The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
David Tilbury and Ann Tilbury, Plaintiffs pro se,
("Plaintiffs" or "The Tilburys") have sued twenty eight different
Defendants in this matter. Defendants First American Title
Insurance Company, Gary L. Kermott, Nancy Newman-Brown, George M.
Conway, III, Stephen McNally, Jonathan Preziosi, Melissa
Chuderewicz, Cenlar F.S.B., Michael Young, Kimberly Ann Glosso
Hagen, Kelly Lutz, Nancy Irwin, Terry Kane, Kristin
Shellenberger, Rosemary Leonardis, Aames Home Loan and Harold G. Belkowitz have filed
motions to dismiss Plaintiffs' complaint pursuant to
Fed.R.Civ.P. 12(b)(6) and to have the Court enjoin Plaintiffs from
access to the federal court system in this District without prior
leave of Court. Two issues are before the Court: first, whether
Plaintiffs' complaint can survive the motions to dismiss, and
second, whether Plaintiffs should be enjoined from filing
complaints in this District without prior leave of Court. This
Court has jurisdiction pursuant to 28 U.S.C. §§ 1332, 1367. For
the reasons stated below, Defendants' motions to dismiss are
granted, and the Court is exercising its inherent power to enjoin
David and Ann Tilbury from further pro se filings against
these defendants or any employee, agent, or attorney thereof,
unless certain conditions are met.
Since 1989, the Tilburys have filed no fewer than seven
bankruptcy*fn2 petitions, three appeals or lawsuits in the
United States District Court, two appeals to the United States
Court of Appeals for the Third Circuit, and numerous state court
actions arising in connection with certain of their loans and
mortgages. The Defendants can be broken down into six categories:
1) Aames Home Loan ("Aames") defendants, 2) First American Title
Insurance Company ("FATICO") defendants, 3) Cenlar F.S.B.
("Cenlar") defendants, 4) Plaintiffs' own former attorneys, 5) judicial defendants, who have all since been dismissed, and 6)
the "Operator and/or controller of Court Recording device." Pls.'
Compl. at 1-2.
Plaintiffs filed their initial Chapter 13 petition in 1988.
However, due to complications caused by the disbarment of their
counsel, Plaintiffs were allowed to re-file their Chapter 13
petition in 1993, and on November 3, 1993, The Tilburys re-filed
their Chapter 13 Bankruptcy case; the case was assigned docket
number 93-14945. At the time of the Bankruptcy filing, Trans
World Mortgage held a mortgage on Plaintiffs' property located at
405 Grant Avenue, Edgewater, New Jersey. Trans World Mortgage
later assigned the mortgage to Cenlar. Ultimately, the mortgage
was assigned by Commonwealth Mortgage to FATICO in 2001.
In 1996, Plaintiffs' Bankruptcy counsel drafted a consent order
establishing the mortgage loan amount owed to defendant Cenlar,
but inadvertently reduced the lender's claim of $90,900 by an
additional $26,696. In Re Tilbury, No. 93-14945, Hearing
Transcript (Sept. 18, 1998) 8:7-24. On May 16, 1996, the
Bankruptcy Court issued an Order reducing the amount of the
mortgage claim to $65,169. In Re Tilbury, No. 93-14945, Order
(May 16, 1996). As a result of the mistake, this Order reflected
the incorrect amount owed to Cenlar. Aames' Ex. 1, 3.
In late 1997, Plaintiffs contracted with Aames for a $90,900
loan and mortgage. Tilbury v. Aames, No. L-000667-02, Hearing
Transcript (Sept. 21, 2004) at 104:12-106:4. Aames provided the
requested loan to Plaintiffs and received a mortgage. Id.
Titleserv, FATICO's agent, was responsible for determining the
accuracy of payoffs and disbursing the loan proceeds. Id. at
104:23-107:22. Titleserv issued a $26,366.65 check to Plaintiffs
that it apparently thought satisfied the outstanding mortgage
balance. Id. However, the mortgage balance was incorrect as a result of the May 16, 1996 Order of the Bankruptcy Court. Id.
