Tompson v. Fisher

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Judith Tompson
v. Civil No. 17-cv-069-SM
David Fisher and
Fisher Financial Services, Inc.
REPORT AND RECOMMENDATION
Pro se plaintiff, Judith Tompson, has filed a complaint
(Doc. No. 1) asserting that defendant David Fisher,
individually, and d/b/a Fisher Financial Services, Inc., is
liable to her for damages. The complaint is before this court
for preliminary review. See 28 U.S.C. § 1915(e)(2); LR
4.3(d)(2).
Preliminary Review Standard
The magistrate judge conducts a preliminary review of
complaints like Tompson’s, which are filed in forma pauperis.
The magistrate judge may recommend to the district judge that
one or more claims be dismissed if, among other things, the
court lacks jurisdiction, a defendant is immune from the relief
sought, or the complaint fails to state a claim upon which
relief may be granted. See 28 U.S.C. § 1915(e)(2); LR
4.3(d)(2). In conducting its preliminary review, the court
construes pro se complaints liberally. See Erickson v. Pardus,
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551 U.S. 89, 94 (2007) (per curiam). The complaint must contain
“sufficient factual matter, accepted as true, to ‘state a claim
to relief.'” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted).
Background
Tompson resides at Lancelot Court Condominiums (“Lancelot”)
in Salem, New Hampshire. Fisher Financial Services, Inc.
(“Fisher Financial”) is a Massachusetts corporation that
provides property management, billing, and payment processing
services under contract with Lancelot. David Fisher is the
principal of Fisher Financial. Tompson fell behind in paying
the condominium assessments and late fees that were billed to
her by Fisher Financial on Lancelot’s behalf, and Tompson’s
dispute with Lancelot has been the subject of multiple cases in
state and federal court, including this case.
I. State Court Litigation Relating to Lancelot
In 2009, Lancelot sued Tompson in small claims court to
collect assessments and fees that became overdue starting in
2008, see Lancelot Court Condo. Ass’n v. Thompson, No. 473-2009-
SC-00217 (N.H. Cir. Ct., 10th Cir. Dist. Div., Salem) (“Lancelot
I”). Lancelot prevailed, and the New Hampshire Supreme Court
(“NHSC”) dismissed Tompson’s appeal.
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Tompson remained in her condominium unit after she fell
behind in her assessments and fees, and in February 2013,
Tompson stopped paying Lancelot’s bills altogether. David
Fisher, on Lancelot’s behalf, signed three memoranda of liens
for unpaid condominium assessments and fees, which were recorded
in the county registry of deeds in February and November 2014
and in November 2015. See Liens, Feb. 21, 2014; Nov. 20, 2014;
Nov. 12, 2015 (Doc. No. 1-1, at 1, 3, 5).
Lancelot filed a second collection action against Tompson
in Superior Court in Rockingham County in 2014 to recover
assessments and fees that had accrued since January 1, 2010, see
Lancelot Court Condo. Ass’n v. Tompson, No. 218-2014-cv-00220
(N.H. Super., Rockingham Cnty.) (“Lancelot II”). Lancelot
prevailed again. Tompson appealed, and the NHSC affirmed. See
Lancelot Court Condo. Ass’n v. Tompson, No. 2015-0252, 2016 WL
3475739, 2016 N.H. LEXIS 142 (N.H. Apr. 29, 2016).
The Superior Court issued a writ of execution on the
judgment in Lancelot II in September 2016, see Doc. No. 1-1, at
14. A sheriff’s sale of the condominium unit followed in
December 2016. Lancelot acquired Tompson’s unit at that sale,
subject to Tompson’s right of redemption. See Notice of
Tenancy, Dec. 20, 2016 (Doc. No. 1-1, at 16). Lancelot issued
Tompson a demand for rent, signed by Fisher, see id., after the
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sheriff’s sale.
