marks and

citations omitted).

“[T]he duty of good faith and fair dealing ordinarily does

not come into play in disputes” where “the underlying contract

plainly spells out both the rights and duties of the parties and

24 the consequences that will follow from a breach of a specified

right.” Milford-Bennington R. Co., Inc. v. Pan Am Railways,

Inc., No. 10-cv-00264-PB, 2011 WL 6300923, at *1 (D.N.H. Dec.

16, 2011) (internal quotations and citations omitted).

“‘[P]arties generally are bound by the terms of an agreement

freely and openly entered into,’ and the implied covenant does

not preclude a contracting party from insisting on enforcement

of the contract by its terms, even when enforcement ‘might

operate harshly or inequitably.’” Moore, 848 F. Supp. 2d at 129

(quoting Olbres v. Hampton Co-op. Bank, 142 N.H. 227, 233

(1997)). In other words, “a party does not breach the duty of

good faith and fair dealing simply by invoking a specific,

limited right that is expressly granted by an enforceable

contract.” Rouleau v. US Bank, N.A., No. 14-cv-568-JL, 2015 WL

1757104, at *5 (D.N.H. Apr. 17, 2015) (internal alterations,

quotation marks and citations omitted).

Plaintiffs do not dispute the following: the note obligated

them to pay back the amount of the loan secured by the mortgage;

their account was in default; and the mortgage agreement allows

the lender to add late fees and interest or accelerate the loan

in the event of a default.

Nevertheless, plaintiffs assert in their objection that

Bank of America had allowed them to remain two months behind on

their mortgage payments despite being in default, and had

25 accepted further payments without adding late fees or

accelerating the loan. They argue that Carrington’s failure to

do the same is sufficient to create a genuine issue of material

fact as to whether Carrington breached the implied covenant of

good faith and fair dealing in the mortgage agreement.

The mortgage agreement states that “[a]ny forbearance by

Lender in exercising any right or remedy shall not be a waiver

of or preclude the exercise of any right or remedy.” Doc. no.

34-2 at 7. Therefore, under the terms of the mortgage

agreement, Bank of America’s forbearance by not adding late fees

or pursuing foreclosure on plaintiffs’ home despite plaintiffs’

default did not waive Carrington’s right to enforce the mortgage

agreement. Plaintiffs have not shown that Carrington’s failure

to follow Bank of America’s practice breached the implied

covenant of good faith and fair dealing. See Julius, 2017 WL

1592379, at *3 (noting that a party’s default under a mortgage

agreement allows a lender or its nominee to pursue any remedy

allowed under the agreement and cannot give rise to a claim for

breach of the implied covenant of good faith and fair dealing,

even where there are “unfortunate circumstances that led to

[the] action”); Sharp v. Deutsche Bank Nat’l Tr. Co., No. 14-cv-

369-LM, 2015 WL 4771291, at *8 (D.N.H. Aug. 11, 2015) (same);

Ruivo v. Wells Fargo Bank, N.A., No. 11-cv-466-PB, 2012 WL

5845452, at *4 (D.N.H. Nov. 19, 2012) (“Parties are bound by the

26 agreements they enter into and the court will not use the

implied covenant of good faith and fair dealing to force a party

to rewrite a contract so as to avoid a harsh or inequitable

result.”).

Accordingly, defendants are entitled to summary judgment on

Count III.

V. Violation of the TCPA (Count IV)

Plaintiffs allege in their complaint that Carrington

violated the TCPA, 47 U.S.C. § 227(b)(1)(A), by calling Wenzel

on her cell phone through an automatic or predictive dialing

system without her consent. Defendants argue that the

uncontroverted evidence in the record shows that Carrington did

not use an automatic or predictive dialing system to call Wenzel

and that, regardless, it had Wenzel’s express consent to call

her on her cell phone.

The TCPA makes it unlawful “for any person within the

United States . . . to make any call (other than a call made for

emergency purposes or made with the prior express consent of the

called party) using any automatic telephone dialing system ...

to any telephone number assigned to a . . . cellular telephone

service . . . .” 47 U.S.C. § 227(b)(1)(A)(iii). “The elements

of a TCPA claim are thus: (1) the defendant called a cellular

telephone; (2) using an [automatic dialing system]; (3) without

27 the recipient’s prior express consent.” Jones v. FMA All. Ltd.,

978 F. Supp. 2d 84, 86 (D. Mass. 2013).

In support of their summary judgment motion, defendants

rely on Ostermann’s sworn affidavit, in which she states that

“[a]t no time relevant to the instant litigation did Carrington

use either a predictive dialing system or an automatic telephone

dialing system when contacting Plaintiffs.” Doc. no. 34 at ¶ 6.

