UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jeffrey Bradley

v. Civil No. 12-cv-127-PB Opinion No.

Wells Fargo Bank, N.A.

MEMORANDUM AND ORDER

On March 3, 2014, I entered a Memorandum and Order granting

in part and denying in part a Motion for Summary Judgment

brought by Wells Fargo as Trustee for a Pooling and Service

Agreement (“PSA Trustee”) and Ocwen Loan Servicing, LLC.

Bradley v. Wells Fargo Bank, N.A.,

, 17; Doc. No.

86. PSA Trustee seeks reconsideration of my decision on three

separate grounds. I consider each in turn.

I. STANDARD OF REVIEW

Because final judgment has not been rendered, I consider

this motion under Local Rule 7.1(d), requiring that motions for

reconsideration “demonstrate that the order was based on a

manifest error of fact or law.” Reconsideration is “‘an

extraordinary remedy which should be used sparingly.’” Town of

Wolfeboro v. Wright-Pierce,

(quoting Fabrica de Muebles J.J. Alvarez, Inc. v. Inversiones Mendoza, Inc.,

(1st Cir. 2012) (internal quotation marks omitted).

II. ANALYSIS

A. Notice

PSA Trustees assert that I overlooked evidence mandating a

contrary result when I found that it failed to satisfy its

statutory duties to notify Bradley of the postponements of the

foreclosure sale. In support, PSA Trustee relies on the

confirmatory affidavit to the foreclosure deed, which states

that the postponements were publically announced at the property

on each previously scheduled foreclosure date, as required by

statute. See

; Doc. No. 77-9.1 PSA

Trustee included the confirmatory affidavit in its summary

judgment exhibits, but did not rely on it in its summary

judgment briefing.2

1 The confirmatory affidavit, submitted under oath by Erika L. Vogel on July 12, 2011, states: “at the auction sale on March 9, 2011 pursuant to said notice . . . the sale was postponed by public proclamation to April 6, 2011 at 1:00 p.m., at which time and place, upon the mortgaged premises, the sale was postponed by public proclamation to April 27, 2011, at 1:00 p.m. . . . .” Doc No. 77-9. 2 Bradley notes that the affidavit was “raised for the first time in a motion to reconsider.” Although a motion to reconsider is not a proper time to “advance arguments that could and should have been presented [previously],” Town of Wolfeboro,

Bradley contends that the affidavit does not amount to

sufficient evidence because the affiant, Erika Vogel, does not

claim personal knowledge of the postponements, in violation of

Federal Rule of Civil Procedure 56(c)(4) (requiring that

affidavits for summary judgment motions be “made on personal

knowledge.”). PSA Trustee responds by arguing that the

affidavit is nevertheless admissible under Federal Rule of

Evidence 803(15), the hearsay exception covering statements in

documents that affect an interest in property.

Rule 803(15) is an exception to the hearsay rule for

statements “contained in a document that purports to establish

or affect an interest in property if the matter stated was

relevant to the document’s purpose – unless later dealings with

the property are inconsistent with the truth of the statement or

the purport of the document.” The Rule permits statements that

would otherwise be hearsay if (1) they are contained within a

document that affects an interest in property; (2) the

statements are relevant to the purport of the document; and (3)

any dealings with the property subsequent to the document’s

creation have not been inconsistent with the truth of the

013, 4, I nevertheless exercise my discretion in considering the evidentiary value of the confirmatory affidavit. If I did not rule on the confirmatory affidavit now, PSA Trustee could invoke it at trial, which would be a waste of judicial resources if it can currently be deemed admissible. 3 statements. U.S. v. Boulware,

(9th Cir.

2004). Other courts have noted that the Rule also requires that

the document meet standards of authenticity and trustworthiness.

See Silverstein v. Chase,

(2d Cir. 2001); U.S.

v. Weinstock,

(D. Utah 1994).

