Sykes v. RBS Citizens, N.A., et al

Filing 161

///ORDER denying 152 Motion for Summary Judgment; granting 153 Motion for Summary Judgment; granting 154 Motion for Summary Judgment. All claims against RBS Citizens, N.A.; Bank of America, N.A.; Bank of New York Mello n; CCO Mortgage Corporation; Federal National Mortgage Association; and New England Coastal Realty are dismissed. Default was entered as to Citibank, N.A. on 1/6/14. Motion for Default due 12/18/15. Failure to move for default judgment within the time allowed may result in dismissal of Sykess claims against Citibank, N.A. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Lewis B. Sykes, Jr.
v.

Civil No. 13-cv-334-JD
Opinion No. 2015 DNH 213

RBS Citizens, N.A.,
Bank of America, N.A.,
Bank of New York Mellon,
CCO Mortgage Corporation,
Federal National Mortgage Association,
Citibank N.A.1
O R D E R
Lewis B. Sykes, Jr. is proceeding pro se against certain
banks and mortgage providers, alleging claims that arose from
the defendants’ involvement in the circumstances surrounding the
foreclosure sale of Sykes’s home in 2009.

Since April 21, 2015,

the case has proceeded under an interim discovery plan to
address the issue of whether the applicable statutes of
limitations were equitably tolled due to Sykes’s alleged mental
incompetence.

Sykes and the defendants have now moved for

summary judgment on the tolling issue.2

1

Default was entered as to Citibank on January 6, 2014.

2Although

the docket entry for the motion indicates that a
hearing on the motion is requested, the defendants failed to
request a hearing in their motion. Hearings are the exception
rather than the rule. LR 7.1(d). In the absence of a written
request and an explanation of the need for a hearing, no hearing
was held on the motion. See id.

Standard of Review
Cross motions for summary judgment proceed under the usual
standard, although each motion is evaluated separately to
determine whether it meets the requirements of Federal Rule of
Civil Procedure 56.

Ins. Co. of Pa. v. Great N. Ins. Co., 787

F.3d 632, 635 (1st Cir. 2015).
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.”
Fed. R. Civ. P. 56(a).

“A genuine dispute is one that a

reasonable fact-finder could resolve in favor of either party
and a material fact is one that could affect the outcome of the
case.”

Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir.

2015).

Reasonable inferences are taken in the light most

favorable to the nonmoving party, but unsupported speculation
and evidence that “is less than significantly probative” are not
sufficient to avoid summary judgment.

Planadeball v. Wyndham

Vacation Resorts, Inc., 793 F.3d 169, 174 (1st Cir. 2015)
(internal quotation marks omitted).
Background
Sykes and his mother bought a house in Portsmouth, New
Hampshire, in 2005.

The purchase was made with a loan and

mortgage on the property.

In 2008, Sykes stopped making

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mortgage payments because his mortgage statements showed an
extra charge of $400.

Sykes understood that not making the

mortgage payments constituted default on the mortgage.
After Sykes communicated with representatives of several of
the defendants, a foreclosure sale of the property was held by
auction on October 2, 2009.
during the auction.

Sykes was present at the property

During the sale, Sykes talked to the

auctioneer and called the law office that was handling the
foreclosure.
Soon after the sale, Sykes contacted Attorney David Brown,
who had represented him previously, about the foreclosure sale.
They met at Attorney Brown’s office and discussed the
foreclosure sale.

Brown, with Sykes’s permission, contacted the

law firm that handled the foreclosure sale.

Sykes signed a

letter of representation, and Brown obtained information about
the foreclosure from the law firm.
Brown told Sykes that Bank of America owned the property,
and Brown also contacted Bank of America.
get the property back for him.

Sykes wanted Brown to

At the end of October, Sykes

worked with Attorney Judy Goodnow who contacted Robert Kelly of
New England Coastal Realty, Inc. and also communicated with the
law firm that handled the foreclosure sale.

Kelly offered Sykes

a “cash-for-keys deal” that Sykes decided not to accept.

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Sykes continued to live at the property after the
foreclosure sale.

On November 2, 2009, Sykes saw an eviction

notice being taped to the door of the property and talked to the
person who delivered the notice.

Sykes also contacted Kelly

about the eviction notice.
Because of the eviction notice, Sykes began to look for
other housing and toured rental properties with a real estate
agent.

He contacted a moving company and arranged to move his

belongings to a rental property in Seabrook, New Hampshire.

