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Venner v. Bank of America

May 19, 2009

PATRICIA VENNER, PLAINTIFF,
v.
BANK OF AMERICA & JUDITH JENNINGS, DEFENDANTS.



The opinion of the court was delivered by: Simandle, District Judge

MEMORANDUM OPINION

This matter is before the Court upon Defendants' motions for summary judgment [Docket Items 29 and 30]. THIS COURT FINDS AS FOLLOWS:

1. Plaintiff Patricia Venner, proceeding pro se, filed this action on August 23, 2007 against Defendants Bank of America ("BOA") and Judith Jennings, Esq., asserting that Defendants violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq.*fn1

2. According to the evidence in the record, Plaintiff obtained a mortgage loan from Pulte Mortgage Corporation ("PMC") on December 9, 1999 in the amount of $65,500.00, which PMC assigned to BOA on June 1, 2000. (Docket Item 9 Ex. A at 1.) The mortgaged premises is an apartment in a complex known as the Summerhill Condominium Association ("SCA"). (Id.) Defendant Jennings is an attorney who represents the SCA. (Jennings Br. Ex. 8 at 1.)

3. The mortgage's "condominium rider" provides:

If Borrower does not pay condominium dues and assessments when due, then Lender may pay them. Any amounts disbursed by Lender under this paragraph [] shall become additional debt of Borrower secured by the Security Instrument. Unless Borrower and Lender agree to other terms of payment, these amounts shall bear interest from the date of disbursement at the Note rate and shall be payable, with interest, upon notice from Lender to Borrower requesting payment.

(Hanusek Cert. Ex. A at 2.)

4. Pursuant to the condominium rider, BOA made $19,349.53 in such condominium payments which Plaintiff failed to pay, and, upon Plaintiff's failure to make her mortgage payments, instituted a foreclosure action in the Superior Court of New Jersey (the "BOA action"). (Hanusek Cert. Ex. C at 1.) Plaintiff asserted a counterclaim in the BOA action, in which, like in this case, she argued that she had not, in fact, failed to make the $19,349.53 in payments to her condominium association because "[she] did not owe[] the $19,349.53 in taxes stated by [BOA] that caused [her] to be short in [her] escrow account," (Hanusek Cert. Ex. B at 2); as in this case, Ms. Venner argued that BOA's payment of the condominium dues was the product of an arrangement between BOA and Ms. Jennings to achieve the foreclosure of her property. (Hanusek Cert. Ex. D at 1.)

5. BOA moved for summary judgment in the BOA action, which the Hon. Ronald E. Bookbinder granted in an order dated November 16, 2006. (Hanusek Cert. Ex. C at 1.) Judge Bookbinder thereafter denied Ms. Venner's motion seeking to oppose the entry of final judgment of foreclosure, and entered such final judgment in an order dated August 22, 2007.*fn2 (Hanusek Cert. Ex. D at 1.) Ms. Venner did not file an appeal from Judge Bookbinder's order.

6. On November 27, 2006, Plaintiff commenced a separate action against Defendant Jennings in the Superior Court of New Jersey (the "Jennings action"). (Jennings Br. Ex. 23 at 1.) In the sole claim asserted in her Complaint, Plaintiff alleged:

Judith Jennings committed fraud against Plaintiff causing her property to be foreclosed upon for misrepresentation of fees. She took $19,349.53 from a bank with false statements of taxes[.] Plaintiff['s] property is being foreclosed on by the bank. Her credit [went] . . . from good to bad. The fraud has caused stress and hardship upon Plaintiff."

(Id. at 2.) Ms. Jennings moved for summary judgment in the suit Ms. Venner had commenced against her. In opposing Ms. Jennings' motion for summary judgment, Ms. Venner argued that "Ms. Jennings has wrongfully and knowingly under false intents collected money she [should] not have received from the bank." (Jennings Reply Br. Ex. F at 5.) The Hon. Marc M. Baldwin granted Ms. Jennings' motion for summary judgment in an order entered May 8, 2008, although the basis for his ruling is not evident from the evidence in the record. (Jennings Br. Ex. 24 at 1.)

7. For the reasons now discussed, the Court will grant BOA's motion for summary judgment,*fn3 finding that New Jersey's Entire Controversy Doctrine bars Plaintiff's claim against it. Additionally, as is explained below, the Court will dismiss Defendant Jennings' motion for summary judgment without prejudice to refiling.

8. As an initial matter, the Court recognizes that it "must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered." Walker v. Horn, 385 F.3d 321, 337 (3d Cir. 2004) (citation omitted). Among the preclusive doctrines that apply to judgments rendered by New Jersey courts are the Entire Controversy Doctrine and the doctrine of collateral estoppel. See In re ...


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