Plaintiffs offer no evidence to the contrary, but simply argue

that the court should not credit Ostermann’s affidavit because

it does not describe the telephone system that Carrington used

(other than that it was not an automatic or predictive dialing

system), and because Ostermann did not explain her training or

expertise with regard to being able to ascertain whether the

telephone system is automatic or predictive.

Plaintiffs’ argument is without merit. Ostermann’s sworn

affidavit states that Carrington did not use an automatic or

predictive dialing system, and plaintiffs provide no contrary

evidence. Ostermann is a Vice President for Carrington, and her

affidavit states that she is familiar with the facts surrounding

plaintiffs’ account and that her statements made in the

affidavit are based on her personal knowledge. See doc. no. 34

at ¶ 2. In addition, in response to plaintiffs’ arguments

concerning the insufficiency of Ostermann’s affidavit,

defendants included with their reply the affidavit of Chris

28 Lechtanski, an Assistant Vice President for Carrington.15 See

doc. no. 49. In his affidavit, Lechtanski states that he has

been trained on how Carrington places an outbound call, that he

is personally familiar with the process Carrington uses to

initiate a phone call to a borrower, and that each outbound

telephone call placed to plaintiffs was initiated by a

Carrington representative manually dialing the phone number.

See id. at ¶¶ 6-8.16 Plaintiffs fail to offer anything other

than the bare allegations in their complaint to support their

TCPA claim, which is insufficient to defeat a properly supported

motion for summary judgment. See Sensing v. Outback Steakhouse

of Fla., LLC, 575 F.3d 145, 152 (1st Cir. 2009) (“At [the

summary judgment] stage, the nonmoving party may not rest upon

mere allegation or denials . . . but must set forth specific

facts showing that there is a genuine issue of material fact

. . . .” (internal quotation marks and citation omitted)).

15 Lechtanski’s affidavit states that his exact title is “Assistant Vice President, Default.” Doc. no. 49 at ¶ 2.

16 Plaintiffs contend that the court should not consider Lechtanski’s affidavit because it is prejudicial and does not allow them “the opportunity to confront the witness or conduct any follow-up discovery.” Doc. no. 50 at 4-5. Like Ostermann and Hunt, however, Lechtanski was disclosed as a witness in defendants’ October 24, 2017 supplemental disclosures, doc. no. 48-1, and plaintiffs never sought to depose him. Plaintiffs’ argument that the court should exclude Lechtanski’s affidavit is unavailing.

29 For these reasons, defendants are entitled to summary

judgment on plaintiffs’ TCPA claim in Count IV.17

VI. Violations of the FDCPA (Counts V – VII)

violated the FDCPA by calling Wenzel’s cell phone with the

intent to annoy, abuse, or harass her (Count V), and by using

obscene language in a voicemail on her cell phone (Count VII).

They also allege that both Carrington and National Creditors

violated the FDCPA by falsely representing the character,

amount, or legal status of plaintiffs’ debt (Count VI).

“In order to prevail on an FDCPA claim, a plaintiff must

prove that: 1) the plaintiff has been the object of collection

activity arising from consumer debt, 2) the defendant is a debt

collector as defined by the FDCPA, and 3) the defendant has

engaged in an act or omission prohibited by the FDCPA.” Forcier

v. Creditors Specialty Serv., Inc., No. 13-cv-444-LM, 2014 WL

6473043, at *2 (D.N.H. Nov. 17, 2014) (internal quotation marks

and citations omitted). Defendants do not dispute the first two

elements, but argue that the uncontroverted evidence in the

17 Because the undisputed evidence in the record shows that Carrington did not use an automatic or predictive dialing system, the court need not address defendants’ argument that Wenzel consented to being contacted on her cell phone when she provided her cell phone number to Carrington on the July 26, 2016 phone call.

30 record shows that they did not engage in any act or omission

prohibited by the FDCPA.

A. Violation of 15 U.S.C. § 1692d(5) (Count V)

In Count V of their complaint, plaintiffs allege that

Carrington violated § 1692d(5) by calling Wenzel on her

telephone repeatedly with the intent to annoy, abuse, and harass

her. Section 1692d(5) provides:

A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: . . . (5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.

§ 1692d(5).

“Under § 1692d, there are no bright-line rules as to what

constitutes harassment or what demonstrates intent to annoy.

