UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Howard R. Fogle, Jr.

and Sharon Fogle

v. Civil No. 08-cv-388-JD

Opinion No. 2011 DNH 018

Wilmington Finance,

a division of AIG Federal

Savings Bank,

CountryWide Home Loans, and

Saratoga First Guarantee Funding

O R D E R

Howard R. Fogle, Jr. and Sharon Fogle brought suit against

Wilmington Finance, a division of AIG Federal Savings Bank, (“AIG

FSB”), Countrywide Home Loans (Countrywide), and Saratoga First

Guarantee Funding (Saratoga), alleging violations of federal and

state law in the course of providing, collecting and foreclosing

on a home mortgage. The Fogles assert that AIG FSB, as

originator of the loan, violated the Truth in Lending Act, 15

U.S.C. § 1601 et seq. (“TILA”), the Real Estate Settlement

Procedures Act, 15 U.S.C. § 2601 et seq. (“RESPA”), the Fair Debt

Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”),

and the New Hampshire Unfair, Deceptive or Unreasonable

Collection Practices Act, N.H. Rev. Stat. § 358-C. They also

claim breach of contract, breach of fiduciary duty, unjust

Case 1:08-cv-00388-JD Document 47 Filed 01/31/11 Page 1 of 32
enrichment, wrongful foreclosure, and fraud. AIG FSB now moves

for summary judgment under Federal Rule of Civil Procedure 56(b)

and (c). The Fogles object.

Standard of Review

“A party claiming relief may move . . . for summary judgment

on all or part of the claim.” Fed. R. Civ. P. 56(a). Summary

judgment is appropriate when “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there

is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record. 

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party

opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

256 (1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See id. at 255.1

1

In their statement of material facts, the Fogles rely in

part on their complaint, which includes a statement of

verification. AIG FSB has not objected to the Fogles’ reliance

on their complaint. Under the law of this circuit, verified

complaints are “treated as the functional equivalent of an

affidavit to the extent that [they] satisf[y] the standards

2

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Background

In November, 2005, the Fogles contacted a mortgage broker,

Saratoga, to inquire about refinancing their Canterbury, New

Hampshire home. At some point during the refinancing, the Fogles

received a TILA disclosure statement showing the finance charges

and monthly payments that would be associated with a 30-year

fixed-rate loan having an annual percentage rate of 6.398 percent

(“Fixed-Rate TILA Disclosure Statement”). The document

identifies Howard Fogle as the “Applicant” and provides an

application number. It states that it was “prepared by” Saratoga

on November 18, 2005. At the top of the page, in capital

letters, it reads “THIS IS NEITHER A CONTRACT NOR A COMMITMENT TO

LEND.” (Doc. no. 24, Ex. 12).

Through Saratoga, the Fogles ultimately received an

adjustable rate mortgage (“ARM”)loan from AIG FSB in the amount

of $294,750. The loan had an initial interest rate of six

percent that would adjust based on fluctuations in the London

Interbank Offered Rate (“LIBOR”) index every six months

thereafter.

explicated in Rule 56(e). . . .” Sheinkopf v. Stone, 927 F.2d

1259, 1262 (1st Cir. 1991). The court has considered the parts

of the complaint cited by the Fogles.

3

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On November 21, 2005, one week prior to the loan’s closing,

AIG FSB mailed the Fogles several pre-disclosures, including (1)

A “Letter of Explanation” explaining how the “Amount Financed”

and “APR” on the TILA disclosure statement would differ from

those reflected in the Note; (2) an ARM disclosure outlining how

the Fogles’ interest rate would be determined under the terms of

the loan; (3) a copy of the Fogles’ initial loan application,

dated November 18, 2005; and (4) a Good Faith Estimate estimating

the closing costs of the loan. 

At the closing of the loan on November 28, 2005, one or both

of the Fogles signed the Mortgage and Note and several other

disclosures, including (1) a RESPA Servicing Disclosure which

stated that AIG FSB “presently intend[ed] to assign, sell or

transfer the servicing of [the Fogles’] mortgage loan”; (2) a

HUD-1 Settlement Statement summarizing the loan’s transaction and

settlement charges;2 (3) a copy of the ARM disclosure; (4) a

Mortgage Brokerage Business Contract stating the compensation to

be paid to Saratoga as the Fogles’ broker; (5) a Notice of the

2

AIG FSB later provided the Fogles with an updated version

of the HUD-1 Settlement Statement (“Final HUD-1 Settlement

Statement), which added a $1,339 payment to the Canterbury tax

collector to the list of items to be paid in connection with the

loan. The two HUD-1 statements disclosed the same amount of

total settlement charges, including all compensation paid to

Saratoga. The Fogles signed the Final HUD-1 Settlement Statement

on December 9, 2005.

