LA MAR v. MIDFIRST BANK

Filing 7

MEMORANDUM OPINION. Signed by Judge Kevin McNulty on 3/7/2016. (nr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
LARRY L. LA MAR,
•
Plaintiff,

Civ. No. 15-cv-1988 (KM)

V.

MEMORANDUM OPINION

MIDFIRST BANK,
Defendant

KEVIN MCNULTY, U.S.D.J.:
Larry La Mar, as borrower and property owner, brings this action against
a mortgage holder, Midfirst Bank. The action arises from a state court
proceeding that resulted in a final judgment of foreclosure. Midfirst moves
under Fed. R. Civ. P. 12(b)(1) to dismiss the complaint on Rooker-Feidmari
jurisdictional grounds, and under Rule 12(b)(6) to dismiss it for failure to state
a claim. (ECF no. 3) For the reasons stated below, the motion will be granted.
The complaint
The allegations of the complaint (“Cplt.,” ECF no. 1) are as follows.
Mr. La Mar is, or was, the owner of a residential property at 237 E. 6th
Avenue in Roselle, New Jersey. On June 16, 1997, he obtained a loan in the
amount of $164,985. It was secured by a mortgage insured by the Department
of Veterans Affairs, which came to be serviced by Midfirst. In 2012, he
defaulted on his mortgage payment. At some point he tried to cure the default
by sending a check for $4286, which was not accepted. (Cplt.

¶

12, 13) His

attempts to negotiate a modification of the loan were unsuccessful. (Cplt.

¶

13)

The complaint alleges that Midfirst did not fulfill certain preconditions to
foreclosure. La Mar alleges that a October 1, 2013, letter of default did not, as
1

required by the Security Deed, state “a date, not less than 30 days from the
date the notice is given to Borrower, by which the default must be cured,” or
warn “that failure to cure the default on or before the date specified in this
notice may result in acceleration of the sums secured

....“

(Cplt.

16—18) Nor

¶J

did Midfirst, as required by VA regulations, “reach[] out to the borrower,
including through a face to face meeting if no repayment plan has been
reached, as well as a letter outlining loss mitigation options, and discuss and
evaluate loss mitigation option. 38 C.F.R.

§

36.4350(f), (g), (h).” (Cplt.

Nor did Midfirst, upon default, “notify the Secretary of HUD.” (Cplt.

§

38 U.S.C.

¶

¶J

20—21)

22 (citing

3632(a)(2), (3), (4)))

The four counts of the complaint are based on the same underlying facts,
outlined above:
•

Count 1 of the complaint seeks a declaratory judgment that,
because of the alleged flaws described in the preceding paragraph,
Midfirst did not fulfill “conditions precedent” to the commencement
of foreclosure proceedings, and that the foreclosure was
“prematurely commenced.”

•

Count 2 seeks damages for breach of contract in that Midfirst did
not comply with the Security Deed and VA regulations as described
above, but prematurely went ahead with foreclosure. As a result,
plaintiff allegedly lost the value of the property, suffered damage to
his credit rating, and also suffered medical and psychological
complications.

It is unclear what “Security Deed” the Plaintiff is referring to. Further, the
October 1, 2013 letter does not seem to have been the notification of default upon
which Midfirst relied in the foreclosure. In the state court foreclosure action summary
judgment motion, Midfirst submitted a copy of another default letter, dated November
17, 2011, which does contain the warnings alleged to be missing from the October 1,
2013 letter (which dates from after the filing of the foreclosure complaint on August
12, 2012 (ECF no. 3-5)). This, however, carries us beyond the scope of a motion to
dismiss and into the realm of fact more appropriate for summary judgment.
1

2

•

Count 3 alleges negligence per se based on the alleged
noncompliance with the statute and VA regulations. The alleged
damages are the same as those claimed under Count 2.

•

Count

42

asserts a claim under the Fair Debt Collection Practices

Act (FDCPA), 15 U.S.C.

