GAGE v. WELLS FARGO BANK, NA AS et al
Filing
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OPINION filed. Signed by Judge Freda L. Wolfson on 3/5/2012. (mmh)
*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
________________________________
:
THOMAS GAGE,
:
:
Plaintiff,
:
:
v.
:
:
SOMERSET COUNTY SHERIFF
:
FRANK J. PROVENZANO, et al.,
:
:
Defendants.
:
:
________________________________ :
Civil Action No. 11-862 (FLW)
OPINION
WOLFSON, United States District Judge:
This action is one of many cases filed by pro se Plaintiff Thomas Gage (“Plaintiff”) in
this Court related to a state court order of foreclosure on his home. Presently before the Court is
Plaintiff’s motion for summary judgment.
Defendant Somerset County Sheriff Frank J.
Provenzano (“Defendant” or the “Sheriff”) opposes the motion and cross-moves for summary
judgment. In essence, Plaintiff complains that Defendant violated his rights under the United
States Constitution and various federal statutes by conducting a sheriff’s sale on his home
pursuant to a valid state court foreclosure judgment.
Alternatively, Plaintiff alleges that
Defendant failed to follow the foreclosure order thereby violating his rights. For the reasons set
forth below, Plaintiff’s motion for summary judgment is DENIED and Defendant’s cross-motion
for summary judgment is GRANTED.
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I. BACKGROUND
The Court notes that it has previously dismissed Wells Fargo Bank (“WFB”) as a
defendant on September 9, 2011. In that Opinion, the Court set forth the facts relating to WFB’s
involvement in this matter. For the purposes of the present motion, the Court will incorporate
and refer to the prior Opinion and only recount relevant facts that are not in dispute. This matter
arises out of a foreclosure action on Plaintiff’s home. On February 13, 2006, Plaintiff executed a
Promissory Note (“Note”) in favor of Mortgage by Equity Home Loans, LLC for $750,000. This
Note was secured by a mortgage on the real property located at 51 Hillcrest Boulevard, Warren,
New Jersey (the “Property”). According to Plaintiff, the mortgage was assigned to WFB on June
11, 2008, pursuant to a Pooling and Servicing Agreement. While Plaintiff never acknowledged
his default on the mortgage, the documents from the state court action reveal that on or about
February 1, 2008, Plaintiff and Lucia Gage defaulted on the note and mortgage, and as a result, a
Foreclosure Complaint was filed by WFB in the Superior Court of New Jersey, Chancery
Division, Somerset County under Docket No.: F-22089-08. Because Plaintiff and Lucia Gage
failed to file a responsive pleading to the Foreclosure Complaint, the state court entered a Final
Judgment of Foreclosure of the Property on April 13, 2010. It is important to note that this Court
has already found that as a result of Plaintiff’s lack of defense in the state foreclosure action, the
state court order is final and valid. See Opinion dated September 9, 2011.
By way of letter dated April 26, 2010, attorneys for WFB forwarded to the Sheriff’s
Office a Write of Execution. In addition, by way of a cover letter, the original Affidavit of
Consideration and Short Form Description were forwarded to the Sheriff’s Office.
See
Przybylski’s Cert., Ex. A. After receiving the foregoing documents, the Sheriff’s Office placed
sheriff’s sale advertisements of the Property in three newspapers (Courier News, Recorder
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Publisher, and Somerset Spectator) on these particular dates: May 12, 20120, May 20, 2010,
May 27, 2010, and June 3, 2010. See Przybylski’s Cert., Ex. B.
On May 14, 2010, Sheriff’s Officer Michael DeRosa posted the Sheriff’s Sale
Advertisement along with the Writ of Execution on the front door of the Property.
See
Przybylski’s Cert. at 2. Subsequently, Plaintiff applied for and received adjournments of the
sale. Id. According to Defendant, the Sheriff’s sale finally took place on July 6, 2010. Two
bidders attended the Sheriff’s sale. One of them was a WFB representative, and he tendered the
successful bid of $461,000. See Przybylski’s Cert. at p. 3.