4

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Fogles’s Right to Cancel; and (6) a TILA disclosure statement,

prepared by AIG FSB, which provided the annual percentage rate

and finance charge of the loan, an itemization of the amount

financed and a payment schedule reflecting the loan’s variable

rate (“Variable-Rate TILA Disclosure Statement”). (Doc. no. 24,

Ex. 1-11). Both Fogles also signed the Fixed-Rate TILA

Disclosure Statement at closing.

On or around January 1, 2006, AIG FSB sold the loan and

servicing rights to Countrywide.3 On January 10, 2006, AIG FSB

sent Howard Fogle a letter notifying him of the transfer of

servicing rights. In the letter, the bank stated that the

assignment of servicing rights would be effective January 30,

2006, and that AIG would stop accepting loan payments on January

29, 2006.

The Fogles made regular payments on the loan until February,

2008. Countrywide sent the Fogles a Notice of Default on April

2, 2008. On May 30, 2008, Howard Fogle sent AIG FSB a letter

alleging various violations under TILA and notifying the bank of

his intent to rescind the loan pursuant to 15 U.S.C. § 1635(a).

3The Mortgage Electronic Registration Systems shows that

Countrywide then transferred ownership rights to The Bank of New

York Mellon, N.A. on May 30, 2006. (Doc. 24, Ex. 13).

5

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AIG FSB responded to the letter on July 2, 2008. It stated

that after conducting a review of the Fogles’ loan file, it

“vigorously disput[ed] any suggestion of ‘material violations’ of

the TILA” that would give rise to an extended rescission right. 

(Doc. no. 29, Ex. 10). The letter also offered to refund the

Fogles the $13,461 in settlement fees they had paid in connection

with the closing of their loan with the bank.4

The Fogles filed suit on September 19, 2008.

Discussion

A. Truth in Lending Act Claims

In Counts I and III, the Fogles allege that AIG FSB violated

various provisions of TILA by failing to disclose, inter alia,

that the Fogles’ loan had a variable interest rate and the terms

of that rate,5 that the bank was taking a security interest in

the plaintiffs’ residence,6

 and that the Fogles could be charged

4The letter noted that the Fogles were entitled to a refund

of $510.01 in settlement fees pursuant to a supervisory agreement

the bank had entered into with the United States Department of

the Treasury’s Office of Thrift Supervision in June, 2007. It

offered to refund the Fogles the remaining $12,951 in settlement

fees “although [it was] under no obligation to do so.” (Doc. no.

29, Ex. 10). 

5

See 12 C.F.R. § 226.18(f)(2).

6

See 15 U.S.C. § 1638(a)(9) and 12 C.F.R. §226.18(m). 

6

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for late payments.7

 The Fogles also allege that the bank failed

to provide various required documents in the time frame set forth

by TILA, including a brief description of the loan’s APR,8 a copy

of the Consumer Handbook on Adjustable Rate Mortgages or a

suitable substitute,9 a payment schedule reflecting the terms of

the note,10 a description of the total of payments,11 and notice

of the Fogles’ right to cancel the contract.12 AIG FSB moves for

summary judgment on both Counts I and III, on the ground that the

claims are time-barred, or, in the alternative, that the

undisputed evidence shows that AIG FSB complied with TILA’s

provisions as a matter of law. The Fogles object. 

Consumers who assert violations of TILA may seek damages

under 15 U.S.C. § 1640(a), or, for certain violations, rescission

of the loan transaction under 15 U.S.C. § 1635(a)-(b). The

Fogles do not specify the statute underlying their claim for TILA

violations in Count I. Because they seek rescission explicitly

7

See 12 C.F.R. § 226.18(l).

8

See 12 C.F.R. § 226.18(e).

9See 12 C.F.R. § 226.19(b)(1).

10See 12 C.F.R. § 226.18(g).

11See 12 C.F.R. § 226.18(h).

12See 12 C.F.R. § 226.23(b) and § 226.23(b). 

7

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in Count III, the Court will construe Count I as a claim for

damages under § 1640(a). 

1. Count I -- Violations of TILA

In Count I, the Fogles allege that AIG FSB violated several

provisions of TILA. AIG FSB claims that to the extent that the

Fogles seek damages under 15 U.S.C. § 1640(a), their claim is

time-barred because it was brought more than a year after the

alleged violations. See 15 U.S.C. § 1640(e)(TILA actions must be

brought “within one year from the date of the occurrence of the

violation”). 

In their objection, the Fogles argue that their claim for

damages is timely because it is subject to equitable tolling.

They claim that AIG FSB sought to “fraudulently conceal the true

nature of the credit transaction,” (Doc. no. 29, Ex. 12, p. 8). 

