June 27, 2013
DEMETRIA GUIUAN, Plaintiff-Appellant,
LASALLE BANK NATIONAL ASSOCIATION, TRUSTEE; FEIN, SUCH, KAHN & SHEPARD, P.C.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; MICHAEL S. HANUSEK, ESQ.; SHARI SEFFER, ESQ.; NICHOLAS J. CANOVA, ESQ.; ANNIE RODRIGUEZ; JOE LANNING; MERSCORP, INC.; DIBADA INVESTMENTS, LLC; and CARLA A. PEREZ, LLC, Defendants-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4498-11.
Demetria Guiuan, appellant pro se.
Parker Ibrahim & Berg LLC, attorneys for respondents LaSalle Bank, National Association, Mortgage Electronic Registration Systems, Inc., Joe Lanning, Annie Rodriguez and MERSCORP, Inc. (Scott W. Parker, of counsel and on the brief).
Fein, Such, Kahn & Shepard, P.C., respondent pro se and attorneys for respondents Michael S. Hanusek, Shari Seffer and Nicholas J. Canova (Gregg P. Tabakin and Lisa M. McQuade, on the brief).
DiBiasi & Rinaldi, L.L.C., attorneys for respondent Carla A. Perez, LLC (Darren T. DiBiasi, on the brief).
Respondent Dibada Investments, LLC has not filed a brief.
Before Judges Alvarez and Waugh.
Demetria Guiuan was a defendant in a mortgage foreclosure action in which final judgment by default was entered on April 12, 2007. The subject property, a condo unit in Cedar Grove, was sold at sheriff's sale on October 7, 2008, for $100 to LaSalle Bank, the mortgagee. LaSalle Bank subsequently sold the real estate to Dibada Investments, LLC, on March 23, 2009. On September 1, 2010, Dibada sold the property to Carla A. Perez.
On May 31, 2011, Guiuan filed a complaint against all parties involved in the mortgage foreclosure, and various John Does, asserting multiple causes of action based on the court's alleged lack of jurisdiction in the foreclosure. Guiuan further claimed that because of a defect in the assignment, all defendants had engaged in fraudulent transfers and demanded as relief the return of the property. The Law Division judge granted motions for summary judgment dismissing the complaint. We now affirm.
The defendants in this proceeding are: Joseph Lanning and Annie Rodriguez, former employees for Chase Home Finance, LLC, the servicer for the LaSalle loan; Fein, Such, Kahn & Shepard, P.C., and its attorneys Shari Seffer, Esquire, Michael S. Hanusek, Esquire, Nicholas J. Canova, Esquire, and Jane and John Does 1-10, counsel, employees, and agents of LaSalle Bank during the mortgage foreclosure action. Also named is LaSalle Bank National Association, MERSCORP, Inc., Jane and John Does 1-10 as agents and/or employees related to MERSCORP, Inc., Dibada Investments, LLC, and Carla A. Perez, LLC.
Defendants' motions for summary judgment were heard on September 2, 2011, January 6, 2012, and January 20, 2012. The motions heard on January 6 were continued for two weeks to afford Guiuan an opportunity to file opposition to the motion, because she appeared in opposition on January 6 but did not submit anything other than documents in support of her cross-application to compel discovery and depositions.
Guiuan stakes her claim on the mistaken identification of the municipality in which the subject property was located as "Livingston" rather than "Cedar Grove" on the assignment made by defendant Mortgage Electronic Registration Systems, Inc. (MERS). Guiuan purportedly learned of the error on May 2, 2011, when doing "research" at the County Register of Deeds.
To Guiuan, the alleged error in the assignment means that the court lacked jurisdiction to issue a judgment in the mortgage foreclosure proceedings. Therefore, she reasons, all defendants perpetrated a fraud upon her.
Defendants assert that the copy of the assignment of mortgage supporting her claim has been altered, as the actual assignment recorded in the clerk's office names the correct municipality. Specifically, they contend that Guiuan replaced an altered last page to a document attached as an exhibit to a pleading in the earlier mortgage foreclosure.
When asked by the court to explain her delay in raising the alleged deficiency, Guiuan asserted that the idea of researching the fraud came to her in a dream in which her deceased husband told her to look into the matter. Although she filed an answer to the foreclosure complaint, it was deemed non-contesting because she did not challenge the legality of the foreclosure. In the foreclosure proceeding, Guiuan acknowledged the validity of the note and mortgage and her default on the payments. She never appealed from that final judgment.
The Law Division judge who granted defendants' motions for summary judgment did so based on res judicata, collateral estoppel, and the entire controversy doctrine. We affirm for the reasons stated by the judge.
Guiuan now raises the following points of error for our consideration, which we reproduce in their entirety precisely as set forth in her brief:
1. Whether it was an abuse of discretion of the Honorable Trial Judge, Francine Schott because she did not recuse as she refused to disqualify herself to hear the merits of this second case when asked by Guiuan of being bias[ed] and prejudice[d]?
