OTTO v. JUDICIARY COURTS OF THE STATE OF NEW JERSEY et al, No. 2:2017cv03424 - Document 19 (D.N.J. 2018)

Court Description: OPINION. Signed by Judge Kevin McNulty on 1/16/18. (DD, )

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY DENISE OTTO, V. OPINION JUDICIARY COURTS OF THE STATE OF NEW JERSEY, THE OFFICE OF THE ADMINISTRATOR OF THE COURTS, SUPREME COURT OF NEW JERSEY, SUPERIOR COURT OF NEW JERSEY OFFICE OF FORECLOSURE, SUPERIOR COURT OF NEW JERSEY ESSEX COUNTY VICINAGE, JUDGE KENNETH S. LEVY, JUDGE DAVID M. KATZ, JUDGE PAUL INNES, AEMANDO B. FONTOURA, WELLS FARGO BANK, N.A.; U.S. BANK, NATIONAL ASSOCIATION AS TRUSTEE FOR BNC MORTGAGE LOAN TRUST 2006-2, PHELAN HALLINAN DIAMOND & JONES, PC, LAWRENCE T. PHELAN, ROSEMARIE DIAMOND, FRANCIS S. HALLINAN, JOHN HABERMANN, Defendants. KEVIN MCNULTY, U.S.D.J.: Denise Otto entered into a $160,000 mortgage in 2006. In 2011, she defaulted, and ultimately a judgment of foreclosure was entered. U.S. Bank, etc. v. Otto, No. F-026230-12 (N.J. Super. Ct., Ch. Div. Essex Ctyj. Otto, as borrower and property owner, sues the courts, the judges, the sheriff, the 1 Dockets.Justia.com Civ. No. 17-cv-3424 (KM)( MAH) Plaintiff, opposing attorneys, her mortgagee, and others.’ This is her second federal action attempting to undo the foreclosure or seek damages based on the mortgage default and the proceedings surrounding the foreclosure. Before the court is the motion of the three defendants who have been served and have appeared to dismiss the current action. For the reasons stated herein, the motion to dismiss will be granted. I. Procedural Background A. Mortgage and State foreclosure judgment On November 13, 2012, U.S. Bank filed a foreclosure action in the Superior Court of New Jersey, Chancery Division, Essex County. (U.S. Bank, etc. v. Otto, No. F-026230-12. (ECF no. 3-3) U.S. Bank was represented in the foreclosure by Phelan Hallin & Diamond, PC, named as a defendant here. The complaint in foreclosure alleged as follows: On August 30, 2006, Denise Otto and Eugene I. Otto entered into a $160,000 note and mortgage with BNC Mortgage, Inc., secured by their property at 139-141 Western Parkway in Irvington. On January 16, 2009, the mortgage was assigned to U.S. Bank National Association, as Trustee for BNC Mortgage Loan Trust 2005-2. On September 18, 2012, it was again assigned to U.S. Bank National Association, as Trustee for BNC Mortgage Loan Trust 2006-2, Mortgage PassThrough Certificates, Series 2006-2. Otto failed to make the monthly mortgage payment due on June 1, 2011, and all payments thereafter, and the mortgage went into default. Due notice of default was given. The defendants named in this action fall into four broad categories: (a) The State judiciary, the courts, and state judges. (“Judiciary defendants”) (b) The (former) Essex County sheriff, Mr. Fontura (the “Sheriff’). (ci Wells Fargo Bank as mortgagee and U.S. Bank as trustee for a mortgage loan trust (the “Bank defendants”). (d) The Phelan law firm, which represented the mortgagee bank in the foreclosure, and individual attorneys of that firm (the “Law Firm defendants”). 2 On August 12, 2014, the court entered a final judgment of foreclosure in the amount of $236,762.78, plus interest and counsel fees. A sheriffs sale was ordered. B. The Prior Federal Action This action must be understood in the context of a prior, dismissed action, Otto v. Wells Fargo, Civ. No. 15-8240 (the “Prior Federal Action”). In that action, Ms. Otto sued the the Bank defendants and the Law Firm defendants. (Categories (c) & (d). See n. 1, supra.) That action was based on matters arising from the same mortgage and the state court judgment of foreclosure upon which this action is based.2 Ms. Otto filed the complaint in the Prior Federal Action on November 24, 2015, some 15 months after the entry of final judgment in the state foreclosure action. It had six Counts: Count 1: Rescission under the Truth in Lending Act (“TILA”), 15 U.S.C. § 1635 Count 2: Enforcement of rescission under 15 U.S.C. Count 3: § 1638(a)(1) Enforcement of rescission under 12 C.F.R. § 226.23 Count 4: Assertion that the three-year deadline on rescission has not run because loan not consummated Count 5: Violation of criminal statute, 15 U.S.C. Fargo and the Phelan firm Count 5: Restitution under 12 C.F.R. § 1511, by Wells § 1026.23 In the Prior Federal Action, I filed an order and opinion (“Prior Op.”) (Otto u. Wells Fargo Bank, Civ. No. 15-8240, 2016 WL 8677313 (July 15, 2016), affid, 693 F. App5c 161 (3d Cir. May 31, 2017), which granted motions to The complaint in the Prior Federal Action named the Phelan firm, but the current action also names certain of the Phelan firm attorneys individually. In the Prior Federal Action, Otto did not sue the Judiciary defendants or the Sheriff (categories (a) and (b), supra). 2 3 dismiss the complaint with prejudice. A copy of that prior Opinion is attached to this Opinion as an appendix. First, I dismissed the action under the Rocker-Feldman doctrine to the extent that it sought to attack the validity of the mortgage or the other merits issues decided by the state court judgment of foreclosure. (Prior Op. 5—8) Second, and relatedly, I applied res judicata, and in particular the New Jersey entire controversy rule, to dismiss any claims that were or could have been asserted in the state court foreclosure action. (Prior Op. 9—14) Third, I held in the alternative that the complaint did not state a claim in several particulars. The claim under the Truth in Lending Act (“TILA”) had not been brought within the one-year statute of limitations. Any claim against parties or their attorneys based on positions taken in the state court were barred by the litigation privilege. A criminal statute cited as the basis of a claim, 15 U.S.C. § 1611, does not give rise to a civil cause of action. (Prior Op. 14—15) My decision dismissing the Prior Federal Action was affirmed by the United States Court of Appeals for the Third Circuit. (Docket No. 16-3385, 693 F. App’x 161 (3d Cir. May 31, 2017) C. This Action On May 12, 2017, Ms. Otto filed this federal court action. In this action, as noted above, Ms. Otto has sued four broad categories of defendants (see n. 1, supra), based on matters surrounding the mortgage, the default, and the foreclosure. This new action names the Bank Defendants (c) and the Law Firm Defendants (d), who were also sued in the Prior Federal Action. It adds the Judiciary Defendants (a) and the Sheriff (b), who were not sued in the Prior Federal Action. As to the Judiciary and Law Firm defendants in categories (a) and (d), no proof of service has been filed, and they have not appeared. The Sheriff (b) has appeared, as have the Bank defendants (c). 