DAVIS v. FEIN SUCH KAHN & SHEPARD PC. et al

Filing 32

OPINION. Signed by Judge John Michael Vazquez on 4/24/2019. (sms)

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SHARON DAVIS,

Plaintiff
Civil Action No. 18-8560
v.
OPINION
FEIN SUCH KAHN & SHEPARD PC, et al.,

Defendants.

John Michael Vazguez, U.S.D.J.
In this case, pro se Plaintiff Sharon Davis alleges that several banks, mortgage servicing
companies, law firms, and related entities/individuals (the “Defendants”)1 fabricated documents
in connection with two foreclosure proceedings and one bankruptcy proceeding involving Plaintiff
as well as engaged in a conspiracy to deprive Plaintiff of her house. D.E. 1, 1-1 (collectively the
“Complaint” or “Compl.”). Plaintiff alleges four causes of action: (I) abuse of legal process; (II)
civil conspiracy; (III) illegal consumer collection under the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C.

§

§

1692 etseq.; and New Jersey Consumer Fraud Act (“NJCFA”), N.J.S.A.

56:8-1; and (IV) violations of the Racketeer Influenced and Corrupt Organizations (“RICO”)

Act, 18 U.S.C.

§

1961, 1962(b), and 1964. D.E. I-I.

‘The Defendants include Fein Such Kahan & Shepard PC (“FSKS”); US Bank Trust NA as trustee
for LSF9 Master Participation Trust (“US Bank”); Bayview Loan Servicing LLC (“Bayview”);
Alejandro Diaz; Orion Financial Group (“Orion”); Connie Riggsby; Janell Junkin; JP Morgan
Chase Bank NA (“JP”); PeirsonPatterson LLC (“PP”); Adam W. Scheinbach, Esq.; M&T Bank
(“M&T”); Tatonia Johnson; Tommie J. Nelson; Caliber Home Loans (“Caliber”); Phelan Hallinan
Diamond & Jones (“PHDJ”); and Waleter D. Nealy, Esq. D.E. I, I-I.

Currently pending before the Court are Defendants’ motions to dismiss Plaintiff’s
Complaint. D,E. 5, 8, 10, 13, 14, 23. The Court reviewed the parties’ submissions2 and decided
the motions without oral argument pursuant to Fed. R. Civ. p. 78(b) and L, Civ. R. 78.1(b). For
the reasons set forth below, the Complaint is dismissed.

I.

INTRODUCTION3
This case concerns a mortgage, two foreclosure proceedings, and a bankruptcy proceeding.

On July 28, 2003, Plaintiff executed a promissory note for $133,000.00 with M.L. Moskowitz
d!b/a Equity Now secured by a mortgage (the “Mortgage”) on her property. Compl.

¶

70; D.E.

23-1, Ex. A-B. Equity Now assigned the Mortgage to Chase Manhattan Mortgage Corporation
(“Chase”)4 (the “First Assignment”) on August 11, 2004. Compl.

¶ 71; D.E. 23-I,

Ex. C. In July

2008, Chase brought a foreclosure action against Plaintiff in the New Jersey Superior Court,

2

The Court reviewed Bayview’s brief, D.E. 5 (“Bayview Br.”); PP’s brief D.E. 8 (“PP Br.”); JP’s
brief, D.E. 10 (“JP Br.”); FSKS’s brief, D.E. 13 (“FSKS Br.”); Caliber’s brief D.E. 14 (“Caliber
Br,”); and PHDJ’s brief, D.E. 23 (“PHDJ Br.”); in support of their respective motions to dismiss.
The Court also reviewed Plaintiffs oppositions to each of these briefs. D.E. 9 (“P1. Bayview
Opp’n”); D.E. 12 (“P1. Pp Opp’n”); D.E. 18 (“P1. JP Opp’n”); D.E. 20 (“P1. FSKS Opp’n”); D.E.
21 (“P1. Caliber Opp’n”); and D.E. 26 (“P1. PHDJ Opp’n”). The Court then reviewed the
Defendants’ respective replies to these oppositions. D.E. 16 (“Bayview Reply”); D.E. 19 (“PP
Reply”); D.E. 22 (“JP Reply”); D.E. 24 (“FSKS Reply”); D.E. 25 (“Caliber Reply”); and D.E. 27
(“PHDJ Reply”).

The factual background is taken from Plaintiffs’ Complaint, D.E. 1, 1-1 (collectively “Compl.”),
and matters of public record referenced or relied upon therein. When reviewing a motion to
dismiss for failure to state a claim, a court accepts as true all well-pleaded facts in the Complaint.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). A court may also consider any
document integral to or relied upon in the Complaint and matters of public record such as court
orders. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); K/ian v.
Borough of Englewood Cflffs, No. 12-7837, 2014 WL 295069, at *3 (D.N.J. Jan. 27, 2014).
Chase later merged with Defendant JP. Compl.
it is also referring to Defendant JP.

‘

9

¶ 3.

Therefore, when the Court refers to Chase,

Chancery Division. Union County (Docket No. F-40772-08) (the “2008 Foreclosure Action”).
Compl. ¶ 72, but the action “was dismissed after the Plaintiff accepted a trial loan modification on
March 11,2009,” Id.

¶ 73, see also

D.E. 5-3, Ex. C (the loan modification agreement). Defendant

FSKS represented Chase in this action. Id.

