Gilroy’s complaint did not name Segal or McHugh as 1

defendants. Upon the court’s customary preliminary review in pro

se in forma pauperis cases, the court construed Gilroy’s

complaint to allege claims against Segal and McHugh, who were

attorneys representing the Ponemah Trust when the loan was

issued. See Report and Recommendation, document no. 6. The court

ordered service upon Segal and McHugh. The United States Marshal

attempted, but was unable, to complete service due to an

incorrect address. To this day, Segal and McHugh have not been

served in this case. Noting the lack of service upon them, Segal

and McHugh nevertheless joined in the motion for summary

judgment. Addressing the lack of service at this stage is

unnecessary, however, as summary judgment is granted in the

defendants’ favor. 

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Rosemary A. Gilroy

v. Civil No. 07-cv-300-JL

Opinion No. 2009 DNH 129

James Kasper, Trustee of the

Ponemah Trust, et al.

MEMORANDUM ORDER

This case involves allegations of, among other things,

fraudulent lending practices by a private lender. Pro se

plaintiff Rosemary A. Gilroy, proceeding in forma pauperis,

brought suit against the defendants, the Ponemah Trust and its

trustee, James Kasper (collectively “the Ponemah Trust”), Alan H.

Segal, and Kurt R. McHugh, alleging that they engaged in

fraudulent lending practices related to two condominium units

which Gilroy owns in Amherst, New Hampshire. 

1

Case 1:07-cv-00300-JL Document 52 Filed 08/31/09 Page 1 of 17
2

The defendants filed a motion to dismiss all claims against

them. See Fed. R. Civ. P. 12(b)(6). Because the defendants

submitted additional materials beyond the pleadings, the court

denied the motion to dismiss without prejudice, informing the

defendants that they could re-file their motion as a motion for

summary judgment. Order, doc. no. 36; see Fed. R. Civ. P. 56. 

That motion for summary judgment is now before the court. The

defendants seek dismissal of all claims and an award of costs and

attorney’s fees.

This court has jurisdiction over this action under 28 U.S.C.

§ 1332(a)(1) (diversity). After oral argument, the defendants’

motion for summary judgment is granted, and their request for

attorney’s fees denied. As discussed infra, taking all

reasonable inferences in favor of Gilroy, the undisputed facts

demonstrate that she can not prevail on her claims as a matter of

law.

I. Applicable legal standard

Summary judgment is appropriate if, viewing the record in a

light most favorable to the non-moving party, “the pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(c); see Fiacco v. Sigma Alpha Epsilon

Case 1:07-cv-00300-JL Document 52 Filed 08/31/09 Page 2 of 17
3

Fraternity, 528 F.3d 94, 98 (1st Cir. 2008). In ruling on a

motion for summary judgment, the court must draw all reasonable

inferences in favor of the non-moving party. Est. of Bennett v.

Wainwright, 548 F.3d 155, 165 (1st Cir. 2008). 

The moving party must first aver “‘an absence of evidence to

support the nonmoving party’s case.’” Maldonado-Denis v.

Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994) (quoting

Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)

(internal quotations omitted)). “‘The burden then shifts to the

nonmovant to establish the existence of at least one fact issue

which is both genuine and material’”. Id. The non-moving party

“may not defeat a properly focused motion for summary judgment by

relying upon mere allegations or evidence that is less than

significantly probative.” Id. 

Accordingly, summary judgment may be appropriate if the

nonmoving party relies only upon “‘conclusory allegations,

improbable inferences, and unsupported speculation.’” MaldonadoDenis, 23 F.3d at 581 (quoting Median-Munoz v. R.J. Reynolds

Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)); see Estate of

Bennett, 548 F.3d at 165; Fiacco, 528 F.3d at 98. Importantly,

“pro se status [will] not free a litigant in a civil case of the

obligation to comply” with these rules. Ruiz Rivera v. Riley,

209 F.3d 24, 28 n.2 (1st Cir. 2000).

Case 1:07-cv-00300-JL Document 52 Filed 08/31/09 Page 3 of 17
Gilroy’s complaint is not verified and she did not submit 2

an affidavit with her objection. In addition, many of the

documents she did submit with her pleadings have little relevance

to her remaining claims. Gilroy belatedly submitted an affidavit

with her surreply that contained several statements disputing the

evidence presented by the defendants on summary judgment. Her

statements were not made on personal knowledge and were

unsupported by evidence in the record. The statements in her

affidavit, therefore, do not constitute competent evidence

sufficient to establish a genuine dispute of material fact for

purpose of surviving summary judgment. See Fed. R. Civ. P.