§ 1692. The noncompliance with the

Security Deed and VA regulations is alleged to be wrongful and
deceptive means of collecting a debt. The alleged damages are the
same as those claimed under Count 2.

Procedural history of the state foreclosure proceedings
In summarizing the proceedings in the state court foreclosure action, I
rely on copies of pleadings and orders filed in that proceeding, which are
attached to Midfirst’s papers. For the reasons stated below, see p. 7, infra, I
may take judicial notice of them, and they may in any event be considered as
matters upon which La Mar’s federal complaint is based. La Mar has not
disputed the authenticity of these documents or opposed the court’s
consideration of them (although of course, in many cases he may disagree with
the contents). I do not consider them for the truth of factual contentions made
therein, but only as evidence of the issues that were raised and decided by the
State court.
The pleadings establish the following procedural history:
1. On August 12, 2012, based on the prior default, a foreclosure
complaint was filed in Union County Superior Court under Docket
No. F-15374-12. (ECF no. 3-5)
2. On September 7, 2012, Mr. La Mar filed a 30-page answer with
affirmative defenses and counterclaims. (ECF no. 3-6)3
This, the fourth count in the complaint, is designated as the seventh, which I
take to be a simple numbering error. I will refer to it as Count 4.

2

As to each count, the Answer cites the plaintiff’s “failing to meet the require
conditions precedent to Plaintiffs right of action.”
3

The Affirmative Defenses most pertinently state that (a) defendant violated
plaintiffs rights by “filing this foreclosure before offering Defendants any of the
federally required foreclosure avoidance options” (although they do not specifically cite
3

the VA regulations cited in the federal complaint); and (b) that acceleration of the debt
is unjust because of “misleading arid fraudulent conduct and unfulfilled conditions.”
The Counterclaims are multifarious and lengthy. La Mar asserts them as
“compulsory counterclaims,” i. e, ones required to be joined. They allege as follows:
.

(a) Count One: “Conversion” by collecting a debt that is not in default. (p.12)
This is said to be, inter alia, a violation of the FDCPA, 15 U.S.C. § 1692.
(b) Count Two: similar to Count One, but directed to personal property.
(c) Count Three: violation of federal Truth in Lending Act (“TILA”), 15 U.S.C. §
1601 etseq., and Regulation Z, 12 C.F.R. § 226. This alleges that the lender
failed to supply two sets of certain documents at the consummation of the
transaction (presumably in 1997), and that Midfirst is not the legitimate
holder of the mortgage. It adds that Midfirst failed to accommodate the
lender and forbear in accordance with HUD regulations.
(d) Count Four: This alleges invalidity of the assignment of the mortgage and
“robo-signing” of the foreclosure papers.
(e) Count Five: Plaintiffs never actually received the loan, which was used to
retire fraudulent prior liens on the property.
(I) Count Six: An accounting will prove that defendant never loaned plaintiffs
any money.
(g) Count Seven: Claim based on “fractionalized banking.”
(h) Count Eight: Defendant is not a holder in due course.
(i) Count Nine: Defendant has filed fraudulent documents with the County
Recorder’s Office.
(j) Count Ten: Fraud on the court in that defendant represents itself as a
holder in due course.
(k) Count Eleven: Default because defendant never supplied the money for the
loan.
(1) Count Twelve: Fraud and racketeering in that defendant has deprived the
State of New Jersey of tax revenue.
(m) Count Thirteen: Fraud and racketeering based on failure to disclose the
“true lender” at closing involving misrepresentations about “pass through”
entitities.
(n) Count Fourteen: Violation of the Patriot Act, and various infractions
involving pooling.
(o) Unnumbered allegation of “Opportunity to Cure upon which relief can be
granted.” This amounts to a demand that the defendant pay all amounts
demanded by the counterclaim within 35 days.
Damages of $10,000 per count (or category of injury, such as fraud, denial
of due process, public humiliation, etc.), are demanded.
4