They allege that AIG FSB did this by (1) providing two materially

different TILA disclosure statements at closing, the combination

of which obfuscated the terms of the loan; and (2) failing to

deliver TILA-mandated pre-disclosures prior to the closing, or

the final HUD-1 Settlement Statement until several days after the

closing, thereby concealing certain payments that AIG FSB made to

Saratoga for having brokered the loan. The Fogles also point to

8

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AIG FSB’s offer to refund them more than $13,000 in closing costs

as further evidence of the bank’s fraudulent intent.

Generally, “the federal doctrine of fraudulent concealment

operates to toll the statute of limitations ‘where a plaintiff

has been injured by fraud and remains in ignorance of it without

any fault or want of diligence or care on his part.’” Salois v.

Dime Sav. Bank, FSB, 128 F.3d 20, 25 (1st Cir. 1997)(quoting

Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946))(internal

quotation marks omitted). 

Several circuits have held that this doctrine may be applied

to a TILA violation, thus extending the time during which a

consumer may raise a TILA claim. See, e.g., Ellis v. General

Motors Acceptance Corp., 160 F.3d 703 (11th Cir. 1998); Ramadan

v. Chase Manhattan Corp., 156 F.3d 499 (3d Cir. 1998); King v.

California, 784 F.2d 910 (9th Cir. 1986); Jones v. TransOhio Sav.

Bank, 747 F.2d 1037 (6th Cir. 1984). When it applies, the

doctrine of equitable tolling is a narrow one, however,

"appropriate only when the circumstances that cause a plaintiff

to miss a filing deadline are out of his hands." Salois, 128 F.3d

at 25.

9

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a. The Two TILA Disclosure Statements

It is undisputed that the Fogles signed both the Fixed-Rate

TILA Disclosure Statement and the Variable-Rate TILA Disclosure

Statement at closing. AIG FSB asserts that it provided only the

Variable-Rate TILA Disclosure Statement, which accurately

described the terms of the Fogles’ loan.

The evidence in the record indicates that Saratoga prepared

the Fixed-Rate TILA disclosure statement during the application

process. The document identifies Saratoga as the preparer and is

dated ten days’ prior to the loan’s closing date. It refers to

Howard Fogle as the “Applicant,” and states in capital letters

that it is not a contract or a commitment to lend.13

Even if the Fogles were confused by the different terms

presented in the two documents, they cannot establish that their

confusion was the result of AIG FSB’s actions. Because the

Fogles cannot show that AIG FSB provided the Fixed-Rate TILA

Disclosure Statement or that a factual dispute exists as to

whether AIG FSB provided it, they cannot rely on their receipt of

13In contrast, the Variable-Rate TILA disclosure statement

identifies AIG FSB as the preparer and is dated November 28,

2005, the date of the loan’s closing. It refers to Howard and

Sharon Fogle as the “Borrowers.”

10

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that document to support their argument that TILA should be

equitably tolled.14

b. The Pre-Disclosures and HUD-1 Settlement Statement

The record shows that AIG FSB mailed the Fogles the required

pre-disclosures one week before the closing and provided the

Fogles a version of the HUD-1 Settlement Statement that

accurately reflected all payments to Saratoga at the closing,

when the Fogles signed it. Even if, as the Fogles assert, AIG

FSB had not provided the pre-disclosures until the closing or the

HUD-1 Settlement Statement until several days thereafter, the

Fogles do not dispute that they had all relevant documentation

regarding their loan by at least December of 2005. Because they

did not file suit until September of 2008, the claim would be

time-barred.

 

14Even if AIG FSB had supplied both TILA disclosure

statements, the Fogles have failed to explain why they would have

been unable to uncover this fraud at an earlier date. Arguably,

they should have been aware that their loan had a variable

interest rate by August of 2006 at the latest, when their

interest rate first adjusted and their payments jumped from

$1767.18 to $2,158.53 a month.

11

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c. AIG FSB’s Response to the Fogles’ Notice of Rescission

AIG FSB responded to the Fogles’ Notice of Rescission in a

letter dated July 2, 2008. In the letter, AIG FSB “vigorously

disput[ed] any suggestion of ‘material violations’ of the TILA,”

but, nevertheless, offered to refund the Fogles’ settlement fees

in exchange for their signing an agreement to release AIG FSB

from any and all civil claims that could arise at any time in

connection with their refinance.15 

The Fogles cite the letter from AIG FSB as evidence of TILA

violations by AIG FSB. Taken in the light most favorable to the

Fogles, the letter might support an inference of some

irregularity in the refinancing process. AIG FSB challenges the

Fogles’ reliance on the letter, however, on the ground that it is

inadmissible under Federal Rule of Evidence 408(a). The Fogles

do not dispute AIG FSB’s challenge to the admissibility of the

letter. 

It is unlikely in these circumstances that the letter could

be considered for purposes of opposing summary judgment. See,

e.g., Davis v. Dawson, 15 F. Supp. 2d 64, 98 (D. Mass. 1998). 

Even if the letter were considered, however, the possible

inference of irregularity is insufficient in light of the other

15The parties do not provide evidence as to whether any

further action was taken regarding AIG FSB’s offer.

