United States District Court, D. New Hampshire
Lewis B. Sykes, Jr.
RBS Citizens, N.A., et al. Opinion No. 2016 DNH 031
DiCLERICO, Jr., District Judge.
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.
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[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).
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).
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.
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.
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.
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
Wrongful Eviction, Count III
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.
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 ...