4 The Complaint contains a great deal of material in the factual allegations, much of it unconnected to any cause of action. The causes of action pled, however, are as follows: Count 1: Violation of the Civil Rights Act of 1866 (equal rights with respect to property without regard to race) Count 2: Violation of the Civil Rights Act of 1866 (involuntary servitude) Count 3: Violation of Universal Declaration of Human Rights Count 4: Conflict of interest and lack of neutrality of State of New Jersey and New Jersey Courts Count 5: Fraudulent concealment Count 6: Covenant of good faith and fair dealing. The Complaint seeks $50,000,000 in “lawful money” as damages. P. Motion to Dismiss and Order to Show Cause On June 20, 2017, the Bank Defendants (Wells Fargo and U.S. Bank) filed a motion to dismiss the Complaint for lack of jurisdiction and failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(1) and l2(b)(6). (ECF no. 9) That motion is joined by the Sheriff. (ECF no. 10) On October 4, 2017, I filed an Order to Show Cause providing that if the plaintiff did not file an opposition to the motion to dismiss within 21 days, it might be treated as unopposed and granted. (ECF no. 14) On October 24, 2017, Ms. Otto filed what is deemed a response. (ECF no. 17) It states that “[ajt this time Otto believes that filing of any opposition to the is a waste of time and a futile attempt to motion to dismiss her complaint . . . bash her head against the proverbial wall of the so called justice of jffl particular district court who without a doubt in order to protect the criminal activity of the likes of a nationally known criminal enterprise such as Wells Fargo Bank, N.A., who admittedly and knowingly forged millions of customer signatures and fraudulently without customers’ knowledge opened millions of S fraudulent bank accounts, would claim lack of jurisdiction or failure to state a claim or some other excuse just to dismiss Otto’s Civil Rights case.” (Id. at 2—4) In support, Ms. Otto cites the Magistrate Judge’s grant of the letter request of defense counsel to suspend the discovery schedule pending resolution of the motion to dismiss. (See ECF nos. 11, 12, & 13) She states that the Magistrate Judge belongs to the “same attorney bar club” as Mr. Bender, counsel for the Bank Defendants. No further response on the merits of the motion has been filed. H. Standard on a motion to dismiss My opinion in the Prior Federal Action (attached) states the relevant standards on a Rule 12(b)(1) or Rule 12(b)(6) motion to dismiss. They will not be repeated here. See generally Bell AtL Corp. v. Twornbly, 550 U.S. 544, 555, 570 (2007) (complaint’s factual allegations must be sufficient to raise a plaintiff’s right to relief above a speculative level, so that a claim is “plausible on its face.”) Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); In re: Lipitor Antitrust Litigation, 868 F.3d 231, 249 (3d Cir. 2017) (heightened Rule 9(b) standard for pleading fraud claim). I have given the allegations the liberal construction due apro se pleading. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). III. Analysis Otto has filed no substantive opposition to the motion to dismiss. Beyond that, she has affirmatively waived any such opposition, declaring it to be futile. See Section I.D, supra. Still, the Court will address the merits, if only briefly. See Jones v. Unemployment Comp. Bd. of Review, 381 F. App’x 187, 189 (3d Cir. 2010); Smith, 2017 WL 2560348 at *2. Grounds for recusal of Judge Hammer do not remotely appear to be present in these allegations. See generally 28 U.S.C. § 455; Liteky v. United States, 510 U.S. 540 (1994). But in any event, nothing about these allegations bears upon the appropriateness of my ruling on this motion to dismiss. 3 6 This analysis should be read in the context of my opinion dismissing the Prior Federal Action, a copy of which is attached. In addition, I rely on the opinion of Chief Judge Linares in Smith v. New Jersey, et al., a case in which the complaint was a virtual duplicate of the Complaint here, except for the names of certain parties. Civ. No. 17-443, 2017 WL 2560348 (D.N.J. June 12, 2017). Compare Smith Second Amended Complaint, Dkt item no. 29-2, with Complaint in this action, ECF no. 1. A. Rooker-Feidman Defendants first move, pursuant to Fed. R. Civ. P. 12(b)(1), to dismiss the complaint for lack of jurisdiction under the Rooker-Feldman doctrine. See District of Columbia Court of Appeals a Feldman, 460 U.S. 462, 482 (1983); Rooker a Fidelity Trust Co., 263 U.S. 413, 416 (1923). A federal district court does not sit to hear appeals from state court judgments. Rooker-Feidman operates to prevent a disgruntled party in state court litigation from collaterally attacking the results of that litigation in federal court, claiming constitutional or other error. See also B.S. a Somerset County, 704 F.3d 250 (3d Cir. 2013). To put it another way, Rooker-Feidman bars “cases brought by state-court losers complaining of injuries caused by statecourt judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus., Inc., 544 U.S. 280, 284, 125 S.Ct. 1517 (2005). The Rocker-Feldman doctrine applies when, “in order to grant the federal plaintiff the relief sought, the federal court must determine that the state court judgment was erroneously entered or must take action that would render that judgment ineffectual.” FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 840 (3d Cir. 1996). Thus Rooker-Feldman holds that lower federal courts cannot entertain federal claims that (1) were previously adjudicated in n. state court or (2) are inextricably intertwined with a prior state court decisio Feldman, supra; Rooker, supra; Guarino a Larsen, 11 F.3d 1151, 1156—57 (3d 7 Cir. 1993); Port Auth. Police Benev. Ass’n v. Port Auth., 973 F.2d 169, 178 (3d Cir. 1992). A final judgment of foreclosure was entered in New Jersey Superior Court on August 12, 2014. In the Prior Federal Action I held that this case involves a “state-court judgment(j rendered before the district court proceedings commenced.” Exxon Mobil, 544 U.S. at 284. That is, if anything, even more true of the current action. Rooker-Feldman bars any claims that were previously adjudicated in, or are inextricably intertwined with, that state foreclosure proceeding. Ms. Otto’s federal causes of action share a common element: that the 2006 mortgage was never valid and that the foreclosure violated her rights. The state foreclosure judgment necessarily decided against Ms. Otto the following essential elements: the validity of the note and mortgage; the alleged default; and the mortgagee bank’s right to foreclose (which would include its standing by assignment or otherwise). See Great Falls Bank v. Pat-do, 263 N.J. Super. 