3. On March 28, 2013, Midfirst filed a motion for summary judgment
and other relief. (ECF no. 3-7) On April 17, 2013, La Mar filed an
opposition to that motion. (ECF no. 3-8)
4. On June 4, 2013, Midfirst’s motion was granted, the answer and
counterclaims were struck, and the matter was referred to the
Office of Foreclosure of the Superior Court to proceed as an
uncontested matter. (ECF no. 39)4
5. On May 23, 2014, La Mar filed motions to dismiss and for other
relief. (ECF no. 3-10) This seemingly was treated as an objection to
the entry of final judgment. The Office of Foreclosure found no
relevant grounds, but advised La Mar that motions (meaning,
apparently, those raising grounds beyond the scope of an
uncontested proceeding in the Office of Foreclosure) could be
submitted to the General Equity Judge. (ECF no. 3-11)
6. On September 14, 2014, the state court entered a final judgment of
foreclosure. (ECF no. 3-12)
7. On September 23, 2014, Mr. La Mar filed a “Motion to Dismiss
Motion for Final Judgment and Objection.” (ECF no. 3-13) This
was treated as a motion to vacate the judgment and denied by
order filed November 19, 2014. (ECF no. 3-14)

Standard on a motion to dismiss
Defendants have moved to dismiss the Complaint for lack of jurisdiction,
citing the Rooker-Feldmcrn doctrine (see infra). Rule 12(b) (1) governs
jurisdictional challenges to a complaint. These may be either facial or factual
attacks. See 2 Moore’s Federal Practice § 12.30[4] (3d ed. 2007); Mortensen v.
First Fed. Say. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). A facial
challenge asserts that the complaint does not allege sufficient grounds to
New Jersey is a judicial foreclosure state, and foreclosure actions are filed in
Superior Court (centrally, in Trenton). A defendant may interpose defenses: e.g., that
the mortgage was induced by fraud, recoupment, lender liability, violation of
applicable HUD regulations. See S.B. Pressler & P.G. Verneiro, N.J. Ct. R. annot.
4:64-1, comment 3.3. Whether the action proceeds in court or goes to the Office of
Foreclosure depends on whether it is a “contested” action. An “uncontested” action is
one in which (1) all defendants have failed to answer or plead; or, as relevant here, “(2)
none of the pleadings responsive to the complaint either contest the validity or priority
of the mortgage or lien being foreclosed or create an issue with respect to plaintiffs
right to foreclose it; or (3) all the contesting pleadings have been stricken or otherwise
rendered noncontesting.” N.J. Ct. R. 4:64-1(c).
4

5

establish subject matter jurisdiction. Iwanowa v. Ford Motor Co., 67 F. Supp.
2d 424, 438 (D.N.J. 1999). A court considering such a facial challenge assumes
that the allegations in the complaint are true, and may dismiss the complaint
only if it nevertheless appears that the plaintiff will not be able to assert a
colorable claim of subject matter jurisdiction. Cardio—Med. Assoc., Ltd. v.
Crozer—Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983); Iwanowa, 67 F.
Supp. 2d at 438.
Defendants have also moved to dismiss the Complaint for failure to state
a claim, pursuant to Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) provides for the
dismissal of a complaint, in whole or in part, if it fails to state a claim upon
which relief can be granted. The defendant, as the moving party, bears the
burden of showing that no claim has been stated. Hedges v. United States, 404
F.3d 744, 750 (3d Cir. 2005). In deciding a Rule 12(b)(6) motion, a court must
take the allegations of the complaint as true and draw reasonable inferences in
the light most favorable to the plaintiff. Phillips v. County ofAllegheny, 515
F.3d 224, 231 (3d Cir. 2008) (traditional “reasonable inferences” principle not
undermined by Twombly, see infra).
Federal Rule of Civil Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, “a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint’s factual allegations must be sufficient to raise a plaintiff’s right to
relief above a speculative level, so that a claim is “plausible on its face.” Id. at
570; see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008).
That facial-plausibility standard is met “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 556). While “[t]he plausibility standard

6

is not akin to a ‘probability requirement’..

