Jeanty v. Deutsche Bank National Trust Co., Trustee

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Alex Jeanty
v. Civil No. 20-cv-163-JD
Opinion No. 2021 DNH 061
Deutsche Bank Nat. Trust Co.,
et al.
O R D E R
Alex Jeanty brings this breach of contract action against
Deutsche Bank National Trust Co. and Select Portfolio Loan
Services, LLC ("SPS" or "Select Portfolio").1 He alleges that
Deutsche Bank and Select Portfolio breached his mortgage
contract and a modification to that contract. The defendants
move for summary judgment, arguing that Jeanty's remaining
claims are time barred and that there is an absence of evidence
supporting Jeanty's claims. Jeanty filed an objection.
Standard of Review
"Summary judgment is appropriate when the moving party
shows that 'there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.'"
Joseph v. Lincare, Inc., 989 F.3d 147, 2021 WL 791615, at *6
1 The court previously dismissed Counts I and II and parts
of Counts III and IV of Jeanty's complaint, as well as Bank of
America, N.A., as a party defendant.
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(1st Cir. Mar. 2, 2021) (quoting Fed. R. Civ. P. 56(a)). In
making that determination, the court construes the record in the
light most favorable to the nonmoving party. Thompson v. Gold
Medal Bakery, Inc., 989 F.3d 135, 2021 WL 791610, at *5 (1st
Cir. Mar. 2, 2021). To avoid summary judgment, the nonmoving
party "must adduce specific facts showing that a trier of fact
could reasonably find in his favor" and "cannot rely on
conclusory allegations, improbable inferences, acrimonious
invective, or rank speculation." Id.
Background
A. Statement of Material Facts
Under the District of New Hampshire’s Local Rules, “[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). Similarly, memoranda in opposition to a motion for
summary judgment must "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 a trial." LR 56.1(b). "All properly supported
material facts set forth in the moving party’s factual statement
may be deemed admitted unless properly opposed by the adverse
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party." Id.; see also Fed. R. Civ. P. 56(e)(2) (permitting the
court to consider undisputed any asserted fact if the opposing
party fails to properly address it); Doyon v. Porter, No. 18-cv-
1128-JD, 2019 WL 5966256, at *1-*2 (D.N.H. Nov. 13, 2019)
(adopting moving party's statement of material facts when
nonmoving party accepted the statement of facts and objected
only to legal arguments).
The defendants moved for summary judgment and provided a
statement of material facts including appropriate record
citations. See doc. 19-1 at 3-8. Jeanty's three-page objection
contains no statement of material facts, and he does not assert
that a genuine dispute exists as to any of the facts outlined in
the defendants' statement of material facts.2 Because the
defendants' statement of material facts is properly supported
and was not opposed, it is admitted as follows:
Plaintiff alleges he granted a first mortgage to
Digital Federal Credit Union. Complaint, ¶ 8.3
Plaintiff then refinanced the first mortgage. Id. ¶
9. On or about March 3, 2004, Plaintiff executed a
promissory note in the amount of $345,600.00 in favor
of Argent Mortgage Co., LLC (“Argent”). See Counsel
Affidavit (hereinafter “Counsel Aff.”), Ex. 1.4 To
2 Jeanty, who is represented by counsel, attached a
"counter-affidavit" to his objection to the motion for summary
judgment, but other than a single reference to it in his
objection, he failed to direct the court toward any fact in the
defendants' statement of material facts that he disputes.
3 Doc. no. 1-1.
4 Doc. no. 19-5.
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secure the repayment of the note, Plaintiff granted a
mortgage to Argent on the subject property. See
Counsel Aff., Ex. 2. On September 11, 2007, Argent
assigned the mortgage to Deutsche Bank. See Counsel
Aff., Ex. 3.
[Select Portfolio] was the mortgage servicer for
Plaintiff’s Mortgage beginning in 2013. See Counsel
Aff., Ex. 4. at 110:20-22. At the time [Select
Portfolio] took over the servicing of Plaintiff’s
loan, he was having trouble making his monthly
payments. On or about June 23, 2013, Plaintiff
submitted a Making Home Affordable Program Request for
Mortgage Assistance ("RMA"). See Affidavit of
Jennifer L. Hoisington (hereinafter "SPS Aff."), Ex.