Yes, because her actions were in violation of Guiuan's constitutional rights and in violation of public interests and public policy.
2. Whether it was a clear error of law to deny Guiuan's Motion to Extend Discovery to complete discovery, because counsel for defendants, on the second case, Scott Parker, only made excuses by thwarting Guiuan to depose his clients, Bill Beckman, Joe Lanning and Annie Rodriguez, who orchestrated to fake the purported Assignment of mortgage?
Yes, the Honorable Francine Schott was already prejudice[ed] and bias[ed] from the beginning, so Guiuan was railroaded in that court apparently because she is a pro se, that resulted [in] injustice to her. In fact, even Guiuan's Motion to Extend Discovery was tossed to the trash as the Judge's Clerk, Liza, claimed they don't have said Motion, when in fact, Guiuan had the evidence that it was received by the Judge's chambers. Anyway, Guiuan filed another copy of said Motion, but only to be denied.
3. Whether it was a clear error of law to grant summary judgment to LaSalle who is at best no standing in the first and second suits to bring the foreclosure action against Guiuan's mortgage underlying her property, where a lot of disputed facts submitted in evidence by Guiuan were not resolved?
Yes, because inter alia it contravened Wells Fargo v. Ford, 2011 WL 250561 (N.J.Super. 2011).
4. Whether it was a clear error of law to grant summary judgment for LaSalle in the first case, that failed to establish its ownership and holder in due course of Guiuan's mortgage and note prior to its commencement of its foreclosure complaint?
Yes, because inter alia it contravened Article III of the UCC, N.J.S.A. 12A:3-101-605, in particular N.J.S.A. 12A:3-301, and Bank of New York v. Raftogianis, -- N.J.Super. (Ch. Div. 2010) (Slip Op. at 3).
5. Whether it was a clear error of law to dismiss Guiuan's complaint for inter alia fraud against Defendants Fein Such, and others (in the second suit) who were responsible and liable for damages by fraudulently foreclosed and subsequently illegally sold Guiuan's property located at 145B Ridge Road, Cedar Grove, N.J. 07009?
Yes, because these defendants chose to commit fraud when they rushed to foreclose Guiuan's mortgage underlying her property.
6. Whether it was a clear error of law to dismiss Guiuan's complaint for inter alia fraud, against all defendants on grounds of collateral estoppel (claim preclusion), res judicata (issue preclusion) and entire controversy doctrines, when Guiuan's claims and issues in the second suit were never raised and never litigated in the first case?
Yes, because Guiuan did not have full and fair opportunity to litigate the issues decided by the other court in the first case. Thus, Guiuan can file or claim in another suit to challenge the adequacy of former case procedure, and Guiuan is not waiving to raise it. Besides, the "judgment was not conclusive in the second subsequent action as to issues which might have been but were not litigated and determined in the prior action, " as in this instant case. Green v. Dupils, 2005 U.S. [D]ist. LEXIS 26320 (E.D. Mich. October 24, 2005).
7. Whether it was a clear error of law to dismiss Guiuan's complaint in the second case for inter alia fraud at the Trial Court below ((Pa 1) filed on May 31, 2011?
Yes, because inter alia it contravened N.J. Rules 4:6-2, 4:6-3 and 4:6-7, and Ballestas v. Wells Fargo Bank, N.A., No. 2008-09493 (280th Dist. Ct., Harris County, Tex. May 29, 2009).
8. Whether the Court erred in granting summary judgment, and dismiss Guiuan's complaint, because the prior final judgment is void for lack of subject matter jurisdiction and also because res judicata and collateral estoppel are inapplicable.
Yes, LaSalle lacks standing [to foreclose] because it does not own a note secured by [Guiuan's] property and LaSalle does not have a right to foreclose on [Guiuan's] property. Besides, Guiuan never asserted the same claims and issues in the prior case, which she did assert and claim new facts in the second action, thus, these new facts of the second case were never fully and fairly litigated because the Assignment of the mortgage was hidden from Guiuan therefore res judicata and collateral estoppel as well as entire controversy doctrines are inapplicable
We offer the following brief comments Newly discovered evidence is material obtained after litigation ends which could not have been found through the exercise of ordinary diligence DEG LLC v. Twp of Fairfield 198 N.J. 242 264 (2009)
In truth by filing this separate proceeding against all the participants in the mortgage foreclosure from bank attorneys to bona fide purchasers Guiuan is attempting to do an end-run around the judgment of foreclosure in order to regain her property in a different forum After considering all the issues that she raises on appeal reviewing the record and the applicable law we are satisfied that none are of sufficient merit to warrant extended discussion in a written opinion R 2:11-3(e)(1)(E)