Sykes v. RBS Citizens, N.A., et al
Filing
165
///ORDER denying 164 Motion for Default Judgment. Clerk shall enter judgment based on this order and prior orders and close the case. 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. 2016 DNH 031
RBS Citizens, N.A., et al.
O R D E R
Lewis B. Sykes, Jr., who is proceeding pro se, moves for a
default judgment against Citibank, N.A.
Sykes’s claims against
all of the other defendants were resolved against him on summary
judgment.
Citibank did not respond to Sykes’s motion for
default judgment.
Standard of Review
After default is entered against a party and when the claim
is not for a sum certain, “the party must apply to the court for
a default judgment.”
Fed. R. Civ. P. 55(b).
A defaulting party
admits the facts as alleged in the complaint but “does not admit
the legal sufficiency of those claims.”
B & R Produce Packing
Co., Inc. v. A & H Farms, Inc., 2014 WL 576210, at *1 (D.N.H.
Feb. 11, 2014) (quoting 10 James Wm. Moore, Moore’s Federal
Practice § 55.32[1][b] (3d Ed. 2013)).
Instead, the court must
determine whether the well-pleaded facts in the complaint state
an actionable claim.
Vazquez-Baldonado v. Domenech, 595 F.
App’x 5, 5-6 (1st Cir. 2015); NeighborCare of N.H., LLC v. New
Hope Healthcare Sys.—Bedford, LLC, 2013 WL 5739084, at *1
(D.N.H. Oct. 21, 2013).
The standard for a default judgment, therefore, “is akin to
that necessary to survive a motion to dismiss for failure to
state a claim.”
Surtain v. Hamlin Terrace Found., 789 F.3d
1239, 1245 (11th Cir. 2015);
Allstate Ins. Co. v. Nazarov, 2015
WL 5774459, at *9 (E.D.N.Y. Sept. 30, 2015); L’Esperance v.
Manhattan Mortg. Corp., 2012 DNH 155, 2012 WL 3839376, at *4
(D.N.H. Sept. 5, 2012).
A complaint will be dismissed under
Rule 12(b)(6) if the factual allegations, taken in the light
most favorable to the plaintiff, fail to show that the plaintiff
may recover under a plausible claim.
Lister v. Bank of Am.,
N.A., 790 F.3d 20, 23 (1st Cir. 2015).
Background
Sykes brought suit against certain banks and mortgage
providers, including Citibank, N.A., alleging claims that arose
from the defendants’ involvement in the circumstances
surrounding the foreclosure sale of Sykes’s home in 2009.
case was removed to this court from state court.
The
When Citibank
did not respond and Sykes provided a showing that service had
been made, default was entered on January 6, 2014.
not appeared in the case.
2
Citibank has
Sykes was represented by counsel from the beginning of the
case and until counsel withdrew in December of 2014.
Therefore,
the operative complaint, the Third Amended Complaint, was
drafted and filed by counsel on Sykes’s behalf.
Summary judgment was entered in favor of all of the
defendants, except Citibank, on November 20, 2015.
directed to move for default judgment.
Citibank.
Sykes was
That order was sent to
Sykes filed a motion for default judgment within the
time allowed in the order.
Citibank has not filed a response.
Discussion
Sykes moves for judgment against Citibank on his claims in
the Third Amended Complaint of Wrongful Foreclosure, Count II;
Wrongful Eviction, Count III; Count VI, Civil Conspiracy;
Conversion, Count VIII, and Fraud, Count XI.
Despite Sykes’s
arguments in his motion, he did not allege wrongful foreclosure
or the fraud claim in Count XI against Citibank.
Therefore,
judgment cannot be entered on those claims, Count II and Count
XI.
The claims for wrongful eviction, civil conspiracy, and
conversion are addressed as follows.
A.
Wrongful Eviction, Count III
Pertinent to the circumstances in this case, the purchaser
of a property through a foreclosure sale may not use self help
3
to evict a former homeowner who remains after the sale.
Bradley
v. Wells Fargo Bank, N.A., 2015 WL 5054584, at *3 (D.N.H. Aug.
26, 2015) (citing Evans v. J Four Realty, LLC, 164 N.H. 570, 574
(2013) and Greelish v. Wood, 154 N.H. 521, 527 (2006)).
“Instead, a foreclosure sale purchaser must employ the summary
procedure prescribed by chapter 540 of the New Hampshire Revised
Statutes to evict a tenant at sufferance from the foreclosed
property.”
Bradley, 2015 WL 5054584, at *3.
In Count III, Sykes alleged that Bank of America used self
help to evict him from his house after the foreclosure sale.
He
further alleged that because of Bank of America’s actions, he
“was forced to move out and to obtain substitute housing for
himself and his business.”
