Foy et al v. U.S. Bank National Association, Trustee

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Arthur Laurence Foy and
Larissa Blitz
v. 	Case No. 1:24-cv-295-PB-TSM
Opinion No. 2026 DNH 018
U.S. Bank National Association,
As Trustee For MASTR Asset Backed
Securities Trust 2006-WMC4, et al.
MEMORANDUM AND ORDER
Arthur Foy and his domestic partner, Larissa Blitz, currently reside in
a home they lost to foreclosure. Doc. 1-1 at 6-8. They have sued U.S. Bank
National Association (“U.S. Bank”) in its capacity as trustee for the trust that
owns the property. Id. at 6. Plaintiffs argue that U.S. Bank breached an
agreement to allow the plaintiffs to repurchase the property. Id. at 14.
U.S. Bank has responded with a motion for summary judgment arguing that
the plaintiffs cannot prove their breach of contract claim. Doc. 8.
I. BACKGROUND
Foy purchased the home that is the subject of this litigation on
December 23, 1996. Doc. 4 at 3. On July 31, 2006, he transferred title to the
home to Blitz, who finalized the transfer with a mortgage from WMC
Mortgage Corporation. Id. The mortgage was later modified and assigned to
the trust that U.S. Bank oversees. Id.
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On May 31, 2019, U.S. Bank foreclosed on the property. Id. The same
day, Foy submitted the winning bid at the foreclosure auction and signed a
“Foreclosure Auction Agreement” with U.S. Bank to repurchase the property
for $451,000. Id.; see also Doc. 13-5. The agreement required Foy to make a
$5,000 deposit and specified a closing date of July 1, 2019, which the parties
later agreed to extend to September 1, 2019. Doc. 13-5; Doc. 13-1 at 1. Foy
failed to tender the balance of the purchase price, however, and on October
16, 2019, U.S. Bank took title to the property. Doc. 13-1 at 2.
U.S. Bank filed an eviction action against Foy and Blitz on March 6,
2020. Doc. 10-5 at 2. The plaintiffs responded by filing a Plea of Title in state
superior court challenging U.S. Bank’s authority to pursue an eviction claim.
Doc. 10-6 at 10. U.S. Bank removed that action to federal court. Id. at 2-4.
The parties later resolved the eviction proceeding and the Plea of Title by
entering into a “Confidential Settlement Agreement and Release of Claims”
(“Settlement Agreement”). Doc. 13-8.
Foy and Blitz agreed in the Settlement Agreement to repurchase their
home for $470,000. Id. at 3. The agreement called for payment in two sums:
an initial deposit of $51,000 with the balance due on or before April 23, 2021.
Id. It also specified that Foy and Blitz must agree to dismiss their Plea of
Title with prejudice and execute an Agreement for the Entry of Judgment in
the eviction proceeding that would be held in escrow and returned when the
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second payment was made. Id. at 3-4. The parties later agreed to extend the
deadline for the second payment until July 9, 2021. Id. at 12. Foy and Blitz
made the $51,000 initial payment but the agreement lapsed because
plaintiffs failed to make the second payment by the July deadline. Doc. 10 at
4. On October 26, 2022, plaintiffs’ counsel sent U.S. Bank’s counsel a proposal
to modify the Foreclosure Auction Agreement by increasing the purchase
price for the property to $491,000, with no credit for the $56,000 in payments
that the plaintiffs had made pursuant to the original Foreclosure Auction
Agreement and the Settlement Agreement. Doc. 11-10 at 9. On November 1,
2022, U.S. Bank’s counsel responded to the plaintiffs’ proposal with an email
stating:
I forwarded your correspondence and proposal to my client, the servicer
for U.S. Bank, N.A., and received the following response. They are
apparently willing to entertain a purchase of the property providing
that certain conditions are met, as follows:
The occupant's request is denied. We are unable to update the
[Foreclosure Auction Agreement] because the deed has been
recorded
If Arthur Foy wants to submit a purchase offer for $451,000,
we can send it to our client for review after we receive/meet
the following requirements:
1) Purchase contract (received in attached email)
2) Proof of funds (Bank statement/financing approval)
3) Occupant allows access for 2 interior values
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Please let me know if this is a possibility for your clients.
Doc. 11-11 at 2. Plaintiffs’ counsel responded on November 11, 2022, by
forwarding a draft Purchase and Sale Agreement for U.S. Bank’s
“review, acceptance and signature.” Id. The draft Purchase and Sale
Agreement was signed by Foy but never signed by U.S. Bank. Doc.
13-15 at 9.
