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., 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.,

, 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,

(1st Cir. 2015); NeighborCare of N.H., LLC v. New

Hope Healthcare Sys.—Bedford, LLC,

, 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.,

(11th Cir. 2015); Allstate Ins. Co. v. Nazarov,

, at *9 (E.D.N.Y. Sept. 30, 2015); L’Esperance v.

Manhattan Mortg. Corp.,

,

, 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.,

(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.

2 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

3 to evict a former homeowner who remains after the sale. Bradley

v. Wells Fargo Bank, N.A.,

, at *3 (D.N.H. Aug.

26, 2015) (citing Evans v. J Four Realty, LLC,

(2013) and Greelish v. Wood,

(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,

, 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 landlord-

tenant 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 landlord-

tenant 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,

(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 1

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,

(1st cir. 2009).

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.,

, 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. Muzzy v. Rockingham

Cty. Tr. Co.,

(1973). “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.,

(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.

2 The claims against Bank of America and the realtor have been dismissed based on the statute of limitations.

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