BEMBRY v. TOWNSHIP OF MULLICA et al

Filing 11

MEMORANDUM OPINION FILED. Signed by Judge Jerome B. Simandle on 7/17/17. (js)

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

BETTY A. BEMBRY,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 16-5734 (JBS-JS)

v.
TOWNSHIP OF MULLICA, et al.,

MEMORANDUM OPINION
Defendants.

SIMANDLE, District Judge:
This matter comes before the Court upon Defendants’ motion
to dismiss pursuant to Rule 12(b)(6), Fed. R. Civ. P. [Docket
Item 7.] This Court finds as follows:
1.

Plaintiff Betty A. Bembry, proceeding pro se, filed

this action on September 20, 2016 against Defendants the
Township of Mullica, Bertha Cappuccio, and Kimberly Kirkendoll,
alleging that Defendants unlawfully obtained a final judgment of
foreclosure against her home on account of a concealed tax sale
certificate for the property, Block 10818/lot 21, 258 24th
Avenue, Elwood, New Jersey. Plaintiff avers that this conduct
constitutes a violation of the Fourteenth Amendment and the New
Jersey Consumer Fraud Act.
2.

Specifically, Plaintiff alleges that the Township

concealed a tax sale certificate in the amount of $626.11
against her property, certificate #85-143, issued on December

23, 1985.1 Plaintiff alleges that the Township used that tax sale
certificate to file a foreclosure complaint in rem against the
property in 2010, Superior Court of New Jersey, Chancery
Division, Atlantic County Docket # F-040397-10. (Compl. ¶¶ 8,
12, 15; see also Exhibit A to Defendants’ Motion to Dismiss.)
The Superior Court entered final judgment in rem in favor of the
Township on the property on December 10, 2010 after Plaintiff
failed to answer the complaint. (Ex. B to Defendants’ Motion to
Dismiss.)
3.

Plaintiff avers that she was told by the tax collector

about the tax foreclosure that had been filed on or about
November 23, 2010 but that she was told she would have to pay
“all back taxes and costs before they could do anything.”
(Compl. ¶ 15.) According to Plaintiff, this would have required
$142,802.59 and the Township refused to give her more time to
pay. (Id. ¶ 12.) Plaintiff states that she “never heard or
received anything from either the tax collector or the attorney
since that November letter.” (Id. ¶ 15.)

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For purposes of the pending motions, the Court accepts as true
the version of events set forth in Plaintiff’s Complaint,
documents explicitly relied upon in the Complaint, and matters
of public record. See Schmidt v. Skolas, 770 F.3d 241, 249 (3d
Cir. 2014). The Court may consider these documents on a motion
to dismiss without converting the motion to one for summary
judgment. Id. All of the documents attached to Defendants’
motion to dismiss are documents relied upon in the Complaint
and/or matters of public record.
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4.

Plaintiff refused to vacate the property after entry

of the foreclosure judgment, so the Township sought and was
issued a Writ of Possession for the property on April 5, 2015,
and scheduled an eviction for June 15, 2015. (Ex. C & D to
Defendants’ Motion to Dismiss.) Plaintiff filed a motion to stay
the eviction before the Superior Court on May 26, 2015,
asserting that she was unaware of the existence of the back
taxes until after her ex-husband passed away in August 2009 and
that she never received notice of the taxes owed or the final
order of foreclosure. (Ex. E to Defendants’ Motion to Dismiss.)
Plaintiff’s motion was denied. (Ex. F to Defendants’ Motion to
Dismiss.) Plaintiff filed a second motion to stay the eviction
on June 8, 2015, again asserting that she “wasn’t given notice
of foreclosure final judgment or given the opportunity to by
[sic] back property.” (Ex. G to Defendants’ Motion to Dismiss.)
The Superior Court again denied Plaintiff’s motion. (Ex. H to
Defendants’ Motion to Dismiss.)
5.

On June 11, 2015, Plaintiff filed a Chapter 7

Bankruptcy petition before the United States Bankruptcy Court
for the District of New Jersey, Docket #15-21008. (Compl. ¶ 17.)
The Bankruptcy Court granted the Township’s motion to vacate the
automatic stay so that the Township could continue the
foreclosure. (Id.) Plaintiff vaguely alleges that she learned of

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inaccuracies in tax sale certificate #85-143 through the
Township’s filings before the Bankruptcy Court. (Id.)
6.

On July 15, 2015, Plaintiff filed a motion to vacate

the in rem foreclosure judgment, alleging that the Superior
Court did not have jurisdiction over her because she was never
served with the foreclosure complaint, that there were no
delinquent taxes during the period identified in the tax sale
certificate, and that “there was fraud in the conduct of the
foreclosure” (Ex. K to Defendants’ Motion to Dismiss), which the
Township opposed. (Ex. L to Defendants’ Motion to Dismiss.)
Shortly thereafter Plaintiff filed another motion to vacate the
in rem foreclosure judgment, reiterating her same arguments as
to why the foreclosure was improper, which the Superior Court
denied. (Ex. M & N to Defendants’ Motion to Dismiss.) Plaintiff
filed a motion for reconsideration which, too, was denied. (Ex.
O, P & Q to Defendants’ Motion to Dismiss.) Plaintiff filed an
appeal with the Appellate Division on January 27, 2016, which
was dismissed in September of that year. (Ex. R & U to
Defendants’ Motion to Dismiss.) In the interim, Plaintiff was
evicted from the property on March 23, 2016, and she filed
another motion to vacate the foreclosure judgment on August 8,
2016. (Compl. ¶ 19; Ex. S to Defendants’ Motion to Dismiss.) The
Superior Court denied her motion to vacate on October 21, 2016,
and ordered that no further reconsideration motions would be
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permitted to be filed. (Ex. V to Defendants’ Motion to Dismiss.)
This case followed shortly thereafter. [Docket Item 1.]
7.