The plaintiffs’ assert two claims for relief. Count I asserts that
U.S. Bank has breached both the Settlement Agreement and a second
contract between the plaintiffs and U.S. Bank that was purportedly
formed when plaintiffs’ counsel submitted the November 11, 2022 draft
Purchase and Sale Agreement in response to U.S. Bank’s counsel’s
November 1, 2022 email. Doc. 1-1 at 14. Count II seeks an injunction
barring U.S. Bank from selling the property until the court resolves
Count 1. Id. at 16.
II. STANDARD OF REVIEW
Summary judgment is appropriate when the record reveals “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); Tang v. Citizens Bank, N.A., 821 F.3d
206, 215 (1st Cir. 2016). In this context, a “material fact” is one that has the
“potential to affect the outcome of the suit.” Cherkaoui v. City of Quincy, 877
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F.3d 14, 23 (1st Cir. 2017) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227
(1st Cir. 1996)). A “genuine dispute” exists if a factfinder could resolve the
disputed fact in the nonmovant’s favor. Ellis v. Fid. Mgmt. Tr. Co., 883 F.3d
1, 7 (1st Cir. 2018).
The movant bears the initial burden of presenting evidence that “it
believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); accord Irobe v. U.S. Dep’t of Agric.,
890 F.3d 371, 377 (1st Cir. 2018). Once the movant has properly presented
such evidence, the burden shifts to the nonmovant to designate “specific facts
showing that there is a genuine issue for trial,” Celotex, 477 U.S. at 324
(citation modified), and to “demonstrate that a trier of fact could reasonably
resolve that issue in [its] favor.” Irobe, 890 F.3d at 377 (quoting Borges ex rel.
S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010)). If the nonmovant
fails to adduce such evidence on which a reasonable factfinder could base a
favorable verdict, the motion must be granted. Celotex, 477 U.S. at 324. In
considering the evidence, the court must draw all reasonable inferences in
the nonmoving party’s favor. Theriault v. Genesis HealthCare LLC, 890 F.3d
342, 348 (1st Cir. 2018).
III. ANALYSIS
Plaintiffs base their breach of contract claim on two distinct theories.
First, they argue that U.S. Bank breached the Settlement Agreement by
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failing to sell them the property for $470,000. Doc. 1-1 at 15. In the
alternative, they argue that the November 2022 correspondence gave rise to a
binding contract to sell them the property for $451,000. Id. at 16.
A. 	The Settlement Agreement
Although plaintiffs claim that U.S. Bank failed to comply with its
obligations under the Settlement Agreement, they have not pointed to any
supportive evidence or offered any argument in response to U.S. Bank’s
motion for summary judgment challenging this contention. “It is a
long-established policy that when a party’s opposition to a motion fails to
respond to arguments raised by the opposing party, a court may treat those
unopposed arguments as conceded.” Hill v. State, 2023 DNH 77, 2023 WL
4204662, at *3 (D.N.H. June 27, 2023) (quoting Int’l Union, United Gov’t Sec.
Officers of Am. v. Clark, 704 F. Supp. 2d 54, 60 (D.D.C. 2010)). Thus, given
plaintiffs’ silence on this issue, they have waived their argument that U.S.
Bank is liable because it breached the Settlement Agreement.1
1 	Plaintiffs could not base their breach of contract claim on the
Settlement Agreement even if they had not conceded the issue because
undisputed evidence leaves no doubt that the plaintiffs failed to fulfill their
obligations under that agreement. “A material breach of contract by one
party to a contract discharges the duty of performance of the other.” Gaucher
v. Waterhouse, 175 N.H. 291, 296 (2022). The plaintiffs’ breach here was
material, as they “fail[ed] to perform a substantial part of the contract or one
or more of its essential terms and conditions.” Id. As such, when the plaintiffs
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B. 	November 2022 Correspondence
Plaintiffs’ attempt to base their claim on the November 2022
correspondence fails because that correspondence did not result in a binding
contract.
New Hampshire law requires an offer, an acceptance, and
consideration to form a valid contract. Tsiatsios v. Tsiatsios, 140 N.H. 173,
178 (1995). The crux of the current matter lies in the first two elements: was
U.S. Bank’s counsel’s November 1, 2022 email to plaintiffs’ counsel an offer,
and did the plaintiffs accept it? The plaintiffs treat the November 1, 2022
email from U.S. Bank’s counsel as an offer and contend that “Mr. Foy’s prior
payment of a $56,000.00 deposit, acceptance of the suggested purchase price
of $451,000.00, providing Proof of Funds and acquiescing to inspection by
U.S. Bank Nat’l” constituted acceptance, thus forming an enforceable
contract between the parties. Doc. 13 at 9.
An offer is defined as “a promise to do or refrain from doing something
provided that the offeree accepts the offer and pays or promises to pay the
price of the offer.” In re O’Meara’s Case, 164 N.H. 170, 178 (2012) (citing
Black’s Law Dictionary 1189 (9th ed. 2009)). Traditional principles of
failed to remit the remaining balance due under the Settlement Agreement,
they discharged U.S. Bank from its duty to perform under the Agreement.
