ELVIRAPENG v. LANDMARK BUILDING & DEVELOPMENT CORP KARL E. SENSEMAN, RORY SENSEMAN LANDIS TITLE CORP., CITI MORTGAGE INC., and n/k/a TD BANK and MERS and LARRY YACUVILLI

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4114-14T1

ELVIRA PENG,

        Plaintiff-Appellant,

v.

LANDMARK BUILDING & DEVELOPMENT CORP.,
KARL E. SENSEMAN, RORY SENSEMAN,
LANDIS TITLE CORP., CITI MORTGAGE
INC., and (COMMERCE BANK) n/k/a TD BANK
and MERS,

        Defendants-Respondents,

and

LARRY YACUVILLI,

     Defendant.
________________________________________

              Submitted January 22, 2018 – Decided February 21, 2018

              Before Judges O'Connor and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Cumberland County, Docket No.
              L-1059-14.

              Elvira Peng, appellant pro se.

              Phillip S. Van Embden, PC, attorneys for
              respondents Landmark Building Development
              Corp., Karl E. Senseman, Rory Senseman and
           Landis Title Corp. (Teri L. Giordano, on the
           brief).

           Sills Cummis & Gross PC, attorneys for
           respondents Citi Mortgage Inc. and MERS
           (Joshua N. Howley, of counsel and on the
           brief; Megan L. Wiggins, on the brief).

           Brown & Connery, LLP, attorneys for respondent
           TD Bank (Jeffrey R. Johnson and Michael J.
           Watson, on the brief).

PER CURIAM

     Plaintiff Elvira Peng appeals from: a March 20, 2015 order

denying her motion to vacate orders entered by United States

District Court Judge Renee Marie Bumb, and dismissing the complaint

as to defendants Citi Mortgage, Inc. and Commerce Bank n/k/a TD

Bank, N.A.; an April 13, 2015 order dismissing the complaint as

to defendants Landmark Building Dev. Co., Karl E. Senseman, Rory

Senseman   and   Landis   Title   Corp.;    and   April   24,   2015    orders

dismissing the complaint as to defendant MERSCORP Holdings Inc.

(MERS) and denying plaintiff's motion for a temporary restraining

order and preliminary injunction.1         We affirm.


1
    Although Larry Yacuvilli is named as a defendant in the
complaint, the record is devoid of any evidence he was served with
the complaint or participated in the matter before the trial court.
We also note the case information statements filed by the
respective defendants indicate that the orders under appeal are
not final orders. See R. 2:2-3 (permitting appeals of right only
"from final judgments of the Superior Court trial divisions").
The record on appeal, however, does not include any evidence
suggesting the orders from which plaintiff appeals are not final


                                    2                                  A-4114-14T1
                                     I.

      Plaintiff's complaint is the fourth she has filed asserting

fraud, federal and state statutory claims, and common law claims

arising out of her November 2004 purchase of a residence from

defendant Landmark Building Dev. Co., the financing of the purchase

with Commerce Bank, and the 2006 refinancing of the mortgage with

Citi Mortgage.     Central to her claims is the allegation that the

square   footage    of   the    residence   was   greater   than   what   was

represented at the time of purchase and that, as a result, her

real estate taxes, mortgage escrows and other costs associated

with the purchase were greater than she reasonably understood.

      On December 16, 2011, plaintiff and Daniel Chiong filed a pro

se complaint in the Law Division against Citi Mortgage and Commerce

Bank.    In part, the complaint alleged that the square footage of

the   residence    had   been   misrepresented    and   claimed    that   Citi

Mortgage and Commerce Bank made misrepresentations and took other

unlawful actions in connection with the 2004 mortgage and 2006

refinance.

      While the state court action was pending, on January 18, 2012

plaintiff filed a complaint in the United States District Court



judgments within the meaning of R. 2:2-3, and defendants have not
moved for dismissal of the appeal claiming the orders are
interlocutory.

                                      3                              A-4114-14T1
for the District of New Jersey alleging the same claims against

Citi Mortgage, Commerce Bank and MERS.   The state court action was

removed to federal court, and Judge Bumb consolidated the two

actions.

     Citi Mortgage and MERS moved to dismiss the complaint.      The

District Court granted the motion without prejudice, and allowed

plaintiff and Chiong thirty days to file an amended complaint.     On

May 18, 2012, they filed an amended complaint in the District

Court naming the City of Vineland, Landmark Building Dev. Co.,

Landis Title Corp., Citi Mortgage and Commerce Bank as defendants.