¶

17.

Chase then assigned the Mortgage to Defendant Bayview on March 4, 2014 (the “Second
Assignment”). Compl.

¶

75; D.E. 23-I, Ex. D. Plaintiff alleges that Defendants Schienbach and

PP were involved in drafting the Second Assignment. Compl.

¶f 2,

14, 30. Defendant Johnson

signed the Second Assignment as representative from JP, and Defendant Nelson notarized it. Id.

¶J

15. 16. On July 15, 2014, Bayview brought a foreclosure action against Plaintiff in the Superior

Court of New Jersey, Chancery Division, Union County (Docket No. F-028783-14) for failing to
make an installment payment on May 1,2010 (the “2014 Foreclosure Action”). Id. ¶ 76; D.E. 231, Ex. E. Defendant FSKS represented Bayview in this action. Id.

¶ 76.

Defendant Diaz submitted

a certification in support of Bayview. Compl. ?I 7.36. This action resulted in a final judgment in
favor of Bayview on November 4, 2016. Compl. ¶ 78; D.E. 23-1, Ex. H.

Plaintiff also mentions an additional lawsuit that she filed against JP in 2011 for “negligently
hir[ing] a property preservation company” who “kicked in the Plaintiffs front door, entered,” and
“strew[] around” Plaintiffs “items of clothing and other things
in an attempt to make it appear
unkempt.” Compl. ¶i 40-41. Plaintiff alleges that the property management company “stole items
from the interior of the house, broke into a locked shed and stole lawn and garden equipment and
other items from the exterior and changed the lock on [aj shed and the front door and included a
lockbox,” and “broke a key in the side entrance lock, jamming the door.” Id. ! 42. Plaintiff adds
that in 2013. her property was “damaged due to tire,” and JP “intentionally withheld the proceeds
designated for the repair and deposited by the Plaintiff into a secured account until the Plaintiff
dismissed the action against them.” Id. ¶ 46. Plaintiff indicates that the “complaint was dismissed
without prejudice.” Id. Plaintiff also alleges that Defendant M&T “at all times material hereto
allegedly purchased the Plaintiffs loan” and “failed to conduct a requisite inspection of the
Plaintiff’s property after fire damage and released insurance proceeds absent a secured lien
decreasing the Plaintiffs property valuation.” Id. ¶ 11.
...

.

On December 3, 2016, Plaintiff filed for Chapter 13 bankruptcy in the United States
Bankruptcy Court for the District of New Jersey (Docket No. 16-33116) (the “2016 Bankruptcy
Action”). Compi. ¶ 19; D,E. 23-1, Ex. J. On January 18, 2017, Bayview assigned the Mortgage
to Defendant U.S. Bank (the “Third Assignment”). Compl. ¶97; D.E. 23-1 Ex. 1. Defendant

Riggsby signed the Third Assignment as “Vice President of Bayview Loan Servicing, LLC by
Caliber Home Loans,” and Defendant Junkin notarized it, Compl. ¶119, 10,27,29, Plaintiff alleges
that both Riggsby and Junkin are actually employees of Defendant Orion. Id. ¶19, 10. U.S. Bank

then filed a Proof of Claim in the 2016 Bankruptcy Action on May 23,2017. Id. ¶ 20. Defendant
PHDJ represented U.S. Bank, and Defendant Nealy represented Plaintiff. Id. ¶117,23.

Plaintiff filed her Complaint in the present matter on April 30,2018, alleging (1) abuse of
legal process; (II) civil conspiracy; (III) illegal consumer collection under the Fair Debt Collection

Practices Act C’FDCPA”), 15 U.S.C. § 1692 et seq.; and New Jersey Consumer Fraud Act
(“NJCFA”), NJ.S.A.

§ 56:8-I; and (IV) violations of the Racketeer Influenced and Corrupt

Organizations (“RICO”) Act, 18 U.S.C.

§* 1961, 1962(b), and I 964. Id. ¶188-111. At the core

of each of Plaintiffs claims is the allegation that documents submitted to, and relied upon by, the
courts in these prior and ongoing proceedings are fabricated. Id. at I. Plaintiff alleges that
Defendants engaged in “robo-signing[j” meaning the “[p]rocess of mass production of false
and forged execution of mortgage assignments,

.

.

.

and other legal documents related to

mortgage foreclosure and legal matters being created by persons without knowledge of the
facts being attested to.” Id.

¶ 64(e) n.13.

Plaintiffs Complaint is not a model of clarity. Aside from the litany of conclusoiy
allegations, the Court identified the following factual allegations supporting this theory, All
of Plaintiffs factual allegations relate to either the 2008 Foreclosure Action, the 2014
4

Foreclosure Action, or the 2016 Bankruptcy Action. Regarding the 2008 Foreclosure Action,
Plaintiff alleges that Whitney K. Cook (not a Defendant), an employee of Defendant Chase
and “known robo-signer,” submitted an affidavit and supplemental certification to the
Superior Court of New Jersey on Chase’s behalf. Compl.