.

it asks for more than a sheer

possibility.” Iqbal, 556 U.S. at 678.
In connection with the motions, Midfirst proffers materials extrinsic to
the complaint. These consist of records of the state court foreclosure
proceeding. These are cited, not for the facts contained therein, but only in
order to establish the nature and scope of prior proceedings between the
parties, and the rulings of the state court. Such records are subject to judicial
notice:

[Oln a motion to dismiss, we may take judicial notice of another
court’s opinion—not for the truth of the facts recited therein, but
for the existence of the opinion, which is not subject to reasonable
dispute over its authenticity. See Kramer v. Time Warner Inc., 937
F.2d 767, 774 (2d Cir. 1991); United States v. Wood, 925 F.2d
1580, 1582 (7th Cir. 1991); see also Funk v. Commissioner, 163
F.2d 796, 800—0 1 (3d Cir. 1947) (whether a court may judicially
notice other proceedings depends on what the court is asked to
notice and on the circumstances of the instant case).
S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F. 3d
410, 426-27 (3d Cir. 1999). See generally Fed. R. Evid. 201.
Even setting aside judicial notice, certain records of the foreclosure
action may be considered without converting a facial Rule 12(b)(1) challenge
into a factual one, or a Rule 12(b)(6) motion into one for summary judgment.
See Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (“However, an
exception to the general rule is that a ‘document integral to or explicitly relied
upon in the complaint’ may be considered ‘without converting the motion to
dismiss into one for summary judgment.’ “) (quoting In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)); Pension Ben. Guar.
Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).5

Indeed, where a complaint is based on particular documents, a defendant may
submit and rely on such documents in its motion to dismiss. The reasons for the rule
are (1) that the plaintiff, having relied on the document, cannot claim unfair surprise;
and (2) the plaintiff cannot base a claim on a document while shielding the document
itself from view:
7

Where the plaintiff, like Mr. La Mar, is proceeding pro Se, the complaint
is “to be liberally construed,” and, “however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 93-94 (2007). Nevertheless, “pro se litigants still must
allege sufficient facts in their complaints to support a claim.” Mala v. Crown
Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). “While a litigant’s pro se
status requires a court to construe the allegations in the complaint liberally, a
litigant is not absolved from complying with Two mbly and the federal pleading
requirements merely because s/he proceeds pro Se.” Thakar v. Tan, 372 F.
App’x 325, 328 (3d Cir. 2010) (citation omitted).
Analysis
1.

Rooker-Feidman

Midfirst moves to dismiss the complaint under the Rooker-Feidman
doctrine. Although the motion is brought under Rule 12(b)(6), this is a
jurisdictional issue, so I consider it under Rule 12(b)(1).
A federal district court does not sit to hear appeals from state court
judgments. Thus Rooker-Feidman holds that lower federal courts cannot
entertain federal claims that (1) were previously adjudicated in state court or
(2) are inextricably intertwined with a prior state court decision. See District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v.
Fidelity Trust Co., 263 U.S. 413, 416 (1923); Guarino v. Larsen, 11 F.3d 1151,
1156—57 (3d Cir. 1993); Port Auth. Police Benev. Ass’n v. Port Auth., 973 F.2d
What the rule seeks to prevent is the situation in which a plaintiff is able
to maintain a claim of fraud by extracting an isolated statement from a
document and placing it in the complaint, even though if the statement
were examined in the full context of the document, it would be clear that
the statement was not fraudulent.
Burlington, 114 F.3d at 1426 (on 12(b)(6) motion to dismiss securities fraud complaint
alleging misstatements in annual report, court may examine the report itself). The very
substance of the complaint is based on the mortgage and note and the alleged
illegality of the state foreclosure proceedings. The mortgage and note, and the publicly
filed pleadings and rulings of the court in those foreclosure proceedings may therefore
be considered.
8