388, 394, 622 A.2d 1353, 1356 (Ch. Div. 1993). “If the relief requested in the federal action requires determining that the state court’s decision is wrong or would void the state court’s ruling, then the issues are inextricably intertwined and the district court has no subject matter jurisdiction to hear the suit.” FOCUS, 75 F.3d at 840. Ms. Otto’s claims against the Bank Defendants arise from the alleged invalidity of the mortgage, an issue foreclosed by the State court judgment of foreclosure. Her claims against the Sheriff can only arise from his conducting, or planning to conduct, a sheriffs sale that was ordered as part of the judgment of foreclosure; they rest on the alleged invalidity of the judgment. Ms. Otto’s claims are claims “brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil, 544 U.s. at 284. They are barred by Rooker Feldman. 8 Nevertheless, to the extent any claim may be regarded as independent of the foreclosure, I consider other grounds for dismissal.4 B. Other Grounds Count 1: Violation of the Civil Rights Act of 1866 (equal rights with respect to property without regard to race) Count 2: Violation of the Civil Rights Act of 1866 (involuntary servitude) As to the first claim, the complaint pleads no facts that suggest any racial or discriminatory animus on the part of the Bank Defendants or the Sheriff. The second claim seems to rest primarily on the theory that Federal Reserve Notes are not legal tender, so that the mortgagee bank’s demand for repayment imposes “involuntary servitude.” I know of no legal authority for such a claim.5 Count 3: Violation of Universal Declaration of Human Rights There is no private cause of action for violation of the Universal Declaration of Human Rights. See United States u. Chatman, 351 F. App’x 740, 741 (3d Cir. 2009) (citing Sosa p. Alvarez-Macham, 542 U.S. 692, 734 (2004)). Count 4: Conflict of interest and lack of neutrality of State of New Jersey and New Jersey Courts This count appears to be pled only against the Judiciary Defendants. Count 5: Fraudulent concealment Parallel to the Rocker-Feldman analysis, but not jurisdictional, are doctrines of resjudicata, collateral estoppel, and the entire controversy rule. These furnished part of the basis for my dismissal of the Prior Federal Action. (See Opinion, attached.) Such grounds would only be strengthened by the fact that this is a second federal action on the same subject matter. 5 The Complaint alleges that there are no U.S. Dollars as defined by the Coinage Act of 1792 currently in circulation, and that her debt, because payable in Federal Reserve Notes, is therefore fraudulent and invalid. (Cplt. pp. 37—38 ¶31 87—92) However, the plaintiff used this loan, denominated in U.S. dollars, to purchase her home. 4 9 In general, a fraud claim requires that a plaintiff allege, as to each defendant, “(1) a material misrepresentation of presently existing or past fact; (2) knowledge or belief by the Defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages.” Banco Popular N. Am. v. Qandi, 184 N.J. 161, 172-73 (2005) (quoting Gennari v. Weiched Co. Realtors, 148 N.J. 582, 610 (1997)). These particulars are not alleged. To some degree, this Count appears to be a repackaging of the other causes of action described above. It obscurely alleges that a check was not returned to plaintiff Plaintiff also complains of the use of her mortgage as part of a securitization, but never specifies how this injured her—for example, caused her to owe or pay any amount she would not otherwise have owed or paid. Although replete with references to misrepresentations, false and fraudulent documents, and allegations about Wells Fargo seemingly drawn from news accounts, the Complaint nowhere intelligibly identifies the who, what, when, where, and how of any fraud committed against this plaintiff. See generally In re: LipitorAntitrust Litigation, 868 F.3d 231, 249 (3d Cir. 2017) (heightened Rule 9(b) standard for pleading fraud claim). Count 6: Covenant of good faith and fair dealing. Under New Jersey law, every contract is deemed to contain an implied covenant of good faith and fair dealing. See Sons of Thunder, Inc. v. Borden, Inc., 690 A.2d 575, 587 (N.J. 1997); Emerson Radio Corp. v. Orion Sales, Inc., 253 F.3d 159, 169-70 (3rd Cir. 2001). A cause of action may lie where a party’s acts “have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” Wade v. Kessler Inst., 798 A.2d 1251, 1262 (N.J. 2002) (internal quotations and citation omitted). “[P]roof of bad motive or intention is vital to an action for breach of the covenant.” Westmont Dcv. Grp., LLC a Twp. of Haddon, 625 F. Supp. 2d 178, 195 (D.N.J. 2009) (citing Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 864 A.2d 387, 396 (N.J. 2005)). 10 The contract at issue is not specified, but presumably it would consist of the loan papers. Acting to foreclose on a mortgage that is in default is not wrongful. The complaint, despite its length, fails to allege any manner in which, for example, plaintiffs default on the mortgage was brought about by some bad faith, improperly motivated act of the defendant. The plaintiff here was not unfairly deprived of the fruits of the parties’ agreement. C. Other Defendants The causes of action as pled against the remaining defendants have obvious facial defects, such as Eleventh Amendment or judicial immunity. See Smith, supra (discussing the issues in relation to a substantively identical complaint). As to those defendants, however, no proofs of service have been filed, and they have not appeared. The Complaint was filed on May 12, 2017. These defendants were not served within 90 days, as required by Fed. R. Civ. P. 4(m). No explanation, good or bad, has been proffered by the plaintiff. I will therefore dismiss the Complaint, without prejudice, as against the remaining defendants. CONCLUSION The Motion of the Bank Defendants, joined by the Sheriff, to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1), for lack of jurisdiction under the Rooker-Feidman doctrine, and in the alternative under Rule 12(b)(6) for failure to state a claim, is therefore GRANTED. Because this is a second action based on the same subject matter, and because the plaintiff has