56(e)(2), L.R. 7.2(b)(2). Moreover, the court questioned Gilroy

at oral argument regarding the statements in her affidavit in an

effort to assist her, as a pro se litigant, in developing the

summary judgment record. As explained infra, she stated nothing

at oral argument that created a genuine issue of material fact. 

Because of Gilroy’s pro se status, the court accepts her surreply

affidavit as part of the summary judgment record.

4

II. Background

Viewed under the summary judgment standard, the record

reveals the following facts. See Fed. R. Civ. P. 56(c). On 2

March 1, 2000, Gilroy purchased five office condominium units

(Units 1 through 5) in Amherst, New Hampshire. She converted

Unit 1 into a residential condominium and now lives there. In

2004, Gilroy granted mortgages on Units 1, 2, and 4 to Ameriquest

(“Ameriquest loans”) to secure loans made by Ameriquest that are

now in default. Gilroy used the funds to begin converting the

units for resale as residential condominiums. But Gilroy failed

to make timely payments on the Ameriquest loans and they went

into arrears.

In August of 2005, Gilroy needed additional funds to

complete the renovations on Units 3 and 5, which were

Case 1:07-cv-00300-JL Document 52 Filed 08/31/09 Page 4 of 17
Gilroy disputes the fair market value of her units but 3

fails to offer competent evidence to support her claim.

5

unencumbered. She retained Dan Monroe, a mortgage broker, to

help her obtain financing for the project. Gilroy provided

Monroe with her financial statement and an operating budget

outlining her monthly expenditures for the next year. These

documents indicated that her only income was from social security

benefits, that Ameriquest held mortgages on the other units (1,

2, and 4), that she owed $15,000 in arrears on those loans, and

that her expenditures for the next year totaled $230,492, which

included, among other things, payments on the Ameriquest loans,

arrears owed to Ameriquest, and costs to complete the renovations

on Units 3 and 5. 

Gilroy was unable to obtain conventional bank financing and

sought financing from the Ponemah Trust, a private lender. An

agent for the Ponemah Trust inspected the exterior of the

property and determined that the fair market value of Units 3 and

5 combined was $300,000. The Ponemah Trust offered Gilroy a 3

loan, secured by a mortgage on both Units 3 and 5, for $125,000. 

After Gilroy asked for a larger loan, she and the Ponemah Trust

agreed to increase the amount to $150,000. On September 29,

2005, Gilroy executed a promissory note and mortgage on Units 3

and 5 to the Ponemah Trust in the amount of $150,000 (“Ponemah

loan”). Under the terms of the loan, the first twelve monthly

Case 1:07-cv-00300-JL Document 52 Filed 08/31/09 Page 5 of 17
Ameriquest never proceeded with the foreclosure on Units 1, 4

2 and 4.

6

payments would be applied only to interest. Gilroy intended to

complete the units and sell them within a year.

Attorney McHugh, a defendant in this case, represented the

Ponemah Trust at the loan closing. Although Gilroy began to

claim, late in the oral argument on these motions, that she

showed McHugh the financial statement and budget at the closing,

the summary judgment record is devoid of any such claim (denied

by McHugh in his affidavit) or any evidence to support it. All

indications of, and inferences from, the summary judgment record

are that the Ponemah Trust extended the loan based on the value

of the collateral (Units 3 and 5), and not on Gilroy’s personal

financial position.

Gilroy used a portion of the Ponemah loan funds to make

payments on the Ameriquest loans. Unable to finish renovating or

sell Units 3 and 5, she stopped making payments on the Ponemah

loan in the spring of 2006. In July 2006, after noticing a

foreclosure notice on the Ameriquest-financed units in the

newspaper, Gilroy filed a Chapter 13 bankruptcy petition, which

was ultimately dismissed. Following a bankruptcy creditors’ 4

meeting on January 10, 2007, Gilroy approached McHugh seeking

additional funding from the Ponemah Trust to complete the units. 

McHugh told Gilroy that he would discuss the possibility of

Case 1:07-cv-00300-JL Document 52 Filed 08/31/09 Page 6 of 17
7

additional funding with the Ponemah Trust and requested that

Gilroy provide estimates from contractors showing the costs for

completing the remainder of the work on the units as well as

documentation regarding the improvements required to obtain

occupancy permits from the Town of Amherst.