5.5 Plaintiff indicated in the section titled
"Hardship Affidavit" that he was having difficulty
making his monthly payment because of financial
difficulties caused by a reduction in household
income. Id. Plaintiff further testified that he was
late on mortgage payments under his prior HAMP plan
with Bank of America. See Counsel Aff., Ex. 4. at
106-12-107:20.
In response to Plaintiff’s request for
assistance, [Select Portfolio] provided him with a
trial modification plan on August 2, 2013. See SPS
Aff., Ex. 6. The proposed plan required that
Plaintiff make three monthly payments in the amount of
$2,238.80, beginning on September 1, 2013. Effective
April 1, 2014, Plaintiff and SPS entered into a Loan
Modification Agreement (the "2014 Modification"). See
SPS Aff., Ex. 7. Plaintiff signed the 2014
Modification and agreed to its terms. See Counsel
Aff., Ex. 4[] at 22:1-15. He was not forced to sign
the agreement. Id. at 27:17-20. The 2014
Modification Agreement stated that the new principal
balance of the note was $628,445.96. Id. at[] 24:14-
16; SPS Aff., Ex. 7. It further stated that
$320,965.00 of the New Principal Balance was deferred
and treated as a non-interest bearing principal
forbearance. Id. The New Principal Balance less the
Deferred Principal Balance, or the "Interest Bearing
Principal Balance" was $307,480.96." Id. The first
payment in the amount of $2,238.80 was due May 1,
5 Doc. no. 19-3.
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2014. Id. The 2014 Modification superseded any
previous modification. Id. Plaintiff has not executed
any new modification agreements since the 2014
Modification Agreement, and thus the 2014 Modification
is operative. See Counsel Aff., Ex. 4[] at 29: 8-10.
Two months after the first payment was due, on
July 17, 2014, [Select Portfolio] sent Plaintiff a
letter notifying him he failed to make his required
monthly payment. SPS Aff., Ex. 8. Plaintiff stated
he saw this document for the first time at his
deposition. See Counsel Aff., Ex. 4[] at 31:8-32:11.
However, he further admitted that he did not always
open and read the correspondence he received from SPS.
Id. Specifically, when asked whether it was true that
he did not review mail from his loan servicing company
on some occasions, Plaintiff replied "Yeah, in many
occasions." Id. On July 21, 2014, [Select Portfolio]
sent Plaintiff a letter titled "Notice of Default
Right to Cure." SPS Aff. Ex. 9. The July 21, 2014
letter indicated that $4,613.36 was outstanding, which
equated to the fact that Plaintiff owed two past due
mortgage payments. Id.; see also Counsel Aff. Ex. 4
at 32:15-33:4. Plaintiff could not recall if he had
seen the July 2014 Notice of Default, but again stated
that he "did not open or look at" some of the mail he
received from [Select Portfolio]. Counsel Aff. Ex. 4
at 33:5-24.
[Select Portfolio] sent numerous other notices of
default to Plaintiff over the next few years. See
e.g.[,] SPS Aff., Ex. 10; Counsel Aff. Ex. 4 at 40:4-
18 (August 19, 2014 default notice); SPS Aff., Ex. 11;
Counsel Aff. Ex. 4 at 40:21-24 (October 1, 2014
default notice); SPS Aff., Ex. 12; Counsel Aff. Ex. 4
at 47:9-21 (February 10, 2016 default notice); SPS
Aff., Ex. 13; Counsel Aff. Ex. 4 at 48:1-23 (February
18, 2016 default notice) and; SPS Aff., Ex. 14;
Counsel Aff. Ex. 4 at 49:4-23 (August 22, 2016 default
notice). Plaintiff admitted to receiving default
letters. See Counsel Aff. Ex. 4 at 50:16-21.
Plaintiff testified that he had not seen any of the
default letters presented to him at his deposition
prior to that day. Id. at 40:4-49:23. [Plaintiff,
however,] repeatedly admitted that he did not open all
of the correspondence he received from SPS; and . . .
Plaintiff admitted he had no reason to believe that
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SPS failed to send them. Id. at 41:16 ("sometimes I
don’t open them"). Id. at 134:1-9 (Do you have any
reason to believe that they didn’t send [the letters]?
No). Thus, Plaintiff’s statement that he "did not
miss a HAMP or TMT modification and had never, to my
knowledge, received a default letter or negative
correspondence from [Select Portfolio] until the
December 2018 default notice" is merely a half-truth
based on his own willful ignorance. Id. at 128:16-
134:6.