For the reasons now discussed, the Court will grant

Defendants’ motion to dismiss, finding that New Jersey’s entire
controversy doctrine bars Plaintiff’s claims in this case.
8.

As an initial matter, the Court recognizes that it

“must give to a state-court judgment the same preclusive effect
as would be given that judgment under the law of the State in
which the judgment was rendered.” Walker v. Horn, 385 F.3d 321,
337 (3d Cir. 2004) (citation omitted). New Jersey’s entire
controversy doctrine “is essentially New Jersey’s specific, and
idiosyncratic, application of traditional res judicata
principles.” Rycoline Prods., Inc. v. C&W Unlimited, 109 F.3d
883, 886 (3d Cir. 1997).
The Entire Controversy Doctrine embodies the notion that
the adjudication of a legal controversy should occur in
one litigation in only one court; accordingly, all
parties involved in a litigation should at the very least
present in that proceeding all of their claims and
defenses that are related to the underlying controversy.
The Doctrine thus requires a party to bring in one action
all affirmative claims that it might have against
another party, including counterclaims and cross-claims
. . . or be forever barred from bringing a subsequent
action involving the same underlying facts.

Id. at 885.
9.

The application of the entire controversy doctrine

turns on three criteria: “(1) the judgment in the prior action

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must be valid, final, and on the merits; (2) the parties in the
later action must be identical to or in privity with those in
the prior action; and (3) the claim in the later action must
grow out of the same transaction or occurrence as the claim in
the earlier one.” Venner v. Bank of America, Civil No., 2009 WL
1416043, at *2 (D.N.J. May 19, 2009) (quoting Watkins v. Resorts
Int’l Hotel and Casino, Inc., 591 A.2d 592, 599 (N.J. 1991)).
“It is [a] commonality of facts, rather than the commonality of
issues, parties or remedies that defines the scope of the
controversy and implicates the joinder requirements of the
entire controversy doctrine.” DiTrolio v. Antiles, 662 A.2d 494,
504 (N.J. 1995). Importantly, the doctrine “bars not only claims
that were brought in the previous action, but also claims that
could have been brought.” In re Mullarkey, 536 F.3d 215, 225 (3d
Cir. 2008).
10.

With respect to foreclosure actions specifically, the

entire controversy doctrine requires that all “germane” claims
must be joined in the first action or they are forever barred.
N.J. Ct. R. 4:64-5. “The use of the word ‘germane’ in the
language of the rule undoubtedly was intended to limit
counterclaims in foreclosure actions to claims arising out of
the mortgage transaction which is the subject matter of the
foreclosure action.” In re Mullarkey, 536 F.3d at 229. In other
words, any claim challenging the foreclosure-plaintiff’s “right
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to foreclose” is “germane” to a foreclosure action and must be
raised there. Sun NLF Ltd. v. Sasso, 713 A.2d 538, 540 (N.J.
App. Div. 1988).
11.

The entire controversy doctrine bars Plaintiff’s

claims against the Township, Ms. Cappucio, the tax collector for
the Township, and Ms. Kirkendall, the Township’s municipal
clerk. The entire controversy doctrine bars the current claims
because the same facts form the basis of her claims both in this
Court and in the underlying foreclosure action, and because the
crux of her claims in both cases assert impropriety and
misrepresentation with respect to tax sale certificate #85-143
and the in rem foreclosure action #F-040397-10. In other words,
even if Plaintiff’s claims in this action are styled as
constitutional or Consumer Fraud Act causes of action, where
they were labeled otherwise before the Superior Court, she
cannot escape the fact that they share the same essence in both
courts: that the Township concealed the tax sale certificate and
foreclosed on her property without proper notice. Each of the
current claims was available and could have been raised by
Plaintiff when litigating the foreclosure case in Superior
Court.
12.

The Court has no doubt that these claims are “germane”

for two reasons. First, N.J. Ct. R. 4:64-5 permits that only
germane claims may be litigated in a foreclosure action without
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leave of court, and the Superior Court adjudicated Plaintiff’s
arguments about fraud, lack of notice, and the invalidity of the
tax bill for years without hesitation. Second, even if the Court
were to assume that these issues were not actually decided by
the Superior Court, Plaintiff’s constitutional and statutory
claims challenge the Township’s “right to foreclose” and could
have been raised before the Superior Court. Sun NLF, 713 A.2d at
540. Because the entire controversy doctrine operates to bar
“not only claims that were brought in the previous action, but
also claims that could have been brought,” In re Mullarkey, 536
F.3d at 225, Plaintiff is not permitted to relitigate these
questions in this Court, even with new labels attached.
13.

Accordingly, the Court will grant Defendants’ motion

and will dismiss the Complaint with prejudice. 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.

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14.

An accompanying Order will be entered.

July 17, 2017
Date

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

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