12

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record evidence to demonstrate a triable issue as to whether AIGFSB fraudulently concealed violations of TILA provisions during

the Fogles’ refinancing.

2. Rescission under TILA

When a consumer has obtained a non-purchase money mortgage

on a residential dwelling – as the Fogles did in this case – the

consumer has a right to rescind the transaction “within three

days of the transaction’s consummation or three days from the

delivery of [certain] material disclosures, whichever occurs

later.” Palmer v. Champion Mortg., 465 F.3d 24, 27 (1st Cir.

2006). TILA defines as “material” those disclosures involving

the annual percentage rate, the finance charge, the amount to be

financed, the total of payments, and the payment schedule. See

15 U.S.C. § 1602(v); 12 C.F.R. § 226.23. The creditor must also

provide the consumer clear notice of this rescission right. See

12 C.F.R. § 226.23(b)(1). “Should a creditor fail to deliver any

of the required material disclosures (including notice of the

right to rescind), the debtor may rescind at any time up to three

years following the consummation of the transaction.” Palmer,

465 F.3d at 27 (citing 12 C.F.R. § 226.23(a)(3)).

The Fogles first raised their rescission claim on May 30,

2008, two and a half years after the consummation of their loan

13

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transaction. They argue that they are entitled to an extended

rescission period because AIG FSB (1) provided two TILA

disclosure statements describing loans with materially different

terms; (2) failed to provide the required pre-disclosure

documents prior to the closing; (3) “purposefully concealed”

Saratoga’s compensation by failing to provide the final HUD-1

Settlement Statement until several days after the closing; and

(4) provided two materially different Good Faith Estimates,

neither of which disclosed Saratoga’s compensation.

The Fogles again assert that AIG FSB provided both the

Fixed-Rate and Variable-Rate TILA Disclosure Statements. The

Fogles concede that the material disclosures in the Variable-Rate

Disclosure Statement were accurate. They argue, however, that

the information provided in the Fixed-Rate TILA Disclosure

obviated those disclosures. See, e.g., Pulphus v. Sullivan, 2003

U.S. Dist. LEXIS 7080, 38-39 (N.D. Ill. Apr. 25, 2003)(holding

that providing two different TILA disclosure statements at

closing was a material violation). Again, the Fogles have not

provided evidence that AIG FSB in fact prepared or provided the

Fixed-Rate TILA Disclosure Statement. The Fogles’ rescission

14

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claim in Count III fails to the extent it relies on this

document.16

The Fogles’ remaining arguments appear to be based on the

mistaken premise that any violation of TILA triggers the extended

rescission right. Even if AIG FSB had provided two contradictory

Good Faith Estimates or failed to provide the required predisclosures or to disclose Saratoga’s compensation, these

failures alone do not give rise to an extended rescission right. 

See 12 C.F.R. § 226.23(a)(3), n. 48 (enumerating the “material

disclosures” that trigger the extended rescission period). 

The Fogles have failed to show a genuine issue of material

fact that precludes granting summary judgment for AIG FSB on

Count III.

B. Real Estate Settlement Procedures Act

In Count II, the Fogles allege several violations of RESPA. 

They contend that AIG FSB violated RESPA’s disclosure provisions,

set forth in 12 U.S.C. § 2603 and § 2604, by failing to report

16Because the Fogles did not show that AIG FSB provided the

Fixed Rate statement or that a factual dispute exists as to

whether AIG FSB provided it, the court need not consider the

legal question of whether the provision of two distinct TILA

statements, one of which accurately provides all material

disclosures and one of which does not, would constitute a

material violation and therefore extend the consumer’s rescission

period under TILA.

15

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certain charges or providing inaccurate charges on the HUD-1

Settlement Statement, see 24 C.F.R. § 3500.8, and failing to

provide the Fogles with the good faith estimate within three days

of receipt of their loan application, see 24 C.F.R. § 3500.7. 

The Fogles also claim that AIG FSB and Saratoga charged them an

excessive loan origination fee and yield spread premium that

“possibly” constituted an illegal kickback under 12 U.S.C. § 2607

and 24 C.F.R. § 3500.14. Finally, they assert that AIG FSB and

Saratoga failed to obtain written acknowledgment that the Fogles

had received the RESPA servicing disclosure for their loan, in

violation of 12 U.S.C. § 2605 and 24 C.F.R. § 3500.21(c).