. . .
Plaintiff further testified that he missed mortgage
payments. He stated, "[f]rom time to time I will be
late when I'm unemployed. But I typically make my
mortgage payment." Id. at 36:1-3. "When I [am]
either late or miss a payment, I will send two
payment[s] and then they will tell me to disregard the
notice." Id. at 41:16-22. "And typically when I
receive those [Letters from SPS], from time to time, I
don’t read them." Id. at 48:15-20. Plaintiff admitted
that the reason he failed to make timely payments was
due to travel and his unemployment status. Id. at
46:7-47:5. At no point has Plaintiff affirmatively
shown that he cured the defaults, but can only make
assumptions and guesses as to his past actions. For
example, when asked if he made a payment to cure the
default as indicated on the October 1, 2014 statement
he replied, "I would say most likely yes." Id. at
42:15-23.
. . .
Plaintiff’s financial difficulties continued in 2017.
Plaintiff testified that in 2017 he submitted a number
of requests for mortgage assistance because he was
having trouble finding employment during this time and
he had a hard time making the mortgage payments. Id.
at 86:12-88:3. By letter dated March 6, 2017, [Select
Portfolio] informed Plaintiff that he qualified for a
repayment plan, which required 12 payments of
approximately $3,372.00 beginning on March 28, 2017.
See SPS Aff., Ex. 15. The letter stated that
Plaintiff had until March 28, 2017 to accept the
offer. Id. On April 4, 2017, [Select Portfolio] sent
Plaintiff a letter stating that it offered a repayment
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plan, but Plaintiff failed to accept the offer by the
deadline. See SPS Aff., Ex. 16. Two days later, on
April 6, 2017, [Select Portfolio] offered Plaintiff a
repayment plan that was valid until April 30, 2017.
See SPS Aff., Ex. 17. This plan required 12 payments
of approximately $3,579.00 beginning on April 30,
2017. Id.
By August of 2017, Plaintiff was in arrears on
his mortgage payment in the amount of $15,696. See
SPS Aff., Ex. 18; Counsel Aff., Ex. 4 at 51:13-21.
Shortly thereafter, on November 24, 2017, Plaintiff
submitted another request for mortgage assistance to
SPS. See SPS Aff., Ex. 19; Counsel Aff., Ex. 4 at
53:8-55:1. Plaintiff’s request contained a hardship
affidavit in which he stated he was unemployed but
regained employment. See SPS Aff., Ex. 19; Counsel
Aff., Ex. 4 at 55:20-56:23. The hardship affidavit
further states that Plaintiff made a payment in
October towards his mortgage arrears in the amount of
$3,762.00—an amount that was more than his monthly
payment of approximately $2,200, but less than two
payments. SPS Aff., Ex. 19; Counsel Aff., Ex. 4 at
57:6-24. There is only one reason for an overpayment;
Plaintiff missed yet another full monthly mortgage
payment. This alleged payment was returned to him
because Plaintiff sent it to the incorrect address.
SPS Aff., Ex. 19; Counsel Aff., Ex. 4 at 59:1-4.
Plaintiff has no record that he sent the payment to
the correct address. SPS Aff., Ex. 19; Counsel Aff.,
Ex. 4 at 59: 1-21. Rather, he could not afford the
mortgage as is and was seeking a new repayment plan.
Id. at 59:21-61:8. Plaintiff certified to [Select
Portfolio] that his "cash reserves, including all
liquid assets, are insufficient to maintain [his]
current mortgage payment and cover basic living
expenses at the same time." SPS Aff., Ex. 19; Counsel
Aff., Ex. 4 at 61:9-19. Plaintiff continually struggled
to make timely and complete mortgage payments in 2018.
On May 30, 2018, Plaintiff submitted another request
for mortgage assistance to SPS. SPS Aff., Ex. 20;
Counsel Aff., Ex. 4 at 61:24-63:24. Plaintiff’s
request stated that Plaintiff was laid off four months
ago, which would have been January 2018. Aff., Ex.
20; Counsel Aff., Ex. 4 at 63:1-6.
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Plaintiff further stated that he regained
employment two weeks ago, was looking forward to
making his monthly mortgage payment and it would "be
helpful if you can spread the [ar]rear payment in two
years." SPS Aff., Ex. 20; Counsel Aff., Ex. 4 at 63:
19-23. In other words, Plaintiff was asking [Select
Portfolio] to spread the arrears owed over a two-year
period. Id. at 66:6-9. Thus, again acknowledging he
was behind on his mortgage for an amount that would
take two years to make up for.