He

moved out of the foreclosed property on November 25, 2009, and
filed a change of address with the post office.

Although the

property in Seabrook did not have space for Sykes’s furniture
refinishing business, he otherwise went about the ordinary
activities of daily living.
In late spring of 2010, Sykes looked for another rental
property and moved to Hampton, New Hampshire.

This property had

a workshop that allowed Sykes to pursue his furniture
refinishing business.

Sykes also carried on the normal

activities of daily living.

Sykes stayed at the rented home in

Hampton through at least June of 2015.
In 2011, Sykes filed complaints about the foreclosure sale
with Senator Kelly Ayotte and the Office of the New Hampshire
Attorney General without the assistance of an attorney.
spoke to lawyers about his case without success.
4

Sykes

From December

of 2011 through January of 2013, Sykes was represented by
Attorney Thomas Neal for purposes of a complaint to the New
Hampshire Real Estate Commission about realtors who were
involved in the foreclosure process.

Sykes then was represented

by lawyers with the Harman Law Offices, who filed this suit on
his behalf.
Sykes brought suit in state court against RBS Citizens,
N.A.; Bank of America, N.A.; Bank of New York Mellon; CCO
Mortgage Corporation; Federal National Mortgage Association; and
Citibank, N.A. with a complaint dated May 24, 2013.

The

defendants removed the case to this court in July of 2013.
Sykes sought leave to amend his complaint in January of 2014,
and the defendants objected, arguing in part that the claims
were barred by the statutes of limitations.3

In response to the

statute of limitations issue, Sykes argued that the limitations
period was tolled by his mental incapacity due to the shock of
foreclosure and eviction.
The court held that the claims alleged in the amended
complaint were barred by the applicable statutes of limitations
unless the limitations periods were tolled.
no. 37, March 4, 2014, at 18-25.

See Order, document

The court also held that the

limitations periods were not tolled by fraudulent concealment.
As is noted above, default was entered as to Citibank on
January 6, 2014.
3

5

Id. at 25.

On the issue of tolling due to mental incompetence,

however, the court ruled that the record was insufficient to
determine whether the limitations periods were tolled by Sykes’s
mental incompetence and that the issue should be addressed in
motions for summary judgment.

Id. at 31.

The third amended complaint was docketed on September 9,
2014, document no. 62.
case.

That is the operative complaint in this

Counsel who represented Sykes withdrew from the case on

December 12, 2014.

Sykes proceeded pro se after the withdrawal

of his counsel.
Since April 21, 2015, the case has been limited to the
issue of whether the applicable statutes of limitations were
tolled due to Sykes’s mental incompetence.
no. 100, April 21, 2015.

See Order, document

For that purpose, the court

established an interim discovery plan that provided deadlines
for discovery and motions for summary judgment on the tolling
issue.

The parties have now filed their motions and objections.
Discussion

Sykes moves for summary judgment, asking that the statutes
of limitations be tolled to allow his claims.

The defendants

object to Sykes’s motion and move for summary judgment in their
favor, asserting that tolling does not apply because Sykes was

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not mentally incompetent during any period applicable to the
claims in this case.4

Sykes objects to the defendants’ motions.

Sykes alleges state and federal claims.

All of the claims

are based on events that occurred between November of 2008 and
January of 2010.

The state claims are governed by RSA 508:4,

which provides a three-year limitations period.

The federal

claims are brought under the Real Estate Settlement Procedures
Act (“RESPA”), which has a three-year limitations period, and
the Truth in Lending Act (“TILA”), which has a one-year
limitations period.

As determined in the March 4, 2014, order,

because this suit was initiated in May of 2013, all of the
claims are time-barred unless the limitations periods were
tolled because of Sykes’s mental incompetence.

See Order,

document no. 37, March 4, 2014, at 18-25.
The statute of limitations for the state claims, RSA 508:4,
would be tolled pursuant to RSA 508:8 for any period, after
Sykes’s state claims accrued, during which Sykes was mentally
incompetent.

The limitations periods for the federal claims

would be equitably tolled during mental incompetence.

Sykes

bears the heavy burden of showing that he was mentally
The defendants moving for summary judgment are RBS Citizens,
N.A.; Bank of America, N.A.; Bank of New York Mellon; CCO
Mortgage Corporation; Federal National Mortgage Association; and
New England Coastal Realty, Inc. Default was entered against
Citibank, N.A. on January 6, 2014, and Citibank has not
participated in the case.
4

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incompetent within the meaning of each tolling provision.

