Judith Tompson, Plaintiff v. David Fisher d/b/a Fisher Financial Services, Inc., Defendant

2019 DNH 012

• Court: District Court, D. New Hampshire
• Decided: January 15, 2019
• Docket: 17-cv-069-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Judith Tompson, Plaintiff

v. Case No. 17-cv-069-SM Opinion No. 2019 DNH 012 David Fisher d/b/a Fisher Financial Services, Inc., Defendant

O R D E R

Pro se plaintiff, Judith Tompson, brings this action

against David Fisher, d/b/a Fisher Financial Services

(“Fisher”), seeking compensation for an array of alleged

violations of state and federal law. At all relevant times,

Fisher was acting as the duly authorized agent of the Lancelot

Court Condominiums Association.

By prior order (document no. 11), the court dismissed

several of Tompson’s claims. What remain are her claims that,

by recording three liens against Tompson’s condominium unit for

unpaid assessments, Fisher violated: (1) the federal Fair Debt

Collection Practices Act; (2) the New Hampshire Unfair,

Deceptive or Unreasonable Collection Practices Act; (3) the New

Hampshire Consumer Protection Act; and (4) the Massachusetts

Consumer Protection Act. Tompson also alleges that, by recording those liens against her unit, Fisher was negligent and

breached various common law duties he owed to her.

Fisher now moves for summary judgment as to all of

Tompson’s remaining claims. That motion is granted.

Background

The factual backdrop to this case has been recounted many

times, by numerous courts - both state and federal - including

the magistrate judge in her Report and Recommendation (document

no. 5). It need not be repeated. It is sufficient to note that

Tompson lives in the Lancelot Court Condominiums, in Salem, New

Hampshire. Fisher Financial Services is a Massachusetts

corporation that provides property management, billing, and

payment processing services under a contract with the Lancelot

Beginning in or around 2008, Tompson fell into arrears on

her condominium assessments and fees. Over the course of about

three years, Lancelot Court brought three separate collection

actions against Tompson to recover those unpaid sums. Each time

it prevailed. In one of those cases, Tompson brought claims

against Fisher as a third-party defendant, in which she alleged

many of the same (or related) claims to those advanced in this

2 action. See “Counterclaim” in Lancelot Court Condominium v.

Tompson. No. 218-2014-cv-220 (N.H. Sup. Ct.) (document no. 40-

8). In that case, the jury returned a verdict in favor of

Lancelot Court and awarded it $17,000. Subsequently, the trial

court awarded the condominium association an additional

$22,742.51 in costs and attorneys’ fees. See Order dated March

4, 2014 (document no. 40-9) (noting that the “barrage of motions

filed by Tompson in what should have been a fairly

straightforward dispute over unpaid condominium assessments”

justified an award of fees that “would appear to be high given

the size of the verdict and nature of the dispute”).

During that same time period, attorneys for the condominium

association prepared three “memoranda of lien” against Tompson’s

unit. See generally N.H. Rev. Stat. Ann. 356-B:46 (providing

that the “unit owners’ association shall have a lien on every

condominium unit for unpaid assessments” and stating that such

liens may be perfected by recording a “memorandum of lien” in

the appropriate registry of deeds). Fisher, as the agent for

the Lancelot Court Condominiums Association, signed and recorded

those liens in the registry of deeds. See Memoranda of Lien

(documents no. 40-6, 40-10, and 40-11). 1

1 During the trial, Tompson questioned Fisher about one of the liens in question. Fisher testified that, “the attorneys

3 Substantial additional state and federal court litigation

ensued involving a writ of execution, a sheriff’s sale of

Tompson’s unit, the eventual foreclosure of the mortgage deed to

Tompson’s unit, and at least two efforts to evict her from that

unit. But, those proceedings are not material to this action.