declined to respond in any way to the motion to dismiss, the dismissal is with prejudice. As to the remaining defendants, who have not been served and have not appeared, the dismissal is without prejudice. Dated:Januaiy 16, 2018 KEVIN MCNULTY United States District Jud 11 APPENDIX Court’s Opinion in Otto v. Wells Fargo, Civ. No. 15-8240, 2016 WL 8677313 (July 15, 2016), affd, 693 F. App’x 161 (3d Cir. May 31, 2017) 12 Otto v. Wells Fargo Bank, N.A., Slip Copy (2016) 2016 WI. 8677313 Only the Westlaw citadon is currently available. United States District Court, D. New Jersey. Denise OflO, Plaintiff, V. WELLS FARGO BANK, NA.; Mortgage Electronic Registration Systems, Inc.; U.S. Bank, N.A., as Trustee for BNC Mortgage Loan Trust 2006-2; Phelan Hallinan, LLP a/k/a Phelan Hallinandiarnond & Jones, P.C. a/k/a Phelan Hallinan Diamond, P.C. a/Ic/a Phelan Hallinan & Schmieg, P.C., Defendants. Civ. No. 15-cv-8240 (KM)(MAH) Signed 07/15/2016 Attorneys and Law Firms Denise Otto, Irvington, NJ, pro se. Aaron M. Bender, Reed Smith, Princeton, NJ, Diane A. Bettino, Reed Smith, LLP, Pittsburgh, PA, Sonva Gidumal (‘hazin, Phelan Hallinan Diamond and Jones, Mt. Laurel, NJ, for Defendants. OPINION KEVIN MCNULTY, United States District Judge I. Introduction *1 This federal court action, filed on November 24. 2015, arises from a state court mortgare foreclosure action which went to final judgment on August 12, 2014. Denise Otto, as borrower and property owner, sues her mortgagee, U.S. Bank. In essence, her causes of action seek to undo the state court judgment of foreclosure. She also sues the attorneys who represented the mortgagee in the foreclosure and others. Now before the court are motions of U.S. Bank and the attorneys to dismiss the complaint. (ECF nos. 3, 14) Because this action is barred by the Rooker-Felibuan doctrine and principles of res juc/icata, because the statute of limitations has run, and because the complaint otherwise fails to state a claim, the motions are granted, and the complaint will be dismissed with prejudice. A. Mortgage and State foreclosure judgment On November 13, 2012, U.S. Bank filed a foreclosure action in the Superior Court of New Jersey, Chancery Division, Essex County. (U.S. Bank, etc. v. Otto, No. F-026230-l2. (ECF no. 3-3) U.S. Bank was represented in the foreclosure by Phelan Hallin & Diamond, PC. The complaint in foreclosure alleged as follows: On August 30, 2006, Denise Otto and Eugene I. Otto entered into a $160,000 note and mortgage with BNC Mortgage, Inc., secured by their property at 139-141 Western Parkway in Irvington. On January 16, 2009, the mortgage was assigned to U.S. Bank National Association, as Trustee for BNC Mortgage Loan Trust 2006-2. On September 18. 2012, it was again assigned to U.S. Bank National Association, as Trustee for BNC Mortgage Loan Trust 2006-2, Mortgage Pass-Through Certificates, Series 2006-2. Otto failed to make the monthly mortgage payment due on June I, 2011, and all payments thereafter, and the mortgage went into default. Due notice of default was given. (See ECF no. 3-3) WESTLAW © 2078 Thomson Reuters. No claim to original U.S. Government Works. 1 Otto v. Wells Fargo Bank, NA., Slip Copy (2016) On August 12, 2014, the court entered a final judgment of foreclosure in the amount of $236,762.78, plus interest and counsel fees, A sheritTs sale was ordered. (ECF nos. 34,35) The record does not disclose whether the sale has been held. B. This federal court action Ms. Otto filed this federal court action on November 24, 2015, some 15 months after the entry of final judgment in the state foreclosure action. Count I seeks rescission under the Truth in Lending Act (“TILA”), IS U.S.C. § 1635, because adequate disclosures were not given in connection with the loan in 2006. Otto alleges that “no consummation of the transaction between BNC and Plaintiff took place as one part to the transaction, the actual lender, is not disclosed to PlaintifT.” The reference is apparently to U.S. Banks subsequent assignment of the mortgage. Ms. Otto alleges that she sent a notice of rescission on August 15, 2015. Count 2 seeks enforcement of rescission under IS U.S.C. § 1638(a)(1). Count 3 seeks enforcement of rescission under 12 C.F.R. § 226.23, Count 4 asserts that the transaction was never consummated, and that therefore the three-year deadline on the right to rescind was never set in motion. *2 CountS asserts that Wells Fargo, as servicer, and the Phelan firm, as attorneys, violated a criminal statute, IS U.S.C. § 1611, by pursuing the foreclosure and seeking a sheriffs sale on a loan that they knew had been validly rescinded, Count 6 seeks restitution under 12 C.F.R. § 1026.23 based on the rescission. TI. Standard on a motion to dismiss Defendants have moved to dismiss the Complaint for Jack ofjurisdiction, citing, biter al/a, the Rooker-Fehbnan doctrine (see infra). Rule 12(b)(l) governs jurisdictional challenges to a complaint. These may be either facial or factual attacks. See 2 Moore’s Federal Practice § 12.30[4j (3d ed. 2007); Mortensen i’. First Fed. Sa & Loan A.c’,,, 549 F.2d 884, 891 (3d Cir. 1977). A facial challenge asserts that the complaint does not allege sufficient grounds to establish subject matter jurisdiction. Iit’anoa’a i. &rd Motor Q 67 F. Stipp. 2d 424. 438 (D.N.J. 1999). A court considering such a facial challenge assumes that the allegations in the complaint are true, and may dismiss the complaint only if it nevertheless appears that the plaintiff will not be able to assert a colorable claim of subject matter jurisdiction. On’dio—Mei Assoc.. Ltd. Qozer—Ciwsier Med. Cii., 721 F.2d 68, 75 (3d Cir. 1983); hranowa, 67 F. Supp. 2d at 438. Defendants have also moved to dismiss the Complaint for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b) (6). Rule I 2(b)(6) provides for the dismissal of a complaint, in whole or in part, if it fails to state a claim upon which relief can be granted. The defendant, as the moving party, bears the burden of showing that no claim has been stated. Hedges V. United States. 404 F.3d 744. 750 (3d Cir. 2005). In deciding a Rule 12(h)(6) motion, a court must take the allegations of the complaint as true and draw reasonable inferences in the light most favorable to the plaintiff. Phillips v. Co:tnti of Alh’ghein’, 515 F.3d 224. 