Instead, such findings have been based on a consideration of

multiple factors.” Davis v. Diversified Consultants, Inc., 36

F. Supp. 3d 217, 228 (D. Mass. 2014). “For example, in

determining whether the intent requirement is met, courts often

look to the volume, frequency, and persistence of calls, to

whether defendant continued to call after plaintiff requested it

cease, and to whether plaintiff actually owed the alleged debt.”

Id. (citing cases).

31 The evidence in the record shows that Carrington called

Wenzel’s cell phone seven times between July 28 and October 11,

2016, and never more than once on a single day. There is no

evidence that Wenzel ever answered any of these calls or told

Carrington to stop calling. Plaintiffs do not point to any

evidence in the record to support their claim, but argue simply

that summary judgment is inappropriate on Count V because

genuine issues of material fact exist as to whether Wenzel felt

annoyed or harassed by Carrington’s phone calls.

Even viewing the facts in the light most favorable to

plaintiffs, there is no evidence in the record from which a

reasonable jury could infer that Carrington made the calls with

the intent to abuse, annoy, or harass Wenzel. See Carman v. CBE

Grp., Inc., 782 F. Supp. 2d 1223, 1232 (D. Kan. 2011) (granting

summary judgment on § 1692d(5) claim where defendant called

plaintiff 149 times over two months but never “at odd or

unreasonable hours” and never “on the same day within two hours

of each other”); Arteaga v. Asset Acceptance, LLC, 733 F. Supp.

2d 1218, 1229 (E.D. Cal. 2010) (granting summary judgment on §

1692d(5) claim where defendant called plaintiff 18 times because

plaintiff “presents no evidence that [defendant] called her

immediately after she hung up, called multiple times in a single

day, called her place of employment, family, or friends, called

at odd hours, or called after she requested [defendant] to cease

32 calling”); Tucker v. CBE Grp., Inc., 710 F. Supp. 2d 1301, 1305

(M.D. Fla. 2010) (granting summary judgment on § 1692d(5) claim

where defendant called plaintiff 57 times because there was no

evidence in the record that defendant spoke to plaintiff or that

defendant made the calls with the intent to harass plaintiff,

rather than simply reach her). Wenzel’s opinion about the

nature of the calls is not evidence of Carrington’s intent.

See, e.g., Pugliese v. Prof. Recovery Serv., Inc., No. 09–12262,

2010 WL 2632562, at *9–10 (E.D. Mich. June 29, 2010) (granting

summary judgment on plaintiff’s § 1692d(5) claim and noting that

although plaintiffs may have been annoyed with defendant’s

calls, there was no evidence that defendant made the calls with

the intent to abuse or harass plaintiffs). Therefore,

defendants are entitled to summary judgment on Count V.

B. Violation of 15 U.S.C. § 1692e (Count VI)

In Count VI of their complaint, plaintiffs allege that

defendants violated § 1692e by misrepresenting the amount or

character of plaintiffs’ debt, see § 1692e(2)(a), and attempting

to unlawfully collect late fees associated with that debt. The

complaint cites National Creditor’s August 5, 2016 Debt

Validation Notice and Carrington’s July 29, 2016 Notice of

Foreclosure, both of which plaintiffs attach as exhibits to

their complaint.

33 1. National Creditors

Other than citing the Debt Validation Notice in their

complaint, plaintiffs fail to allege the basis of their FDCPA

claim against National Creditors, and they do not mention

National Creditors with regard to this claim in their objection

or surreply. Therefore, to the extent plaintiffs intended to

assert Count VI against National Creditors, defendants are

entitled to summary judgment as to that portion of the claim.

2. Carrington

Defendants argue that Carrington’s July 29, 2016 Notice of

Foreclosure did not violate § 1692e(2). They note that the

Notice of Foreclosure accurately lists $5,502.30 as the amount

needed to bring the account current. They argue that there is

no dispute that as of the date Carrington sent the Notice,

plaintiffs had failed to make their monthly payments of $1834.10

due on May 1, June 1, and July 1, 2016. They assert that,

therefore, the amount due accurately reflects that plaintiffs

were three months in arrears.

In response, plaintiffs do not address defendants’

arguments as to the July 29, 2016 Notice of Foreclosure.

Instead, they raise two grounds for their § 1692e claim against

Carrington: (1) Carrington failed to disclose in its “Notice

Pursuant to Fair Debt Collection Practices Act 15 U.S.C. Section

34 1692, et seq.” (“FDCPA Notice”), doc. no. 41-6, that the balance

listed may increase due to interest and fees and failed to

disclose in its telephone calls that it was a debt collector;

and (2) the amount due listed in Carrington’s FDCPA Notice

($244,672.23) was incorrect. The court addresses each in turn.

a. Failure to disclose

Plaintiffs’ first argument is based on Carrington’s alleged

failure to provide certain information in its communications

with plaintiffs: 1) its failure to disclose in the FDCPA notice

that the balance listed may increase and 2) its failure to

disclose in its telephone calls that it was a debt collector.

