United States District Court, D. New Jersey
WILLIAM J. MARTINI, U.S.D.J.
matter comes before the Court on Plaintiffs Deborah and James
Schmidts' (“Plaintiffs'”) Motion for
Reconsideration. ECF No. 40. For the reasons set forth below,
the Motion is DENIED.
underlying facts of this case were laid out in the
Court's September 14, 2017 Opinion, ECF No. 11
(“2017 Opinion”), and supplemented by its
November 30, 2018 Opinion, ECF No. 38 (“2018
Opinion”). Between the 2017 and 2018 Opinions, a
related state court foreclosure action captioned HSBC
Bank v. Deborah A. Schmidt (“Foreclosure
Action”) proceeded to final judgment.
2018 Opinion, United States Magistrate Judge Mark Falk
granted in part and denied in part Plaintiffs' Motion to
Amend the Complaint in this case. ECF No. 38. Plaintiffs now
move for reconsideration, in part, of that Opinion. Mot. for
Recon., ECF No. 40 (“Motion”). Specifically,
Plaintiffs argue that the Court improperly found res
judicata barred their proposed New Jersey Consumer Fraud
Act (“CFA”) claim against Wells Fargo Bank, N.A.
(“Defendant”). Br. in Support of Pl. Mot. for
Recon. at 2, ECF No. 40-1 (“Pl.
Br.”). Defendant opposed the Motion, arguing the
2018 Opinion was correct and regardless, Plaintiffs waived
their argument by failing to raise it in their original
motion papers. Def. Br. in Opp. to Mot., ECF No. 41-1
(“Def. Br.”) (noting Plaintiffs' failure to
file a reply brief).
Court ordered supplemental briefing on the issue of whether
Defendant was in privity with the plaintiff in the
Foreclosure Action, HSBC Bank USA, N.A. (“HSBC”).
Jan. 16, 2019 Order, ECF No. 44. Plaintiffs ignored that
order and filed a reply brief asserting arguments unrelated
to Defendant's privity with HSBC. Pl. Reply. Br., ECF No.
Defendants filed a sur-reply, pointing out Plaintiffs'
failures. ECF No. 48.
Plaintiffs Fail to Satisfy the Motion for Reconsideration
Motion is denied because it does not satisfy the requirements
of a reconsideration motion. “A party seeking
reconsideration must show more than disagreement with the
Court's decision.” Emmanouil v. Roggio,
06-cv-1068, 2012 WL 3647412, at *5 (D.N.J. Aug. 23, 2012)
(citations omitted). Parties “may not seek to
relitigate old matters and may not raise arguments or present
evidence that could have been raised before the entry of the
original order.” Interstate Fire & Cas. Co. v.
Schnellbacher-Sendon Grp., 17-cv-11305, 2018 WL 3377171,
at *2 (D.N.J. July 11, 2018) (citing Borestsky v.
Governor of N.J., 433 Fed.Appx. 73, 78 (3d Cir. 2011);
Dunkley v. Mellon Inv'r Servs., 378 Fed.Appx.
169, 172 (3d Cir. 2010)). Instead, movants must set
“forth concisely the matter or controlling decisions
which the party believes the Judge or Magistrate Judge has
overlooked.” L.R. 7.1(i).
the Motion for Reconsideration is denied because Plaintiffs
failed to raise their argument at the proper juncture.
Plaintiffs' only considered argument, see supra
n.2, is that Defendant is estopped from asserting res
judicata because HSBC “insist[ed] to the
[foreclosure] court that the [F]oreclosure [A]ction . . .
could go forward and did not affect the instant case.”
Pl. Br. at 1 (italics altered). In support, Plaintiffs cite
HSBC's brief in opposition to Plaintiffs' motion to
dismiss the Foreclosure Action (“Foreclosure
Brief”). Id. HSBC filed the Foreclosure Brief
on May 30, 2017. Pl. Br., Ex. A at 1. Therefore, Plaintiffs
could have presented their estoppel argument in a reply brief
for their motion to amend, due on July 9, 2018. They did not.
Accordingly, their Motion is DENIED. See
Interstate Fire & Cas. Co., 2018 WL 3377171, at *2
(disallowing reconsideration of arguments that could have
been raised previously).
Plaintiffs' Arguments Are Substantively
Plaintiffs properly asserted their estoppel argument, it is
deficient because, when HSBC made the representations
Plaintiffs complain of, they were accurate.
only evidence Plaintiffs provide for their estoppel argument
are the filings and decisions in the Foreclosure Action.
Specifically, HSBC argued, and the judge accepted, (1) that
Defendant and HSBC are different entities and (2) the claims
invoked in the Foreclosure Action were not
“substantially similar” to the claims asserted
here. Foster Cert., Exs. A-B, ECF No. 40-2. Thus, Plaintiff
argues, Defendant “is estopped from claiming that HSBC
is its equivalent.” Pl. Br. at 2.
time of HSBC's representations and the resulting opinion
in the Foreclosure Action (May 30 and June 21, 2017,
respectively), Plaintiffs' complaint in this case did not
include the CFA claim. See generally Compl., ECF No.
1. The only fraud count at the time was based on the
misrepresentation “that [P]laintiffs' loan was not
HAMP eligible.” Id. ¶ 29. The fact that
Plaintiffs moved to add a CFA claim in June 2018-one year
after the Foreclosure Action decision Plaintiffs
cite-does not create post-hoc preclusive effect to HSBC's
earlier representations. Further, HSBC's representations
did not prevent Plaintiffs from contesting HSBC's right
to foreclose or the mortgage balance in the Foreclosure
Action.See N.J. Ct. R. 4:64-5
(“Only germane counterclaims and cross-claims may be
pleaded.”); Mantovani v. Wells Fargo Bank,
N.A., No. 18-CV-0886, 2018 WL 3849907, at *4 (D.N.J.
Aug. 13, 2018) (“Germane counterclaims are those that
arise out of the mortgage that is the basis of the
foreclosure action . . . and include claims relating to
payment[, ] discharge, and incorrect computation of the
amounts due.”). Just because Plaintiffs failed to
effectively make those arguments in the Foreclosure Action
does not mean Defendant is estopped from asserting res
judicata here. Instead, for the reasons set forth in the
2018 Opinion, Plaintiffs are not permitted to add the CFA
claim. See In re Mullarkey, 536 F.3d ...