By letter dated August 24, 2018, [Select
Portfolio] sent Plaintiff a Notice of Default/Right to
Cure letter indicating $29,296.47 was required in
order to cure the default. SPS Aff., Ex. 21.
Plaintiff does not remember receiving this letter; but
acknowledged he may not have opened it. Counsel Aff.,
Ex. 4 at 68:22-72:16. He further testified that while
he did not remember this particular default letter he
admitted he did see other notices of default. Id. at
68:22-8; 104:24-105:2.
. . .
The mortgage statement dated December 13, 2018
indicates that Plaintiff owed $41,344.72 and that his
loan was in default for over a year. SPS Aff., Ex.
22; Counsel Aff., Ex. 4 at 153:10-154:17. Consistent
with his testimony as to almost every mortgage
statement shown throughout his deposition, Plaintiff
testified that "this is the first time I have seen
it." Id. at 154:4-17. He further stated that he was
not aware he was behind on his mortgage by over
$40,000. Id. Yet, minutes later Plaintiff retracted
this statement when confronted with an affidavit he
signed on February 14, 2020 that stated "In December
of 2018 . . . [Select Portfolio] notified me that I
was in default on my mortgage . . . [the] default
notice showed me behind $47,570. See ECF No. 6-1,
Affidavit of Alex Jeanty ("Jeanty Aff."). Id. 154:18-
157:7. While Plaintiff disagrees that he owed that
amount, he cannot point to a single payment that was
misapplied or show proof of any payments whatsoever.
Counsel Aff., Ex. 4 at 159:14-23.
On February 19, 2019, Plaintiff completed a
Making Home Affordable Program Request for Mortgage
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Assistance, which attached a signed a hardship letter.
Id. at 161:2-172:24; SPS Aff., Ex. 23. The hardship
affidavit stated that Plaintiff was having difficulty
making his monthly mortgage payment because he lost
his job for a period of time. Id. Enclosed with the
February 19, 2019 request for assistance was a
separate hardship letter, which further explained his
request for assistance. Id. Plaintiff did not make
any notation with respect to an improper loan
modification or misapplication of payments in the
letter. Id. Rather, he acknowledged he was in
arrears for more than $20,000. Id. Specifically, he
stated "I have been able to save approximately $20,000
to go toward the arrearage; however, I do not yet have
the full reinstatement amount." Id.
Doc. 19-1 at 3-8 (emphases in original).6
B. Claims
The court previously dismissed several of Jeanty's
claims as time barred and for failure to state a claim upon
which relief can be granted. Doc. 10. The claims that
remain in Jeanty's complaint, Counts III and IV, are based
on breach of contract theories. In Count III, Jeanty
alleges that Deutsche Bank breached the 2014 Trial
Modification Plan by failing to apply modified mortgage
payments, enforcing default remedies despite his compliance
with the agreements, and depriving him of his right to
6 In adopting the defendants' statement of material facts,
the court has omitted characterizations of the facts and legal
conclusions drawn from the asserted facts. The court has also
made some alterations, noted by brackets, for clarity or
brevity.
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reinstatement under paragraph 19 of the mortgage agreement
by supplying him with incorrect reinstatement figures.7
Similarly, in Count IV, Jeanty alleges that Select
Portfolio breached the modification agreement by failing to
extend the modification for twenty years, by keeping the
mortgage in default status, and by pursuing remedies for
default.8
Discussion
"A breach of contract occurs when there is a failure
without legal excuse to perform any promise which forms the
whole or part of a contract." Audette v. Cummings, 165 N.H.
763, 767 (2013). The defendants contend that Jeanty's breach of
contract claims fail on their merits. In support, the
defendants argue that Jeanty has failed to marshal any facts in
support of his claims and that the undisputed facts show that
Jeanty was in default on his mortgage, which precludes his
7 The court dismissed Jeanty's allegations in Count III
about "Deutsche Bank’s failure to notify Jeanty about the change
in mortgage servicer" as time barred. Doc. 10 at 20.
8 The court dismissed various allegations that Jeanty made
against Bank of America in Count IV.