Here, the confirmatory affidavit was recorded as a required

part of the foreclosure process. See

(requiring affidavits to set forth “fully and

particularly” the acts surrounding foreclosure). It is also

clearly a document affecting an interest in property containing

statements relevant to the document’s purpose. Bradley has

brought forth no evidence of any inconsistent subsequent

dealings. He argues that a lack of personal knowledge makes the

document untrustworthy, but this argument is insufficient

especially given that New Hampshire requires that such documents

“shall be evidence on the question whether the power of sale was

duly executed.”

See also Blackburn v. Deutsche Bank Trust

Co., No. 09-E-0229,

* n.5 (N.H. Super. 2011)

(citing New Hampshire analogue to 803(15) in finding

confirmatory affidavit admissible for the truth of the

statements therein). I thus grant PSA Trustee’s motion for

reconsideration on Count IV, Bradley’s claim that he did not

receive proper notice of the foreclosure sale. 4 B. Deficiency Judgment

PSA Trustee next argues that I should have granted its

motion for summary judgment on its deficiency judgment

counterclaim because Bradley failed to submit evidence properly

opposing its affidavits and supporting documents. In my initial

order, I acknowledged that PSA Trustee submitted an affidavit

purporting to show that Bradley owed $258,223.60. I then found

that Bradley challenged the stated amount owed and raised an

argument that the predecessors unreasonably delayed the

foreclosure sale in breach of the duty of good faith and fair

dealing. I denied PSA Trustee’s motion for summary judgment

because I determined that material facts pertaining to the

motion remained in genuine dispute. In denying the motion, I

took no position on Bradley’s good faith and fair dealing

argument.

My opinion does not change upon reconsideration. Bradley

objected to the amount owed.3 To counter this rejection, PSA

Trustee must submit additional facts beyond a bald statement of

the amount owed to show how they arrived at its accounting.

3 PSA Trustee argues that Bradley’s objection is “mere allegation, speculation, or unsupported denial” and is thus insufficient to counter its affidavit. I reject this argument because I find PSA Trustee’s affidavit too conclusory in submitting an amount owed with no further evidence of how it arrived at this figure. 5 Potential material facts exist concerning the accounting of

Bradley’s mortgage. As such, I am unwilling to find that PSA

Trustee submitted sufficient information to establish summary

judgment on its deficiency judgment claim.

PSA Trustee in the alternative asks that I grant a judgment

of a deficiency, with the exact amount to be determined at

trial. I decline to do so, finding that material facts exist on

this issue, making it more properly suited for resolution with

additional evidence at a later date.

C. Intentional Infliction of Emotional Distress

PSA Trustee argues that Bradley’s allegations, even if

true, are insufficient to support a claim for intentional

infliction of emotional distress. In support, it cites the same

case it had previously cited in its reply, Neenan v.

Citimortgage, Inc.,

. PSA Trustee also

argues that “after diligent search” it could not find any New

Hampshire precedent finding eviction activities, conversion, or

conduct resulting in property damage as sufficient to support an

intentional infliction of emotional distress claim.

PSA Trustee raises no manifest error of law nor fact.

Neenan is distinguishable on its facts,4 and the existence or

4 In Neenan, for instance, the plaintiff knew of the foreclosure prior to the sale, and the bank had granted her permission to 6 non-existence of a New Hampshire case on this topic does not

determine the claim’s validity. I again emphasize that based on

these facts, I consider this to be a close case in which a

reasonable jury could potentially find PSA Trustee’s conduct to

be extreme and outrageous. See Doc. No. 86.

III. CONCLUSION

For the reasons expressed above, I grant PSA Trustee’s

motion for reconsideration, Doc. No. 89, in part and deny it in

part.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

May 20, 2014

cc: Ruth A. Hall, Esq. Terrie L. Harman, Esq. Christopher J. Fischer, Esq. William Philpot, Jr., Esq. John S. McNicholas, Esq.

enter the property after the sale.

. 7