HEINE et al v. COMMISSIONER OF THE DEPARTMENT OF COMMUNITY AFFAIRS OF THE STATE OF NEW JERSEY et al
OPINION. Signed by Judge Kevin McNulty on 01/08/2018. (ek)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ELLEN HEINE, et al.,
Civ. No. 2:11-5347 (KM)(JBC)
COMMISSIONER OF THE DEPARTMENT
OF COMMUNITY AFFAIRS OF THE
STATE OF NEW JERSEY, et al.,
Defendant JPMorgan Chase Bank, N.A. (the “Bank”) holds a mortgage on
the properties of two of the plaintiffs, Unita Peri-Okonny and Ellen Heine. The
Bank is named only in Count 7 of the Seventh Amended Complaint (“7AC”,
ECF no. 81). In a prior Opinion (“Op.”) and Order (ECF nos. 127, 128), I
granted the Bank’s motion to dismiss the Seventh Amended Complaint for lack
of jurisdiction and failure to state a claim, See Fed. 1?. Civ. P. 12(b)(1), 12(b)(6).
Now before the Court is the plaintiffs’ motion (ECF nos. 130, 136) for
reconsideration of that ruling. For the reasons stated herein, the
reconsideration motion will be denied. In the following discussion, familiarity
with my prior Opinion is assumed.
The standards governing a Rule 12(b)(1) motion to dismiss for lack of
subject matter jurisdiction and a Rule 12(bJ(6) motion for failure to state a
claim were explicated in my prior Opinion. (Op. 1—3) That discussion is
incorporated here by reference.
The standards governing a motion for reconsideration are well settled.
See generally D.N.J. Loc. Civ. R. 7.1(i). Reconsideration is an “extraordinary
remedy,” to be granted “sparingly.” NL Indus. Inc. a Commercial Union Ins. Co.,
935 F. Supp. 513, 516 (D.N.J. 1996). Generally, reconsideration is granted in
three scenarios: (1) when there has been an intervening change in the law; (2)
when new evidence has become available; or (3) when necessary to correct a
clear error of law or to prevent manifest injustice. See North River Ins. Co. v.
CIGNA Reinsurance Cc., 52 F.Sd 1194, 1218 (3d Cir. 1995); Carmichael u.
Everson, 2004 WL 1587894, at *1 (D.N.J. May 21, 2004). Local Rule 7.1(i)
requires such a motion to specifically identify “the matter or controlling
decisions which the party believes the Judge or Magistrate Judge has
overlooked.” Id.; see also Egloff v. New Jersey Air Nat’l Guard, 684 F. Supp.
1275, 1279 (D.N.J. 1988). Evidence or arguments that were available at the
time of the original decision will not support a motion for reconsideration.
Darniano v. Sony Music Entm’t, Inc., 975 F. Supp. 623, 636 (D.N.J. 1997); see
also North River Ins. Co., 52 F.3d at 1218; Bapu Corp. v. Choice Hotels Int’l, Inc.,
2010 WL 5418972, at *4 (D.N.J. Dec. 23, 2010) (citing P. Schoenfeld Asset
Mgmt. LLC v. Cendant Corp., 161 F. Supp. 2d 349, 352 (D.N.J. 2001)).
The Bank is named only in Count 7 of the Seventh Amended Complaint.
That Count, which seeks several forms of injunctive relief, is brought on behalf
of plaintiffs Heine and Peri-Okonny. Its allegations are summarized and
discussed in my prior Opinion.
3—6) I granted the Bank’s motion to
dismiss Count 7 on several grounds.
As to Peri-Okonny, I held that the Rocker-Feldman doctrine precluded
litigation of matters encompassed by the prior state court judgment of
foreclosure. (Op. 6—7) I also found that Peri-Okonny lacked Article III standing
or that the injunctive claims were moot, because the Bank acknowledged that
it had discharged the mortgage and sought no further enforcement of it. (Op.
As to Heine (and as an alternative basis for dismissal as to Peri-Okonny),
I applied the doctrine of res judicata to a prior federal-court judgment in one of
the many similar litigations filed by these plaintiffs. Heine, et al. v. Director of
Codes and Standards, et al., No. 15-cv-8210 (ES/MAH) (the “2015 Action”)
(entering final judgment against plaintiffs and giving preclusive effect to
judgments in prior State court actions).
Finally, I held in the alternative that the allegations against the Bank
failed to state a claim on which relief could be granted. No facts were pled from
which either the foreclosure or the threat of foreclosure could be found invalid
or wrongful. Nor were any facts pled to indicate that Chase was at fault for the
fire code enforcement which allegedly drove these parties into default. No facts
underlie the request for an injunction against “negative credit reporting.” (Op.
This Motion for Reconsideration
The current reconsideration motion focuses on Heine’s property in
Garfield, New Jersey. It is not disputed that the mortgage is in default; that has
been the subject of state court litigation, as detailed in my prior Opinion. The
reconsideration motion alleges that Chase, beginning in October 2017, entered
on the property and performed work there. No cause of action is specified—
here, as elsewhere, the Court must assign a likely claim to the allegations—but
the state tort of trespass seems the best fit.
Several problems present themselves. To begin with, the motion does not
really seek reconsideration of anything decided in my prior Opinion at all. The
plaintiffs’ brief simply lodges fresh complaints against Chase. As noted, Heine
seems to argue that Chase’s presence on the property violates state tort law.
New claims, however, cannot be asserted in a brief on a motion for
reconsideration. See McKinney ii. Prosecutor’s Office, No. CIV. 13-2553 KM
SCM, 2015 WL 1954460, at 6 (D.N.J. Apr. 29, 2015).1
Even regarded as claims, these allegations appear defective on their face.
No basis for federal court jurisdiction is stated; plaintiffs do not allege complete
diversity or a claim in excess of $75,000, that the trespass violates federal law,
Citing McKinney, Chase suggests that I “screen” and dismiss these claims. That
case, however, was filed by a prisoner, and therefore was subject to the separate
procedures of 28 U.S.C. § l915a (screening of claims brought by prisoners against
government agencies and employees).
or that these new claims are subject to the court’s supplemental jurisdiction.
See 28 U.S.C. § 1331, 1332, 1367. Nor does there seem to be any dispute that
the Heine mortgage is in default. That being the case, Chase points out, it is
entitled and indeed obligated to preserve the value of the collateral by
performing repairs and securing a vacant property against the winter weather.
See N.J. Stat. Ann. 46:1OB-51 (providing, e.g., that foreclosing creditor is
liable for failing to correct a code violation on vacated property).
Heine’s additional statements in her brief are simply extensions of the
premise, rejected in prior decisions of this and other courts, that faulty fire
code enforcement is to blame for her default on her mortgage, which should
therefore be set aside. Nothing about these contentions suggests that anything
in the Court’s prior Opinion must be revisited.
Accordingly, for the reasons stated in the foregoing opinion, the plaintiffs’
motion (ECF nos. 130, 136) for reconsideration of the Court’s prior Order and
Opinion (ECP nos. 127, 128) granting the motion of defendant JPMorgan Chase
Bank, N.A., to dismiss the Seventh Amended Complaint is DENIED.
Dated: January 8, 2018
H6N. KEVIN MCNULTY, U.S.
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