Lancelot filed a third collection action, in 2015, to
collect additional unpaid condominium assessments and attorney
fees that had accrued prior to that sheriff’s sale. See
Lancelot Court Condo. Ass’n v. Tompson, No. 473-2015-cv-00131
(N.H. Cir. Ct., 10th Cir. Dist. Div., Salem, filed Dec. 1, 2015)
(“Lancelot III”). Lancelot prevailed again on liability in that
case, see Lancelot III (N.H. Cir. Ct., 10th Cir., Dist. Div.,
Salem, Apr. 7, 2016), and the NHSC declined Tompson’s
interlocutory appeal of the liability determination, see
Lancelot Court Condo. Ass’n v. Tompson, No. 2016-0512 (N.H. Oct.
13, 2016).
II. Federal Litigation Relating to Lancelot
This is the third federal case Tompson has filed relating
to Lancelot and Fisher Financial’s bills for Lancelot’s
assessments and fees. Lancelot was the defendant in the two
prior cases. See Tompson v. Lancelot Court Condo. Ass’n, No.
16-cv-215-JD (D.N.H.) (“Tompson I”); Tompson v. Lancelot Court
Condo. Ass’n, No. 16-cv-488-JL (D.N.H.) (“Tompson II”). Tompson
I was dismissed in July 2016, pursuant to 28 U.S.C.
§ 1915(e)(2), and an appeal of that dismissal is pending in the
First Circuit. See Tompson I, 2016 WL 3660313, at *2, 2016 U.S.
Dist. LEXIS 86795, at *2-*6 (D.N.H. June 9, 2016) (ECF No. 3),
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R&R adopted, 2016 WL 3661217, 2016 U.S. Dist. LEXIS 87564 (D.N.H.
July 5, 2016) (ECF No. 5), appeal filed, No. 16-1999 (1st Cir.,
Aug. 2, 2016). A Report and Recommendation (“R&R”),
recommending dismissal, has been issued in Tompson II, and that
R&R awaits the district judge’s ruling at this time. See R&R,
Tompson II, No. 16-cv-488-JL (D.N.H. Mar. 16, 2017), ECF No. 3.1
Claims
Tompson filed this action in February 2016, naming David
Fisher, both individually and d/b/a Fisher Financial, as the
defendant. Construed liberally, the complaint asserts the
following claims against Fisher:
1. David Fisher signed and recorded liens listing the
amounts due in a lump sum, without specifying the dates
when the debts accrued, and without notifying plaintiff
before recording the liens, rendering defendant liable to
plaintiff for violations of:
A. the New Hampshire unfair debt collection statute,
N.H. Rev. Stat. Ann. (“RSA”) Ch. 358-C;
B. the New Hampshire consumer protection act, RSA
Ch. 358-A;
1On March 17, 2017, Tompson filed a fourth federal case
relating to the condominium unit at issue here. In that case,
Tompson seeks to enjoin a mortgage foreclosure sale on the
condominium unit. See Tompson v. First E. Mortg. Corp., No. 17-
cv-113-PB (D.N.H.). Judge Barbadoro has scheduled a hearing on
plaintiff’s motion to enjoin the foreclosure. A parallel state
proceeding to enjoin the foreclosure is also pending in Superior
Court in Rockingham County. See Tompson v. Randolph Bank, No.
218-2017-cv-200 (N.H. Super., Rockingham Cnty.).
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C. the Massachusetts consumer protection act, Mass.
Gen. L. Ch. 93A; and
D. the Fair Debt Collection Practices Act, 15 U.S.C.
§§ 1692-1692p, with respect to liens recorded in (i)
February 2015, (ii) November 2014, and (iii) February
2014.
2. Defendant is liable to plaintiff for negligence, in
that:
A. Fisher did not provide plaintiff with proper
notice of the sheriff’s sale before demanding rent on
Lancelot’s behalf;
B. Fisher added late charges to assessments owed by
Tompson in amounts not authorized by Lancelot’s
bylaws, thereby negligently misrepresenting the
amounts due;
C. Fisher did not provide plaintiff with a demand
letter or opportunity for a payment plan before
Lancelot filed suit;
D. Fisher failed to send timely notices of
arrearages to Tompson, in violation of Fisher’s duties
under its contract with Lancelot;
F. Fisher failed to credit fuel assistance payments
to Tompson’s account, thereby negligently
misrepresenting the amounts due; and
G. Tompson’s ability to obtain maintenance services
to her condominium unit was cut off after February
2013, but Fisher continued to bill her for her unit’s
share of the cost of such services as part of the
condominium assessment.