231 (3d Cir. 2008) (traditional “reasonable inferences” principle not undermined by Tu’onthly, see infra). Federal Rule olCivil Procedure 8(a) does not require that a complaint contain detailed factual allegations. Nevertheless, “a plaintiffs obligation to provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and conclusions, and a fom,ulaicrecitation of thc elements ofa cause of action will not do.” BellArt Corp. r. iivonth/v. 550 U.S. 544, 555 (2007). Thus, the complaint’s factual allegations must be sufficient to raise a plaintiffs right to relief above a speculative level, so that a claim is “plausible on its face.” 14. at 570; see also Lint/and r. PLANCO Fin. Stn, Inc.. 542 F.3d 59, 64 (3d Cir. 2008). That facial-plausibility standard is met “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” AshcroJi v. lqhal, 556 U.S. 662, 678 WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 2 Otto v. Wells Fargo Bank, NA., Slip Copy (2016) (2009) (citing Tnvn,hly, 550 U.S. at 556). While “[t]he plausibility standard is not akin to a ‘probability requirement’ it asks for more than a sheer possibility.” Icjbol, 556 U.S. at 678. In connection with the motions, defendants have attached records of the state court foreclosure proceeding. These are cited, not for the facts contained therein, but only in order to establish the nature and scope of prior proceedings between the parties, and the rulings of the state court. Such records are subject tojudicial notice: *3 [O]n a motion to dismiss, we may take judicial notice of another courts opinion—not for the truth of the facts recited therein, but for the existence of the opinion, which is not subject to reasonable dispute over its authenticity. See Manier I’. lime Warner Inc. 937 F.2d 767, 774 (2d Cir. 1991); United Sratey v. flood. 925 F.2d I 580, 1582 (7t Ii Cit. 199 I ); see also Fritz/c ComnWss&mcr, 163 F.2d 796. 800-01 (3d Cir. 1947) (whether a court may judicially notice other proceedings depends on what the court is asked to notice and on the circumstances of the instant case). ‘. S. Cruet Orer.cens Agent/cc. Inc. Fed. R. Evid, 201. i [lab Kitong Shipping Grp. Ltd.. 181 F.3d 410, 426-27 (3d Cir. 1990). See general/i’ Where the plaintiff is proceeding pro se, the complaint is “to be liberally construed,” and, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erir* son v. Parties, 551 U.S. 39. 93.AJ4 (2007). Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to support a claim.’ Ma/a i Cram, Bar Marina. Inc.. 704 F.3d 239, 245 (3d Cir. 2013). “While a litigant’s pro se status requires a court to construe the allcgations in the complaint liberally, a litigant is not absolved from complying with Twomb/v and the federal pleading requirements merely because s/he proceeds pro se” Thakcn u. Tan, 372 Fed.Appx. 325. 328 (3d Cir. 2010) (citation omitted). Analysis A. Rooker—Fc’!dman Defendants first move, pursuant to Fed. k, Civ. P. 12(b)(l), to dismiss the complaint for lack ofjurisdiction under the Rooker—Fekhnan doctrine. See District of (ida,; ph/a (‘ann of Appecic r, Felt/teen. 460 U.S. 462, 482 (1983): Ranker Fidelity Trust (‘a., 263 U.S. 413,416(1923). A federal district court does not sit to hear appeals from state court judgments. Rooker-Feithean operates to prevent a disgruntled party in state court litigation from collaterally attacking the results of that litigation in federal court, claiming constitutional or other error. See also B.S. r. Scn,,e,-set C’o:u,rm’. 704 F.3d 250 (3d Cir. 2013). To put it another way, Rooker-Fe/dnzan bars “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” /Evvon Mobil (‘arp. v. Snot/i Basic buhis.. bit., 544 U.S. 280, 284. 125 S.Ct. 151 7(2(1(15). The Rooker-Fe/thnan doctrine applies when, “in order to grant the federal plaintiff the relief sought, the federal court must determine that the state court judgment was erroneously entered or must take action that would render that judgment ineffectual.” FOCUS i Allegheny County Court of Conunon Pleas, 75 F.3d 834, 840 (3d Cir. 1996). Thus Rooker-Feidnian holds that lower federal courts cannot entertain federal claims that (I) were previously adjudicated in state court or (2) are inextricably intertwined with a prior state court decision. Feldman, supra; Rooker, szq.ira; Giiarino v. Lane,;. II F.3d 1151, 1156—57 (3d Cir. 1993); Port AuzI;. Pu/icc’ Be,,ei. Ass’,, r. Purr .1uth.. 973 F.2d 169. 178 (3d Cir. 1992). This case involves a “state-court judgment[ ] rendered before the district court proceedings commenced.” Evxo,, Mobil, 544 U.S. at 284. A final judgment of foreclosure was entered in New Jersey Superior Court on August 12, 2014. It was not until some fifteen months later, on November 24,2015, that Ms. Otto filed this federal court action. WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 3 Otto v. Wells Fargo Bank, NA., Slip Copy (2016) *4 The question remaining is whether the claims in this federal court action were previously adjudicated in, or are inextricably intertwined with, that state foreclosure proceeding. All ofMs. Otto’s federal causes of action share a common element: that the 2006 mortgage was never valid, that it could be rescinded at any time, and that it was rescinded. The stale foreclosure judgment necessarily decided in U.S. Bank’s favor the following essential elements: the validity of the note and mortgage; the alleged default; and the Bank’s right to foreclose (which would include its standing by assignment or otherwise). See Great Fulls Bank v. Pan/u, 263 N.J Super. 338, 391. 622 A.2d 1353, 1356 (Ch. Div. 1993). “If the relief requested in the federal action requires determining that the state court’s decision is wrong or would void the state court’s ruling, then the issues are inextricably intertwined and the districL court has no subject matter jurisdiction to hear the suit,” FOCUS. 75 F.3d at 840. As to federal actions following mortgage foreclosures, the case law gives some guidance as to what issues are actually adjudicated or inextricably intertwined. hire i/ui/era, S3o E3d 228, 232 (3d Cir. 2009), for example, considered a post-foreclosure federal claim, like this one, for rescission of the mortgage. A finding that no valid mortgage existed, the Court held, would eliminate the basis for the prior foreclosure judgment. Such a claim is an easy case for application of Rooker-Feldnian. A federal claim that the state foreclosure court entered its judgment in the absence of personal jurisdiction is likewise barred by Booker Feldn;a,i, Because such a plaintiff “can only prevail if a federal court concludes that the state courts’ default judgments were improperly obtained,” his claim is inextricably intertwined with the state proceedings. hi ic Knappn’. 