See

Vazquez-Rivera v. Figueroa, 759 F.3d 44, 50 (1st Cir. 2014);
Furbush v. McKittrick, 149 N.H. 426, 430 (2003).

A.

Standard for Tolling
The federal standard for equitable tolling due to mental

incompetence requires proof that the plaintiff’s “mental
disability was so severe that the plaintiff was unable to engage
in rational thought and deliberate decision making sufficient to
pursue his claim alone or through counsel.”
F.3d at 50.

Vazquez-Rivera, 759

The New Hampshire Supreme Court has not provided a

standard of mental incompetence under RSA 508:8.

Sykes does not

cite a standard of mental incompetence necessary to toll his
state claims under RSA 508:8.5
When the state’s highest court has not addressed an issue,
a federal court must “make an informed prophecy as to how that
court would rule if faced with the issue.”

In re Montreal,

Maine & Atlantic Ry., Ltd., 799 F.3d 1, 10 (1st Cir. 2015).

In

Sykes states that “the ‘Diagnostic and Statistical Manual of
Mental Disorders (DSM-5)’ applies to situations in which
symptoms characteristic of trauma cause clinically significant
distress or impairment in social, occupational or other
important areas of functioning.” That statement apparently
refers to the diagnosis provided by Dr. Eric G. Mart in his
report. Neither the diagnosis nor the Manual provides a
standard for purposes of RSA 508:8 or for equitable tolling
under federal law.
5

8

predicting the course of state law, a federal court should
consider, among other things, analogous decisions of the state’s
highest court, other decisions in the state, and decisions on
the issue in other jurisdictions.

Butler v. Balolia, 736 F.3d

609, 613 (1st Cir. 2013).
The defendants rely on the New Hampshire standards for
mental incompetence in the contexts of guardianship and
testamentary capacity.

While those standards may be analogous

to mental incompetence for purposes of RSA 508:8, on a more
specific level, they address different issues of functionality.
New Hampshire law pertaining to the statute of limitations
focuses on the plaintiff’s ability to comprehend that a cause of
action exists.

A cause of action does not accrue until “the

plaintiff discovers, or in the exercise of reasonable diligence
should have discovered, the injury and its causal relationship
to the act or omission complained of.”

RSA 508:4, I; see also

Murray v. McNamara, 167 N.H. 474, 479 (2015).

In the context of

tolling the limitations period for fraudulent concealment, the
New Hampshire Supreme Court held that tolling did not apply
unless the fraudulent actions prevented the plaintiff from
discovering facts that would give rise to the cause of action.
Ingram v. Drouin, 167 N.H. 417, 422 (2015).
In the neighboring state of Massachusetts, the Supreme
Judicial Court has defined “incapacitated by reason of mental
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illness” for purposes of the tolling statute to mean that the
plaintiff has “the type of condition that precludes [him] from
‘understanding the nature or effects of his acts and thus
prevents him from comprehending his legal rights.’”

Gauthier v.

United States, 2011 WL 3902770, at *4 (D. Mass. Sept. 2, 2011)
(quoting McGuinness v. Cotter, 591 N.E. 2d 659, 664 n.9 (Mass.
1992)).

In Maine, mental illness as used in the tolling statute

is defined to mean “‘an overall inability to function in society
that prevents plaintiffs from protecting their legal rights.’”
Douglas v. York County, 433 F.3d 143, 150 (1st Cir. 2005)
(quoting McAfee v. Cole, 637 A.2d 463, 466 (Me. 1994)).

In

Vermont, the limitations period is tolled while the plaintiff is
insane, meaning “that the person’s mental state makes him unable
to manage his business affairs or estate, or to comprehend his
legal rights and liabilities.”

Eaton v. Prior, 58 A.3d 200, 205

(Vt. 2012) (internal quotation marks omitted).
The federal tolling standard was developed from state-law
competency principles.

See Nunes v. Brown Univ., 2015 WL

5167846, at *5 (D.R.I. Sept. 3, 2015).

The federal standard,

which requires that the plaintiff be “unable to engage in
rational thought and deliberate decision making sufficient to
pursue his claim alone or through counsel,”

Vazquez-Rivera, 759

F.3d at 50, focuses on the plaintiff’s ability to comprehend and
pursue his legal claims, which is like the New Hampshire law on
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the statute of limitations and the statutory interpretation in
Massachusetts, Maine, and Vermont.