AIG FSB moves for summary judgment on the Fogles’ RESPA

claim. It argues that RESPA does not provide a private right of

action under § 2603 and § 2604, and that the Fogles’ disclosure

claims under these statutes fail as a matter of law.17 AIG FSB

asserts that its payments to Saratoga were not illegal kickbacks

under § 2607, and, alternatively, that the Fogles’ allegations of

violations under § 2607 are time-barred. AIG FSB contends that

17AIG FSB argues that the Fogles’ claim that charges were

“missing or inaccurate” on the HUD-1 Statement also fails as a

matter of law because it does not identify which charges were

“missing or inaccurate,” and therefore fails to meet the basic

pleading standards intended to put the defendants on notice of

the claims brought against them. See Ashcroft v. Iqbal, 129

S.Ct. 1937, 1952 (2009). 

16

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the Fogles’ argument that AIG FSB failed to obtain written

acknowledgment of their receipt of the RESPA servicing disclosure

is belied by the undisputed evidence.

In their objection, the Fogles do not respond to AIG FSB’s

argument that RESPA does not provide a private right of action

for claims raised under § 2603 and § 2604.18 They do argue that

the part of their RESPA claim brought under § 2607 is not timebarred because the one-year statute of limitations for raising

such claims was equitably tolled, and they maintain that triable

questions of fact remain as to whether AIG FSB violated RESPA’s

provisions. 

1. Disclosure Under § 2603 and § 2604

In § 2603, RESPA requires lenders to use a uniform

settlement statement which “conspicuously and clearly itemize(s)

all charges imposed upon the borrower and all charges imposed

upon the seller in connection with the settlement," and to

provide this form to borrowers at or before the time of

18Instead of engaging AIG FSB’s argument directly, the

Fogles argue only that 12 U.S.C. § 2605 provides a private right

of action where a defendant has failed to provide certain

servicing disclosures, a fact which AIG FSB does not dispute and

which is not the basis for the Fogles’ allegations of disclosure

violations under § 2603 and § 2604. The Fogles then proceed to

defend their § 2603 and § 2604 claims on the merits.

17

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settlement. § 2603(a), (b). Pursuant to § 2604, lenders are

required to provide borrowers with information booklets, as well

as "a good faith estimate of the amount or range of charges for

specific settlement services the borrower is likely to incur in

connection with the settlement," § 2604(c), within three days

after receipt of the application. § 2604(d).

The First Circuit has never had occasion to consider whether

§ 2603 and § 2604 provide a private right of action. Other

federal courts that have considered the question, however, have

held that they do not. See Chow v. Aegis Mort. Corp., 286 F.

Supp. 2d 956, 962 (N.D. Ill. 2003) (surveying RESPA disclosure

cases and legislative history and holding that technical

violations of RESPA disclosure requirements do not give rise to a

private right of action); see also Harris v. Sand Canyon Corp,

No. 08-cv-3692, 2010 U.S. Dist. LEXIS 74228 at *16-17 (D.S.C.

July 22, 2010)(citing recent cases). These courts have noted

that 12 U.S.C. § 2614 expressly provides a private right of

action for actions brought pursuant to 12 U.S.C. § 2605, § 2607,

and § 2608. The cases concluded that Congress’s decision to

refer to only three RESPA provisions, specifically, in 12 U.S.C.

§ 2614 indicates a lack of congressional intent to grant private

rights of action for RESPA’s other provisions. See, e.g. Collins

v. FMHA-USDA, 105 F.3d 1366, 1367-68 (11th Cir. 1997); Louisiana

18

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v. Litton Mortgage Co., 50 F.3d 1298, 1301-02 (5th Cir. 1995);

Allison v. Liberty Sav., 695 F.2d 1086, 1089-91 (7th Cir.

1982).19 But see Vega v. First Fed. Sav. & Loan Ass’n, 622 F.2d

918, 925 n. 8 (6th Cir. 1980)(holding that RESPA creates a

private right of action for violations of 12 U.S.C. §§ 2609 and

2610). Other district courts in this circuit have adopted the

reasoning of the Fifth, Seventh and Eleventh Circuits. See De

Jesus-Serrano v. Sana Inv. Mortg. Brokers, Inc., 552 F. Supp. 2d

191, 195 (D.P.R. 2007)(holding no private cause of action under

RESPA for violations of § 2604); Campbell v. Machias Sav. Bank,

865 F. Supp. 26 (D. Me. 1994))(holding no private cause of action

for violations of § 2609).

The reasoning in the cited decisions is persuasive and

supports the conclusion that RESPA does not create a private

right of action for violation of its disclosure provisions. 

Therefore, AIG FSB is entitled to summary judgment on the Fogles’

claims under § 2603 and § 2604.

19In reaching this conclusion, these courts applied the

Supreme Court’s test under Cort v. Ash, 422 U.S. 66, 78 (1975)

for determining whether a statute implicitly creates a private

remedy.

19

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2. § 2607 “Kickbacks and Unearned Fees”

RESPA prohibits any person from giving or accepting "any

fee, kickback, or thing of value pursuant to any agreement or

understanding . . . that business incident to or a part of a real

estate service . . . shall be referred to any person," § 2607(a),

and from accepting any unearned fee in relation to a settlement

service, § 2607(b). The statute of limitations for bringing a

private cause of action for an alleged violation of § 2607 is one

year “from the date of the occurrence of the violation.” § 2614. 