407 F.3d 573, 581 (3d Cir. 2005). See also 1i’rec-Founiain v. F. Sai’. Bank, 153 Fed.Appx. 91.92 (3d Cir. 2005) (barring post-foreclosure federal claim for rescission of mortgage and damages); tlfonc’i’uJ r. Chase ifanhavan .ltorigage Corp., 275 Fed.Appx. 149, (53 (3d C’ir. 2008) (barring a claim for “redress” of state court judgment in a foreclosure action). Under these precedents, Ms. Otto’s claims against the mortgagee defendants are clearly barred, as the issues essential to them were actually adjudicated in the state foreclosure action. To hold—as Ms. Otto asks this Court to do—that the mortgage was not valid, would in effect declare the foreclosure judgment to be invalid. It would be tantamount to a declaration “that the state courts’ default judgments were improperly obtained.” Kicupper, 407 F,3d at 531. That leaves the claims against Wells Fargo, as loan servicer, and Phelan Hallinan. the attorneys. These, too, rest on the assumption that the mortgage was invalid or rescinded, The alleged wrongfulness of these defendants’ actions stemmed from their attempts to enforce in court what Ms. Otto deems to be an invalid mortgage. Thus they stand on the same footing as the claims against U.S. Bank. Ms. Otto’s claims are claims “brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Ex.vun Mobil, 544 U.S. at 284. They are barred by Rooker-Feldnzan. B. Other Grounds *5 Rooker-Feidnian should dispose of the matter as to any claim that is not “independent” of the merits of the foreclosure. To remove doubt, however, I briefly consider in the alternative some other grounds for dismissal under Rule I2(h)(6). 22 1. Resjudicata Claims that survive scrutiny under Rooker-Felcbnan may nevertheless be barred by doctrines of resjttdicara. See .1 viesFountain, 153 Fed.Appx. at 93 (“even if review of the complaint were not barred by Rooker—Feidnian, we agree with the District Court that Ayres—Fountain’s claims were barred by resjudicata”). I find that to be the case here. Although res WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 4 Otto v. Wells Fargo Bank, N.A., Slip Copy (2016) judicata is an affirmative defense, it may be considered on a motion to dismiss if its applicability can be determined from the face of the complaint and documents properly considered on a Rule I 2(bl(6) motion. Bethel i’. it’ndoco (‘on.t. (‘nip., 570 F.2d 1168. 1173 (3d Cir. 1978). The New Jersey doctrines of claim preclusion and the entire controversy rule furnish additional and alternative grounds for dismissal. a. New Jersey doctrine of claim preclusion and the entire controversy rule Whether a state court judgment should have a preclusive effect in a subsequent federal action depends on the law of the state that adjudicated the original action. See Grn’n/etq i Gurlock. Inc. 74 F.3d 352. 357 (3d Cir. 1999) (“To determine the preclusive effect of [the plaintiffs] prior state action we must look to the law of the adjudicating state.”), See also ,i//cn v. MeC,trrv. 449 U.S. 90, 96. 101 S. Ct. 411.415 (1980) (‘Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which thejudgments emerged would do so.”). Here, that state is New Jersey. New Jersey claim preclusion law, like federal law, has three essential elements: (1) a final judgment on the merits; (2) the prior suit involved the same parties or their privies; and (3) the subsequent suit is based on the same transaction or occurrence. I Vatkh,s v. Resorts hzt’I lintel and Ca,vi,,o, Inc.. 124 N.J .398,412, 591 A.2d 592. 599(1991) (state law); United Stares v. vith/one Indus., lot’.. 746 F.2d 977. 983 (3d Cir. 1984) (federal law), If those three requirements are met, then the doctrine bars “the parties or their privies from relitigating issues that were or could have been raised in that action.” f//cn,449 U.S. at 94. 101 S. Ct. at414; 1I’aekins, 124 N.J. at4l. 591 A.2d at 599Q Claim preclusionapplies notonly to matters actually determined in an earlier action, but to all relevant matters that could have been so determined.”) Claim preclusion in the traditional sense tends to be subsumed by New Jersey’s “entire controversy” rule. The entire controversy rule emphasizes, not just claims within the scope of the prior judgment, but all claims and parties that a party could have jomed in a prior case based on the same transaction or occurrence. The entire controversy doctrine thus “requires a party to bring in one action ‘all affirmative claims that [it] might have against another party, including counterclaims and cross-claims,’ and to join in that action ‘all parties with a material interest in the controversy,’ or be C & It” forever barred from bringing a subsequent action involving the same underlying facts.” Rico/hit’ Prody.. Inc. Ha//era,: & Cies/a. 142 N.J. 280, Un/baited, 109 F.3d 883, 885 (3d Cit. 1997) (quoting Circle Chevrolet Co. i’. Giordano, ‘. 662 A.2d 509, 513 (1995)). *6 Ve have described the entire controversy doctrine as “New Jersey’s specific, and idiosyncratic, application of traditional res judicata principles.” Rvco/bw Prods., mt. i C & IF’ Unlimited. 109 F.3d 883, 886 (3d Cir. 1997). A mainstay of New Jersey civil procedure, the doctrine encapsulates the state’s longstanding policy judgment that “the adjudication of a legal controversy should occur in one litigation in only one court[.j” Cogdc// a. Hasp. Cir, at Orange, 560 A,2d 1169, 1172 (N.J. 1989); see ,/so N.J. Coast. art. VF. § 3. ¶4 (“[L]egal and equitable relief shall be granted in any cause so that all matters in controversy between the parties may be completely determined.”); Smith t Red Top than that a single or entire IIIXILE)’ Corp., 168 A. 796. 797 (N.J. 1933) (“No principle of law is more firmly established cause of action cannot be subdivided into several claims, and separate actions maintained thereon.”) Rickerti i Barn’, 775 F.3d 611.613 (3d Cir. 2014). Like traditional res judicata, the state entire controversy doctrine applies in federal court “when there was a previous state-court action involving the same transaction.” Ben,,stn a. J?utgers Sits/c thur., 941 F.2d 154, 163 (3d Cir. 1991). It extinguishes any subsequent federal-court claim that could have been joined, but was not raised in the prior state action: Under the entire controversy doctrine, a party cannot withhold part of a controversy for separate later litigation even when the withheld component is a separate and independently cognizable cause of action. The doctrine has three purposes: (I) complete and final disposition of cases through WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 5 Otto v. Wells Fargo Bank, N.A., Slip Copy (2016) avoidance of piecemeal decisions; (2) fairness to parties to an action and to others with a material interest in it; and (3) efficiency and avoidance of waste and delay. See DiT)u/io v. Anti/es, 142 N.J. 253, 662 A.2d 494, 502 (N.J. 1995). As an equitable doctrine, its application is flexible, with a caseby-case appreciation for fairness to the parties. Pup’ainotnit A tI0tf0fl Corp. v. Aç’zLcla, [78 L-.3d 132, I 37 (3d Cir. 1999), The preclusive effect of the rule is explicit: “Non-joinder of claims or parties required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims to the extent required by the entire controversy doctrine.,..” N.J. Ct. R. 4:30A. But the rule applies only to claims that could have been permissibly joined in the prior except proceeding. And the entire controversy rule itself notes the limitations on claims in a foreclosure proceeding: Id (foreclosure actions) as otherwise provided by R. 4:64-5 “... ....