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Sykes v. RBS Citizens, N.A.

United States District Court, D. New Hampshire

February 23, 2016

Lewis B. Sykes, Jr.
v.
RBS Citizens, N.A., et al. Opinion No. 2016 DNH 031

          ORDER

          JOSEPH DiCLERICO, Jr., District Judge.

         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.Appx. 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. The case was removed to this court from state court. When Citibank did not respond and Sykes provided a showing that service had been made, default was entered on January 6, 2014. Citibank has not appeared in the case.

         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. Sykes was directed to move for default judgment. That order was sent to Citibank. 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 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 ...


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