UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Lewis B. Sykes, Jr.

v. Civil No. 13-cv-334-JD Opinion No.

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

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.,

(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.,

(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.,

(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

2 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. Sykes was present at the property

during the auction. 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. Sykes wanted Brown to

get the property back for him. 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.

3 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. Sykes

spoke to lawyers about his case without success. From December

4 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. See Order, document

no. 37, March 4, 2014, at 18-25. The court also held that the

limitations periods were not tolled by fraudulent concealment.

3 As is noted above, default was entered as to Citibank on January 6, 2014.

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. That is the operative complaint in this

case. 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. See Order, document

no. 100, April 21, 2015. 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

6 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

4 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.

7 incompetent within the meaning of each tolling provision. See

Vazquez-Rivera v. Figueroa,

(1st Cir. 2014);

Furbush v. McKittrick,

(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.” Vazquez-Rivera,

. 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.,

(1st Cir. 2015). In

Sykes states that “the ‘Diagnostic and Statistical Manual of 5

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.

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,

(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,

(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,

, 422 (2015).

In the neighboring state of Massachusetts, the Supreme

Judicial Court has defined “incapacitated by reason of mental

9 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,

, at *4 (D. Mass. Sept. 2, 2011)

(quoting McGuinness v. Cotter,

, 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,

(1st Cir. 2005)

(quoting McAfee v. Cole,

(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,

(Vt. 2012) (internal quotation marks omitted).

The federal tolling standard was developed from state-law

competency principles. See Nunes v. Brown Univ.,

, 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,

, focuses on the plaintiff’s ability to comprehend and

pursue his legal claims, which is like the New Hampshire law on

10 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 6

issue of mental incompetence for purposes of tolling the statute of limitations. The court informed him of that burden in the

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. RSA

508:8. 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. See

(e). Therefore, the time to file that claim also

expired before Sykes brought suit.

The RESPA claim had a three-year limitations period.

. 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.

12 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,

.

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”

7 The defendants later submitted Dr. Mart’s report in support of their motion for summary judgment.

13 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

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.

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].”

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. He

16 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

9 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.

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.

18