The Fogles do not appear to challenge AIG FSB’s assertion

that the date of the alleged violation was November 28, 2005,

when the Fogles closed on their loan. They contend, however,

that the bank’s fraudulent conduct equitably tolled the statute

of limitations.

The Fogles’ arguments mirror the arguments they made as to

why AIG FSB’s actions tolled the statute of limitations under

TILA. They contend that (1) AIG FSB failed to provide them with

the required pre-disclosures under RESPA, thereby purposefully

concealing their yield spread premium and the fact that AIG FSB

shared closing costs with Saratoga, (2) AIG FSB provided them

with two materially different Good Faith Estimates, and (3) AIG

FSB provided them with two materially different TILA disclosure

20

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statements, one for a variable interest rate and one for a fixedinterest-rate loan.

The court has concluded, for the reasons stated above, that

the Fogles failed to demonstrate a triable issue as to whether

AIG FSB provided the Fixed-Rate TILA Disclosure Statement.20 But

even if all of their accusations were true, the Fogles failed to

explain how AIG FSB fraudulently concealed any information about

the loan so as to equitably toll RESPA’s statute of limitations

until September, 2008. At the very least, the undisputed

evidence shows that the Fogles had all of the information about

their loan as of December 9, 2005, the date on which Howard Fogle

signed the Final HUD-1 Settlement Statement.

The Fogles have not shown that a triable issue exists as to

whether RESPA’s one-year statute of limitations for private

actions pursuant to 12 U.S.C. § 2607 was tolled beyond December

9, 2005. Thus, the portion of their RESPA claim brought under

§ 2607 is time-barred.

20This argument also appears to be inapposite to the

question of whether AIG FSB gave or received illegal kickbacks or

fees.

21

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3. § 2605 Servicing Disclosure

RESPA requires lenders to “disclose to each person who

applies for the loan, at the time of application for the loan,

whether the servicing of the loan may be assigned, sold, or

transferred to any other person at any time while the loan is

outstanding.” 12 U.S.C. § 2605(a)(emphasis added). The

applicable regulation, 24 C.F.R. § 3500.21(c), instructs the

lender to deliver the Servicing Disclosure Statement within three

business days from receipt of the borrower’s application “by hand

delivery, by placing it in the mail, or, if the applicant agrees,

by fax, e-mail, or other electronic means.”

In their complaint, the Fogles allege that AIG FSB “failed

to obtain a written acknowledgment of the servicing disclosure

from plaintiffs per 24 C.F.R. § 3500.21(c).” AIG FSB has

produced a copy of the RESPA Servicing Disclosure Statement that

was signed by Howard Fogle on November 28, 2005, the date of the

loan’s closing. The Fogles do not dispute the authenticity of

this document, which clearly refutes their claim.

To the extent that the Fogles now allege that the defendants

failed to provide the Servicing Disclosure Statement within three

days of receiving their loan application, they have not shown a

factual dispute to support their claim. Although the Fogles

allege that they never received the initial disclosure statement,

22

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and Howard Fogle stated this in his affidavit, § 3500.21(c)

requires only that the lender place the servicing statement in

the mail. AIG FSB has presented the signed statement of an AIG

FSB employee certifying that he mailed the RESPA servicing

disclosure on November 21, 2005, within three days of receiving

the Fogles’s loan application. The Fogles have not provided any

contrary evidence. Therefore, the undisputed evidence in the

record shows that AIG FSB complied with § 2605(a). 

Because the Fogles have not shown that a triable issue

exists for purposes of their RESPA claim, AIG is entitled to

summary judgment.

C. Breach of Contract and Unjust Enrichment

In Count IV, the Fogles allege that they were wrongly

charged interest to fund the yield spread premium and broker’s

fee paid to Saratoga. They assert that this compensation, which

totaled $15,247.75, was not specified in any express contract and

was possibly prohibited by New Hampshire law.21 They seek

damages from AIG FSB under a quasi-contract theory and also

appear to allege breach of contract. In Count VIII, the Fogles

21According to the Complaint, Saratoga received $10,530.25

in loan origination fees, a processing fee of $575 and the yield

spread premium of $4,142.50.

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contend that both AIG FSB and Saratoga were unjustly enriched by

the payment of these fees at the Fogles’ expense, and that

allowing them to retain the benefit “would be contrary to the

rules of equity.”

AIG FSB contends that the Fogles’ quasi-contract and unjust

enrichment claims fail as a matter of law because all of the

payments in question were set forth in an express contract

between the parties. Alternatively, AIG FSB argues, it is

entitled to summary judgment on both claims because the Fogles

failed to plead any facts as to why it was unjust for the

defendants to retain the payments. AIG FSB also maintains that

it fulfilled all of its obligations under the parties’ contract

and that the Fogles have failed to point to any facts suggesting

otherwise.

