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.

Clair v. Wertzberger

June 26, 2009

DONALD ST. CLAIR, PLAINTIFF,
v.
PINA WERTZBERGER, ESQ., MICHAEL J. MILSTEAD, ESQ., AND NELSON DIAZ, ESQ., DEFENDANTS.



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

OPINION

This matter has come before the Court on defendants' motion to dismiss plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6) and plaintiff's motion for an extension of time to respond to defendants' motion. For the reasons expressed below, defendant's motion will be granted, and plaintiff's motion will be denied as moot.

BACKGROUND

Plaintiff, Donald St. Clair, proceeding pro se, claims that the defendant attorneys, Pina Wertzberger, Michael J. Milstead, and Nelson Diaz, violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq., in their prosecution of the foreclosure of plaintiff's home in New Jersey state court. On April 20, 2007, defendants, on behalf of HSBC BANK USA, instituted a foreclosure action in the Chancery Division, Burlington County, against plaintiff regarding default of his obligations under a mortgaged executed on May 9, 2006. Plaintiff was served with a summons and complaint on May 21, 2007, and informed that he had thirty-five days to file an answer. Attached to the complaint was a notice pursuant to the FDCPA, 15 U.S.C. § 1692(g), which contained a validation of the debt, including the amount of the debt, the name of the creditor to whom the debt is owed, and a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector.*fn1

Plaintiff failed to answer the foreclosure complaint, and an order entering default was filed on June 13, 2008. On June 18, 2008 a "Notice of Entry of Final Judgment" was sent to plaintiff by defendants as required by the New Jersey Fair Foreclosure Act, N.J.S.A. 2A:50-53. On August 11, 2008, plaintiff filed a motion to set aside the judgment of foreclosure. After oral argument on October 9, 2008, plaintiff's motion was denied. Plaintiff filed a motion for reconsideration on November 2, 2008, which was also denied.

On November 20, 2008, plaintiff filed this action. Plaintiff claims that defendants violated the FDCPA by pursuing the foreclosure action despite plaintiff, pursuant to 15 U.S.C. § 1692(g), sending defendants a letter disputing the validity of the debt within thirty days of receiving the FDCPA notice from defendants. Defendants have moved to dismiss plaintiff's complaint for failure to state a claim, as well as pursuant to the Rooker-Feldman doctrine. Plaintiff has opposed defendants' motion.*fn2

DISCUSSION

A. Jurisdiction

This Court has jurisdiction over plaintiff's claims under 28 U.S.C. § 1331.

B. Analysis

Plaintiff's claims are not barred by the Rooker-Feldman abstention doctrine at this time, as advocated by defendants. The Rooker-Feldman abstention doctrine bars lower federal courts from exercising jurisdiction over a case that is the functional equivalent of an appeal from a state court judgment. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 (1983); FOCUS v. Allegheny County Ct. of Common Pleas, 75 F.3d 834, 840 (3d Cir. 1996); see Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 291-92 (2005) (explaining that in the Rooker and Feldman cases, plaintiffs in both cases, alleging federal-question jurisdiction, called upon the district court to overturn an injurious state-court judgment, but because § 1257, as long interpreted, vests authority to review a state court's judgment solely in the Supreme Court, the District Courts in Rooker and Feldman lacked subject-matter jurisdiction).

In this case, plaintiff claims that defendants violated the FDCPA when it filed the foreclosure action against him despite the fact that plaintiff mailed defendants a letter challenging the debt in compliance with 15 U.S.C. § 1692(g), which allows a consumer to notify the debt collector in writing within the thirty-day period that the debt is disputed. Plaintiff also argues that the resulting default judgment is invalid because of his objection letter.

In the state court foreclosure action, plaintiff made the same argument as a basis to vacate the default judgment of foreclosure against him. (See Pl.'s Ex. 8 to Complaint, Letter Brief in Support of Motion to Vacate Default Judgment.) The state court judge rejected plaintiff's claim twice--first with regard to plaintiff's motion to vacate, and again with regard to plaintiff's motion for reconsideration of the denial of his motion to vacate. (See Pl.'s Exs. 4 and 5 to Reply Brief, Docket No. 10.) The state judge explained in his Opinion denying plaintiff's motion for reconsideration,

[St. Clair's] response alleged that [HSBC attorneys were] not allowed to proceed with any collection activity after being served with a response within the authority of the Fair Debt Collection Practices Act, that [St. Clair] was not obligated to answer [HSBC's] Complaint, and that an Answer was not required until [HSBC] responded to [St. Clair's] written objection to the debt. The Court held that [St. Clair's] arguments did not constitute meritorious defenses to the Motion to Vacate, failed to support his contention that the contested default judgment was void, and merely raised a new argument as to why an Answer was not required in the original matter. (Pl.'s Ex. 5 to Reply Brief, Docket No. 10.) Thus, the state judge rejected plaintiff's ...


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.