In this action, Tompson claims that Fisher violated various

state and federal consumer protection statutes when, as the

authorized agent of the condominium association, he signed and

recorded the various liens prepared by the association’s legal

counsel. Tompson also claims that, in so doing, Fisher became

liable to her for various acts of negligence.

Discussion

Judith Tompson is no ordinary pro se litigant. First, she

is an attorney, apparently licensed to practice in

Massachusetts. She is also a prolific filer of meritless

claims. For example, in the last three years, Tompson has filed

(or improvidently removed) at least eleven cases in (or to) this

[for the association] actually drafted it. The number on here, the amount that’s due, comes from my office, but, you know, I have no idea how you go about drafting a memorandum of lien. . . . I’m not an attorney. I’m a CPA.” Trial Transcript from Lancelot Court Condominium Association v. Tompson, No. 218-2014- cv-220 (document no. 54-28) at 87.

4 court alone. Not one had any merit. And, none advanced even a

single claim that survived dismissal or summary judgment. 2

Tompson has fared no better in state court. During the

same three year period, the New Hampshire Supreme Court has

issued at least seven opinions in cases brought by, or appealed

by, Tompson. In none of those cases did she prevail.

While Tompson’s opponents in each of those cases ultimately

prevailed, it was not until after they were forced to expend

substantial time, energy, and money vindicating their rights,

defending themselves against meritless attacks, or seeking to

have an improvidently removed action remanded to state court.

2 Three of Tompson’s federal cases involved “appeals” of, or collateral attacks upon, her state court convictions for felony reckless conduct, resisting arrest, and disobeying a police officer. See Tompson v. State of N.H., 15-cv-293-JL; Tompson v. Rockingham County Sheriff’s Dept., 15-cv-471-LM; Tompson v. LeDuc, 17-cv-042-SM. One involved a challenge to Tompson’s elevated Medicaid deductible (due to her receipt of SSA benefits) on grounds that it discriminates against her on the basis of disability. Tompson v. N.H. Dept. of Health and Human Service, 16-cv-168-JL. And, at least seven cases in this court (including this one) have related in some way to Tompson’s failure to pay her condominium assessments, the association’s efforts to collect those assessments, and Tompson’s eventual loss of title to her condominium unit to foreclosure. See Tompson v. Lancelot Court Condo. Ass’n, 16-cv-215-JD; Tompson v. Lancelot Court Condo Ass’n, 16-cv-488-JL; Tompson v. First Eastern Mortgage Corp., 17-cv-113-PB; Thompson v. FNMA, 17-cv- 699-SM; Tompson v. Madhu Gaddam, 18-cv-470-LM; Tompson v. Madhu Estates, LLC; 18-cv-555-PB.

5 Tompson’s numerous meritless cases have also required both the

state and federal courts to expend substantial resources to

resolve them.

Although the various judges of this court have been patient

with Tompson, they have also warned her that frivolous and/or

vexatious litigation will not be tolerated. So, for example,

the magistrate judge advised Tompson that she “should be aware

that the federal court may sanction a party for filing vexatious

litigation. The court will not wait to be inundated with

frivolous actions, arising from the same, previously litigated

matters, before issuing sanctions as necessary to prevent

abuses. If future filings relating to the same or closely-

related matters in the future are deemed to be vexatious, this

court may issue an injunction restricting plaintiff’s ability to

file new cases in this court.” Tompson v. Lancelot Court Condo.

Assn, 16-cv-488-JL, Report and Recommendation (document no. 3)

(citing Fed. R. Civ. P. 11(c)). Judge Barbadoro has counselled

Tompson in a similar fashion. See Madhu Estates v. Tompson, 18-

cv-555-PB (“Tompson is cautioned that vexatious removals are

sanctionable . . . [and] this court will not hesitate to

sanction Tompson if she removes another landlord-tenant action

based on a frivolous or objectively unreasonable argument that

6 her counterclaims provide a basis for the court to exercise its

removal jurisdiction.”).