The court will apply the

federal tolling standard as a prediction of the standard the New
Hampshire Supreme Court would follow.
Therefore, the applicable standard for the state and
federal claims is whether Sykes was unable to engage in rational
thought and deliberate decision making sufficient to pursue his
claims alone or through counsel.
B.

Sykes’s Motion for Summary Judgment
In support of his motion for summary judgment, Sykes does

not claim a specific period of mental incompetence.

Instead, he

asks the court to toll the limitations periods “to an
appropriate date so as to include the activities occurring and
the documentation produced with ‘no genuine issue as to any
material fact’ during the period from the Plaintiff’s CCO
Mortgage Corporation statement dated November 16, 2008 to May
24, 2010.”
To the extent Sykes asks the court to establish the dates
of his disability without providing evidence or argument to
support such a finding, he has not carried his burden of proof,
and his motion fails.6

On the other hand, Sykes may have

Sykes was aware that he bore the burden of proof on the
issue of mental incompetence for purposes of tolling the statute
of limitations. The court informed him of that burden in the
6

11

intended to argue that the limitations periods should be tolled
from November 16, 2008, to May 24, 2010, due to his mental
incompetence.
1.

Tolling Period

Even if Sykes were able to prove mental incompetence during
the period between November 16, 2008, and May 24, 2010, all but
one of his claims would still be time barred.

For purposes of

Sykes’s state law claims, he would have had two years from May
24, 2010, to file suit, making the deadline May 23, 2012.
508:8.

RSA

Because Sykes did not file suit until May 24, 2013, the

state law claims are time barred even if tolling under RSA 508:8
applied here.
The TILA claim had a one year limitations period.
U.S.C. § 1640(e).

See 15

Therefore, the time to file that claim also

expired before Sykes brought suit.
The RESPA claim had a three-year limitations period.
U.S.C. § 2614.

12

If equitable tolling applies to RESPA and if the

entire three-year period were allowed after tolling, the RESPA
claim would be timely if Sykes could show that he was mentally
incompetent during the time he claims.

March 4, 2015, order, and Sykes acknowledged in his memorandum
in support of summary judgment that he bore that burden.
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2.

Mental Incompetence

Sykes, however, provides no evidence in support of his
motion for summary judgment to show that he was mentally
incompetent at any time before suit was filed.

Sykes argues

that his sessions with V. Stephen Piro, a licensed clinical
social worker, and the diagnosis provided by Dr. Eric Mart show
that he was mentally incompetent.

Piro is not an expert witness

in this case and has provided no report to support Sykes’s
motion.

Although Sykes did not submit the report in support of

his motion, Dr. Mart did provide an expert report for Sykes.7
Sykes argues that because Dr. Mart diagnosed him in October
of 2014 with “Other Specified Trauma-and Stressor-Related
Disorder (DSM-5/309.89) and Obsessive Personality Disorder,” he
was mentally incompetent for purposes of the state and federal
standards from November 16, 2008, to May 24, 2010.

On its face,

a diagnosis in October of 2014 does not apply to Sykes’s
condition years prior to the diagnosis.

Further, a diagnosis of

mental illness alone does not establish mental incompetence for
purposes of tolling.

Vazquez-Rivera, 759 F.3d at 50.

In the summary and conclusion to his report, Dr. Mart
provided the diagnosis that Sykes recites.

Dr. Mart also stated

that Sykes “has a long-standing obsessional personality pattern”
The defendants later submitted Dr. Mart’s report in support
of their motion for summary judgment.
7

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which may be advantageous in many professions but may cause
problems when the person is in conflict with authority, must
deal with unstructured situations, or is in intimate
relationships.

In distressing situations, Dr. Mart wrote, an

obsessional personality pattern causes the person to be
preoccupied with details, rules, and lists to the extent that
the person loses focus on the point of an activity.”
Dr. Mart stated that Sykes lost focus due to his
obsessional personality pattern which “greatly contributed to
his inability to find effective counsel and take appropriate
steps” within the limitations periods.

Dr. Mart further stated

that as Sykes’s situation worsened, he developed trauma-related
symptoms.

In conclusion, Dr. Mart stated that Sykes “was unable

to take the appropriate steps necessary to have his case heard
in an appropriate venue due to a combination of his obsessive
personality disorder and trauma symptoms.”
At his deposition, however, Dr. Mart testified that from
the time of the foreclosure sale, in October of 2009, Sykes knew
that he needed “legal recourse” and knew that there were lawyers
and courts for the purpose of contesting the sale.