¶1! 50, 51, 64(d), 64(e)(4), 68, 97,

102. Regarding the 2014 Foreclosure Action, Plaintiff alleges (1) that Defendant Diaz, a Vice
President at Bayview, submitted a certification to the Superior Court of New Jersey on
Bayview’s behalf that constitutes “robo-signing” because it was “void of calculations or
amounts due” and included a signature that was “unlike” or “did not match” another signature
by Din that Plaintiff located, it!. ¶97,36,36 n.6, 77,97; and (2) that the Second Assignment,
which the Superior Court ofNew Jersey relied upon, contained

“robe-singing”

because

notary

Defendant Nelson’s signature “d[id] not match” that supplied by the Louisiana Secretary of
State, Id. ¶916, 64(e)(3). Regarding the 2016 Bankruptcy Action, Plaintiff alleges that the
Third Assignment, included in U.S. Bank’s Proof of Claim, included a misrepresentation by
Defendant Riggsby, a “robo-signer,” indicating that she was Vice President of Bayview when
really, she was an employee of Orion, Compl.

IflI 27, 28, 60, 60 n.9, 64(e)(2), 82. Plaintiffs

pleading labels these above assertions as “general allegations and facts common to all counts.”

Id. at 17,
Defendants moved to dismiss the Complaint for lack ofjurisdiction under Fed. it Civ.
P. l2(b)(l) and for failure to state a claim under Fed, it Civ. P. l2(b)(6). D.E. 5,8, 10, 13, 14,
23. Plaintiffopposed each motion, D.E. 9, 12, 18,20,21,26, and Defendants replied, D.E. 16, 19,
22, 24, 25, 27.

5

II.

STANDARD OF REVIEW

Rule l2(b’)(l)
In deciding a Federal Rule of Civil Procedure 12(b)(l) motion for lack of subject-matter
jurisdiction, a court must first determine whether the party presents a facial or factual attack
because the distinction determines how the pleading is reviewed.6 A facial attack “contests the
sufficiency of the complaint because of a defect on its face,” whereas a factual attack “asserts that
the factual underpinnings of the basis for jurisdiction fails to comport with the jurisdictional
prerequisites.” Elbeco Inc. v. NatiRet. Finid, 128 F. Supp. 3d 849, 854 (E.D. Pa. 2015) (quoting
Moore v. Angie List, Inc., 118 F. Supp. 3d 802, 806 (E.D. PA. 2015)). When a party moves to
dismiss prior to answering the complaint, as is the case here, the motion is generally considered a
facial attack. (onstitution Par/v of Pa. v. A/c/ic/c, 757 F.3d 347, 358 (3d Cir. 2014).
For a facial attack, “the Court must consider the allegations of the complaint as true,” much
like a Rule 12(b)(6) motion to dismiss. Bd. of Trs. of Thucking Enzps ofN. Jersey Wet/are Fund,
Inc. v. &iliberAuto Transfer, Inc., No. 09-6447, 2010 WL 2521091, at *8 (D.N.J. June 11,2010)
(quoting Petruska

i’.

Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006)). The burden is on the

Plaintiff to prove the Court has jurisdiction. Id. (citing Petruska, 462 F.3d at 302),
Rule 12(bW6)
Federal Rule of Civil Procedure l2(b)(6) permits a motion to dismiss when a complaint
fails “to state a claim upon which relief can be grantcd[.]” For a complaint to survive dismissal

6

This Court also has an independent obligation to establish that it has subject-matter jurisdiction.
More/ i’. INS, 144 F.3d 248, 251 (3d Cir. 1998) (“[A federal] court... will raise lack of subjectmatter jurisdiction on its own motion.”) (quoting Ins. Coip. oflit, Ltd. v. compagnie des Bauxites
de Guinee, 456 U.S. 694, 702 (1982)).
6

under Rule I 2(b)(6), it must contain enough thctual matter to state a claim that is plausible on its

face. Ashcroft i’. Iqba4 556 U.S. 662, 678 (2009) (quoting Bell Au Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. Further, a plaintiff must “allege sufficient facts to raise a reasonable expectation that
discovery will uncover proof of her claims.” Connelly v. Lane Const Coip., 809 F.3d 780, 789
(3d Cir. 2016). In evaluating the sufficiency of a complaint, district courts must separate the

factual and legal elements. Fowler v. UPMC Shaa5’side, 578 F.3d 203, 210-211 (3d Cir. 2009).
Restatements of the elements of a claim are legal conclusions, and therefore, not entitled to a
presumption of truth, Bunch v. Mitheng Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The

Court, however, “must accept all of the complaint’s well-pleaded facts as true.” Fowler, 578 F.3d
at 210. Because Plaintiff is proceeding pro se, the Court construes the pleadings liberally and

holds them to a less stringent standard than those filed by attorneys. Names v. Kerner, 404 U.S.
519, 520 (1972). “The Court need not, however, credit a pro se plaintiffs ‘bald assertions’ or

‘legal conclusions.” D t4gosuino v. CECOM RDEC, No. 104558, 2010 WL 3719623, at 1
(D.N.J. Sept. 10,2010).
Rule 9(b)

“Independent of the standard applicable to Rule 12(bX6) motions, Rule 9(b) imposes a
heightened pleading requirement of factual particularity with respect to allegations of fraud.” In
re Rockefeller Cur. Props., Inc. Sec. Litig, 311 F.3d 198, 216 (3d Cir. 2002). Thus, pursuant to
Rule 9(b), when “alleging fraud or mistake, a party must state with particularity the circumstances
constituting fraud or mistake.. Lmjalice, intent, knowledge, and other conditions of a person’s
.

