MARCIA COPELAND v. BANK OF AMERICA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4856-05T34856-05T3

MARCIA COPELAND,

Plaintiff-Appellant,

v.

BANK OF AMERICA,

Defendant-Respondent.

_________________

MARCIA COPELAND,

Plaintiff-Appellant,

v.

BANK OF AMERICA,

Defendant-Respondent,

and

GRP FINANCIAL,

Defendant.

___________________________________

 

Submitted: February 14, 2007 - Decided August 3, 2007

Before Judges Kestin and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Camden County, L-9272-05.

Scott J. Levine, attorney for appellant.

Meyner and Landis, attorneys for respondent (David B. Grantz, on the brief).

PER CURIAM

Plaintiff, Marcia Copeland, appeals from an order granting partial summary judgment to defendant Bank of America (BOA) and dismissing plaintiff's basic claims in each of two consolidated cases, "subject to the exception" that "plaintiff may proceed with any and all claims available to her under the RESPA [Real Estate Settlement Procedures Act] statute." 12 U.S.C.A. 2601 to 2617. We dismiss the appeal as interlocutory.

On October 20 and November 4, 2005, respectively, plaintiff, on forms provided by the courts, filed handwritten civil action complaints in Camden County and Cumberland County against BOA and GRP Financial. The October 20 complaint, against BOA alone, alleged that 1) "Defendant breached mortgage contract signed 1/25/02[; and] 2) Defendant has increased the mortgage by three hundred dollars which is not supported by escrow inclusions, i.e., taxes, insurance, . . . ." In the section of the form specifying "the harm that occurred as a result of defendant's acts," the document stated:

1) Damage to credit report & ability to purchase real estate[;]

2) Violation of mortgage contract[;]

3) Mismanagement of mortgage escrow account[; and]

4) Unlawfully creating a foreclosure situation to collect fees & additional monies[.]

The November 4 complaint, against BOA and GRP Financial* as defendants, alleged "Defendant [sic] breached mortgage contract - building sold at tax sale." The section calling for a recitation of "the harm that occurred as a result of defendant's acts" stated:

1) Damage to credit report and ability to purchase real estate[;]

2) Violation of mortgage contract/building sold at tax sale[;]

3) Mismanagement of mortgage escrow account[;]

4) Unlawfully creating a foreclosure litigation to collect fees [and] additional monies[;]

5) Collecting monies by deception[;]

6) Failure to report mortgage interest on 1098 - interfering with my IRS filing process.

In an order entered on January 20, 2006, the two matters were consolidated under the docket number of the first complaint filed in Camden County.

Defendant filed a motion for summary judgment asserting that plaintiff's claims were barred by the application of res judicata and collateral estoppel because of the decisions in prior foreclosure actions in each of the two counties. Plaintiff cross-moved for counsel fees.

In both earlier mortgage foreclosure proceedings, BOA had prevailed on summary judgment, and was permitted to proceed to judgment. Plaintiff then exercised her right of redemption in each matter, and the foreclosure suits were dismissed.

The summary judgment motion in the instant consolidated matters came before the trial court for argument on April 12, 2006. Judge Dortch articulated his rulings in an oral opinion of the same date. He observed that all of the basic arguments being advanced in the current suits had been raised in the foreclosure actions. He concluded, for reasons stated, that the claims addressed by those arguments were precluded by principles of res judicata and collateral estoppel, but he ruled that plaintiff could pursue "the non-germane issues," noting that that had been conceded by counsel for defendant. Judge Dortch specified that the "non-germane claim[s]" involved those within the ambit of the RESPA statute, including claims similar to breach of contract, but he also stated that the category of "non-germane claims" was not limited to those available under RESPA. Thus, it is clear that Judge Dortch recognized plaintiff's continuing ability to pursue any "non-germane claims" that were not resolved as issues addressed in the earlier foreclosure proceedings. He allowed that plaintiff could move to amend the complaint, so that the court would have a focus for determining what issues, if any, beside those arising under RESPA, could be considered allowable as non-germane to the foreclosure proceedings.

I'll have to address it at that time. I don't want to go too far [a]field here to make determinations to either cut the plaintiff's rights off or to prohibit the defendant . . . with respect to that. * * *

The initial issues before me was [sic] whether or not this was actually prohibited by res judicata and collateral estoppel . . . . [B]oth judges looked at this, complaints were filed, answers were filed, . . . in essence . . . the same arguments are being made here and they're cast . . . somewhat differently but the same arguments [have] already been made.

I made a determination that [the] Judges looked at that, they made a determination that the defendant was entitled to foreclosure. Their decision from my perspective . . . was a substantive determination [sic] by the Courts on the merits of whether or not they could proceed with foreclosure and they did . . . .

* * *

Once the . . . motion is filed to amend the complaint[,] any arguments that are made by [the] defense at that time . . . I'll address it at that time as to whether or not that's something that can be pursued []or not pursued based on my ruling today[.]

Judge Dratch denied the cross-motion for attorney's fees.

Plaintiff appeals, arguing that the trial court "erred in granting defendant partial summary judgment based on the doctrines of res judicata and collateral estoppel" and because "there are genuine issues of material fact."

The appeal must be dismissed as interlocutory. By definition and by its own terms, the order granting the motion for partial summary judgment did not resolve all issues. See Pressler, Current N.J. Court Rules, comment 2.2.2 on R. 2:2-3 (2007)("It is . . . well settled that a judgment, in order to be eligible for appeal as a final judgment, must be final as to all parties and all issues."). If plaintiff is made whole once the "non-germane" issues, including those arising from RESPA, are isolated and addressed, there will be no further basis for proceeding. Therefore, before finality may be seen to have been achieved, plaintiff must exhaust her existing remedies that survive the grant of partial summary judgment. Until then, plaintiff has no appeal as of right; she has not moved for leave to appeal; and, as far as we can discern, she has not satisfied the standards for appeal from a non-final trial court decision. See, e.g., R. 2:2-4, R. 2:5-6.

 
The appeal is dismissed.

* Eventually, plaintiff voluntarily dismissed the complaint against GRP Financial. Hence, our references to "defendant" are to BOA.

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A-4856-05T3

August 3, 2007