As was the case in each of Tompson’s prior suits, the

claims advanced in this proceeding cannot survive summary

judgment. There is no evidence of record suggesting that

Fisher’s challenged conduct - the recordation of valid,

statutorily-authorized liens against Tompson’s unit - runs afoul

of the requirements of the federal Fair Debt Collections

Practices Act, New Hampshire’s Unfair, Deceptive or Unreasonable

Collection Practices Act, the New Hampshire Consumer Protection

Act, or the Massachusetts Consumer Protection Act. As for

Tompson’s negligence claims, she has failed to show that Fisher

breached any duty of care owed her. Moreover, because it

appears that Tompson’s claims were (or could have been) fully

litigated in earlier state court proceedings, it is likely that

she is precluded from relitigating them in this forum. See

Tompson’s “counterclaims” in Lancelot Court Condominium v.

Tompson, no. 218-2014-cv-220 (N.H. Sup. Ct.) (document no. 40-8)

(advancing claims of negligence and statutory violations against

Fisher relating to the recordation of liens against her

condominium unit). See also Tompson’s complaint in Tompson v.

Lancelot Court Condo. Ass’n, 16-cv-488-JL (asserting that the

recordation of “non-conforming property liens for alleged

7 default of condo fee payments” violates state law and

“constitutes a taking under the fifth amendment.”) See

generally In re Alfred P., 126 N.H. 628, 629 (1985) (discussing

the doctrines of res judicata and collateral estoppel).

Parenthetically, the court notes that it is unclear whether

Fisher is even a proper defendant for many, if not all, of

Tompson’s claims. Fisher did not prepare the liens at issue,

nor was any recorded in his name or for his benefit. Rather,

each was “in the name of the Association for unpaid condominium

assessments and dues.” Moreover, Fisher executed each of those

liens as the disclosed “duly authorized” agent of the Lancelot

Court Condominiums Association. That is to say, he was

undeniably acting as the authorized agent of a disclosed

principal. But, because neither party has briefed the issue,

the court need not resolve whether the association’s authorized

agent can be held personally liable for alleged statutory

violations arising from the recordation of the liens at issue.

See generally Bald v. PCPA, LLC, 2016 WL 1587227, 2016 DNH 081

(D.N.H. April 19, 2016) (discussing general principles that

limit personal liability of an authorized agent acting on behalf

of a disclosed principal).

8 Conclusion

In a relatively short period of time, Judith Tompson has

become one of this court’s most prolific filers of meritless

claims. Of course, the court cannot rule out the possibility

that she may, one day, have a viable cause of action to pursue

in this forum. But, if “what’s past is prologue,” that seems

unlikely - particularly given her apparent unwillingness to

accept the finality of the numerous state court decisions ruling

against her or the implications of res judicata, collateral

estoppel, and the Rooker-Feldman doctrine.

This much is clear, however: all of Tompson’s claims

arising out of her failure to pay condominium assessments, liens

against her unit, the foreclosure of the mortgage deed to that

unit, and the efforts to evict her from that unit appear to have

been fully, fairly, and finally resolved. As an attorney, she

is presumed to understand the implications of those final

resolutions and the preclusive effect they have on future

filings. She is also presumed to understand that this court

does not act as an appellate court with respect to state court

decisions. Any future claims filed in this court and arising

out of the same or related facts will be resolved summarily. If

necessary, the court will consider whether it is appropriate to

9 restrict Tompson’s ability to file such cases. It will also

impose appropriate costs and fees.

For the foregoing reasons, as well as those set forth in

defendant’s legal memoranda, the record reveals that there are

no genuinely disputed material facts and that defendant is

entitled to judgment as a matter of law. Accordingly,

defendant’s motion for summary judgment (document no. 40) is

granted. The Clerk of Court shall enter judgment in accordance

with this order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

January 15, 2019

cc: Judith Tompson, pro se Kenneth B. Walton, Esq. Elena M. Brander, Esq.