The complaint asserted claims for fraud, breach of contract,

violation of the Consumer Fraud Act, 
N.J.S.A. 56:8- -1 to -206, and

violation of various federal statutes.     Again, the claims were

founded on the alleged misrepresentation of the square footage of

the residence, and the 2004 and 2006 financings.

     Defendants moved for dismissal of the amended complaint.

After hearing oral argument, Judge Bumb entered a September 24,

2012 order dismissing the amended complaint with prejudice against

Vineland and dismissing federal statutory claims with prejudice,

and provided plaintiff and Chiong an opportunity to re-plead their

fraud claims.

     In October 2012, plaintiff and Chiong moved for leave to file

a second amended complaint.    In a September 17, 2013 written

                                4                           A-4114-14T1
opinion and order, Judge Bumb denied the motion, finding that

"having provided [p]laintiffs with several opportunities to cure

the deficiencies in their complaint . . . further amendments would

be futile," and dismissed the first amended complaint as to all

remaining defendants with prejudice.        Plaintiff and Chiong did not

appeal the court's order.

      More than a year later, on December 29, 2014, plaintiff filed

a complaint in the Law Division in Cumberland County alleging the

same claims based on the same facts as those alleged in the first

amended complaint in the federal action.       Plaintiff named Landmark

Building Dev. Co., Landis Title Corp., Karl E. Senseman, Rory

Senseman, Citi Mortgage, Commerce Bank, and MERS as defendants.

At different times, defendants subsequently moved to dismiss the

complaint.

      In separate detailed written decisions and orders entered on

March 20, 2015, April 13, 2015, and April 24, 2015, Judge Richard

J.   Geiger   dismissed   the   complaint   with   prejudice   as   to   all

defendants.2    The judge held the claims asserted in the complaint

were a virtual mirror image of those asserted in plaintiff's first

amended complaint in the federal action.           Noting that the claims

were dismissed with prejudice in the federal court, the judge



2 The March 20, 2015 order also denied plaintiff's motion to vacate
Judge Bumb's dismissal orders.

                                    5                               A-4114-14T1
determined the complaint was barred under the doctrine of res

judicata and by the entire controversy doctrine.                     See generally,

Wadeer v. N.J. Mfrs. Ins. Co., 
220 N.J. 591, 605 (2015) (discussing

the principles and policies underlying the entire controversy

doctrine     and    res     judicata).         The    judge    further     determined

plaintiff's        claims    were   time-barred           under    the   statute     of

limitations, see 
N.J.S.A. 2A:14-1, and otherwise failed to state

a claim upon which relief could be granted, R. 4:6-2(e).

     This appeal followed.           On appeal, plaintiff argues the court

erred in dismissing her complaint with prejudice and requests

reversal of the trial court orders.

     We first note that plaintiff's brief on appeal does not

include     any    legal    argument     that       the   motion   court    erred    by

dismissing her claims based on res judicata or entire controversy

grounds.3          An      issue    that       is     not     briefed    is    deemed

waived.     Jefferson Loan Co. v. Session, 
397 N.J. Super. 520, 525




3
   Plaintiff's brief does not include point headings as required
by Rule 2:6-2(a)(6).      An appellate court may refrain from
consideration of arguments not properly submitted under point
headings.   Mid-Atl. Solar Energy Indus. v. Christie, 
418 N.J.
Super. 499, 508 (App. Div. 2011). See also Pressler & Verniero,
Current N.J. Court Rules, cmt. 2 to R. 2:6:2 at 691 (2018).
Although plaintiff failed to include the required point headings,
we reviewed the brief to discern the arguments she made in support
of her appeal.

                                           6                                  A-4114-14T1
n.4 (App. Div. 2008); see also Zavodnick v. Leven, 
340 N.J. Super.
 94, 103 (App. Div. 2001); R. 2:6-2(a)(6).

      In any event, based on our review of the record, we discern

no basis to reverse the court's orders, and find insufficient

merit in plaintiff's contentions to warrant a discussion in a

written opinion.   R. 2:11-3(e)(1)(E).     We affirm substantially for

the reasons in the judge's well-reasoned March 20, 2015, April 13,

2015 and April 24, 2015, written decisions and orders dismissing

the   complaint   based   on   res   judicata   and   entire   controversy

grounds.4

      Affirmed.




4
   Because the complaint was properly dismissed on res judicata
and entire controversy grounds, it is unnecessary to address
plaintiff's claim the court erred by finding the complaint was
barred by the statute of limitations.

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