VENNER v. PARKER MCCAY et al

Filing 18

OPINION. Signed by Judge Jerome B. Simandle on 6/16/2017. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

PATRICIA VENNER,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action No.
16-4496 (JBS/JS)

v.
PARKER MCCAY and BANK OF
AMERICA, N.A.,

OPINION

Defendants.

APPEARANCES:
Patricia Venner, Plaintiff pro se
P.O. Box 326
Willingboro, NJ 08046
Andrew Christopher Sayles, Esq.
Connell Foley LLP
85 Livingston Avenue
Roseland, NJ 07068
Attorney for Defendant Parker McCay
Heather Elizabeth Saydah, Esq.
Winston & Strawn LLP
200 Park Avenue
New York, NY 10166
Attorney for Defendant Bank of America, N.A.

SIMANDLE, District Judge:
INTRODUCTION
Plaintiff Patricia Venner brings this case against Bank of
America, N.A. (“Bank of America”) and Parker McCay, alleging
violations of the Fair Debt Collections Practices Act, 15 U.S.C.
§ 1692 et seq. (“FDCPA”) in connection with a foreclosure action

in the New Jersey state courts filed by the law firm of Parker
McCay on behalf of Bank of America. Both Defendants now move to
dismiss the Complaint [Docket Items 10 & 12], arguing that this
Court should abstain from hearing this case because of the
ongoing foreclosure action in the Superior Court of New Jersey,
or in the alternative find that Plaintiff’s case is otherwise
barred. For the following reasons, the Court will grant
Defendants’ motions and dismiss the Complaint with prejudice.1
BACKGROUND2
The Court gleans the following facts from the lean
allegations in Plaintiff’s Complaint and the documents

1

A court may deny leave to amend a complaint where it is
apparent that “(1) the moving party has demonstrated undue
delay, bad faith or dilatory motives, (2) the amendment would be
futile, or (3) the amendment would prejudice the other party.”
United States ex rel. Schumann v. Astrazeneca Pharma. L.P., 769
F.3d 837, 849 (3d Cir. 2014) (citing Lake v. Arnold, 232 F.3d
360, 373 (3d Cir. 2000)). In this case, because the Plaintiff’s
complaint is legally insufficient, and not merely factually
insufficient, any amendment would be futile. Plaintiff cannot
allege additional facts that would make the state court
foreclosure action no longer ongoing, and to the extent that
such circumstances may exist, her claims would be barred by New
Jersey’s Entire Controversy Doctrine. See Venner v. Bank of
America, Civil No. 07-4040, 2009 WL 1416043, at *2-*3 (D.N.J.
May 19, 2009). In any event, Plaintiff may not relitigate the
claims at issue in the state foreclosure action in the federal
courts.
2 The Court accepts as true for the purposes of the instant
motions the following facts as alleged in the Complaint. [Docket
Item 1.] The Court also considers the exhibits attached to the
Declaration of Heather Elizabeth Saydah, Esq. [Docket Item 10-2]
and the Declaration of Andrew C. Sayles, Esq. [Docket Item 12-2]
in support of the Defendants’ motions to dismiss because these
documents are all either “integral to or explicitly relied upon
2

referenced in the Complaint and provided by Defendants in
connection with their motions to dismiss.
Plaintiff executed a Note and Mortgage in favor of Pulte
Mortgage Corporation in the amount of $65,500 on December 9,
1999, to purchase a home in Delran, New Jersey. (See Exhibits A
& B to Declaration of Heather Elizabeth Saydah (“Saydah
Decl.”).) On June 1, 2000, Pulte assigned Plaintiff’s Mortgage
to Bank of America. (Ex. C to Saydah Decl.) On July 9, 2003,
Plaintiff and Bank of America entered into a loan modification
agreement. (Ex. D. to Saydah Decl.) Plaintiff defaulted on her
obligations under the loan on or about September 1, 2005.
(Foreclosure Complaint ¶ 8, Ex. F to Saydah Decl.)
On or about June 20, 2014, the law firm of Parker McCay
filed a foreclosure complaint on behalf of Bank of America in
the New Jersey Superior Court, Chancery Division, Burlington
County, Docket No. F-025260-14. (Id.) Plaintiff filed an answer
with affirmative defenses in the foreclosure action, alleging,
as she does in the present Complaint, that Bank of America
misrepresented the amount of money owed on her mortgage due to
condominium association assessments and misused funds from an