Plaintiffs, however, did not plead either of these theories of

liability in their complaint. Further, they failed to assert

these theories at any point prior to their objection to

defendants’ motion for summary judgment.

Plaintiffs attempt to excuse their mistakes in various

ways, including that their objection is simply a “more targeted”

explanation of their FDCPA claim and that they should be

entitled to amend their complaint. This is not, however, merely

a more targeted version of plaintiffs’ claim, but instead is an

entirely new theory of liability.

A plaintiff may not assert a new theory of liability in an

objection to a motion for summary judgment. See Asociacion de

35 Suscripcion Conjunta del Seguro de Responsabilidad Obligatorio

v. Juarbe-Jimenez, 659 F.3d 42, 53 (1st Cir. 2011) (“At the

summary judgment stage, the proper procedure for plaintiffs to

assert a new claim is to amend the complaint in accordance with

Fed. R. Civ. P. 15(a). A plaintiff may not amend her complaint

through argument in a brief opposing summary judgment.”

(internal quotation marks and citation omitted)); Agri-Mark,

Inc. v. Niro, Inc., 233 F. Supp. 2d 200, 207 (D. Mass. 2002)

(“It 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, particularly where, as here, they

have been given ample latitude to amend their complaint.”);

Kaechele v. Nova Info. Sys., Inc., No. CIV. 00-313-JD, 2001 WL

1134726, at *5 (D.N.H. Sept. 24, 2001) (“In addition, the

Kaecheles cannot amend their complaint by arguments made in

opposition to summary judgment.”). Defendants are therefore

entitled to summary judgment on the portion of plaintiffs’ claim

in Count VI against Carrington based on its failure to disclose

information.

b. Incorrect Amount of Debt

Plaintiffs next assert that Carrington violated § 1692e(2)

by misrepresenting the amount or character of their debt. The

36 FDCPA Notice lists plaintiffs’ debt as $244,672.23. When

plaintiffs received that notice, Wenzel called Carrington and

stated that she believed that figure was incorrect. The

Carrington representative confirmed to Wenzel that the figure

listed in the notice was incorrect.

Defendants do not contend that the figure listed in the

FDCPA Notice was accurate. Instead, they argue simply that the

court should not consider this claim because the complaint cites

only Carrington’s notice of foreclosure, not the FDCPA Notice.

Unlike the theories discussed above, however, plaintiffs raised

this theory of liability in their complaint. Although

plaintiffs’ complaint is not a model of clarity, it alleges that

Carrington misrepresented the amount of the debt in its

communications. Defendants were aware that plaintiffs

challenged the $244,672.23 figure as of July 26, 2016, when

Wenzel raised the issue on the phone call with Carrington.

Defendants’ motion for summary judgment is therefore denied

as to this portion of Count VI.18

18 Despite not filing a motion for summary judgment, plaintiffs request in their objection that the court grant them summary judgment on Count VI. To the extent plaintiffs believe they are entitled to summary judgment on this portion of their claim, they have not properly moved for summary judgment. See LR 7.1(a)(1) (“Objections to pending motions and affirmative motions for relief shall not be combined in one filing.”).

37 C. Violation of 15 U.S.C. § 1692d(2) (Count VII)

In Count VII of their complaint, plaintiffs allege that

Carrington violated § 1692d(2) by leaving a voicemail on

Wenzel’s cell phone that stated “f*ck you.” Section 1692d(2)

provides:

A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: . . . (2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.

§ 1692d(2).

Defendants included with their motion audio recordings of

the only two voicemails Carrington left on Wenzel’s cell phone.

The first was on August 18, 2016 and lasted approximately three

seconds. The second was on August 19, 2016 and lasted

approximately six seconds. Defendants contend that neither

voicemail contains any discernible language, nor can the phrase

“f*ck you” be heard.

In support of their claim in Count VII, plaintiffs point to

their answers to National Creditor’s first set of

interrogatories. See doc. no. 36-2 at 11. In those answers,

plaintiffs assert that “[o]ne of the voicemails that was left

during the month of August was silent and then communicated the

38 message ‘f*** you’ to the Plaintiffs.” Id. In their objection,

plaintiffs state that their claim in Count VII is based on the

August 18 voicemail. See doc. no. 41 at ¶ 15.