Moreover, this check should have been issued to Cenlar, and not
to Plaintiffs, who kept the money. Id.
On February 16, 1998, Cenlar filed a motion to modify the May
16, 1996 Order and to vacate the Automatic stay with respect to
the real property. In Re Tilbury, No. 93-14945, Seffer Cert.
(Feb. 16, 1998). Oral argument was held before the Hon. Gloria M.
Burns, U.S.B.J., on September 18, 1998, at which the Plaintiffs
appeared pro se. Defendant Shari Seffer, Esq. ("Seffer"), counsel
for Commonwealth Mortgage, predecessor to FATICO, argued that the
May 16, 1996 Order, which was submitted by Appellant's counsel,
contained a clerical error which resulted in the amount of the
claim being misrepresented. In Re Tilbury, No. 93-14945, Seffer
Cert. (Feb. 16, 1998). Judge Burns ruled that the amount of the
claim should have been stated as $96,065.62 and that the
Plaintiffs were to be credited for $69,369, thereby leaving an
outstanding principal balance of $26,369.69 to be paid by the
Appellant to satisfy the claim.*fn3 In Re Tilbury, No.
93-14945, Hearing Transcript (Sept. 18, 1998) 13:3-13:20.
Subsequent to the hearing, Judge Burns issued an Order on
November 23, 1998, that established a total amount due to the
creditor of $37,909.76. In Re Tilbury, No. 93-14945, Order
(Nov. 23, 1998). This amount included $10,528.63 for taxes and
insurance advanced by the creditor and $252.86 of interest. In
Re Tilbury, No. 93-14945, Order (Nov. 23, 1998). Plaintiffs
never filed an appeal or motion for reconsideration of that Order
and FATICO proceeded with foreclosure of the property. In June 2001, Plaintiffs, acting pro se filed a motion to
dismiss a foreclosure action filed in 1987 in the Superior Court
of New Jersey Chancery Division by Cenlar, FATICO's predecessor.
Tilbury v. Balboa, Case No. 04-cv-4720 (FLW) at 4 (D.N.J Apr.
5, 2005). At least three separate hearings on the matter were
scheduled before Judge Gottlieb, of the Superior Court of New
Jersey Chancery Division, on October 10, 2001, December 21, 2001
and January 18, 2002, but Plaintiffs still disputed the amount
that they owed to the creditor. Id. A foreclosure hearing
before the Honorable Ronald E. Bookbinder, J.S.C., was held on
February 25, 2002, to allow the Plaintiffs the opportunity to
dispute the foreclosure amount. Id. Although Plaintiffs were
represented by counsel at this proceeding, Plaintiffs themselves
did not attend or participate in the hearing because of an
apparent disagreement that they had with their attorney. Id. At
this hearing, both parties agreed that the amount established in
Judge Burns's November 1998 order would be the starting point for
discussion of the amount due, subject to any proofs that the
Plaintiffs could provide at the hearing. Id. On April 11, 2002,
Judge Bookbinder issued an Order embodying his finding at the
hearing that, as of February 25, 2002, the total outstanding
arrears due on the mortgage was $46,991.84. First American Title
Ins. Co v. Tilbury, et al., No. F-5216-87, Order (Apr. 11,
2002). The Superior Court entered a foreclosure judgment against
Plaintiffs on or about April 11, 2002. Id.
Plaintiffs also filed a motion to transfer the concluded
foreclosure matter to the Law Division of Burlington County,
which Judge Bookbinder denied. Tilbury v. Balboa, Case No.
04-cv-4720 (FLW) at 4 (D.N.J Apr. 5, 2005). On April 16, 2002,
Plaintiffs filed a motion for reconsideration of their
application to transfer the foreclosure. Id. at 5. Judge
Bookbinder denied the motion on May 17, 2002. Id. Plaintiffs
also appealed the April 11, 2002 Order; the Appellate Division affirmed Judge Bookbinder on May 30, 2003.