“ The cited rule, N.J. Ct. R. 4:64-5, limits permissible claims in mortgage foreclosure actions to those which are “germane” 2 to the foreclosure. It follows, therefore, that only claims germane to the prior mortgage foreclosure will be precluded in a later action, If the litigant could not have brought non-germane claims in the prior action, then they cannot be precluded by the priorjudgment. *7 As to what claims are “germane,” the seminal case is LeLure Tec’hno/ogi—Nort/rensr r. KThiçthei/ 1k/ding Co 137 Div. 1975). “The use of the word ‘germane’ in the language of the rule,” said the N.J. Super. 353, 349 A.2d 96 Appellate Division, “undoubtedly was intended to limit counterclaims in foreclosure actions to claims arLcing out of the mortgage transacuon which is the subject matter of the foreclosure action.” 349 A.2d at 98—99 (emphasis added), There, the foreclosure defendant/borrower had pled an affirmative defense and counterclaim. The Appellate Division held that “the thrust of the counterclaim is the assertion that plaintiff had breached the underlying agreement in relation to which sense the mortgage was executed and interfered with defendants’ rights under that agreement. In the usually understood of the word, these claims were germane to the foreclosure action.” 349 A.2d at 99. . Post-Leisure Technology, the germaneness rule has solidified thus: Indeed, the Appellate Division has been “clear that any conduct of a mortgagee known to the mortgagor prior to the institution of a foreclosure that could be the basis of an independent action for damages by reason of the mortgagee having brought the foreclosure could be raised as an equitable defense in the foreclosure.” Sit,, .VLF Ltd. Paruwi’.chip Scisso, 313 N.J. Super. 546. 713 A,2d 538.540 (N.J. Super. Ct. App. Div. [998). *6 (D.N.J. June 21, 2010) JVel/.v hugo Ban/c, NA., No. CIV.l:07CV05236JHR, 2010 WL 2595237, L1 Ze/’rows/d (Rodriguez, J.); see a/so bun, Rpm,, flu. r. First Nat. Batik ciJS. Jersey. 208 N.J. Super. 562.570, 506 A.2d 762. 766 (App. Div. 1986). A Third Circuit case persuasively penned by Judge Fuentes (himself a product of the New Jersey bench and bar) illustrates Qiase I-Ionic [‘hi., LLC L’X re/. the “germaneness” issue as it bears on the entire controversy doctrine. In Co/eaton (‘have Ma,thutum Mortgage Corp.. 446 Fcd.Appx. 469 (3d Cii. 2011), a foreclosure action went to final judgment. After bankruptcy-related delays that staved off a sheriffs sale, the borrower/owner paid a reinstatement fee and obtained a lender dismissal of the foreclosure, The borrower then brought a putative class action in federal court, claiming that the applying the entire controversy doctrine, had charged excessive fees in connection with reinstatement. The district court, dismissed the case on a Rule 1 2(.b)(6) motion. The Third Circuit affirmed. . practice: Judge Fuentes found that the borrower’s claims could have been brought in the foreclosure under New Jersey Claims are considered to be germane to a foreclosure action if they arise out of the mortgage K/ingbei/ fin/cling that is the basis of the foreclosure action. Leisure Techno/ogj’—Ncrtheast, l,,c-. ‘. WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government ‘A’orks. 6 Otto v. Wells Fargo Bank N.A., Slip Copy (2016) Cv., 137 N.J. Super, 353, 349 A.2d 96. 98 (1975). Here, Coleman’s claims arose directly out of a reinstatement quote that was provided to her as an alternative to a foreclosure sale, and the excessive fees allegedly charged by Chase would not have been charged but for the foreclosure action. Accordingly, Coleman’s causes of action arose out of and were germane to the original foreclosure action. 446 Ped.Appx. at 472. Because the claims would have been “germane” in the sense that they arose from the relevant mortgage transaction, they were now barred by the entire controversy doctrine. See also Dcsini.s r. AIERS/Mer.ccorp Jiorrgage Eler Regisinztiw, Sy.c.. Inc.. No. CI VA. 11-4821 JLL, 2011 WL490571 I. at *1 (D.N.J. Oct. 13. 201 l)(barñng claims by plaintillwho had defaulted in state foreclosure action that “as a result oldefective assignments of her mortgage, all claims to the property are void”). b. Application to this case *8 The entire controversy rule applies here. The state court mortgage foreclosure was “a previous state-court action involving the same transaction,” i.e., the mortgage, the default, and the foreclosure itself. Bennin,, 941 F.2d at 163 (3d Cir. I 991). The subject matter of that prior action necessarily embraced that of this federal action, and the parties are the same (except for Phelan Hallinan, which was an attorney, not a party, in the earlier action, and is sued on that basis). In the alternative, the three prerequisites to claim preclusion apply here, (I) There was a final judgment on the merits. (2) The prior suit involved the same parties or their privies. on, the (3) The subsequent suit (i.e., this one) is based on the same transaction or occurrence. It grows out, and is based at 599. validity, or not, of the mortgage. IVarkmns, 124 N.J. at 412.591 A.2d bears A claim that the mortgage transaction “was not consummated” or that the mortgage has been rescinded obviously itself. It follows, then, that claim preclusion and the entire controversy direct on the merits of the mortgage foreclosure doctrine extinguish any such subsequent federal-court claim that either was decided, or else could have been joined but was not raised in the prior foreclosure action. As to any claims that arguably survive Rooker-Felthnan, the motion to dismiss on grounds of resjudica:a and the entire controversy rule would be granted. 