The recording of the August 18 voicemail proffered by

defendants appears to contain some language, but it is

indecipherable. Plaintiffs point to evidence in the record that

the voicemail that was left on Wenzel’s cell phone contained the

phrase “f*ck you.” Because the court cannot determine the

contents of the August 18 voicemail based on defendants’

proffered recording, and because there is conflicting evidence

in the record as to what Carrington communicated in the

voicemail, summary judgment is inappropriate. See Epifan v.

Roman, No. 3:11-CV-02591-FLW, 2014 WL 4828606, at *13 (D.N.J.

Sept. 29, 2014) (“Indeed, what [defendant] requests this Court

to do is to discredit Plaintiff’s testimony based on an unclear

audio recording. This is not permissible on a summary judgment

motion because the Court’s role is not to make credibility

determinations. That is reserved for the factfinder.”); Gamble

v. Griggs, No. 11-14987, 2013 WL 1296267, at *6 (E.D. Mich. Mar.

28, 2013) (denying defendant’s motion for summary judgment based

on audio recordings because the “recordings are too unclear for

the Court to disregard Plaintiff’s factual account as a matter

of law”).

39 Accordingly, defendants are not entitled to summary

judgment on Count VII.

VII. Negligent Infliction of Emotional Distress (Count VIII)

Plaintiffs allege in their complaint that Carrington and

National Creditors caused them emotional distress through their

various actions relating to the collection of their mortgage

debt. “The elements of a claim for negligent infliction of

emotional distress include: (1) causal negligence of the

defendant; (2) foreseeability; and (3) serious mental and

emotional harm accompanied by objective physical symptoms.”

Tessier v. Rockefeller, 162 N.H. 324, 342 (2011) (internal

quotation marks omitted). “‘[A] claim for [negligent infliction

of emotional distress], like any other negligence claim, demands

the existence of a duty from the defendant to the plaintiff.’”

Moore, 848 F. Supp. 2d at 135 (quoting BK v. N.H. Dep't of

Health & Human Servs., 814 F. Supp. 2d 59, 72 (D.N.H. 2011)).

As discussed above, plaintiffs do not claim that Carrington

voluntarily assumed a duty outside of the mortgage agreement and

have not shown that a viable claim exists based on allegations

of negligence. For these reasons, defendants are entitled to

summary judgment on plaintiffs’ negligent infliction of

emotional distress claim. See Mader, 2017 WL 177619, at *5;

Gasparik v. Fed. Nat’l Mortg. Ass’n, No. 16-cv-147-AJ, 2016 WL

40 7015672, at *4 (D.N.H. Dec. 1, 2016); Bowser v. MTGLQ Inv’rs,

LP, No. 15-cv-154-LM, 2015 WL 4771337, at *4 (D.N.H. Aug. 11,

2015); Pruden v. CitiMortgage, Inc., No. 12-cv-452-LM, 2014 WL

2142155, at *19 (D.N.H. May 23, 2014) Moore, 848 F. Supp. 2d at

135.

Although the complaint purports to assert a negligent

infliction of emotional distress claim against National

Creditors as well as Carrington, plaintiffs do not make any

argument as to National Creditors with regard to the claim. In

their objection, plaintiffs refer only to Carrington’s conduct.

See doc. no. 41 at ¶¶ 61-62. Even if they had intended to

maintain a claim for negligent infliction of emotional distress

against National Creditors, that claim would fail. Plaintiffs

do not assert that National Creditors owed them any duty that

could give rise to such a claim, and do not explain how the act

of sending a Debt Validation Notice caused them any injury.

Count VIII.

VIII. Standing (Count IX)

In Count IX, plaintiffs challenge Carrington’s standing to

foreclose because it allegedly “acted unlawfully” and may not be

able to produce a valid note. Defendants argue that there is no

claim for “standing” under New Hampshire law and that,

41 regardless, there is no pending foreclosure on plaintiffs’ home.

In response, plaintiffs appear to concede that Count IX does not

state a claim, and assert that it “can be dismissed at this

point . . . .” Doc. no. 41 at 16. Plaintiffs’ concession is

well taken; the claim is dismissed.

CONCLUSION

For the foregoing reasons, defendants’ motion for summary

judgment (doc. no. 32) is granted as to all claims other than

Count VII, the portion of plaintiffs’ RESPA claim asserted in

Count I based on a violation of § 2605(c), and the portion of

plaintiffs’ FDCPA claim asserted in Count VI based on

Carrington’s representation of the amount of the debt. National

Creditors is dismissed from the case.

SO ORDERED.

_________________________ Landya McCafferty United States District Judge

April 20, 2018

cc: All counsel of record