Pacaya v. Freedom Mortgage Corp. et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Elvis-Jack:Pacaya
v. Civ. No. 23-cv-279-LM
Freedom Mortgage Corp.
Orlans, PC
Federal Mortgage Home Loan Corp.
Grafton County Sheriff’s Dept.
REPORT AND RECOMMENDATION
Plaintiff Elvis-Jack:Pacaya has sued several defendants,
alleging violations of the Fair Debt Collection Practices Act,
15 U.S.C. §§ 1692-1692p (“FDCPA”) and the Real Estate Settlement
Procedures Act, 12 U.S.C. § 2605(e)(3) (“RESPA”). Before the
court is defendant Freedom Mortgage Co.’s (“Freedom”) motion for
an injunction to declare plaintiff a vexatious litigant and for
sanctions. (Doc. No. 15) Pursuant to LR 72.1, the motion has
been referred to the undersigned Magistrate Judge for a report
and recommendation. For the reasons that follow, the district
judge should deny the motion.
Noting that the plaintiff has filed several similar – and
unsuccessful – lawsuits against Freedom and its executives
regarding the same property in this court and state court,
Freedom requests that the court enjoin Mr. Pacaya from filing
future lawsuits without first obtaining leave of court.
“Federal courts ‘possess discretionary powers to regulate
the conduct of abusive litigants.’” United States v. Gómez–
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Rosario, 418 F.3d 90, 101 (1st Cir. 2005) (citation omitted).
“‘[E]xtreme circumstances involving groundless encroachment upon
the limited time and resources of the court and other parties,’”
may justify a federal court’s issuance of an injunction barring
a party from further filing frivolous and vexatious lawsuits.
Otis Elevator Co. v. Int’l Union of Elevator Constructors, Local
4, 408 F.3d 1, 10 (1st Cir. 2005) (citation omitted). Any
“restrictions imposed must be tailored to the specific
circumstances presented.” Cok v. Fam. Ct., 985 F.2d 32, 34 (1st
Cir. 1993). Further, before a filing restriction may be
imposed, a litigant must be “warned or otherwise given notice
that filing restrictions [are] contemplated.” Id. at 35. In
determining whether a filing restriction is appropriate in this
case, the court recognizes “that the use of broad filing
restrictions against pro se plaintiffs ‘should be approached
with particular caution.’” Cok, 985 F.2d at 35 (citation
omitted).
Proceeding cautiously, as the First Circuit has instructed,
the court declines to recommend enjoining Mr. Pacaya at this
time. Given the outcomes in the numerous other lawsuits
pertaining to the property, mortgage, and foreclosure at issue,
it should be clear to Mr. Pacaya that he cannot obtain relief in
this court on the claims asserted in this case, or on any claims
arising out of the servicing and foreclosure of his mortgage.
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Accordingly, should Mr. Pacaya attempt to file any new action in
this court concerning these matters, the Court may, at that
time, recommend enjoining him from filing any new action in this
court arising from the mortgage and foreclosure of the property
located at 145 Bishop Road in Lisbon, New Hampshire.
Conclusion
Based on the foregoing, the district judge should deny
Freedom’s motion for a vexatious litigant injunction and
sanctions. (Doc. No. 15). Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
this notice. See Fed. R. Civ. P. 72(b)(2). The fourteen-day
period may be extended upon motion. Only those issues raised in
the objection(s) to this Report and Recommendation are subject
to review in the district court. See Sch. Union No. 37 v. United
Nat'l Ins. Co., 617 F.3d 554, 564 (1st Cir. 2010). Any issues
not preserved by such objection(s) are precluded on appeal. See
id. Failure to file any objections within the specified time
waives the right to appeal the district court's Order. See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
January 31, 2024
c: Elvis-Jack:Pacaya, pro se
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