mind may be alleged generally.” Fed. R. Civ. P. 9(b). A party alleging fraud must therefore
7

support its allegations with factual details such as “the who, what, when, where and how of the
events at issue.” US. cx teL Moore &

Qo., P.1. v. Majestic Blue Fisheries, LLC, 312 F.3d 294,

307 (3d Cir. 2016). Accordingly, “[tjo satisfy the particularity standard, ‘the plaintiff must plead
or allege the date, time and place of the alleged fraud or otherwise inject precision or some measure
of substantiation into a fraud allegation.” Feingold v. Gmaff 516 F. App’x 223, 226 (3d Cir. 2013)
(citing Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007)). This heightcncd pleading
standard is designed to “ensure that defendants are placed on notice of the precise misconduct with
which they are charged, and to safeguard defendants against spurious charges of fraud.”
Craflnzatic See. Litig. v. Krafisow. 890 F.2d 628, 645 (3d Cir. 1989) (internal quotation marks
omitted).
III.

ANALYSIS
All of Plaintiffs claims are premised on the allegation that Defendants acted as “willing

participants in an elaborate scheme” to “utilize misrepresentations and fabricated assignments
to obtain favorable rulings in State Courts and/or validate themselves in the Bankruptcy
Courts.” Compl. at I; see also ki. ¶64. Because this theory implicates state court judgments,
the Rooker-Felthnan doctrine potentially applies.
Booker—Feldman Doctrine
Defendants argue that the Court lacks jurisdiction to hear Plaintiffs claims under the
Booker-Feldman doctrine. Bayvicw Br. at 7-9: Pp Br. at 2; JP Br. at 6-9; FSKS Br, at 57•7 “The
Booker-Feldman doctrine precludes lower federal courts from exercising appellate jurisdiction

The Court recognizes that all Defendants make an argument under Rooker-Felthuan. Caliber Br.
at 8-9: PHDJ Br. at 12-13. but notes that only state-court proceedings (not a federal bankruptcy
proceeding) implicate the doctrine.
8

over final state-court judgments because such appellate jurisdiction rests solely with the United
States Supreme Court.” In re Mac/era, 586 F.3d 228, 232 (3d Cir. 2009) (quoting Lance

Dennis,

546 U.S. 459, 463 (2006)); see also Williams v, BASF Catalysts LLC, 765 F.3d 306, 315 (3d Cir.
2014). The Third Circuit has ruled that the doctrine applies when four elements are met: “(I) the
federal plaintiff lost in state court; (2) the plaintiff ‘complain[s] of injuries caused by [the] statecourt judgments’; (3) those judgments were rendered before the federal suit was filed; and (4) the
plaintiff is inviting the district court to review and reject the state judgments.” Great W Mining
& Mineral C’o. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010) (citing Exxon Mobil Corp.
v. Saudi Basic Indus., Inc., 544 U.S. 280, 284 (2005)). In other words, “[i]f the relief requested in
the federal action requires determining that the state court’s decision is wrong or would void the
state court’s ailing, then the

.

.

.

district court has no subject matter to hear the suit.” FOCUS v.

Allegheny Ctv. Court of ‘ommon Pleas, 75 F,3d 834, 840 (3d Cir. 1996).
Here, Defendant Bayview argues the following:
(1) a final judgment of Foreclosure was entered against Plaintiff on
November 4,2016 in the [2014] Foreclosure Action; (2) any injuries
Plaintiff now complains of (i.e., the pending loss of the Property)
were self-inflicted as a result of her default on the Mortgage; (3)
judgment was entered in the [2014] Foreclosure Action nearly two
years prior to the commencement of the instant action; and (4)
Plaintiff is clearly inviting this Court to review and reject the
Superior Court’s decision in the [2014] Foreclosure Action by
challenging Bayview’s standing to foreclose and seeking damages
for alleged fabrication of evidence in that state action.
Bayview Br. at 9; see also PP Br. at 2 (incorporating this analysis by reference).
Plaintiff does not dispute Bayview’s postion. Plaintiff instead argues that her claims fall
within the “fraud exception” to the Rookcr—Pcldman Doctrine, and therefore the Court still has
jurisdiction over the matter. P1. Bayview Opp’n at 12-13. “Under the fraud exception, which has
9

been embraced by the Courts of Appeal for the Sixth and Ninth Circuits, Rooker-Eeldrnan does
not apply when the plaintiff asserts that the ‘state court judgments were procured by

.

[the

d]efendants through fraud, misrepresentation. or other improper means,’ because such claims are
“independent” of the claims brought in state cowl.” C½mphell v. Tabas, No. 16-6513, 2017 WL
3142118, at *3 (ED. Pa. July 25. 2017) (quoting McCormick

i’.