After the sale, the Sheriff executed a deed covering title to the Property and that deed was
presented to the Somerset County Court Clerk’s Office for filing. On January 3, 2011, Mr.
Mospack from the Sheriff’s Office served Plaintiff with a Writ of Possession at which time
Plaintiff refused to leave the Property. See Przybylski’s Cert. at p. 3. Plaintiff, his family, and
Plaintiff’s Tenant were ultimately evicted on August 8, 2011.
II. DISCUSSION
A. Standard of review
Courts will enter summary judgment only when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). An issue is “genuine” if supported by evidence such that a
reasonable jury could return a verdict in the non-moving party's favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive
law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a
genuine issue of material fact exists, the court must view the facts and all reasonable inferences
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drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U .S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has
met this burden, the non-moving party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial. Id. at 324. The non-moving party may not rest
upon the mere allegations or denials of its pleading. Id.; Maidenbaum v. Bally's Park Place,
Inc., 870 F.Supp. 1254, 1258 (D.N.J.1994).
[T]he plain language of Rule 56(c) mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial.
Celotex Corp. v. Cattret, 477 U.S. at 322.
On a motion for summary judgment, the court does not “weigh the evidence and
determine the truth of the matter, but [instead] determine[s] whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 242-43. Credibility determinations are the province of the fact
finder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992).
B. Qualified Immunity
Defendant argues that all of Plaintiff‘s claims against him should be dismissed based on
qualified immunity. Indeed, the doctrine of qualified immunity, which was recently refined by
the Supreme Court, protects government officials “from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citing
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Supreme Court in Pearson held that while
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qualified immunity should be determined in a two-part analysis, it abandoned the strict sequence
of the analysis it had previously articulated in Saucier v. Katz, 533 U.S. 194 (2001).
Before Pearson, the Supreme Court required the Court to determine first, “whether the
facts that a plaintiff has alleged ... make out a violation of a constitutional right. Second, if the
plaintiff has satisfied this first step, the court must decide whether the right at issue was ‘clearly
established’ at the time of defendant's alleged misconduct.” Pearson, 555 U.S. at 233 (quoting
Saucier, 533 U.S. at 201). “Because the two-step Saucier procedure is often, but not always,
advantageous, the judges of the district courts and the courts of appeals are in the best position to
determine the order of decision making that will best facilitate the fair and efficient disposition
of each case.” Id. at 821. Whether an officer protected by qualified immunity may be held
personally liable for an allegedly unlawful state action generally turns on the “objective legal
reasonableness” of the action. See Anderson v. Creighton, 483 U.S. 635, 639 (1987) (citing
Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982)). “The contours of the right must be sufficiently
clear that a reasonable [officer] would understand that what he is doing violates that right.” Id. at
640.
In his Complaint, Plaintiff claims that Defendant “has failed to perform his duty to
protect Plaintiff’s constitutional rights.” It appears that Plaintiff takes issue with Defendant’s
actions in enforcing the State Foreclosure Order, i.e., the Sheriff’s sale of the Property. Turning
to that conduct, the Court finds that Defendant is entitled to qualified immunity because his
actions did not violate any clearly established law.