Dr. Mart

also testified that Sykes was mentally competent when he
examined him in September of 2014 and had always been mentally
competent.

Therefore, Dr. Mart’s opinion, as stated in his

14

report, was substantially modified by his deposition testimony
and does not show that Sykes was mentally incompetent.
The record also demonstrates Sykes’s competence after the
foreclosure sale and the years following the sale.

Sykes

contacted counsel almost immediately after the foreclosure sale
and pursued action through counsel for a month.

He took action

to challenge the eviction notice in November of 2009 and was
able to consider and reject the “cash for keys” options offered
to him by Kelley.

He was able to look for and find new housing

and to move twice during 2010.

After he moved to Hampton in mid

2010, he resumed his furniture refinishing business.

In early

2011, he brought complaints about the foreclosure sale to
Senator Ayotte’s office and the New Hampshire Attorney General’s
office.

Therefore, the record demonstrates that Sykes was able

to engage in rational thought and deliberate decision making
sufficient to pursue his claims alone or through counsel.
Sykes has not shown that the statutes of limitation for his
claims, alleged in the third amended complaint, document no.
62), have been tolled by RSA 508:8 or under federal equitable
tolling at any time.8

To the extent Sykes argues that he might have claims based
on more recent occurrences and events, those matters are not
properly raised in a motion for summary judgment and will not be
considered here.
8

15

C.

The Defendants’ Motions for Summary Judgment
The defendants move for summary judgment on all of the

claims on the grounds that they are barred by the statutes of
limitations and that Sykes cannot show that RSA 508:8 or federal
equitable tolling applies.

In response, Sykes lists a myriad of

events that he alleges occurred after May 24, 2010, and asserts
that the statutes of limitations do not apply to those matters.
He also challenges the defendants’ facts without citation to
record evidence, and notes Dr. Mart’s diagnosis.
The claims at issue here are those alleged in the third
amended complaint, document no. 62.

Sykes’s accusations and

allegations in his objections to summary judgment do not add
claims or provide cognizable opposition to the motions for
summary judgment.
To properly oppose the defendants’ facts that are supported
by record citations, Sykes was required to “incorporate a short
and concise statement of material facts, supported by
appropriate record citations, as to which [he] contends a
genuine dispute exists.”

LR 56.1(b).

All properly supported

material facts set forth in [the defendants’] factual statement
may be deemed admitted unless properly opposed by [Sykes].” Id.
In his opposition to the defendants’ facts, Sykes argued
that the evidentiary support the defendants provided for the
motions for summary judgment was not complete or accurate.
16

He

also accused defendants’ counsel of misconduct.

Sykes, however,

did not provide his own record or cite to record documents to
properly oppose the defendants’ facts.9

Therefore, the

defendants’ facts are deemed to be admitted.
As is explained in addressing Sykes’s motion for summary
judgment, the record shows that he was mentally competent for
purposes of RSA 508:8 and federal equitable tolling between
October of 2009 and the time suit was filed in May of 2013.

The

statutes of limitations applicable to Sykes’s claims were not
tolled, and all of the claims are time barred.
Therefore, the defendants are entitled to summary judgment
on all of the claims alleged against them.
Conclusion
For the foregoing reasons, the plaintiff’s motion for
summary judgment (document no. 152) is denied.

The defendants’

motions for summary judgment (documents nos. 153 and 154) are
granted.

All claims against RBS Citizens, N.A.; Bank of

America, N.A.; Bank of New York Mellon; CCO Mortgage

The defendants provided a separate factual statement in
support of their motion for summary judgment. Cf. LR 56.1(a)
(requiring memorandum in support of summary judgment to
“incorporate a short and concise statement of materials facts”).
In response, Sykes filed a separate opposition to the
defendants’ factual statement.
9

17

Corporation; Federal National Mortgage Association; and New
England Coastal Realty are dismissed.
Default was entered as to Citibank, N.A. on January 6,
2014.

The deadline for a motion for default judgment is

December 18, 2015.

Failure to move for default judgment within

the time allowed may result in dismissal of Sykes’s claims
against Citibank, N.A.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
November 20, 2015
cc:

Elizabeth J. Ireland, Esq.
Andrea Lasker, Esq.
Robert E. Murphy, Jr., Esq.
Thomas J. Pappas, Esq.
Elizabeth T. Timkovich, Esq.
Citibank, N.A.

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