169, 178 (3d Cir. 1992). The first alternative, actual adjudication, requires little
explication. As for the second, a federal claim is “inextricably intertwined” with
a prior state court decision if “granting the relief requested in the federal action
requires determining that the state court’s decision is wrong or would void the
state court’s ruling.” FOCUS v. Allegheny County Court of Common Pleas., 75
F.3d 834, 839-40 (3d Cir. 1996).
Rooker-Feldman thus operates to prevent a disgruntled party in state
court litigation from collaterally attacking the results of that litigation in federal
court, claiming constitutional or other error. See also B. S. v. Somerset County,

704 F.3d 250 (3d Cir. 2013). To put it another way, Rooker-Feidman bars
“cases brought by state-court losers complaining of injuries caused by statecourt judgments rendered before the district court proceedings commenced
and inviting district court review and rejection of those judgments.” Exxon
Mobil Corp. v. Saudi Basic Indus., Inc., 544 U.S. 280, 284 (2005).

A judgment of foreclosure was entered in New Jersey Superior Court on
September 14, 2014. (ECF no. 3-12) That state court judgment well preceded
the filing of this action on March 8, 2015.6 The question now is whether the

Judge Wolfson has usefully summarized the law establishing that a state court
foreclosure judgment, even if steps such as a sheriff’s sale remain to be taken, is fmal
for purposes of New Jersey law and Rooker-Feidman:
6

That the foreclosure judgment had been entered is sufficient to invoke
Rooker—Feidman. Under New Jersey law, a mortgage foreclosure suit
determines the right to foreclose and the amount due on the mortgage.
Sheerer v. Lppman & Lowy, 125 N.J.Eq. 93, 4 A.2d 273 (E. & A.1939);
Central Penn Nat’l Bank v. Stonebridge, Ltd., 185 N.J.Super. 289, 302,
448 A.2d 498 (Ch.Div. 1982). See generally 30A N.J. Prac. Law of
Mortgages § 31.25. The foreclosure judgment also entitles the mortgagee
to recover, by way of Sheriffs sale, the amount due from the land subject
to the mortgage. See N.J.S.A. 2A:50—36; First Union Nat’l Bank v. Penn
Salem Marina, Inc., 383 N.J.Super. 562, 570, 893 A.2d 1 (App.Div.2006)
reu’d on other grounds by 190 N.J. 342, 921 A.2d 417 (2007). Indeed, the
terms of a mortgage foreclosure judgment will include “an order to sell so
much of the mortgaged premises as will be sufficient to satisfy the
mortgage and subordinate liens
and that an execution issue
commanding the [sheriff] to make sale....” 30A N.J. Prac. Law of
Mortgages § 31.25.
...

9

claims in this federal court action are “inextricably intertwined” with that state
foreclosure proceeding. “If the relief requested in the federal action requires
determining that the state court’s decision is wrong or would void the state
court’s ruling, then the issues are inextricably intertwined and the district
court has no subject matter jurisdiction to hear the suit.” FOCUS, 75 F.3d at
840. As to federal actions following mortgage foreclosures, the case law gives
some guidance.
In re Madera, 586 F.3d 228, 232 (3d Cir. 2009), for example, considered
a post-foreclosure federal claim for rescission of the mortgage. A finding that no
valid mortgage existed, the Court held, would eliminate the basis for the prior