Plaintiff’s Complaint is not well drafted; in that regard, it is difficult to discern the
specific claims. However, it appears that Plaintiff asserts a host of constitutional violations,
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including due process and equal protection, stemming from the Sheriff’s Sale. 1
However,
regardless of what types of claims Plaintiff has brought under the Constitution, this Court finds
that because Defendant acted pursuant to a valid state court judgment, Defendant’s actions –
conducting the Sheriff’s sale – did not violate any clearly established law. Rather, the Sheriff
simply fulfilled his obligations of enforcing the foreclosure judgment entered against Plaintiff in
state court. See Gray v. Pagano, 287 Fed. Appx. 155, 158-59 (3d Cir. 2008) (noting claim
against sheriff putting property up for foreclosure sale, inter alia, was barred by immunity);
Chen v. Rochford, 145 Fed. Appx. 723, 725 (3d Cir. 2005) (dismissing appeal; noting order
dismissed claims against sheriff connected to foreclosure sale as barred by immunity); see also
Kushner v. Wachovia, N.A., No. 10-5488, 2010 U.S. Dist. LEXIS 129432, at *8 (D.N.J. Dec. 8,
2010) (“[t]he claims asserted against the Sheriff also are barred by qualified immunity, as the
Sheriff's conduct violated no clearly established statutory or constitutional rights.”). 2
The Court also rejects Plaintiff’s allegations that Defendant’s conduct violated the
Constitution because the “Write of Possession” and the trial court’s judgment were fraudulently
obtained by WFB. First, to the extent Plaintiff attempts to challenge the state court foreclosure
order, that claim, as the Court has previously ruled in its Opinion with respect to the claims
raised against WFB, is barred by the Rooker-Feldman doctrine. Additionally, the Sheriff was
1
While Plaintiff asserts allegations of trespass, loss of real property, and intentional infliction of emotional
distress as a result of the foreclosure, these alleged acts, as they appear in the Complaint, are related to his
constitutional claims. Nonetheless, even if these acts were separate claims, the Sheriff is entitled to qualified
immunity for the same reasons why the Sheriff is immunized from Plaintiff’s constitutional claims. See, infra.
2
In his motion papers, Plaintiff additionally alleges, inter alia, that as a result of the Sheriff's sale, the
personal properties of Plaintiff and his "Tenant" were "damaged, mistreated and misplaced." Plaintiff's Br. at p. 15.
However, these allegations were not pled in the Complaint. Clearly, under well-established law, Plaintiff may not
amend his Complaint through briefing. See Commonwealth of Pennsylvania, Ex Rel. Leroy S. Zimmerman v.
Pepsico, Inc., 836 F.2d 173, 182 (3d Cir. 1988).
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not in a position to challenge the foreclosure order, but rather, it was Plaintiff’s choice not to
exercise his rights to appeal.
Finally, Plaintiff claims that Defendant abused his discretion by failing to sell the
Property for $814,646.32. The Court finds Plaintiff’s claim without merit. First, Defendant was
not required to sell the Property for $814,646.32. The amount stated in the Writ of Execution is
simply the mortgage amount secured by Plaintiff. In fact, the Bidding Worksheet, submitted by
Defendant, indicates that two parties bid for the Property. See Def.’s Ex. E. The first bidder was
a WFB representative. The second bidder was Mr. Raui Abuumilli-MauraliAb. Id. According
to the Bidding Worksheet, the highest bid was $461,000.00. The final bid was submitted by the
WFB representative and accepted by Defendant.
Second, according to Defendant’s Sworn
Affidavit, Defendant duly advertised the property in question. Defendant has provided copies of
the Sheriff’s sale advertisements in three different newspapers. Accordingly, in sum, the Sherriff
followed the procedures of a Sheriff’s sale, and in that regard, the record contains no facts
supporting Plaintiff’s claim that Defendant acted improperly or “abused Plaintiff’s rights.”
Finally, Plaintiff asserts violations under the following statutes: 18 U.S.C.A. §4
(misprision of felony), 18 U.S.C.A §1505 (obstruction of justice), 18 U.S.C.A §1510 (obstruction
of criminal investigation), and 18 U.S.C.A. §2381 (treason). Because these statutes are criminal
in nature, this Court is without jurisdiction in this civil suit to entertain them.
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III.
CONCLUSION
After careful review of the facts underlying the foreclosure sale of the Property, and
viewing all facts and reasonable inferences in light most favorable to Plaintiff, this Court
concludes that there is no genuine issue of material fact regarding Defendant’s qualified
immunity defense.
Hence, Defendant’s motion for summary judgment is GRANTED and
Plaintiff’s motion for summary judgment is DENIED. See Celotex Corp., 477 U.S. at 323.
Date:
March 5, 2012
/s/
Freda L. Wolfson
Freda L. Wolfson, U.S.D.J.
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