Gilroy promptly provided estimates to McHugh, but they bore

dates from early 2006. McHugh soon responded that the estimates

were outdated and explained that the Ponemah Trust was “not

willing to render a decision on additional financing” until new

estimates were provided to him. Gilroy responded that the

estimates took a while to obtain and that she wished to move

forward quickly. McHugh explained that the Ponemah Trust needs

“information or documentation to determine whether it would be a

good idea to extend more funds to a borrower that has not made

payments on the current loan[] in some time.” McHugh further

explained that he was “just gathering information for the lender

to see if an additional mortgage would assist in ultimately

paying off the current mortgages.”

In February or March of 2007, Gilroy forwarded McHugh a copy

of a letter from the Town of Amherst listing the improvements

necessary to obtain certificates of occupancy. Around this time,

another private lender, not associated with the Ponemah Trust or

McHugh, expressed willingness to lend Gilroy additional funds,

secured by a mortgage on Units 3 and 5. McHugh told Gilroy that

Case 1:07-cv-00300-JL Document 52 Filed 08/31/09 Page 7 of 17
To the extent Gilroy’s complaint also contained claims for 5

discrimination, “violation of personal injury law,” harassment,

and violations of Federal Consumer Protection laws, Gilroy

Complaint, doc. no. 1, these claims were dismissed under Judge

Muirhead’s report and recommendation, approved by the court

without objection. Report and Recommendation, doc. no. 6;

Amended Order, doc. no. 12. 

8

the Ponemah Trust wanted to wait and see if this separate

financing was provided. It was not. McHugh then informed Gilroy

that the Ponemah Trust would not extend additional financing to

her. Gilroy did not complete the renovations. Neither Ponemah

Trust nor Ameriquest has foreclosed on the mortgages securing

loans to Gilroy.

II. Analysis

Gilroy alleges fraud, intentional infliction of emotional

distress, and violations of the New Hampshire Consumer Protection

Act, Revised Statutes Annotated (“RSA”) 358-C (“CPA”). The 5

defendants seek summary judgment on all counts.

A. Fraud

Gilroy claims that the defendants defrauded her by

intentionally leading her to believe for several months in 2006

and 2007 that the Ponemah Trust would lend her additional funds

when the trust never intended to do so, causing Gilroy to rely

upon this representation and forgo additional avenues of

financing during this time. To prove her fraud claim, Gilroy

Case 1:07-cv-00300-JL Document 52 Filed 08/31/09 Page 8 of 17
Neither party contests the admissibility of the emails. 6

9

must produce evidence showing that the defendants “made a

representation with knowledge of its falsity or with conscious

indifference to its truth with the intention to cause [her] to

rely upon it.” Van Der Stok v. Van Voorhees, 151 N.H. 679, 682

(2005). She has not. 

Viewed in a light most favorable to Gilroy, the summary

judgment record contains no indication that any of the defendants

led her to believe that additional financing was guaranteed from

the Ponemah Trust, much less that they did so without any

intention of providing it. The only evidence produced on this

issue by either party were copies of emails between Gilroy and

McHugh. In the emails, McHugh states that the Ponemah Trust 6

would not “render a decision on additional financing” until

updated estimates were provided to him, that the Ponemah Trust

needed this information “to determine whether it would be a good

idea to extend more funds,” and that McHugh was “just gathering

information for the lender to see if an additional mortgage would

assist in ultimately paying off the current mortgages” (emphasis

added). These emails--submitted and relied upon by Gilroy

herself--do not contain any information to suggest that

defendants intentionally led Gilroy to falsely believe that the

Ponemah Trust would extend additional financing. The defendants

are entitled to summary judgment on this claim.

Case 1:07-cv-00300-JL Document 52 Filed 08/31/09 Page 9 of 17
10

B. Intentional Infliction of Emotional Distress

The defendants are also entitled to judgment as a matter of

law on Gilroy’s emotional distress claim. Taking those facts

which are properly supported by competent evidence in a light

most favorable to Gilroy, Gilroy cannot sustain her burden of

proof to show that the defendants, “by extreme and outrageous

conduct[,] intentionally cause[d] [her] severe emotional

distress.” Konefal v. Hollis/Brookline Coop. Sch. Dist., 143

N.H. 256, 260 (1998).

Gilroy claims that she suffered from a number of ailments as

a result of the stress which the defendants caused her, due to

the “looming foreclosure” of her premises. There is no evidence

in the record that the defendants ever filed or threatened

foreclosure on Units 3 or 5. By her own allegations, the only

foreclosure Gilroy ever faced were initiated not by the Ponemah

Trust on Units 3 and 5, but by Ameriquest on Units 1, 2 and 4.