Braverman, 451 F.3d 382, 392-93

(6th Cir. 2006) and citing Kougasian v. TMSL, Inc., 359 F.3d 1136 (9th Cir. 2004)). Yet, “the
Second, Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits have rejected the exception, as have
district courts from the Fourth Circuit.” Id. (citing appropriate cases from each of these circuits).
“The Cowl of Appeals for the Third Circuit has not definitively weighed in on this debate, though
it has discussed the exception in dicta and in nonprecedential opinions.” EL (explaining that the
Third Circuit discussed the exception “favorably” in Great (44 Mining & Mineral Co. v. Fox
Rothschild LLP, 615 F.3d 159 (3d Cir. 2010) and applied it “inconsistently” in several unpublished
opinions thereafter). Therefore, it is unclear whether this exception exists within the Third Circuit.
Regardless, even if the Cowl were to recognize the &aud exception, it does not apply here.
The fraud exception to the l?ookcr—Fclthnan Doctrine does not protect a plaintiff’s “attempt[] to
overturn a state-court foreclosure judgment by cloaking his objections to the [state-court] decision
in a venccroffraud.” KajIa v. Cleary. No. 18-15449. 2019 WL 77067, at *3 (D.N.J. Jan. 2,2019).
In other words, a plaintiff
cannot evade Rooker-Feidman by arguing on appeal that lie was not
injured by the tbreclosurejudgment, but rather by [the defendant]’s
purportedly fraudulent actions. [If] [t]he complaint reveals [that] the
nature of [the plaintiffl’s claims against [the defendant] [is] that tte
[the defendant] had no right to foreclose on the property and
therefhre committed “criminal acts” by cnfbreing the foreclosure
judgment [then] [t]hese claims are in essence an attack on the state
court judgment of foreclosure
nd are therefore] properly
dismissed under the Rooker-Fclthnan doctrine.
10

hi re Farrington, No. 17-1775, 2019 WL 1149881, at *4(D.Nj. Mar. 11,2019) (quoting Gage v.
Wells Fargo Bank MA., 521 F. App’x 49, 51 (3d Cir. 2013)). Moreover, courts are reluctant to

recognize the fraud exception when a plaintiff already raised the fraud argument in the state court
action and the state court rejected it. See KajIa, 2019 WI, 77067, at *3 (finding that Plaintiff’s
fraud claim was barred by Rooker-Feldman because “Plaintiff alleged in the state-court

proceedings that the foreclosure was fraudulent, and Plaintiff alleges much of the same here,” and
“Plaintiff was denied relief in state court, and now seeks similar relief here in federal court.”); see
also Lawrence v. Emigrant Mortg Co., No. 11-3569, 2012 WL 1108532, at *8 (D.NJ. Mar. 30,
2012) (“Assuming Plaintiff is alleging fraud, Rooker-Feldman would bar this Court’s
determination of the fraud claim because Plaintiff raised the question of whether Lthe defendants)
committed fraud in the Chancery Court,”).
As to the 2014 Foreclosure Action, Plaintiff asserts that Bayview had no right to foreclose
on the property because either the First Assignment (assigning Plaintiffs Mortgage to Chase) or
the Second Assignment (assigning Plaintiffs Mortgage to Bayview) was fraudulent. See Compl.

¶

64 (in the “General Allegations and Facts Common to All Counts,” the Complaint reads:

“Plaintiff alleges that all Defendants intentionally acted in concert and in thrtherance of a scheme
to defraud Plaintiff of her property when they knew that they lacked the legal right to do so”).
Plaintiff also alleges that certain certifications submitted in state court to support these
Assignments were fraudulent. Compl.

Ill

64(e)(4); 77. However, Plaintiff made these same

allegations of fraud in the 2014 Foreclosure Proceeding; Plaintiff admits that she “filed an
Objection to prove that the Defendants lacked standing based on the fabricated documents and
misrepresentations,” Id. 138. The Superior Court ofNew Jersey entered a final judgment in favor
11

of Bayview nonetheless, lit

¶f 39.

Thus, Plaintiffs claims of fraud in connection with the First

Assignment and Second Assignment are, in essence, an attack on the Superior Court of New
Jersey’s final judgment of foreclosure in the 2014 Foreclosure Action. Therefore, the Court lacks
subject matterjurisdiction to hear claims premised on these allegations undcr the Rooker—Peldman
doctrine. As a result, the Court grants dismissal under Rule I 2(b)( I) as to the allegations that relate
to the 200$ or 2014 Foreclosure Action.
Entire Controversy Doctrine
Additionally, Plaintifis claims related to the 200$ and 2014 Foreclosure Actions run afoul
of the New Jersey’s entire controversy doctrine, as Defendants argue. Bayvicw Br. at 9-12: pp
Br. at 2; JP Br. at 10-1 l. When deciding a motion based on preclusion, the Court applies the
preclusion law from the first forum, here New Jersey state court. C’havez v. Dole Food Co., Inc.,
836 F.3d 205, 221 (3d Cir. 2016). “The entire controversy doctrine is essentially New Jersey’s
specific, and idiosyncratic, application of traditional res judicata principles.” Rvcoline Prods.,
Inc.

C & IV Unlimited, 109 F.3d 883, $86 (3d Cir. 1997). Similar to res judicata, the entire

controversy doctrine “extinguishes any subsequent federal-court claim that could have been joined
but was not raised in the prior state action.” SiUee

1’.

ML Stewardship Bank, No. 15-1762, 2016

WL 2770806, at *7 (D.N.J. May 12, 2016). The entire controversy doctrine is an affirmative
defense that may be considered as grounds for dismissal under Rule 12(b)(6) if its application is
clear from the face of the complaint. Rycoline Prods., Inc., 109 F.3d at 886.