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breach of contract claims. Jeanty did not respond to the
defendants' contentions that his claims fail on their merits.9
A. Default Status, Exercise of Default Remedies, and
Extension of Modification Agreement
The undisputed facts show that Jeanty did not comply with
the terms of the mortgage agreement or the modification
agreement, so the defendants did not breach the mortgage
agreement or the modification agreement by exercising default
remedies. The mortgage agreement permits the use of default
remedies when a borrower defaults, and the modification
agreement did not change those terms. See doc. 19-5 at 3, 19
(mortgage agreement listing lender's remedies for borrower's
default); doc. 19-3 at 15 ¶ 3(c), (d) (modification agreement
stating that "[a]ll terms of the Security Instrument and Note,
except as expressly modified by this Agreement . . . remain in
full force and effect."). Jeanty routinely missed or made late
payments on the mortgage. By August 2017 Jeanty was behind on
9 The defendants also contend that Jeanty's remaining claims
are barred by New Hampshire’s three-year statute of limitations
under RSA 508:4(I). Jeanty responded to that argument,
asserting that he could not have discovered the claims that
remain in this case more than three years prior to his filing of
them. Because the court finds that summary judgment is
warranted in the defendants' favor on the merits of Jeanty's
claims, the court does not address whether Jeanty filed his
claims within the applicable statute of limitations.
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his payments by $15,696. By August 2018 that amount was
$29,296.47. By December 2018, the amount was $41,344.72.
Jeanty did not dispute these facts with evidence that
creates a genuine dispute. Jeanty's counter-affidavit is not
sufficient to create a genuine dispute of material fact about
whether he was in default because he stated that he only
"generally" made his payments and that he "perceived" his loan
balance to be incorrect. Doc. 20-1 ¶¶ 24, 31. In his
deposition, Jeanty acknowledged that he missed or made late
payments. Doc. 19-5 at 43-44, 55-58. Jeanty also acknowledged
that he was in arrears in a "hardship letter" submitted in 2019
alongside a new application for a modification to the repayment
terms. Doc. 19-3 at 103. Jeanty did not offer any argument in
response to the motion for summary judgment to show that the
defendants incorrectly determined that he was in default or to
show how they breached the contract by pursuing default remedies
after he defaulted. For those reasons, Jeanty's claims against
Deutsche Bank (Count III) and Select Portfolio (Count IV)
alleging that they breached the mortgage agreements or the
modification agreement by keeping his loan in default status, by
pursuing default remedies, or by failing to extend or comply
with the modification agreement fail as a matter of law.
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B. Misapplication of Payments
As to Jeanty's allegation that Deutsche Bank (Count III)
and Select Portfolio (Count IV) misapplied some of his mortgage
payments, the defendants have pointed out the absence of
evidence supporting Jeanty's claims. Celotex Corp. v. Catrett,
477 U.S. 317, 325, (1986) ("[T]he burden on the moving party may
be discharged by 'showing'—that is, pointing out to the district
court—that there is an absence of evidence to support the
nonmoving party's case."). As stated above, Jeanty failed to
offer any pertinent argument in response to the defendants'
motion for summary judgment about whether Jeanty had, in fact,
defaulted on the mortgage agreement. Similarly, Jeanty did not
identify any payments that he made but were misapplied in his
objection or his counter-affidavit. Jeanty did not identify any
evidence of a misapplied payment in the materials presented to
the court by the defendants, and the court found no evidence in
the materials that would create a genuine dispute as to whether
there was any misapplied payment. Accordingly, Deutsche Bank
and Select Portfolio are entitled to summary judgment as to
Jeanty's claims that they breached the contract by failing to
apply mortgage payments to Jeanty's balance.
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C. Erroneous Balance
Jeanty failed to provide any facts demonstrating that, as
alleged in Count III, Deutsche Bank supplied him with an
erroneous balance when sending him default notices or other
correspondence. As noted above, Jeanty has not shown that any
of his payments were misapplied, and the undisputed facts reveal
that he was behind on his payments. Jeanty did not make any
argument or provide evidence showing why or how the loan balance
provided by the defendants was incorrect.
Conclusion
For the foregoing reasons, the defendants have demonstrated
that summary judgment in their favor is appropriate on all of
Jeanty's remaining claims. The motion for summary judgment
(doc. no. 19) is granted.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________
Joseph A. DiClerico, Jr.
United States District Judge
March 29, 2021
cc: Counsel of Record.
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