Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

TILBURY v. AAMES HOME LOAN

December 9, 2005.

DAVID L. TILBURY AND ANN E. TILBURY, Plaintiffs,
v.
AAMES HOME LOAN, ET AL, Defendants.



The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge

OPINION

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. ยงยง 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.

  I. BACKGROUND*fn1

  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), ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.