Even assuming that this would not be fatal to Gilroy’s

emotional distress claim, the defendants would still be entitled

to summary judgment because Gilroy has not even alleged, much

less submitted summary-judgment evidence, of conduct “‘so

outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.’” 

Case 1:07-cv-00300-JL Document 52 Filed 08/31/09 Page 10 of 17
11

Mikell v. Sch. Admin. Unit No. 33, 972 A.2d 1050, 1055 (N.H.

2009) (quoting Restatement (Second) of Torts § 46 cmt. d, at 73

(1965)). The defendants’ conduct, even with the ill will

attributed to them by Gilroy, does not constitute the type of

extreme and outrageous conduct necessary to impose liability for

intentional infliction of emotional distress. See Morancy v.

Morancy, 134 N.H. 493, 496 (1991) (noting that conduct must be

“so severe that no reasonable [person] could be expected to

endure it” (quoting Restatement (Second) of Torts § 46, comment

j.)). Summary judgment is granted to the defendants on Gilroy’s

claim for intentional infliction of emotional distress.

C. New Hampshire Consumer Protection Act

As construed by Judge Muirhead without objection by Gilroy,

her Consumer Protection Act claim is that the defendants engaged

in unfair and deceptive trade practices when they “(1) provided

her with a mortgage on her property knowing that she did not have

the means to make the required payments; (2) refused to extend

her additional funds knowing that would prevent her from being

able to repay the loans by [selling] her condominiums; (3) and

conducted the transaction in an intentionally deceptive manner to

prevent her from seeking alternative financing.” Report and

Recommendation, doc. no. 6, at 12-13.

Case 1:07-cv-00300-JL Document 52 Filed 08/31/09 Page 11 of 17
 Again, although there is evidence in the summary judgment 7

record that Gilroy provided her budget and personal financial

information (specifying her debt to Ameriquest) to mortgage

broker Monroe, there is no competent evidence that that

information was provided--by Gilroy, Monroe or anyone else--to

the defendants. All indications from the undisputed evidence are

that the Ponemah Trust loan was made based on the value of the

collateral.

12

To prove her CPA claim, Gilroy must show that the defendants

used an “unfair or deceptive act or practice in the conduct of

any trade or commerce” within the state of New Hampshire. RSA

358-A:2. The CPA contains a nonexhaustive list of prohibited

acts. Id. For conduct not specified under the CPA, the court

applies “the rascality test” and asks whether the conduct

“attain[s] a level of rascality that would raise an eyebrow of

someone inured to the rough and tumble of the world of commerce.”

State v. Sideris, 157 N.H. 258, 263 (2008); Milford Lumber Co. v.

RCB Realty, 147 N.H. 15, 17 (2001). 

1. Ability to make mortgage payments

Gilroy alleges that the defendants made the $150,000 loan

knowing that she would not be able to make payments on it.

Specifically, she argues (but presents no evidence suggesting)7

that because the defendants were aware of her income, her monthly

payment amount to Ameriquest, and the money she owed in arrears

to Ameriquest, the defendants should have known that the $150,000

loan would be insufficient to cover these expenditures, the

Case 1:07-cv-00300-JL Document 52 Filed 08/31/09 Page 12 of 17
13

renovation costs on Units 3 and 5, and the interest payments on

the Ponemah loan.

Gilroy’s operating budget indicated that the remaining

improvements on Units 3 and 5 would cost a total of $68,500 and

her complaint alleges that she needed $100,000 to complete the

renovations. Based on upon these amounts, the $150,000 loan was

sufficient for Gilroy to finish renovations on Units 3 and 5 and

make interest-only payments on the Ponemah loan for one year. 

Gilroy points to her additional expenses, outlined in her

operating budget, and argues that the loan was not sufficient to

cover these expenses and that the defendants must have known that

she would use the Ponemah loan funds to pay Ameriquest to keep

her other units out of foreclosure. Even accepting that the

defendants were aware of Gilroy’s income and expenditures--and

there is no evidence in the summary judgment record to support

that inference--it does not follow that the defendants knew that

Gilroy would use the majority of the funds from the Ponemah loan,

given for the purpose of renovating Units 3 and 5, to pay a

different lender who held mortgages on Units 1, 2, and 4. There

is simply no evidence in the record that the defendants knew that

she would be unable to make payments on the Ponemah loan at the

time they made it to her. 

