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Venner v. Bank of America


May 19, 2009


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


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 Mullarkey, 536 F.3d 215, 225 (3d Cir. 2008); Rycoline Products, Inc. v. C & W Unlimited, 109 F.3d 883, 886 (3d Cir. 1997).

9. The Court concludes that the Entire Controversy Doctrine forecloses Plaintiff's claim against BOA relating to BOA's allegedly fraudulent payment of Ms. Venner's condominium fees to Ms. Jennings and the SCA. New Jersey's Entire Controversy Doctrine "is essentially New Jersey's specific, and idiosyncratic, application of traditional res judicata principles." Rycoline, 109 F.3d at 886.

The Entire Controversy Doctrine embodies the notion that the adjudication of a legal controversy should occur in one litigation in only one court; accordingly, all parties involved in a litigation should at the very least present in that proceeding all of their claims and defenses that are related to the underlying controversy. The Doctrine thus requires a party to bring in one action all affirmative claims that it might have against another party, including counterclaims and cross-claims . . . or be forever barred from bringing a subsequent action involving the same underlying facts.

Id. at 885 (internal quotations and citations omitted).

10. The application of the Entire Controversy Doctrine turns on three criteria: "(1) the judgment in the prior action must be valid, final, and on the merits; (2) the parties in the later action must be identical to or in privity with those in the prior action; and (3) the claim in the later action must grow out of the same transaction or occurrence as the claim in the earlier one." Stolinski v. Pennypacker, No. 07-3174, 2008 WL 5136945, at *13 (D.N.J. Dec. 4, 2008) (quoting Watkins v. Resorts Int'l Hotel and Casino, Inc., 124 N.J. 398, 412 (1991)). Importantly, the doctrine "bars not only claims that were brought in a previous action, but also claims that could have been brought." Mullarkey, 536 F.3d at 225; cf. Cieszkowska v. Gray Line New York, 295 F.3d 204, 205 (2d Cir. 2002) (under traditional res judicata principles, "[e]ven claims based upon different legal theories are barred provided they arise from the same transaction or occurrence").

11. The Entire Controversy Doctrine bars Plaintiff's claim against BOA, because Plaintiff had the opportunity to raise her FDCPA claim in the BOA action*fn4 but did not exercise the opportunity. See Mullarkey, 536 F.3d at 225. First, the judgment in the BOA action was "valid, final, and on the merits." Watkins, 124 N.J. at 412. In that action, Judge Bookbinder entered a final foreclosure judgment in an order dated August 22, 2007, (Hanusek Cert. Ex. D at 1), dismissing the argument raised in Ms. Venner's counterclaim that she did not owe $19,349.53 in unpaid condominium payments. (Hanusek Cert. Ex. B at 2.) Second, Ms. Venner and BOA are the identical parties to the judgment in the BOA action. Watkins, 124 N.J. at 412.

12. Finally, Plaintiff's claim herein -- that BOA made a "wrongful payment to attorney Judith Jennings in the amount of $19,400.00 . . . [as a] fraudulent means to sell Plaintiff's property," (Compl. at 1-2) -- "grow[s] out of the same transaction or occurrence" as the counterclaim Ms. Venner asserted in the BOA action. Watkins, 124 N.J. at 412. Specifically, Ms. Venner asserted a counterclaim in the BOA action, which the Court dismissed, in which she sought to challenge the foreclosure based upon the same "wrongful payment" by BOA to Ms. Jennings that underlies her FDCPA claim herein. (Hanusek Cert. Ex. B at 2.) In this matter, Plaintiff has formulated a new legal theory upon which her approach to the controversy is based, but the same transaction -- BOA's allegedly wrongful payment of Plaintiff's delinquent condominium fees -- underlies her claim herein and her counterclaim in the BOA action. Because the Entire Controversy Doctrine requires litigants "to bring in one action all affirmative claims that it might have against another party, including counterclaims," Rycoline, 109 F.3d at 885 (citation omitted), and because Plaintiff could have pursued her FDCPA claim against BOA in the state court action, see Note 4, supra, the Court agrees with BOA that she is barred from bringing the claim in this later-filed suit. The Court will thus grant BOA's motion for summary judgment.*fn5

13. Defendant Jennings has also moved for summary judgment, arguing that Plaintiff is collaterally estopped from asserting her FDCPA claim against Jennings because Plaintiff asserted a similar claim against Jennings in Superior Court, as to which Judge Baldwin granted Jennings' motion for summary judgment.*fn6 In support of her motion, Jennings submitted nearly forty exhibits, but did not submit "a statement which sets forth material facts as to which there does not exist a genuine issue, in separately numbered paragraphs citing to the affidavits and other documents submitted in support of the motion," as Local Civil Rule 56.1 requires.*fn7 L. Civ. R. 56.1(a). The Rule further provides that "[a] motion for summary judgment unaccompanied by a statement of material facts not in dispute shall be dismissed."*fn8 Id.

14. Ms. Jennings' motion, with its collection of approximately forty unidentified exhibits, demonstrates the important purpose served by Rule 56.1 statements. Jennings' motion is premised upon the argument that Plaintiff is collaterally estopped from litigating in this case the propriety of Jennings' acceptance of the $19,349.53 payment from BOA because this very issue was litigated and decided in the Superior Court action. In order to prevail on such an argument, Jennings would have to prove, inter alia, that the determination of this issue "was essential to the prior judgment [of the Superior Court]," Mullarkey, 536 F.3d at 225 (quoting Twp. of Middletown v. Simon, 937 A.2d 949, 954 (2008)) -- i.e., that it was "necessary to support the judgment rendered in the prior action." Matter of Estate of Dawson, 136 N.J. 1, 20 (1994) (citation omitted). Whether Judge Baldwin's grant of summary judgment decided the very issue before this Court, and whether the determination of that issue was "necessary to support" the judgment, id., is not apparent from Ms. Jennings' submissions, and the Court declines to comb through the nearly forty exhibits she submitted in order to arrive at an answer to this question. See Comose v. New Jersey Transit Rail Operations, Inc., No. 98-2345, 2000 WL 33258658, at *1 (D.N.J. Oct. 6, 2000) (Rule 56.1 statements "save this court from having to drudge through . . . [the evidence] to determine the facts").

15. The Court will thus dismiss Ms. Jennings' motion pursuant to Local Civil Rule 56.1(a), without prejudice to her right to refile a motion for summary judgment accompanied by a proper Rule 56.1 statement within ten (10) days of the entry of the Order accompanying this Opinion. The accompanying Order is entered.

JEROME B. SIMANDLE United States District Judge

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