The Court recognizes that Defendant PKDJ also argues that the New Jersey entire controversy
doctrine applies to Plaintiffs claims against them, PHDJ Br. at 9-12; however, the Court
understands Plaintiffs claims against PHDJ relate to the 2016 Bankruptcy Action so that New
Jersey’s entire controversy doctrine does not apply.
12

New Jersey Court Rule 4:30A, which codifies the entire controversy doctrine, provides that
“[n]on-joinder of claims required to be joined by the entire controversy doctrine shall result in the
preclusion of the omitted claims to the extent required by the entire controversy doctrine.”
Generally, “{tjhe entire controversy rule applies in federal court where there has been a previous
state court action involving the same transaction.” Puche, 256 F. Supp. 3d at 547. Rule 4:30A,
however, only applies to claims that could have been joined in the prior proceeding. Siljee, 2016
WL 2770806, at *8. Further, in the context of foreclosure matters, the entire controversy doctrine
is limited to “germane” claims. 14. (citing N.J. Ct. Rule 4:64-5). In other words, if a claim was
not germane. it would not be subject to the entire controversy doctrine.
A claim is germane if it arises out of the underlying mortgage transaction. Sfljee. 2016 WL
2770806, at

*$

(quoting Leisure Tec/r,—zW v. K/ingbeil Holding (‘o., 137 N.J. Super. 353, 358

(App. Div. 1975)). A claim is also germane if it is based on “conduct of the mortgagee

...

prior

to the institution of a foreclosure that could be the basis of an independent action for damages by
reason of the mortgagee having brought the foreclosure[.]” Zebrowski v. We/is Fargo Bank, NA.,
No. 07-5236, 2010 WL2595237. at *6 (D.N.J. June 2l.2010)( uotingSzmNLFLtd.

Partnership

v. Sasso. 313 N.J. Super. 546, 540 (App. Div. 199$)). In addition. “[c]laims that loan sen:iccrs
violated their statutory duties under RESPA are germane to foreclosure proceedings on the
mortgaged property.” Puc/je, 256 F. Supp. 3d at 549; see a/so SiUee, 2016 WL 2770806. at *10
(concluding that RESPA claim was germane to prior foreclosure matter).
Here, Plaintiffs allegations of fraud in connection with the First and Second Assignments
arise out of the underlying mortgage transaction. Therefore, these claims are germane and would

I,

Ii

also be barred by the New Jersey entire controversy doctrine, warranting dismissal under Rule
I 2(b)(6)Y
Plaintiff’s claims against Defendants Bayview, FSKS, Din, PP. Scheinbach, Johnson, and
Nelson appear to relate solely to the state-court foreclosure proceedings. Having found that the
Court lacks jurisdiction under Rooker-Feidman to hear Plaintiff’s claims relating to these state-

court foreclosure proceedings, and that the New Jersey entire controversy doctrine would similarly
warrant dismissal of these claims, the Court dismisses Plaintiffs claims as to these Defendants.
Providing Plaintiff with an opportunity to amend the Complaint as to these Defendants would be
Mile because an amendment could not overcome the Rooker-Feidman or New Jersey entire
controversy doctrine. As a result, dismissal is with prejudice as to Defendants Bayview, FSKS,
Diaz, PP, Scheinbach, Johnson, and Nelson. See Mason v. US Bank, No. 16-1366, 2016 WL
7189828, at *6 (D.NJ. Dec. 12,2016). A dismissal with prejudice means that Plaintiffis precluded

from filing any figure suit against Defendants concerning the pertinent allegations in the
Complaint.
The only Defendants remaining are those whose alleged conduct relates to the 2016
Bankruptcy Action, specifically Defendants U.S. Bank, Riggsby, Junkin, Orion, Caliber, PHDJ,
M&T, JP and Nealy. The Court has not been apprised of any resolution to the 2016 Bankruptcy
Action that would warrant the application of preclusion principles. Therefore, the Court analyzes
Plaintiffs claims as to the remaining Defendants on the other grounds that were raised.

Having found that Plaintiffs claims related to the First and Second Assignments are barred by
the Rooker-Feidman Doctrine and New Jersey entire controversy doctrine, the Court does not
conduct a separate analysis as to the resjudicata or standing arguments that were raised.
14

Standing
Defendants argue that Plaintiff lacks standing to challenge the assignment of her mortgage
because she was not a party to the contract. Bayvicw Br. 13-11; PHDJ Br. at 7-8; FSKS Br. at 1$;
PP Br. at 2. As stated, Plaintiffs claims related to the First and Second Assignment have already
been dismissed. However, Plaintiff also premises her claims against the remaining Defendants on
the invalidity of the Third Assignment, attached to the Proof of Claim submitted in the 2016
Bankruptcy Action. Compl.

¶

60 (“The post-petition Assignment of Mortgage attached to the

Proof of Claim contained misrepresentations wherein the signer. Connie Riggsby represented that
she was the Vice President of Bayvicw Loan Servicing, LLC by Caliber Home Loans.”); see also
Id.

¶ 64(e)(2),

82, 98. Thus, the Court analyzes Defendants’ standing argument as to the Third

Assignment.
“As a preliminary jurisdictional matter,

.

.

.

[clouds in the Third Circuit have repeatedly

held mortgagors lack standing to contest the assignment of their mortgages or notes
plaintiffs are not parties to or third-party beneficiaries of the.

.

.

.

.

.

where

assignment.” Perez v. iF Morgan

Chase Bank N.A., No. 14-2279, 2016 WL 816752, at *3 (D.N.J. Feb. 29, 2016)i° Here, Plaintiff
is not a party to, or third-party beneficiary ot the Third Assignment. Therefore, Plaintiff does not
have standing to challenge the validity of the Third Assignment and cannot bring claims on that
basis.