1. Quasi-Contract and Unjust Enrichment

Under New Hampshire law, a quasi-contract or implied-in-law

contract is “not a contract but is a legal remedy imposed by the

court without reference to the assent of the obligor, arising

from the receipt of a benefit the retention of which is unjust,

and requiring the obligor to make restitution.” Morgenroth &

Assocs. v. Tilton, 121 N.H. 511, 514 (1981)(internal quotation

marks and brackets omitted). A defendant is unjustly enriched,

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and the plaintiff entitled to restitution, “when the court

determines that the defendant ‘has received a benefit and it

would be unconscionable for the defendant to retain that

benefit.’” Invest Almaz v. Temple-Island Forest Prods. Corp.,

243 F.3d 57, 64 (1st Cir. 2001)(quoting Nat’l Employment Serv.

Corp. v. Olsten Staffing Serv., Inc., 145 N.H. 158, 163 (2000)). 

“A claim of unjust enrichment will not lie ‘where there is a

valid express contract between the parties . . . because the law

will not imply a quasi-contract.’” J.G.M.C.J. Corp. v. Sears,

Roebuck & Co., 391 F.3d 364, 370 (1st Cir. 2004)(quoting Tentindo

v. Locke Lake Colony Ass’n, 120 N.H. 593, 597 (1980))(internal

brackets omitted).

In their objection, the Fogles assert that a genuine

question of material fact exists as to whether the parties had a

valid, express contract that included the payments to Saratoga. 

They appear to argue that AIG FSB breached the parties’ contract,

and thus no express contract existed.

The record demonstrates that the parties did have an express

contract, and that the contract clearly outlined the challenged

payments to Saratoga. The Mortgage Brokerage Business Contract,

signed by the Fogles on November 28, 2005, provided that the

Fogles would be charged the $10,530.25 loan origination fee and

the $575 processing fee, and stated that Saratoga, as broker,

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could receive additional compensation from AIG FSB for securing

the loan totaling 0 to 3 percent of the total loan amount.22 The

HUD-1 Settlement Statement, drafts of which the Fogles signed on

November 28, 2005, and December 9, 2005, provided an itemization

of all of the fees the Fogles now question, including the yield

spread premium. The Fogles fail to provide any evidence that the

contract between the parties was invalid.23 Thus, the Fogles’

quasi-contract and unjust enrichment claims fail as a matter of

law.

2. Breach of Contract

To the extent that Count IV can be construed as a breach of

contract claim, it also fails as a matter of law.

Under New Hampshire law, “‘[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.’” Lassonde

v. Stanton, 157 N.H. 582, 588 (2008) (quoting Poland v. Twomey,

156 N.H. 412, 415 (2007))(alteration omitted).

22The $4,124.25 yield spread premium paid to Saratoga

equaled about 1.4 percent of the total loan amount. 

23Indeed, the Fogles’s only argument, that AIG FSB breached

the parties’ contract, necessarily rests on an assumption that a

valid contract did exist.

26

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The Fogles do not point to any facts in the record that

support their allegation that AIG FSB failed to perform all of

its contractual obligations. As noted above, the record shows

that the challenged payments to Saratoga were all clearly

itemized in the parties’ contract.

AIG FSB is entitled to summary judgment on Counts IV and

VIII.

D. Fraud

In Count X, the Fogles claim that AIG FSB engaged in fraud

by “misrepresenting the interest rate that would be applied to

Plaintiffs’ loan” in the TILA disclosure statement. AIG FSB

argues both that the Fogles’ fraud claim fails on its merits and

that it is preempted by the Home Owners Loan Act (HOLA), 12

U.S.C. §§ 1461 et seq. The court need only address the first

argument.

To establish fraud under New Hampshire law, “a plaintiff

must prove that the defendant made a representation with

knowledge of its falsity or with conscious indifference to its

truth with the intention to cause another to rely upon it.”

Snierson v. Scruton, 145 N.H. 73, 77 (2000). The plaintiff must

also demonstrate “justifiable reliance.” Id.

27

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The Fogles claim that AIG FSB fraudulently induced them to

accept the mortgage loan by representing that it would have a

fixed annual percentage rate when in fact the loan’s interest

rate was variable. All evidence in the record suggests that AIG

FSB did disclose the loan’s variable rate in the loan documents

provided to the plaintiffs.24

The Fogles also allege, for the first time in their

objection, that their fraud claim includes AIG FSB’s purported

failure to disclose the loan’s yield spread premium. As

discussed above, the record shows that AIG FSB did specify the

amount of the yield spread premium in the HUD-1 Settlement

Statement which the plaintiffs signed at the time of closing. 