3. Fisher is liable to Tompson for violations of the New
Hampshire Condominium Act, for signing and recording liens
that did not comply with RSA § 346-B:46(III), in (i)
February 2015, (ii) November 2014, and (iii) February 2014.
4. Fisher is liable to Tompson for violations of the
Uniform Commercial Code (“UCC”), relating to negotiable
instruments, for applying Tompson’s payments to her oldest
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arrearages and not to bills that had most recently accrued
when she mailed in those payments.
5. The condominium unit is exempt from levy under the
Internal Revenue Code, 26 U.S.C. § 6334(a)(13)(B)(i).
6. The liens recorded in 2014 and 2015 effected a taking
of Tompson’s property.
Tompson seeks damages and declaratory relief in this case.
In particular, she seeks a judgment regarding Fisher’s liability
for “gross negligence” and “willful misconduct,” for filing
“wrongful liens and violating [state and] federal laws.” Compl.
(Doc. No. 1), at 17.
Discussion
I. Federal Fair Debt Collection Practices Act
The federal Fair Debt Collection Practices Act, 15 U.S.C.
§ 1692k(d), provides that actions to enforce any liability under
the Act may be brought in federal court “within one year from
the date on which the violation occurs.” Plaintiff alleges
claims arising from liens which she alleges were signed and
recorded in February 2014, November 2014, and November 2015.
The complaint includes as an attachment a transcript from the
Lancelot II jury trial which reveals that plaintiff was aware of
the February 2014 lien at the time of the February 2015 trial.
Plaintiff filed this action in February 2017. The federal debt
collection practices act claim relating to the February 2014
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lien is time-barred, and Claim 1(D)(iii) should be dismissed.
II. Homestead Exemption, 26 U.S.C. § 6334(a)(13)(B)
Plaintiff requests that this court issue a declaratory
judgment regarding her entitlement to a homestead exemption for
her principal residence under the Internal Revenue Code. This
court does not issue advisory opinions. As it does not appear
that plaintiff is subject to any levy for federal taxes, the
district judge should deny plaintiff’s request for a declaratory
judgment, regarding the applicability of 26 U.S.C.
§ 6334(a)(13)(B). Claim 5 should be dismissed.
III. Violations of RSA § 346-B:46(III) and the UCC
Plaintiff has no private right of action under the
Condominium Act relating to whether Fisher properly prepared and
perfected liens before recording them on Lancelot’s behalf.
Furthermore, plaintiff’s claims asserting violations of the UCC
provisions relating to negotiable instruments do not state
claims upon which relief can be granted in this case.
Accordingly, Claims 3 and 4 should be dismissed.
IV. Takings Clause Claim
Plaintiff has alleged that her property has been taken
without just compensation. Specifically, she alleges, Fisher
signed and recorded liens that she asserts did not comply with,
and were not properly perfected under state law. Fisher,
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however, is not a state actor. Plaintiff has failed to allege
facts showing that any of her property was taken by state
action, for the purposes of stating a claim under the Fifth
Amendment. Accordingly, Claim 6 should be dismissed.
V. Remaining Claims
Without prejudice to defendant’s ability to raise any
proper grounds upon which the court may dismiss the remaining
claims asserted by plaintiff, including collateral estoppel, the
statute of limitations, the absence of any duty owed to
plaintiff, and failure to state a claim, the court in the Order
issued this date has directed service of the remaining claims
identified in this Report and Recommendation upon defendant.
Conclusion
For the foregoing reasons, the district judge should
dismiss Claims 1(D)(iii), 3, 4, 5, and 6, and should deny
plaintiff’s request for a declaratory judgment regarding 26
U.S.C. § 6334(a)(13)(B). 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. Failure to file objections
within the specified time waives the right to appeal the
district court’s order. See Santos-Santos v. Torres-Centeno,
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842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
March 23, 2017
cc: Judith Tompson, pro se
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