Plaintiffs only allegations against Defendants Riggsby and Junkin are that Riggsby

Citing Baiter v. Mortg. Lice. Registration Sn., Inc., 618 Fed. Appx 147, 149 (3d Cir. 2015);
Pillitten 1’. First HorIzon Home Loans, No. 14-03076, 2015 WL 790633, at *4 (D.N.J. Feb. 25,
2015); Thin .Jii Song v. Bank ofAm., NA., No.14-3204, 2015 WL 248436, at *2 (D.N.J. Jan. 20,
2015); Other v. Bank ojAm., NA., No. 13-4888, 2014 WL 1429605, at *3 (D.N.J. Apr. 14,2014);
Schiano v. MBNA, No. 05-1771, 2013 WL 2452681, at *26 (D.N.J. Feb. 11.2013); and Grullon v.
Bank ofMn., NA. No. 10-5427. 2013 WL 9681040. at *12 (D.N.J. Mar. 28, 2013).
‘°

15

misrepresented her title on the Third Assignment, and Junkin knowingly notarized it, making the
Third Assignment invalid. Compl. ¶‘ 27, 29, 60. 62, 64(e)(2). 82. Plaintiff does not have standing
to bring claims against Defendants Riggsby and Junkin on this basis; therefore. Plaintiff’s claims
are dismissed as to Defendants Riggshy and Junkin. Further, since an opportunity to amend the
Complaint as to these Defendants on this theory’ would be futile. Plaintiff’s claims against
Defendants Riggsby and Junkin are dismissed with prejudice. See Mason, 2016 WL 7189828, at
*6. The remaining Defendants are therefore U.S. Bank, Orion, Caliber, PF{DJ, Nealy, M&T, and
JP as the remaining Defendants in the action.
Abuse of Process (Count 1)
In Count 1, Plaintiff alleges abuse ofproeess against Defendants U.S. Bank, Orion, Caliber,
Compi. ¶JJ 88-94. “The essential elements of misuse or abuse of process

PHD). M&T. and JP2

‘arc an ulterior motive and some ffirther act after the issuance of process representing the
perversion of the legitimate use of the process.” Prunkel v. Or. of Bergen, No. 17-5154, 2017
WL 5483165. at *7 (D.N.J. Nov. 15, 2017) (quoting Sinione

i’.

Golden Nugget Hotel & Casino,

844 F.2d 1031, 1036-37 (3d Cir. 1988) (applying New Jersey law)). Here, Plaintiff alleges that
Defendants “abused.
Id.

¶

92.

.

.

the bankruptcy

[] process by filing false documents to support their claim.”

Plaintiff does not however identify any allegedly false documents that Defendants

submitted to the Court in the 2016 Bankruptcy Proceeding (aside from the Third Assignment,
which the Court already explained Plaintiff does not have standing to challenge).

All other

Again, Plaintiff included Defendants FSKS. Bavview. Diaz. Johnson, and Nelson in this Count
for “abuse of the legal process in connection with the foreclosure lawsuits,” Compl. ¶ 88, but these
parties have been dismissed. Plaintiff also included Defendants Riggsby and Junkin for “abuse of
tiling of the Proof of Claim.” id, but these parties
the legal process inconnection with the
have also been dismissed.
16
‘‘

...

allegations are conclusorv. Therefore, the Court dismisses Plaintiffs abuse of process claim
(Count I) without prejudice.
FDCPA/NJCFA (Count Ill)
Plaintiff next brings claims under the FDCPA and NJCFA labelled “illegal consumer
consumption.” Cornpl. ¶ 100-108. First,
To prevail on an FDCPA claim, a plaintiff must prove that (I) she
is a consumer, (2) the defendant is a debt collector, (3) the
defendants challenged practice involves an attempt to collect a
“debt” as the Act defines it. and (4) the defendant has violated a
provision of the FDCPA in attempting to collect the debt.
Douglass

i’.

Convergent Outsourcing. 765 F.3d 299, 303 (3d Cir. 2014). As to the fourth element,

Plaintiff pleads a violation of 15 U.S.C.

§

1962e(lO) and 15 U.S.C.

§

I 962f. Compljf 107. Section

I 962e( 10) proscribes “[tjhe use of any false representation or deceptive means to collect or attempt
to collect any debt or to obtain information concerning a consumer.”

15 U.S.C.

§

1692e(lO).

Section l962f forbids “use unfair or unconscionable means to collect or attempt to collect any
debt.” 15 U.S.C.

§

16921

Here, Plaintiff’s factual allegations regarding a violation of these provisions seem to relate
primarily to the 2008 and 2014 Foreclosure Actions, see Compl.

¶

104-107, which, as explained,

this Court cannot consider. To the extent that Plaintiff is basing these violations on the invalidity
of the Third Assignment, the arguments are not considered for lack of standing as explained above.
Plaintiff remaining allegations are eonclusorv and isnufficient The Court dismisses Plaintiff’s
FDCPA claim without prejudice.
The NJCFA is comprised of the following elements: “(1) unlawftl conduct by the
defendant: (2) an ascertainable loss by the plaintiff; and (3) a causal connection between the
defendantTs unlawftd conduct and the plaintiffs ascertainable loss.” Pavan v. GreenPoint Morig.
17

Funding, Inc., 681 F. Supp. 2d 564, 572 D.N.J. 2010) (citing Bosland

i’.