Tilbury v. First Jersey National Bank West, No. A-5069-01T1,
Opinion (May 30, 2003).
On May 7, 2003, Judge Bookbinder entered an Order correcting a
clerical error on the April 11, 2002 Order. First American Title
Ins. Co. v. Tilbury, No. F-5216-87, Order (May 7, 2003). After
FATICO filed an application for final judgment, Plaintiffs filed
opposition to the application and also filed a motion to vacate
the May 7, 2003 Order based upon newly discovered evidence and
fraud. Tilbury v. Balboa, Case No. 04-cv-4720 (FLW) at 5 (D.N.J
Apr. 5, 2005). Judge Bookbinder tentatively denied Plaintiffs'
opposition to the application and their motion to vacate on May
27, 2004 and on July 17, 2004. Id.
On February 25, 2002, Plaintiffs filed another case, bearing
docket number L-000667-02, against Aames, Cenlar, FATICO,
Titleserv, and Thomas Orr, Esq. ("Orr"), the Tilburys' former
bankruptcy attorney, in the Superior Court of New Jersey, Law
Division, Burlington County. The suit alleged lending violations,
fraud/misrepresentation, negligence, conspiracy, breach of
contract, deceptive trade practice, and other causes of action.
Tilbury v. Aames, et al., Burlington County, Law Division, Case
No. L-000667-02, Am. Compl. (June 17, 2002). During discovery,
Plaintiffs alleged that the underlying facts also supported
additional claims that all of the defendants engaged in improper
conduct, including that various entities' conduct arising from
the same transaction and occurrences at issue in the present case
amounted to a violation of the Racketeer Influenced and Corrupt
Organization Act ("RICO"). Tilbury v. Aames, et al., Burlington
County, Law Division, Case No. L-000667-02, Mot. To Enlarge and
Amend Plaintiffs' Civil Action (July 21, 2004). The Court denied
leave to amend because it was, among other reasons, not timely filed. Tilbury v. Aames, et al.,
Burlington County, Law Division, Case No. L-000667-02, Order
(Aug. 27, 2004).
On September 21, 2004, after a lengthy oral argument, the
Honorable Craig Wellerson, J.S.C.,*fn4 granted the motions
for summary judgment in their entireties in Case No. L-000667-02.
Several months later, on February 4, 2005, Plaintiffs initiated
an action with this Court against the same parties when they
attempted to remove the dismissed state court action to federal
court. Tilbury v. Aames, et al., Case No. 05-721 (FLW). On
February 10, 2005, I remanded Plaintiffs' improvidently removed
action. Plaintiffs appealed that ruling, and the Third Circuit
affirmed my decision on July 13, 2005.
On July 7, 2004 the Tilburys moved the United States Bankruptcy
Court to rescind the November 23, 1998 Order. That request was
denied. The Tilburys filed an appeal, docketed as Case No.
04-4720. By way of an Opinion dated April 5, 2005, this Court
affirmed the Bankruptcy Court.
Plaintiffs filed the instant complaint on April 18, 2005
against FATICO, Gary L. Kermott, Nancy Newman-Brown, George M.
Conway, III, Stephen McNally, Jonathan Preziosi, Melissa
Chuderewicz, Cenlar, Michael Young, Kimberly Ann Glosso Hagen,
Kelly Lutz, Nancy Irwin, Terry Kane, Kristin Shellenberger,
Rosemary Leonardis, Aames, A. Jay Meyerson, Harold G. Belkowitz,
Bruce Sattin, Andrew Finberg,*fn5 Philip S. Carchman,
J.A.D., Ronald E. Bookbinder, J.S.C., Craig L. Wellerson, J.S.C., Jude Del Preore,
T.C.A., the Administrative Office of the Courts, State of New
Jersey, and John/Jane Doe the "Operator and/or controller of
Court Recording device." In the complaint, Plaintiffs allege,
inter alia, that they are bringing this action pursuant to
the Truth in Lending Act, Fair Housing Act, RESPA, RICO (federal
and New Jersey), ...