foreclosure judgment. Such a claim is an easy case for application of Rooker
Feldman. A federal claim that the state foreclosure court entered its judgment
in the absence of personal jurisdiction is likewise barred by Rooker-Feidman.
Because such a plaintiff “can only prevail if a federal court concludes that the
state courts’ default judgments were improperly obtained,” his claim is
inextricably intertwined with the state proceedings. In re Knapper, 407 F.3d
573, 581 (3d Cir. 2005). See also Ayres-Fountain v. E. Say. Bank, 153 F. App’x
91, 92 (3d Cir. 2005) (barring post-foreclosure federal claim for rescission of
mortgage and damages); Moncrief v. Chase Manhattan Mortgage Corp., 275 F.
App’x 149, 153 (3d Cir. 2008) (barring a claim for “redress” of state court

judgment in a foreclosure action).
Under these precedents, Count 1 is clearly barred. It seeks a declaration
that would in effect invalidate the foreclosure judgment. It implicates the
validity of the procedures leading to the foreclosure, as well as the foreclosure
proceeding itself. In short, it is fatally intertwined with the forfeiture judgment.
Rooker-Feidman clearly applies to Count l’s quest for a declaration that the
state foreclosure action was invalidly commenced.

*7 (D.N.J.
Patetta v. Wells Fargo Bank, NA, Civ. No. 09-2848, 2010 WL 1931256, at
May 13, 2010).
10

That leaves Counts 2, 3, and 4. As to these, some line drawing is
required; a court may find that portions of these claims are barred, while
others are not. Madera, for example, after applying Rooker-Feldmczn to bar
a
claim for rescission, then considered a cause of action for damages based
on
the title insurer’s alleged failure to disclose the correct title insurance charge
,
in violation of the Truth in Lending Act (“TILA”). As to that claim, Madera
did
not apply Rooker-Feidman, but proceeded to the merits of the bankruptcy
court’s grant of summary judgment. 586 F.3d at 232. In Easley v. New Centur
y
Mortgage Corp., 394 F. App’x 946 (3d Cir. 2010), the Court upheld the
application of Rooker-Feidman to claims that, if granted, would imply that

the

foreclosure judgment was invalid. Other claims, however, were not decide
d by
the state court and were based on “allegations of fraud, deception and other
wrongs which pre-dated the foreclosure action,” as to which plaintiff sought
consequential damages. Id. at 948. These were not so clearly intertwined with
the foreclosure judgment as to be barred by Rooker-Feidman. (Easley held,
however, that the claims not barred by Rooker-Feidman were barred by res
judicata. See in.fra.)
As to Count 2, 3, and 4, the application of Rooker-Feidman is mixed. All
seek damages consisting of “the value Plaintiff’s property.” (Cplt. 44) To
that
¶
extent, they are clearly aimed at undoing the judgment of foreclosure or
declaring it invalid. But these counts also seem to allege that breaches
of the
Security Deed procedures, VA regulations, or the FDCPA are independent
wrongs from which more specific damages flowed. To the extent that Counts
2,
3, and 4 seek such specific damages that do not depend on a contention that
La Mar was wrongfully ousted from his property, I will deny the motion
to
dismiss them on jurisdictional grounds. These claims for damages are
jurisdictionally sustainable to the extent they do not attack the state court
foreclosure judgment.
The motion to dismiss on Rooker-Feidman jurisdictional grounds is
therefore granted as to Count 1, and granted in part as to Counts 2, 3,
and 4. 1
11

now move on from the Rule 12(b)(1) component of Midfirst’s motion and
discuss the Rule 12(b)(6) component.
2.