Warnock Dodge, Inc.,

197 N.J. 543 (2009)). As to the first element, Plaintiff does not specify which provisions of the
NJCFA Defendants are alleged to have violated. Additionally, Plaintiff again premises her claim
on events adjudicated in the 2008 and 2014 Foreclosure Actions as well as impropriety in the Third
Assignment. See Compl.

¶f 103-107.

As explained above, these the Court does not consider these

allegations. Plaintiff mentions “[flailure to engage in pre-foreclosure settlement discussions,”
“[d]ual-tracking,” “[rjetuming mortgage payments to cause default,” “[t] ampering with evidence,”
“double-bill[ing],” imposition of other fees, and other allegedly improper conduct, id.
but does not identify who, specifically, engaged in these acts and when.

104-05,

Thus, Plaintiffs

allegations of unlawful conduct, the first element, are either insufficient or conclusory. Plaintiff
also claims her ascertainable loss, the second element, to be “slander to her creditworthiness and
emotional/physical health issues,”

it!.

¶

108, but provides no legal support showing that these are

sufficient ascertainable losses under the NJCFA. Further, as to the third element, it would seem
that Plaintiffs conduct in defaulting on her loan, rather than Defendants’ conduct of assigning her
mortgage, caused Plaintiffs alleged injuries. As a result, causation is insufficiently pled. The
Court dismisses Plaintiffs NJCPA claim without prejudice.
flntlV
Plaintiff next appears to allege two claims under RICO, alleging (1) a substantive violation
of Section 1962(b); and (2) a conspiracy under Section 1962(d). Compl. ¶j 109-Ill. “The civil
RICO statute allows ‘[a]ny person injured in his business or property by reason of a violation of
section 1962 of this chapter [to] sue therefor in any appropriate United States district court.”
Anderson v. Ayling, 396 F.3d 265, 268-69 (3d Cir. 2005) (quoting 18 U.S.C.

§

1964(c)). “The

elements predominant in a [Section 1962] subsection (c) violation are: (I) the conduct (2) of an
18

enterprise (3) through a pattern of racketeering activity.” Salinas v. United States, 522 U.S. 52,62
(1997). Here, Plaintiff alleges as follows:
Defendants,
interfere[d] with the quiet enjoyment of Plaintiffs
home; burglarize[d] and vandalize[d]; st[olej the equity in the
Plaintiffs home through the use of sham pleadings, manufactured
“evidence” such as altering documents, fraudulent affidavits and
presented in a civil or bankruptcy action in order to fraudulently
obtain a judgment of foreclosure.
.

Compl.

¶ Ill.

.

.

As explained above, allegations relating to the 2008 and 2014 Foreclosure Actions,

as well as the Third Assignment, are not considered. As to the accusations of burglary and
vandalism, Plaintiff does not sufficiently identify who burglarized her property and when, nor who
vandalized her property and when.’2

Plaintiff fails to plausibly plead a violation of Section

1962(b). For this reason, Plaintiffs RICO conspiracy claim under Section 1962(d) must also fail.
See Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1191 (3d Cir. 1993) (“Any claim under
section 1962(d) based on conspiracy to violate the other subsections of section 1962 necessarily
must fail if the substantive claims are themselves deficient.”). The Court dismisses Plaintiffs
RICO claims without prejudice (Count IV).
aountII
Finally, Plaintiff brings a civil conspiracy claim against all Defendants. Compl.

¶f 95-99.

Under New Jersey law, “[a] conspiracy is not actionable absent an independent wrong.” Eli Lilly
& Co. v. Roussel Corp., 23 F. Supp. 2d 460, 497 (D.N.J. 1998) (citing Tynan v. General Motors
corp., 248 N.J. Super. 654, 668-69 (App.Div.1991), rev’d in part on other grounds, 127 N.J. 269
(1992)). Since the Court finds that Plaintiff has failed to plausibly plead any of her other claims,

12

It appears that these claims may have already been litigated too, see Compl. ¶j 40-46, warranting
preclusive effect. However, the Court does not have enough information to definitively decide the
issue. Nevertheless, these allegations are conclusory.
19

Plaintiffs civil conspiracy claim also fails. See ui. (“the dismissal of [the plaintiffi’s other causes
of action requires dismissal of the conspiracy claim.”), Plaintiffs civil conspiracy claim (Count
II) is dismissed without prejudice.
IV.

CONCLUSION
For the reasons stated above, Defendants’ motions to dismiss (D.E. 5, 8, 10, 13, 14,23) are

granted and the Complaint is dismisscd.

The Complaint is dismissed with prejudice as to

Defendants Bayview, FSKS, Diaz, PP, Scheinbach, Johnson, Nelson, Riggsby, and Junkin. The
Complaint is dismissed without prejudice as to the remaining Defendants, U.S. Bank, Orion,

Caliber, PHDJ, Nealy, M&T, and JP,. Plaintiff has thirty (30) days to file an amended complaint
as to the counts dismissed without prejudice, if she so chooses, consistent with this Opinion. If
Plaintiff fails to file an amended complaint, the dismissal as to the remaining Defendants will be
with prejudice. An appropriate Order accompanies this Opinion.
Dated: April 24, 2019

MichaelVazquez,...J.

20