The plaintiffs do not point to any evidence in the record that

AIG FSB made a false representation about the payment at any time

during the course of the loan transaction.

 

24In their complaint and objection, the Fogles rely on the

Fixed-Rate TILA Disclosure Statement as evidence that AIG FSB

misrepresented the loan’s terms. As the court has explained,

Saratoga provided the fixed-rate statement, not AIG FSB. The

Fogles do not specifically challenge as fraudulent AIG FSB’s

disclosure of the variable interest rate in the Variable-Rate

TILA Disclosure Statement or other loan documents. Any fraud

allegations predicated on these documents also fail as a matter

of law. “A plaintiff cannot allege fraud in general terms, but

must specifically allege the essential details of the fraud and

the facts of the defendants' fraudulent conduct.” Id.

28

Case 1:08-cv-00388-JD Document 47 Filed 01/31/11 Page 28 of 32
AIG FSB is thus entitled to summary judgment on Count X.

E. Claims Related to Servicing of the Fogles’ Loan and 

Foreclosure

In Counts V, VI, IX, and XI, the Fogles assert several

federal and state claims against AIG FSB related to the servicing

of the Fogles’ loan once it was in default and the foreclosure of

their home.25

The record demonstrates that AIG FSB sold the Fogles’ loan

and servicing rights within months of the closing date. A copy

of a report from the Mortgage Electronic Registration Systems,

submitted as evidence by AIG FSB, shows that AIG FSB transferred

the servicing rights to the loan to BAC Home Loans Servicing, LP,

formerly Countrywide Home Loans Inc., on January 6, 2006. 

According to the report, BAC Home Loans Servicing, LP also held

the beneficial rights to the loan at that time and then

transferred them to the Bank of New York Mellon, N.A. on May 26,

2006. AIG FSB’s vice president stated in an affidavit that AIG

FSB “sold the Loan on or about January 1, 2006, and has had no

25In Counts V, VI, and IX, respectively, the Fogles allege

that the defendants violated the Fair Debt Collection Practices

Act, 15 U.S.C. § 1692, et seq., and the New Hampshire Unfair,

Deceptive or Unreasonable Collection Practices Act, N.H. Rev.

Stat. § 358-C, and committed wrongful foreclosure. In Count XI,

they request that the court enjoin the foreclosure of their home.

29

Case 1:08-cv-00388-JD Document 47 Filed 01/31/11 Page 29 of 32
involvement whatsoever with the Loan since then, including

involvement related to the alleged debt collection and/or

foreclosure.” 

The Fogles maintain that AIG FSB continued to be involved

with the loan’s administration after divesting itself of the

loan’s servicing rights. They offer as evidence two letters that

AIG FSB sent to the Fogles, in January of 2006 and July of 2008. 

The first letter notified the Fogles of the transfer of servicing

rights but stated that AIG FSB would continue to accept loan

payments until January 29, 2006. The second was AIG FSB’s

response to Howard Fogle’s notice of rescission, in which it

“vigorously dispute[d]” that it had committed “material

violations” of TILA in originating the loan. The Fogles argue

that AIG FSB’s continued correspondence with them and the fact

that it agreed to accept payments for several weeks after the

transfer of the loan were inconsistent with its position that it

had no further involvement in the loan’s administration.

AIG FSB’s offer to continue to accept payments for a month

after the 2006 servicing transfer as a courtesy does not suggest

its involvement in efforts to collect on the Fogles’ debt after

their March, 2008, default or in the foreclosure of their home. 

Nor does AIG FSB’s 2008 response to the Fogles’ rescission letter

30

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support a reasonable inference that it continued to play a role

in the administration of the loan.

The Fogles have not presented a genuine question of material

fact as to whether AIG FSB continued to service their loan after

default. AIG FSB is therefore entitled to summary judgment on

Counts V, VI, IX, and XI.

F. Breach of Fiduciary Duty

As AIG FSB points out and the Fogles do not dispute, Count

VII, for Breach of Fiduciary Duty, alleges only that a fiduciary

duty existed between the Fogles and Saratoga and does not claim

that AIG FSB had such a duty. All claims against Saratoga were

dismissed without prejudice on December 15, 2010. (Doc. no. 45).

Conclusion

For the foregoing reasons, AIG FSB’s motion for summary

judgment (doc. no. 21) is granted.

Because all of the claims remaining in this case are

resolved in this opinion, the clerk of court shall enter judgment

31

Case 1:08-cv-00388-JD Document 47 Filed 01/31/11 Page 31 of 32
in accord with the orders issued on March 16, 2010; December 15,

2010; January 11, 2011; and this order, and close the case. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

January 31, 2011

cc: Chad W. Higgins, Esquire

John A. Mangones, Esquire

Joy Harmon Sperling, Esquire

Todd W. Stevens, Esquire

Mark E. Swirbalus, Esquire

Michael A. Weiss, Esquire

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