in the complaint” or matters of public record. Schmidt v.
Skolas, 770 F.3d 241, 249 (3d Cir. 2014); In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). The
Court may consider these documents on a motion to dismiss
without converting the motion to one for summary judgment.
Schmidt, 770 F.3d at 249.
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escrow account, and that FDCPA violations occurred in connection
with the foreclosure action. (Ex. B to Sayles Decl.) On November
23, 2015, the Superior Court erroneously entered a final
uncontested judgment of foreclosure, which was vacated on July
27, 2016 before a sheriff’s sale of Plaintiff’s property could
take place. (Ex. C to Sayles Decl.) Counsel for both Defendants
represent that the state foreclosure action is still ongoing.
In the meantime, Plaintiff filed a complaint in federal
court on August 23, 2007 against Bank of America, alleging
violations of the FDCPA in connection with Bank of America’s
calculation and payment of condominium association assessments
from an escrow account pursuant to the terms of her mortgage.
See Complaint, Venner v. Bank of America, Civil No. 07-4040
(JBS/JS) (Ex. D to Sayles Decl.). This Court granted the bank’s
motion for summary judgment on May 19, 2009, finding that Ms.
Venner’s federal action was barred by a final judgment in a
foreclosure action filed by Bank of America in the New Jersey
Superior Court, Chancery Division, Burlington County, Docket No.
F-19031-05. (Ex. E to Sayles Decl.)3 The Third Circuit Court of

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Ms. Venner also named Judith Jennings, an attorney for her
condominium association, in the 2007 federal complaint. (Ex. D.
to Sayles Decl.) Ms. Venner’s federal action against Ms.
Jennings was barred by the Rooker-Feldman doctrine, on account
of final judgments in Ms. Jennings’ favor in a number of other
state court cases relating to the same condominium association
assessments. (Ex. F to Sayles Decl.)
4

Appeals upheld the judgment in favor of Bank of America on that
basis. See Venner v. Bank of Amer., 387 Fed. Appx. 232 (3d Cir.
2010). While the same mortgage between Plaintiff and Bank of
America and the same conduct by Ms. Venner and the bank were at
issue in both of Plaintiff’s federal cases against Bank of
America, it appears that the foreclosure action currently
pending before the Superior Court is a separate action from the
one that concluded in 2007 and barred the 2007 federal action.
In this case, filed on July 25, 2016, the day before the
Superior Court vacated final judgment in the foreclosure action
and stayed the sheriff’s sale then pending, Plaintiff vaguely
alleges that “in 2005 the defendant stole funds from plaintiff
[sic] account, mislead on the funds.” (See Complaint at 3.) It
appears that Plaintiff alleges that Defendants harassed, misled,
and subjected her to collection abuses by and through the filing
of the state foreclosure action. (Id.) Defendants now move to
dismiss the complaint [Docket Items 10 & 12], which Plaintiff
opposes [Docket Items 11, 14, 15 & 17.] The Court will decide
these motions without holding oral argument pursuant to Fed. R.
Civ. P. 78.
DISCUSSION
Both Defendants primarily contend that this Court should
abstain from exercising jurisdiction over this case under the
Colorado River abstention doctrine on account of the ongoing
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state foreclosure action. For the reasons that follow, the Court
agrees.
In general, “federal courts are obligated to decide cases
within the scope of federal jurisdiction.” Sprint
Communications, Inc. v. Jacobs, -- U.S. --, 134 S. Ct. 584, 588
(2013). However, “in certain circumstances . . . the prospect of
undue interference with state proceedings counsels against
federal relief.” Id. To prevent such interference, various
judge-made doctrines of abstention have developed, whereby the
federal courts decline to exercise jurisdiction otherwise
granted them by the Constitution or federal statute. One such
doctrine counsels that abstention might be warranted in some
“extraordinary” circumstances where there are parallel state and
federal proceedings, under principles of “wise judicial
administration, giving regard to conservation of judicial
resources and comprehensive disposition of litigation.” Colorado
River Water Conservation Dist. v. United States, 424 U.S. 800,
817 (1976).
Two proceedings are considered parallel when they “involve
the same parties and substantially identical claims, raising
nearly identical allegations and issues.” Yang v. Tsui, 416 F.3d
199, 204 n. 5 (3d Cir. 2005) (internal citations omitted). Here,
Plaintiff’s claims against Bank of America are nearly identical
to those raised by Ms. Venner as affirmative defenses to the
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state foreclosure action. Generously construing Plaintiff’s
claims, Plaintiff makes the same allegations against Bank of
America in both cases: that the bank misrepresented certain
taxes and fees owed to Plaintiff’s condominium association when
she owed none; that the bank returned certain payments Plaintiff
made and caused her to default on her mortgage; that the bank
gave false statements about the date of default in order to
collect on a false debt; that the bank stole funds from her
account; and that bank failed to comply with provisions of the
FDCPA in the filing of the foreclosure action. (Compare Ex. B to
Sayles Decl. with Complaint and Plaintiff’s Briefs in
Opposition, Docket Items 11, 14, 15 & 17.) In essence, Plaintiff
seeks by these contentions the same relief in both cases: to
invalidate Bank of America’s foreclosure proceeding.4
The addition of Parker McCay as a defendant in this action
need not defeat a finding that both the federal and state cases
involve “substantially identical” parties and claims. IFC
Interconsult, AG v. Safeguard Intern. Partners, LLC, 438 F.3d