Res Judicata

Midfirst states that, to the extent Counts 2, 3, and 4 pass the bar of
s
Rooker-Feidman, they are nevertheless barred by res jiidicata and New Jersey’
an
entire controversy rule. I will deny the motion as presented. Resjudicata is
affirmative defense, which usually is not appropriate for resolution on a motion
to dismiss:
We held in Bethel v. Jencloco Constr. Corp., 570 F.2d 1168, 1.174
(3d Cir. 1978), that if a statute of limitations “bar is not apparent
on the face of the complaint, then it may not afford the basis for a
dismissal of the complaint under Rule 12(b)(6).” This holding
applies not only to a statute of limitations defense, but also to any
affirmative defense raised pursuant to Rule 8(c), including res
judicata and the Entire Controversy Doctrine.
I
Rycolirte Products, Inc. v. C & W Unlimited, 109 F.3d 883, 886 (3d Cir. 1997).
do not find it appropriate for resolution here.
I note that, although Midfirst attaches many of the relevant state court
records, one item is missing: the oral statement of reasons accompanying
Judge Kessler’s order of June 14, 2013, granting summary judgment and
s
declaring the foreclosure uncontested. (ECF no. 3-9) That statement of reason
may (or may not) provide critical context. If for example, counterclaims were
dismissed because they were not “germane” and could not be heard in a
7
foreclosure proceeding, that would be one thing; if they were dismissed on the
merits, that would be another.
N.J. Ct. R. 4:64-5 limits permissible claims in mortgage foreclosure actions to
those which are “germane” to the foreclosure:
4:64-5. Joinder of Claims in Foreclosure
Unless the court otherwise orders on notice and for good cause shown,
claims for foreclosure of mortgages shall not be joined with non-germane
claims against the mortgagor or other persons liable on the debt. Only
germane counterclaims and cross-claims may be pleaded in foreclosure
actions without leave of court. Non-germane claims shall include, but not
be limited to, claims on the instrument of obligation evidencing the

7

12

Midfirst states in its brief that the counterclaims in the foreclosure
proceeding were identical to the claims raised here. That is an exaggeration,
although I do see a family resemblance. See summary at
pp. 3—5, supra. If La
Mar’s claims are to be precluded, it must be because they could have been,
but
were not, raised in the prior state foreclosure action. Neither claim preclus
ion
nor New Jersey’s entire controversy doctrine will apply to claims that could
not
have been brought in the prior proceeding because they were not “germane.”
See, e.g., Coleman v. Chase Home Fin., LLC ex rel. Chase Manhattan Mortg
age
Coip., 446 F. App’x 469 (3d Cir. 2011); Dennis v. MERS/Merscorp Mortgage
Elec. Registration Sys., Inc., Civ. No. 11-4821, 2011 WL 4905711, at *1 (D.N.J
.
Oct. 13, 2011); Zebrowski v. Wells Fargo Bank, N.A., Civ. No. 07-05236, 2010
WL 2595237, at *6 (D.N.J. June 21, 2010); Joan Ryno, Inc. v. First Nat. Bank
of
S. Jersey, 208 N.J. Super. 562, 570, 506 A.2d 762, 766 (App. Div. 1986).
See
generally Leisure Technology—Northeast v. Klingbeil Holding Co., 137 N.J. Super.
353, 349 A.2d 96 (App. Div. 1975) (seminal discussion of what claims are
“germane”).
Lacking a complete context, I am reluctant to opine in the abstract about
whether these federal claims could or should have been excluded as nongermane under New Jersey procedure. It may be, after all, that these claims
, or
others like them, were excluded. Or the state court may have considered
whether they were defenses to foreclosure, but excluded them insofar
as they
constituted independent claims for damages. Other facts, procedural and
substantive, may turn out to be relevant as well. I simply do not know.
In such a case, exercising my discretion to convert the motion to one for
summary judgment would be fruitless. See Fed. R. Civ. p. 12(d). Instead, I
take
the second option of “den[ying the motion without prejudice to renew in the
mortgage debt, assumption agreements and guarantees. A defendant
who chooses to contest the validity, priority or amount of any alleged
prior encumbrance shall do so by filing a cross-claim against that
encumbrancer, if a co-defendant, and the issues raised by the crossclaim shall be determined upon application for surplus money pursuant
to R. 4:64-3, unless the court otherwise directs.
13

form of a motion for summary judgment pursuant to Fed. R. Civ. P. 56.”
Rycoline, 109 F.3d at 886.
The motion to dismiss on resjudicata grounds is therefore denied.
3.

