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Hudson City Savings Bank, FSB v. Barrow

United States District Court, D. New Jersey

March 1, 2019

HUDSON CITY SAVINGS BANK, FSB, Plaintiff,
v.
ANITA BARROW, et al., Defendants.

          SUPPLEMENTAL OPINION AND ORDER

          HON. KEVIN MCNULTY, U.S.D.J.

         It has come to my attention that after I filed a Memorandum and Order (DE 43) denying the motion of the defendant, Ms. Barrow, for a temporary restraining order, she filed a second version of her application, attaching certain exhibits that were not attached to the first version. (DE 44) Ms. Barrow has filed a notice of appeal (DE 45). I nevertheless write to supplement my reasoning, particularly in light of the additional exhibits.

         The motion was one for a temporary restraining order staying a sheriffs sale of Ms. Barrow's property in foreclosure. It was filed on the day of the sale, February 22, 2019, very shortly before the sale was to occur. I filed a short Memorandum and Order denying the requested relief. (DE 43)

         As I noted at the time, there was and is no pending federal case. This state court foreclosure action, removed by Ms. Barrow to this Court, was remanded for lack of jurisdiction in 2016, and the file was closed. (DE 22, 23) At the time, Ms. Barrow asserted any No. of federal-law defenses and counterclaims in her answer to the state court foreclosure complaint. These, however, did not confer jurisdiction on this court under the "well-pleaded complaint" rule. (Opinion, DE 22; affirmed by Court of Appeals, see DE 37-1)[1]

         Evidently, the state foreclosure action went forward to a judgment, as evidenced by the scheduled sheriffs sale.

         On February 22, 2019, Ms. Barrow filed the original version of her motion for a temporary restraining order blocking the sheriffs sale. (DE 42) In it, she asserted that she had actually made certain mortgage and tax payments. She asserted many of the same matters that were asserted in the original answer and counterclaims to the state complaint in foreclosure. Although the case was closed, in light of Ms. Barrow's pro se status, I considered whether her claims, if asserted in an independent federal complaint, would entitle her to emergent relief. (I emphasize however, that there is no such independent federal complaint, no filing fee proffered, no summons issued, and no service on the defendant.) I nevertheless denied the application because, citing Rooker-Feldman and other grounds, I could find no likelihood of success. (DE 43)

         Ms. Barrow refiled her motion the same day, this time with additional exhibits. (DE 44) Although I did not discuss it the first time around, I observe that she attempts to circumvent the fact that this is a closed case (and has been since 2016) by citing Fed.R.Civ.P. 15(d) and asserting her federal-law claims as supplemental counterclaims and third-party claims. Rule 15(d), however, merely permits a party to file a supplemental pleading that updates existing claims with facts that occurred after the pending claim was filed. It is not a means of filing a new federal action or reopening a closed matter.

         The newly-submitted exhibits consist of the following:

1. A transaction history from September 18, 2015. Although Ms. Barrow apparently believes this self-evidently demonstrates that she timely paid all taxes, in fact it seems to state the opposite. (DE 44 at pp. 2-10)
2. An online statement showing mortgage payments to Nationstar in 2014. (DE 44 at pp. 11-12)
3. A copy of the 2007 mortgage note, which purportedly demonstrates, by the absence of an assignment, that M&T Bank lacks standing to foreclose. (DE 44 at pp. 13-16)
4. A copy of the 2007 escrow waiver disclosure and agreement, note and mortgage (DE 44 at pp. 17-29)
5. Consumer Notice of Dispute filed in Superior Court, Mercer County, by the estate of Tracy Hua et al (DE 44 at pp. 30-43)
6. Borough of Oakland Tax Account Detail Inquiry, showing principal balance of $17, 438.88-, with handwritten notation "Tax ...

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