4

The timing of the filing of the federal complaint is
additionally suggestive: Ms. Venner instituted this federal
action before the Superior Court granted her motion to vacate
the final judgment in the state foreclosure action. Ms. Venner
may very well have been trying to relitigate claims that had, at
that point, already been addressed in the state court. This
would have been impermissible under New Jersey’s Entire
Controversy Doctrine. See Venner v. Bank of America, Civil No.
07-4040, 2009 WL 1416043, at *2-*3 (D.N.J. May 19, 2009).
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298, 306 (3d Cir. 2006). As Bank of America’s attorney in the
state foreclosure action, Parker McCay is a participant if not a
named party in both actions, and Plaintiff’s allegations against
the law firm in this action are wrapped up in her contention in
both proceedings that Bank of America violated the FDCPA by
filing the state foreclosure action. Accordingly, because
Plaintiff raises the same claims against the same parties and
seeks the same relief in both this case and the ongoing state
foreclosure action, the Court easily finds that the two
proceedings are parallel.
Once a federal court determines that two proceedings are
parallel, as these cases plainly are, the Third Circuit
instructs the court to consider the following pertinent factors,
drawn from the Colorado River case: “(1) in an in rem case,
which court first assumed jurisdiction over the property; (2)
the inconvenience of the federal forum; (3) the desirability of
avoiding piecemeal litigation; (4) the order in which
jurisdiction was obtained; (5) whether federal or state law
controls; and (6) whether the state court will adequately
protect the interests of the parties.” Nationwide Mut. Fire Ins.
Co. v. George V. Hamilton, Inc., 571 F.3d 299, 308 (3d Cir.
2009). Of primary importance to this case are the third and
fourth factors. Avoiding piecemeal litigation of Bank of
America’s entitlement to foreclosure is of the utmost importance
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here: this Court and the state foreclosure action might
otherwise come to inconsistent results and leave the parties
unable to vindicate their rights with respect to the property in
Delran, New Jersey. Moreover, the state foreclosure action has
progressed much further than this federal suit; not only was it
the first filed by nearly two years, but as Judge Dow of the
Superior Court noted in her opinion vacating final judgment and
reopening Ms. Venner’s case, there has already been extensive
motion practice and litigation in that case. (See Ex. C to
Sayles Decl. at 2-3.) Indeed, the Court presumes that the state
court litigation has progressed even further in the last year
since Judge Dow’s opinion and order. Crucially, there is no
indication in either the briefing or the documentary record that
the New Jersey state courts are an inadequate forum in which to
litigate Plaintiff’s claims; indeed, the Superior Court
routinely addresses issues and claims related to mortgages and
foreclosures. The crux of Plaintiff’s complaint –- whether Bank
of America is entitled to foreclose on her home –- will be
decided under New Jersey state law, and the state courts are
well empowered to hear claims under the FDCPA.5

5

Courts in this District routinely find Colorado River
abstention appropriate in similar cases regarding state court
foreclosure proceedings. E.g., Barthakur v. Wells Fargo Bank,
N.A., Civil No. 15-8079, 2016 WL 4414777 (D.N.J. Aug. 16, 2016);
Chambers v. Wells Fargo, Civil No. 15-6976, 2016 WL 3533998
(D.N.J. June 28, 2016); Ruffolo v. HSBC Bank USA, N.A., Civil
9

Abstention is especially appropriate where Plaintiff brings
personal claims against Parker McCay, Bank of America’s attorney
in the foreclosure action, for counsels’ submissions in the
ongoing Superior Court litigation. To ask this federal court to
sit in judgment over counsel’s conduct in an ongoing state court
litigation would be particularly untenable as a matter of comity
and avoidance of federal entanglement into ongoing filings in a
state court forum that is perfectly well empowered to address
any allegations of misconduct by its litigants.
Because the state foreclosure action was filed first and is
ongoing, because Plaintiff has raised nearly identical claims in
both cases, and because inconsistent relief in these parallel
cases could leave the parties unable to vindicate their rights,
the Court must decline to exercise jurisdiction over Plaintiff’s
claims and must dismiss her case in its entirety.6 Defendants’
motions for abstention will be granted.

No. 14-638, 2014 WL 4979699 (D.N.J. Oct. 3, 2014); St. Clair v.
Wertzberger, 637 F. Supp. 2d 251 (D.N.J. 2009).
6 Accordingly, the Court need not address the Defendants’
alternative arguments that Plaintiff’s claims are barred by,
inter alia, the doctrine of res judicata, the statute of
limitations, the Noerr-Pennington doctrine, and the litigation
privilege.
10

CONCLUSION
An accompanying Order will be entered.

June 16, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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