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contract law further instruct that “an invitation to bid on a . . . contract is not
an offer” and “the bid itself is an offer that creates no right until it is
accepted.” Marbucco Corp. v. City of Manchester, 137 N.H. 629, 633 (1993)
(citing 1 Samuel Williston, A Treatise on the Law of Contracts § 31, at 82 (3d
ed. 1957)); see also Restatement (Second) of Contracts § 26 cmt. d (Am. L.
Inst. 1981) (“A writes B, ‘I am eager to sell my house. I would consider
$20,000 for it.’ B promptly answers, ‘I will buy your house for $20,000 cash.’
There is no contract. A’s letter is a request or suggestion that an offer be
made to him. B has made an offer.”).
Plaintiffs’ argument is based on the mistaken premise that the
November 1, 2022 email from U.S. Bank’s counsel was an offer to sell. That
email does two things: (1) it rejects plaintiffs’ proposal to modify the
Foreclosure Auction Agreement because U.S. Bank had already taken title to
the property; and (2) it expresses a willingness to “entertain” a “purchase
offer” from the plaintiffs that it agreed to “review” if plaintiffs satisfied
certain conditions. Doc. 11-11 at 2. By its plain terms, the November email is
thus a mere invitation to bid rather than an offer. And because U.S. Bank
never accepted plaintiffs’ November 11, 2022 offer to purchase the property,
the November 2022 correspondence cannot serve as a basis for a breach of
contract claim.
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The plaintiffs’ attempts to characterize subsequent interactions
between the parties as proof of an enforceable contract likewise fail. They
first argue that defense counsel’s April 6, 2023 email was an attempt to
“recant[]” an existing settlement agreement, a characterization that they
suggest “gives credence to there [sic] being a settlement agreement.” Doc. 13
at 10. On the contrary, the April 2023 email only affirms that U.S. Bank
never entered into an enforceable contract for the sale of the property. In
interpreting whether a contract was formed, I “apply the common meanings
to the words and phrases used by the parties in an agreement.” In re Bd. of
Trs. of the Univ. Sys. of N.H. for Keene State Coll., 129 N.H. 632, 636 (1987).
The email from U.S. Bank’s counsel to plaintiffs’ counsel reads, “my client
[U.S. Bank] informed me that they will not consider any purchase offers on
the property until it is listed for sale.” Doc. 13-17 at 1 (emphasis added). With
this email, U.S. Bank’s counsel closes its November 2022 invitation for offers
by stating that U.S. Bank “will not consider any purchase offers on the
property until it is listed for sale.” Id. Contrary to the plaintiffs’ argument,
nothing in the April 2023 email indicates that parties reached an agreement
for sale in November 2022.
The plaintiffs additionally attempt to characterize both parties’
representations to the Jaffery district court as proof of contract, but this
gambit is similarly unavailing. Foy and Blitz note that because both parties’
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counsel jointly represented “that the parties were making progress towards
settlement, [the] Jaffrey District Court continued the review hearing to April
10, 2023.” Doc. 13-2 at 3. These actions, they contend, “show that there was a
‘meeting of the minds’ by the parties that the November 1, 2022[] terms
enunciated by the Trust’s legal counsel comprised an actual settlement
proposal versus a mere suggestion.” Doc. 16 at 2. However, these
representations merely show the parties were “making progress towards
settlement,” Doc. 13-2 (emphasis added), if anything highlighting that an
enforceable agreement had yet to be reached.
U.S. Bank, through its November 1, 2022 email from counsel and
subsequent actions, did not offer to sell the property to Foy or Blitz. Nor did
U.S. Bank or its counsel accept any offer plaintiffs made to purchase the
property following that November 2022 email. Accordingly, U.S. Bank is
entitled to summary judgment on plaintiffs’ breach of contract claim.
IV. CONCLUSION
For the reasons stated above, I find that there is no genuine dispute as
to any material fact regarding the plaintiffs’ breach of contract claims.
Accordingly, I grant U.S. Bank’s motion for summary judgment on Count I.
Doc. 7.
The plaintiffs requested injunctive relief under Count II solely as a
means to “preserve the premises for a potential award of specific performance
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under Count I of this Complaint.” Doc. 1-1 at 16. It thus follows that, having
granted summary judgment for U.S. Bank on Count I, I also grant its motion
as to Count II. Doc. 7. The clerk shall enter judgment for the defendant and
close the case.
SO ORDERED.
/s/ Paul J. Barbadoro
Paul J. Barbadoro
United States District Judge
March 4, 2026
cc: 	Counsel of Record
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