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Buchel v. Option One Mortgage Corp.

November 24, 2010

STEPHANIE BUCHEL, PLAINTIFF,
v.
OPTION ONE MORTGAGE CORP., DEFENDANT.



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

OPINION

Plaintiff, Stephanie Buchel, contests the foreclosure and sale of her property instigated by defendant, Option One Mortgage Corp. ("Option One"). Presently, she moves this Court to vacate the foreclosure sale ordered by the Superior Court of New Jersey. In response, Option One asks that this case be remanded to the Superior Court or, in the alternative, have summary judgment granted in its favor.

For the following reasons, Buchel's Motion to "Vacate the Foreclosure Sale" is denied. Further, Option One's Cross-motion for Summary Judgment is granted.

I. JURISDICTION

This Court has jurisdiction over plaintiff's federal claims, including her causes of action under the Truth In Lending Act (or, "TILA"), 15 U.S.C. § 1601 et seq., and the Home Ownership and Equity Protection Act (or, "HOEPA"), 15 U.S.C. § 1639 et seq., pursuant to 28 U.S.C. § 1331, and may exercise supplemental jurisdiction over any related state law claims pursuant to 28 U.S.C. § 1367.*fn1

II. BACKGROUND

In February 2007, Buchel executed to Option One a note in an amount in excess of $500,000 and a mortgage. Eventually, Buchel defaulted on the note and mortgage, and Option One initiated a foreclosure action in the Superior Court of New Jersey, Chancery Division. On or around February 15, 2008, a final judgment in foreclosure was entered.

Buchel filed for bankruptcy protection in May 2008, but several months later, the case was dismissed. In November 2008, Buchel moved to vacate the final judgment in foreclosure, but her motion was denied. Additionally, she was again denied bankruptcy protection. Thereafter, she attempted, once more, to vacate the final judgment in foreclosure, to no avail. On or around July 1, 2009, Option One acquired Buchel's mortgaged premises at a sheriff's sale.

Following the sale, the Superior Court denied Buchel's motion seeking reconsideration of the Court's refusal to vacate the foreclosure and her orders to show cause for a stay pending appeal. Subsequently, Buchel filed a notice of removal of her eviction to the District Court. In an order dated November 19, 2009, the Honorable Joseph E. Irenas remanded the eviction proceedings to the Superior Court and dismissed Buchel's action for lack of subject matter jurisdiction, specifically concluding that she failed to state a federal question. In response, Buchel again filed for bankruptcy protection. In January 2010, the Bankruptcy Court awarded Option One stay relief and prospective relief against Buchel.

On or around March 3, 2010, Buchel filed her current complaint, captioned as a "NOTICE OF REMOVAL AND FEDERAL STAY OF EVICTION PURSUANT TO 28 USC 1446(a)," with this Court.*fn2 Buchel's "complaint" does not aver any facts or allegations apart from asserting the violation of constitutional rights, such as due process, and the Uniform Commercial Code. Buchel, however, has since moved to vacate the foreclosure sale of her mortgaged property.*fn3 As part of her motion, Buchel has elaborated on her claims, suggesting that Option One is not the proper party to foreclose on her property and, in contravention of federal and state law including the Truth In Lending Act, 15 U.S.C. § 1601 et seq., and the Home Ownership and Equity Protection Act, 15 U.S.C. § 1639 et seq., acted in bad faith by failing to provide to Buchel certain notices and documentation necessary to execute the foreclosure on her property. Buchel also mentions that the Superior Court lacked subject matter jurisdiction over the foreclosure and personal jurisdiction over her, and did not properly conduct discovery or otherwise direct Option One to furnish requisite documentation in furtherance of its foreclosure action. Option One opposes Buchel's action and has cross-moved for remand or summary judgment against Buchel's case.

III. DISCUSSION

A. Standard for Summary Judgment

Summary judgment is appropriate where the Court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c).

An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the nonmoving party's evidence "is to be believed and all justifiable ...


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