Therefore, Sykes alleged that he was
wrongfully evicted from his home by Bank of America, not
Citibank.
Sykes also alleged, as part of Count III, that Citibank did
not serve him “with the landlord-tenant writ, the landlordtenant summons, and the writ of possession.”
He states that he
was not served because he had been wrongfully evicted from the
house.
As a result, he alleged, he was not able to challenge
Bank of America’s wrongful eviction.
Those circular allegations
do not state a claim of wrongful eviction against Citibank.
4
B.
Civil Conspiracy – Count VI
In Count VI, Sykes alleges that Citibank conspired with
Bank NY Mellon to commit fraud.
The fraud alleged in Count VI
is that the defendants “start[ed] a landlord tenant action in
the Portsmouth District Court without providing personal notice
to the Plaintiff that he was a party in the lawsuit, . . . [and]
caus[ed] the Portsmouth District Court to issue the landlordtenant writ to Bank NY Mellon but the writ of possession to
Citibank in the same action on the same property.”
To state a claim for fraud, a plaintiff must allege facts
to show that the defendant made a representation to him “with
knowledge of its falsity or with conscious indifference to its
truth and with the intention of causing [the plaintiff] to rely
on the representation.”
Tessier v. Rockefeller, 162 N.H. 324,
332 (2011) (internal quotation marks omitted).
In addition, a
plaintiff must allege “with particularity the circumstances
constituting fraud.”
Fed. R. Civ. P. 9(b).
Sykes’s allegations fall far short of a claim for fraud.1
He did not allege that Citibank made any representation to him,
much less a representation that Citibank knew was false.
He
It appears that Sykes’s claim challenges a proceeding in
Portsmouth District Court. To the extent Sykes intended to
overturn the result in the Portsmouth District Court proceeding,
his claim would likely be barred by the Rooker-Feldman doctrine.
See Miller v. Nichols, 586 F.3d 53, 59 (1st cir. 2009).
1
5
also did not allege that he relied on any representation made by
Citibank.
Because Sykes has not alleged fraud, he had not
alleged a civil conspiracy to commit fraud.
Archdiocese of San
Salvador v. FM Int’l, Inc., 2006 WL 437493, at *10 (D.N.H. Feb.
23, 2006).
C.
Conversion – Count VIII
To state a claim for conversion under New Hampshire law, a
plaintiff must allege facts to show that the defendant
intentionally exercised dominion or control over the plaintiff’s
property and that the defendant’s actions seriously interfered
with the plaintiff’s right to the property.
Cty. Tr. Co., 113 N.H. 520, 523 (1973).
Muzzy v. Rockingham
“Among the factors that
a court must consider are the extent and duration of the
exercise of control over the goods, the intent to assert a right
inconsistent with the other party’s right of control, and good
faith.”
Kingston 1686 House, Inc. v. B.S.P. Transp., Inc., 121
N.H. 93, 95 (1981).
In the complaint, Sykes alleged that “Citibank’s preventing
Plaintiff from retrieving his personal property from the
homestead and destroying said property constituted conversion
because it was intentional exercise over Plaintiff’s property in
a way which interfered with Plaintiff’s right to control of said
property.”
Sykes explains in his memorandum in support of
6
default judgment that Citibank prevented him from retrieving his
personal property from the house “by not communicating any
Citibank procedures for the Plaintiff’s personal property
removal and not indicating that Citibank was the property owner
on the ‘Public Posting’ notice.”
He also states that Citibank
did not give him notice that his property would be removed and
destroyed and did not allow him to retrieve his property.
In essence, Sykes claims that Citibank did not help him
retrieve his property, but he does not allege facts to show that
Citibank exercised dominion or control over the property he left
at the house.
In other parts of the complaint, Sykes alleged
that a realtor, who was the representative of Bank of America,
shut off the utilities in the house after the foreclosure sale,
which caused water damage that destroyed his property.
Sykes
also alleged that the realtor removed Sykes’s property from the
house and disposed of it.2
Therefore, Sykes did not allege facts that support his
claim for conversion against Citibank.
The claims against Bank of America and the realtor have been
dismissed based on the statute of limitations.
2
7
Conclusion
For the foregoing reasons, the plaintiff’s motion for
default judgment (document no. 164) is denied.
The clerk of court shall enter judgment based on this order
and prior orders and close the case.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
February 23, 2016
cc:
Lewis B. Sykes, Jr., pro se
Elizabeth J. Ireland, Esq.
Andrea Lasker, Esq.
Robert E. Murphy, Jr., Esq.
Thomas J. Pappas, Esq.
Elizabeth T. Timkovich, Esq.
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?