VINCENT ROGGIO v. JPMORGAN CHASE BANK, N.A

NOT FOR PUBLICATION WITHOUT THE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-4199-18

VINCENT ROGGIO and
CALLIE ROGGIO,

          Plaintiffs-Appellants,

v.

JPMORGAN CHASE BANK, N.A.,
GARY CHROPUVKA, and
JOANNE MCKENNA,

          Defendants-Respondents,

and

LEONARD ZUCKER, ZUCKER
GOLDBERG & ACKERMAN, LLC,

          Defendants.


                   Argued September 23, 2021 – Decided October 18, 2021

                   Before Judges Alvarez and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Docket No. L-1586-16.

                   Vincent Roggio, appellant, argued the cause pro se.
            Owen Lipnick argued the cause for respondent
            JPMorgan Chase Bank, N.A. (Bertone Piccini, LLP,
            attorneys; Owen Lipnick, on the brief).

            Daniel L. Finestein argued the cause for respondents
            Gary Chropuvka and Joanne McKenna (Finestein &
            Malloy, LLC, attorneys; Daniel L. Finestein and
            Russell M. Finestein, on the brief).

PER CURIAM

      In June 2006, Washington Mutual Bank (WaMu) filed an action against

plaintiff Vincent Roggio seeking to foreclose on his real property in Red Bank

due to his near-immediate default on a $3 million loan. Washington Mut. v.

Roggio, No. A-3170-10 (App. Div. Aug. 23, 2012) (slip op. at 2). Roggio

claimed he withheld payments because the bank "damaged his credit rating by

filing an excessive number of credit inquiries." Ibid. Since then, Roggio and

his wife, Callie Roggio, also a plaintiff in this proceeding, have been named

defendants in a mortgage foreclosure action regarding their marital property in

Rumson. The total value of their outstanding loans exceeded $6 million. Both

properties have long since been sold at sheriff's sales.1




1
  Defendants Gary Chropuvka and Joanne McKenna participated in the appeal
for the sole purpose of protecting title to the Red Bank property, which they now
own.
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      Under Rule 4:6-2(e), Judge Katie A. Gummer dismissed with prejudice

plaintiffs' amended complaint against Chase, except a negligence count. She

denied plaintiffs' cross-motion for summary judgment.          Thereafter, Judge

Lourdes Lucas denied        plaintiffs' motion for reconsideration seeking

reinstatement of the amended complaint and dismissed the remaining count of

the complaint with prejudice. We affirm.

      By way of background, WaMu entered a Federal Deposit Insurance

Corporation (FDIC) receivership on September 25, 2008. Defendant JPMorgan

Chase assumed WaMu's assets, including plaintiffs' loans. In the foreclosure

proceedings and on appeal, plaintiffs have argued Chase lacks standing because

Chase never properly acquired the mortgages, since they were placed in a trust

after WaMu's collapse. Plaintiffs also maintain Chase committed fraud by

claiming a right to the loans.

      Plaintiffs contend New Jersey's courts lacked jurisdiction over the

foreclosures: because of the federal receivership and because they sued for

damages allegedly caused by WaMu in the United States District Court for the

District of Columbia pursuant to the Financial Institutions Reform, Recovery ,

and Enforcement Act of 1989 (FIRREA), 12 U.S.C. § 1821. Plaintiffs assert

that lawsuit stripped New Jersey courts of the authority to act.


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      Plaintiffs consented to stay the federal court action for years after

unsuccessfully seeking to enjoin the foreclosures. Ultimately, they reactivated

the federal court proceeding. Plaintiffs have vigorously pursued motion practice

in both the state and federal forums.

      When on July 8, 2016, plaintiffs filed the first amended complaint, they

averred they had received new information confirming that the loan was sold to

a trust before Chase acquired it. The complaint sought: (1) a declaratory

judgment voiding the final foreclosure judgment on the Red Bank property due

to Chase's failure to substitute itself for WaMu as the plaintiff, and due to the

Chancery Division's lack of jurisdiction; (2) fraud damages based on the notion

that Chase had no right to the loans because they were sold to a securitized trust;

(3) recission of the deed transferring the Red Bank property to Chropuvka and

McKenna and an order "compelling Chase to deed the [Red Bank] [p]roperty to"

plaintiffs; (4) punitive, treble, and compensatory damages under the Consumer

Fraud Act (CFA),  N.J.S.A. 56:8-1 to -224; (5) common law fraud damages

because WaMu "assigned" the Red Bank property to Chase after acquiring it at

the sheriff's sale; (6) CFA damages because "Chase defrauded the IRS"; (7)

common law fraud damages for reducing the value recovered at the sheriff's

sale; (8) negligence damages for failure "to mitigate the losses associated with


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the foreclosure and the [s]heriff’s [s]ale"; and (9) damages for breach of the

implied covenant of good faith and fair dealing.

      Chase moved to dismiss, contending counts two through five were barred

by collateral estoppel because they were based on plaintiffs' argument that Chase

"lacked standing to prosecute the foreclosure actions because they no longer

owned the mortgage note." Chase also argued the recission claim was time-

barred under laches, as the sheriff's sale was conducted two years prior.