Count 4 (FDCPA)

Midfirst contends that Count 4, which asserts claims under the Fair
Debt Collection Practices Act, is barred by that statute’s one year statute of
limitations. The statute of limitations, like res judicata, is an affirmative
defense. It may, however, be a proper subject of a motion to dismiss where the
relevant facts appear on the face of the complaint or other documents properly
considered on a 12(b)(6) motion:
A statute of limitations defense may be properly raised on the
pleadings when the date on which the alleged claims accrued is
apparent from the face of the pleading, public filings, or other
documents integral to the complaint. McPherson v. United States,
392 Fed. Appx. 938, 943 (3d Cir. 2010).
*4 (D.N.J.
Arthrex v. KFxMed., LLC, Civ. No. 15-6580, 2016 WL 206296, at
Jan. 15, 2016). See also Rycoline, 109 F.3d at 886.
This is such a case, and I will grant the motion to dismiss. On the
chance that this is merely a case of deficient pleading, that dismissal is without
prejudice to the submission, within 30 days, of an amended counterclaim that
remedies the deficiencies in Count 4 that are identified here.
The FDCPA prohibits certain unfair or deceptive practices in connection
with the collection of a debt. See 15 U.S.C. § 1692. (I assume without deciding
that the statute potentially applies to Midfirst’s acts here.) These include
misleading communications, harassing collection tactics, and the like. The
violator may be liable for actual damages sustained as a result of a violation, or
statutory damages not exceeding $1000. 15 U.S.C.

§ 1692k(a).

Any claim under the FDCPA must be brought “within one year from the
date on which the violation occurs.” 15 U.S.C. § 1692k(d). This federal action
was filed on March 8, 2015. Alleged violations on or before March 8, 2014, are
therefore time-barred.
14

The complaint alleges that Midfirst violated the FDCPA by failing to
provide notice in the form required, and by failing to comply with VA
regulations. (Cplt.

54) No dates are given. The gist of the complaint, however,
is that the foreclosure was “prematurely” filed on August 12, 2012, withou
t

¶

satisfaction of those required preconditions. Giving the benefit of the doubt,
the
complaint also alleges that the letter of October 1, 2013 was legally
inadequate;
plaintiff may be saying that this, too, violated the FDCPA. In any case,
however,
more than a year passed between the alleged violations and the filing
of this
action on March 8, 2015.
The motion to dismiss Count 4 based on the statute of limitations is
therefore GRANTED. Because plaintiff is pro Se, and because the futility
of
amendment is not readily apparent, this dismissal is without prejudice
to the
filing, with 30 days, of an amended complaint that identifies any FDCP
A
violations occurring within the one-year limitations period (i.e., after
March

8,

2014).

CONCLUSION
Defendant’s motion to dismiss the complaint pursuant to Fed. R. Civ.
P.
12(b)(1), for lack of jurisdiction under the Rooker-Feldman doctrine is
GRANTED IN PART, to the following extent: Count 1, in its entirety, is
DISMISSED WITH PREJUDICE for lack of jurisdiction. Counts 2, 3,
and 4, to
the extent they attack the judgment of foreclosure, or seek the value
of the
property as damages, are DISMISSED IN PART WITH PREJUDICE for
lack of
jurisdiction. To the extent Counts 2, 3, and 4 assert independent claims
for
damages as a result of the particular violations alleged, the motion to
dismiss
them is DENIED.
Defendant’s motion to dismiss the complaint pursuant to Fed. R. Civ.
P.
12(b)(6) for failure to state a claim is GRANTED to the following extent:
Count 4
is DISMISSED on statute of limitations grounds WITHOUT PREJUDICE
to the
submission of an amended complaint within 30 days. The motion is
otherwise
15

DENIED without prejudice to renewal of the res judicata/entire controversy
issues on summary judgment.

Dated: March 7, 2016

KEVIN MCNULTY
United States District Judge

16