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Venner v. McCay

United States District Court, D. New Jersey

June 16, 2017

PATRICIA VENNER, Plaintiff,
v.
PARKER MCCAY and BANK OF AMERICA, N.A., Defendants.

          Patricia Venner, Plaintiff pro se

          Andrew Christopher Sayles, Esq. Connell Foley LLP, Attorney for Defendant Parker McCay

          Heather Elizabeth Saydah, Esq. Winston & Strawn LLP, Attorney for Defendant Bank of America, N.A.

          OPINION

          HON. JEROME B. SIMANDLE, District Judge

         I. INTRODUCTION

         Plaintiff Patricia Venner brings this case against Bank of America, N.A. (“Bank of America”) and Parker McCay, alleging violations of the Fair Debt Collections Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”) in connection with a foreclosure action in the New Jersey state courts filed by the law firm of Parker McCay on behalf of Bank of America. Both Defendants now move to dismiss the Complaint [Docket Items 10 & 12], arguing that this Court should abstain from hearing this case because of the ongoing foreclosure action in the Superior Court of New Jersey, or in the alternative find that Plaintiff's case is otherwise barred. For the following reasons, the Court will grant Defendants' motions and dismiss the Complaint with prejudice.[1]

         II. BACKGROUND[2]

         The Court gleans the following facts from the lean allegations in Plaintiff's Complaint and the documents referenced in the Complaint and provided by Defendants in connection with their motions to dismiss.

         Plaintiff executed a Note and Mortgage in favor of Pulte Mortgage Corporation in the amount of $65, 500 on December 9, 1999, to purchase a home in Delran, New Jersey. (See Exhibits A & B to Declaration of Heather Elizabeth Saydah (“Saydah Decl.”).) On June 1, 2000, Pulte assigned Plaintiff's Mortgage to Bank of America. (Ex. C to Saydah Decl.) On July 9, 2003, Plaintiff and Bank of America entered into a loan modification agreement. (Ex. D. to Saydah Decl.) Plaintiff defaulted on her obligations under the loan on or about September 1, 2005. (Foreclosure Complaint ¶ 8, Ex. F to Saydah Decl.)

         On or about June 20, 2014, the law firm of Parker McCay filed a foreclosure complaint on behalf of Bank of America in the New Jersey Superior Court, Chancery Division, Burlington County, Docket No. F-025260-14. (Id.) Plaintiff filed an answer with affirmative defenses in the foreclosure action, alleging, as she does in the present Complaint, that Bank of America misrepresented the amount of money owed on her mortgage due to condominium association assessments and misused funds from an escrow account, and that FDCPA violations occurred in connection with the foreclosure action. (Ex. B to Sayles Decl.) On November 23, 2015, the Superior Court erroneously entered a final uncontested judgment of foreclosure, which was vacated on July 27, 2016 before a sheriff's sale of Plaintiff's property could take place. (Ex. C to Sayles Decl.) Counsel for both Defendants represent that the state foreclosure action is still ongoing.

         In the meantime, Plaintiff filed a complaint in federal court on August 23, 2007 against Bank of America, alleging violations of the FDCPA in connection with Bank of America's calculation and payment of condominium association assessments from an escrow account pursuant to the terms of her mortgage. See Complaint, Venner v. Bank of America, Civil No. 07-4040 (JBS/JS) (Ex. D to Sayles Decl.). This Court granted the bank's motion for summary judgment on May 19, 2009, finding that Ms. Venner's federal action was barred by a final judgment in a foreclosure action filed by Bank of America in the New Jersey Superior Court, Chancery Division, Burlington County, Docket No. F-19031-05. (Ex. E to Sayles Decl.)[3] The Third Circuit Court of Appeals upheld the judgment in favor of Bank of America on that basis. See Venner v. Bank of Amer., 387 Fed.Appx. 232 (3d Cir. 2010). While the same mortgage between Plaintiff and Bank of America and the same conduct by Ms. Venner and the bank were at issue in both of Plaintiff's federal cases against Bank of America, it appears that the foreclosure action currently pending before the Superior Court is a separate action from the one that concluded in 2007 and barred the 2007 federal action.

         In this case, filed on July 25, 2016, the day before the Superior Court vacated final judgment in the foreclosure action and stayed the sheriff's sale then pending, Plaintiff vaguely alleges that “in 2005 the defendant stole funds from plaintiff [sic] account, mislead on the funds.” (See Complaint at 3.) It appears that Plaintiff alleges that Defendants harassed, misled, and subjected her to collection abuses by and through the filing of the state foreclosure action. (Id.) Defendants now move to dismiss the complaint [Docket Items 10 & 12], which Plaintiff opposes [Docket Items 11, 14, 15 & 17.] The Court will decide these motions without holding oral argument pursuant to Fed.R.Civ.P. 78.

         III. DISCUSSION

         Both Defendants primarily contend that this Court should abstain from exercising jurisdiction over this case under the Colorado River abstention doctrine on account of the ongoing state ...


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