United States District Court, D. New Jersey
matter comes before the Court on the motion (ECF no. 27) of
the pro se plaintiffs, Chita Aliperio and Emile
Heriveaux, pursuant to Fed.R.Civ.P. 60(d)(3), to vacate the
Court's prior Order (ECF no. 26) and Opinion
("Op.", ECF no. 25) dismissing the Complaint. The
Order that the plaintiffs seek to vacate granted motions to
dismiss filed by defendants Kearny Bank ("Kearny")
(ECF no. 16), and by defendants Countrywide Home Loans, Inc.
("Countrywide"), and Bank of America, N.A.
("BANA") (ECF no. 15). For the reasons stated
herein, plaintiffs motion to vacate will be denied.
Civ. P. 60 authorizes a motion for relief from a judgment or
order. Rule 60(b) generally provides that such a motion may
be based on "fraud." Fed.R.Civ.P. 60(b)(3). Rule
60(d) more specifically provides that the rule "does not
limit a court's power to: ... (3) set aside a judgment
for fraud on the court." Fed. R. Civ. P.
60(d)(3) (emphasis added). To prevail on a claim of fraud on
the court, the movant must demonstrate by clear and
convincing evidence the following four elements:
"(1) an intentional fraud; (2) by an officer of the
court; (3) which is directed at the court itself; and (4)
that in fact deceives the court.*" Herring v. United
States, 424 F.3d 384, 390 (3d Cir. 2005); Thompson
v. Eva's Vill and Sheltering Program, 2009 WL
3486050, at *10 (D.N.J. Oct.28, 2009).
Estate of Sinclair v. Cty. of Union, No. CIV.A.
05-55 KSH, 2011 WL 3417115, at *2 (D.N.J. Aug. 3, 2011). Such
a fraud consists of some "unconscionable plan or scheme
which is designed to improperly influence the court in its
decision." Hatchigan v. Int'l Bhd. Of Elec.
Workers Local 98 Health 8s Welfare Fund, 610 F.App'x
142 (3d Cir. 2015) (quoting Booker v. Dagger, 825
F.2d 281, 283 (11th Cir. 1987) and Pizzuto v.
Ramirez, 783 F.3d 1171, 1180 (9th cir. 2015)).
fraud on the Court alleged by the plaintiffs is that
"Attorney Stephen J. Steinlight which is an officer of
the Court, substituted two defendants, Bank of America, N.A.,
Successor by Merger to BAC Home Loans Servicing, LP F/K/A
Countrywide Home Loans Servicing LP ("BANA-BAC")
and Countrywide Home Loans, Inc. ("Countrywide") by
Bank of America, N.A. ("BANA") which is not a
Defendant in this RICO Complaint. By substituting the two
defendants by a non-defendant, the RICO action was
dismissed." (PI. Brf. at 2, ECF no. 27-1) Defendant
Kearny is alleged to have participated in the fraud when it
"knowingly and willfully joined Bank of America, N.A.
("BANA") for its defense." Id. at 3.
basis for the claim of fraud is not altogether clear. Part of
it seems to be that BANA's counsel allegedly implied (in
motions for an extension of time) that "BAC Home Loans
Servicing, LP F/K/A/ Countrywide Home Loans, Inc." was a
defendant in its own right, as opposed to being just the
predecessor of BANA. (See Affidavit, ECF no. 27-2 at
¶¶ 5-6) BANA is, however, a defendant, as everyone
seems to agree. As I noted in my prior Opinion, the Complaint
names BANA as a party. My Opinion also states that
Countrywide Home Loans, Inc. ("Countrywide") and
Bank of America, N.A. ("BANA")-separate
defendants-have jointly filed one of the two motions to
dismiss (ECF no. 15).
event, however, the Court was not deceived or defrauded into
holding as it did. The basis of the dismissal was that the
Complaint failed to allege that the plaintiffs had suffered a
constitutional injury-in-fact or that they possessed RICO
standing. (See Op. Analysis § 3.) The allegations raised
an inference that, at best, some injury had been inflicted
and suffered as between third parties. Whatever the claim of
"fraud on the court" may be, it does not affect the
basis of the Court's ruling. 
reasons expressed above, the plaintiffs motion (ECF no. 27)
to vacate this Court's prior Order of dismissal (ECF no.
26) is DENIED. A separate Order accompanies this Opinion.
The docket identifies the
relevant Order is ECF no. 24. The Clerk is requested to