Case 1:07-cv-00300-JL Document 52 Filed 08/31/09 Page 13 of 17
14

2. Additional Financing

Gilroy claims that the defendants fraudulently and

deceptively led her to believe that the Ponemah Trust would

provide additional financing and then refused to do so, knowing

that this would prevent her from repaying all her loans. This

claim is nearly identical to Gilroy’s fraud claim. As discussed

above, McHugh informed Gilroy on several occasions that

additional financing from the Ponemah Trust was not guaranteed. 

Cf. Barrows, 141 N.H. at 390 (upholding trial court’s finding

that the defendants did not violate the CPA because “although the

[defendants] at times did alter the terms of prior agreements,

all of these offers were explicitly tentative and subject to

further conditions which were not fulfilled”) (internal quotation

marks omitted)). McHugh also informed Gilroy that the Ponemah

Trust had to evaluate whether lending her additional funds was a

good investment, particularly since she had stopped making

payments on the Ponemah loan nearly a year earlier.

Gilroy produces no evidence that disputes the defendants’

evidence that neither the Ponemah Trust nor its representatives

promised a second round of funding, or intentionally led Gilroy

to believe that additional financing would be forthcoming. There

is no evidence in the summary judgment record that the defendants

violated the CPA by intentionally misleading Gilroy, or unfairly

or deceptively refused to lend her additional funds. The

Case 1:07-cv-00300-JL Document 52 Filed 08/31/09 Page 14 of 17
15

defendants are entitled to judgment on the CPA claims as a matter

of law.

IV. Additional matters

A. Requests to strike

In their reply, the defendants request that Gilroy’s

objection be stricken for failure to comply with the page limit

requirement of Local Rule 7.1(a)(3) and for failure to include

supporting documentation as required by Local Rule 7.1(a)(2). 

The court will not entertain the defendants’ request because it

was not submitted as a separate motion as required under the

Local Rules. See L.R. 7.1(a)(1), 7.2(c). 

In her surreply, Gilroy requests that the defendants’ motion

for summary judgment, memorandum, reply, and affidavits be

stricken for failure to comply with Local Rules 7.1(a), (b), and

(c). Because Gilroy likewise did not submit her request in the

form of a separate motion, her request will not be entertained by

the court. See L.R. 7.1(a)(1), 7.2(c). Even if the court were

to entertain her request, however, it is without merit. 

B. Costs and attorney’s fees

Within their motion for summary judgment, the defendants

request that they be awarded costs and attorney’s fees. The

court will not entertain the defendants’ request for attorney’s

Case 1:07-cv-00300-JL Document 52 Filed 08/31/09 Page 15 of 17
16

fees for the same reason. It was not submitted in a separate

motion and does not otherwise comply with Local Rule 54(d)(2). 

See L.R. 54(d)(2) (“A claim for attorney’s fees . . . must be

made by motion . . . [and must] specify the judgment and the

statute, rule, or other grounds entitling the movant to the award

. . . .”); L.R. 7.1(a)(1). 

As the prevailing parties, the defendants are entitled to

costs, excluding attorney’s fees. See L.R. 54.1(a) (“Unless

otherwise ordered by the court, the prevailing party shall be

entitled to costs other than attorney’s fees.”). Gilroy’s in

forma pauperis status does not shield her from liability for

costs. L.R. 4.2(g) (“The granting of an application to proceed

in forma pauperis does not waive the applicant’s responsibility

to pay the expenses of litigation which are not waived by 28

U.S.C. §§ 1825 and 1915.”). While the court does not doubt

Gilroy’s genuine belief in the merit of this case, the court

finds that her claims are frivolous. Because Gilroy appears to

lack sufficient understanding of the law to recognize the

frivolousness of her claims, however, the court declines to award

costs. See Papas v. Hanlon, 849 F.2d 702, 704 (1st Cir. 1988)

(“The exercise of authority to tax costs under Rule 54(d) is

discretionary when [in forma pauperis status] is involved.”). 

Case 1:07-cv-00300-JL Document 52 Filed 08/31/09 Page 16 of 17
17

III. Conclusion

For the foregoing reasons, the defendants’ motion for

summary judgment (document no. 39) is GRANTED. The clerk shall

enter judgment accordingly and close the case.

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: August 31, 2009

cc: Rosemary Gilroy, pro se

Steven F. Hyde, Esq.

Alan Segal, pro se

Kurt McHugh, pro se

Case 1:07-cv-00300-JL Document 52 Filed 08/31/09 Page 17 of 17