2. Failure to state a claim does not, Finally, I consider whether the complaint states a claim under Rule 12(h)(6). In many important respects it as a matter of law. A claim for monetary damages under TILA, for example, has a one-year statute of limitations, which runs from the date of closing of the loan. SeC 15 U.S.C. § 1640(e); In cc Coniniunfi Bank of Non/thin Jlrghiki. 622 F.3d 275, 303 (3d Cir. 2010). A request for rescission under TLLA must be brought vilhin three years. That is a firm deadline, i.e., a statute of v. I Veils repose that is not subject to tolling. See 15 U.S.C. 16350; Co,;ununiti’ Bank, 622 F.3d at 301 n. IS; Will/unix loan closing on I”aro Th,nc AIi.ge, Inc.. 4(0 Fed.Appx. 495, 499 (3d Cir. 2011). The limitation period runs from the August 30. 2006. The damages claim therefore expired in 2007, and the rescission claim in 2009. Notice of rescission, according to the complaint, was served in 2015—six years after the last deadline had expired. WESTLAW © 2018 Thomson Rejters. No claim to ohginal U.S. Government Works. 7 Otto v. Wells Fargo Bank, N.A., Slip Copy (2016) selfMs. Otto claims that the transaction was “never consummated.” By that she seems to mean that it was somehow that the right to rescind remains open rescinding in 2006. There is no legal support for that position, which would imply forever. Under established case law, the deadlines run from the closing of the challenged loan. Claims based on positions taken in the state court litigation would face an additional barrier in the form of the litigation privilege. The litigation privilege ensures that [s]tatements by attorneys, parties and their representatives made in the r. P1w/an, course of judicial or quasi-judicial proceedings are absolutely privileged and immune from liability.” (li/es The Kalflmm & Se/nit/ag, L. LI’., 901 F. Stipp. 2d 509, 523 (D,N.J. 2012) (internal quotations and citations omitted). to “any communication(l) made in judicial privilege is “expansive” and “well-established” in New Jersey. Id. It applies of the or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects litigation; and (4) that have some connection or logical relation to the action.” Id. (internal quotations and citations belief that omitted). At any rate, no specific false statement is identified, other than those based on plaintiff’s personal the mortgage never was valid. *9 Any claim under 15 U.S.C. § 1611, a criminal statute containing no civil cause of action, would likewise be doomed. CONCLUSION jurisdiction under Defendants’ motions to dismiss the complaint pursuant to Fed. R. Civ. P. 12(h)(l), for lack of Rule 12(b)(6) for failure to state a claim, are therefore the Rooker-Feidman doctrine, and in the alternative under GRANTED, and the complaint is dismissed with prejudice. All Cila tions Slip Copy, 2016 WL 8677313 Footnotes purposes of Rocker-Feldman: Thai the sheriffs sale may not yet taken place does not detract from thejudgment’s finality for I invoke Rooker-Fek/n Inn. Under New Jersey law, a That the foreclosure judgment had been entered is sufficient to Shearer r. Lippnian mortgage foreclosure suit determines the right to foreclose and the amount due on the mortgage. r. Sro,i(’hrUl. Lid. I 85 NJ.Super. 289. c Lout’. 125 N.J. Eq. 93. 4 A.2d 273 Ui. & A 1939); Ce’,,ypnl Pew, Vail Ba,,k foreclosure judgment 3(12, 448 A.2d 498 (C’h. Div. 982). See generally 30,\ N.J. Prac. Law al Mortgages 31.25. The subject to the mortgage. also entitles the mortgagee to recover, byway of Sheriff’s sale, the aniount due from the land 562.570, 893 A.2d I (App. See N,J.S,A. 2A.50—36; Fh’s: Union Nail Bank v. Penn Sc/eta Marina, Inc., 383 N.J.Super. foreclosure Di”. 2006) reid on other grounds by 190 N.J .342. 92t A.2d 417 (2007). Indeed, the terms of a mortgage order to sell so much of the mortgaged premises as will be sufficient to satisfy the mortgage judgment will include “an 30A N.J. Prac. Law and subordinate liens and that an execution issue commanding the [sheriffl to make sale,.,.’ of Mortgages § 31.25. Patent, v. Ift’l/s Fargo Bank. N.4. Civ. No. 09-2848, 2010 VL 1931256, at 7 I D.N.J. May 13, 2010). of the state court Where the federal plaintiff presents ‘some independent claim,’ Le,, one that does not implicate the validity 2 .tI,hil. 544 U.S. at 292 (quoted in Turner i’. CrauJnnl Square judgment, the Rocker-Feldman doctrine does not apply. Cv.,,,, uan analysis and confirming lparmu’nti I!!, L.P .449 F.3d 542.547-48 (3d Cir. 2006)). Upon completing the Rooker-Felih prevails under principles of preclusion.” that ii possesses jurisdiction, the court should then consider “whether the delèndant ... 3 ... Fu,oz tin/ill, 544 tIN, at 292. 3:64—5. ,Joinder of Claims In Foreclosure shall not be Unless the court otherwise orders on notice and for good cause shown, claims for foreclosure of mortgages counterclaims joined with non-germane claims against the mortgagor or other persons liable on the debt. Only germane e claims shall include, but and cross-claims may be pleaded in foreclosure actions without leave of court, Non-german agreements and not be limited io, claims on the instrument of obligation evidencing the mortgage debt, assumption WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works, 8 Otto v. Wells Fargo Bank, N.A., Slip Copy (2016) 4 shall guarantees. A defendant who chooses to contest the validity, priority or amount of any alleged prior encumbrance against that encumbrancer, if a co-defendant, and the issues raised by the cross-claim shall do so by filing a cross-claim be determined upon application for surplus money pursuant to R. 4:64—3, unless the court othenvise directs, or Claims that could not have been brought in the first proceeding also include those that were “unknown, unarisen, Dcr, Corp. I’. Pcrskic & Nehniurl. 142 N.J. 310. 662 A.2d 523. 530 (1995) (citations unaccrued” at the time. Mi’stic Ixie omitted). Those exceptions are not implicated here. aspect of the The entire controversy rule applies to parties, as vell as claims, that were not joined in the prior action. That supra (requiring particular safeguards as to absent parties). rule, too, is not relevant here. SCL Ricketti, the court A case reaching the opposite result is hi ‘c’ Mullcukt-’p, 536 [‘3d 215, 229-30 (3d (jr. 2008). There, however, truly arose, not from the foreclosure, but from alleged misrepresentations determined that the plaintiffs tWeral cause of action in related bankrupicy proceedings. Foil of l)ucunirppi ‘‘ 211i.S flioinon Rcons No Jaitit to orl2inal LI.S. Guvertitneig Works WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 9

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