Concerning the common law fraud and CFA allegations, Chase asserted

plaintiffs provided no evidence of material misrepresentations. Furthermore,

the cause of action for breach of the covenant of good faith and fair dealing

should have been filed in the foreclosure actions and was thus barred by the

entire controversy doctrine. Plaintiffs cross-moved for summary judgment,

asserting the court lacked jurisdiction under FIRREA, and that res judicata and

collateral estoppel did not apply because their fraud claims were based on new

evidence.

      Judge Gummer found counts two, three, four, five, and nine were barred

by collateral estoppel because they implicated the standing issue upon which the

Appellate Division previously ruled. The court dismissed count six because

plaintiffs "failed to identify a legal basis that would give them the authority to


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pursue claims of defrauding the IRS," and count seven because it spoke to

negligence, not fraud, and rested in part on the standing issue we previously

decided. However, the court denied Chase's motion to dismiss count eight as

"plaintiffs ha[d] at least articulated a basis by which Chase could potentially be

held responsible" for negligence.

      Plaintiffs, now pro se, then moved for reconsideration, 2 which the court

addressed on March 31, 2017. Plaintiffs stated the court's decision was palpably

incorrect because it never mentioned fraud, and that the court "completely

overlooked the fact that it had no [subject matter] jurisdiction to decide this

case." Judge Lourdes denied that motion since plaintiffs did not meet the

palpably incorrect standard and the court's earlier determination "clearly

addressed the arguments that were raised before it . . . ."

      Plaintiffs then filed a Rule 4:50-1 motion alleging lack of jurisdiction and

violation of due process, restating that the court had no jurisdiction under

FIRREA. Because one claim was still pending and there was no final judgment,

the court viewed plaintiffs' motion as a motion for reconsideration. Finding




2
  In their reply brief on the motion, plaintiffs claimed they were instead moving
to correct the court's decision under Rule 4:50-1.
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plaintiffs again failed to meet the standard and merely sought a second bite of

the apple, the court denied the motion.

      On April 12, 2019, the court granted Chase's motion for summary

judgment on count eight, holding that "merely putting a lock on the property and

taking minimal steps to protect the lender's interest would not rise to the level

of control needed to create a duty as a mortgagee in possession." Plaintiffs

appealed. They raise the following issues:

            POINT I

            WHETHER ON SEPTEMBER 25, 2008 WHEN THE
            FDIC TOOK CONTROL OF "ALL" WASHINGTON
            MUTUAL BANK'S "ASSETS AND LIABILITIES"
            THE STATE CHANCERY COURT WAS STRIPPED
            OF PERSONAL AND SUBJECT MATTER
            JURISDICTION OVER THOSE FDIC ASSETS AND
            ONLY THE FDIC HAD JURISDICTION TO DECIDE
            THOSE ASSETS AND LIABILITIES IN FEDERAL
            COURT WITH ORIGINAL SUBJECT MATTER
            QUESTION JURISDICTION.

            POINT II

            WHETHER     THE     CHANCERY      COURT'S
            FEBRUARY 2, 2017 FINAL DECISION VIOLATED
            APPELLANT'S RIGHT TO LITIGATE HIS
            BORROWER CLAIMS.

            POINT III

            WHETHER    A   FALSE   CERTIFICATION
            SUBMITTED BY CHASE TO THE PANEL ON

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             DIRECT APPEAL CAUSED THE PANEL TO RELY
             ON A FALSE PRESUMPTION.

             POINT IV

             WHETHER A PROPERTY FORECLOSURE BASED ON FALSE
             RECORDS MUST BE REVERSED.

                                        I.

      Plaintiffs' first point is that the state courts lacked jurisdiction over the

mortgages.    Unfortunately, the argument entirely lacks merit.        The FDIC

receivership has no direct impact on the ability of state courts to address

mortgage foreclosures, so long as the plaintiff in those proceedings owns the

debt. But in any event, this argument has been previously raised and rejected.

      Collateral estoppel bars relitigation of issues decided in a prior action.

See In Re Vicinage 13 of the N.J. Super. Ct.,  454 N.J. Super. 330, 341-42 (App.

Div. 2018). Here, the jurisdiction issue was settled since the final judgment in

the foreclosure proceedings, which plaintiffs fully litigated. See ibid. The

properties were eventually sold.

      Plaintiffs argue state foreclosure proceedings cannot continue while a

federal action is pending. But plaintiffs' misconduct allegations against WaMu

and the FDIC are wholly unrelated to Chase's in rem claims in the foreclosure

proceedings. These are different causes of action with different remedies.


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Repeatedly asserting that the District Court maintains exclusive jurisdiction

does not make it so.

      Indeed, FIRREA in no way bars mortgage foreclosure proceedings from

moving forward. Cases clarifying that FIRREA does not bar continuation of

mortgage foreclosure are legion. Once the loans were sold to Chase, that

distanced Chase in its pursuit of its remedies against the mortgagors. WaMu did

not own or have access to the loans. The mortgages were not under FDIC

control, and the New Jersey courts retained jurisdiction.

      FIRREA does strip jurisdiction from state courts over other borrowers'

claims—which must be litigated in federal court after the exhaustion of the

administrative process. See Glover v. FDIC,  698 F.3d 139, 150 (3d Cir. 2012).

That may actually bar plaintiffs' complaint here. In any event, we reiterate—

FIRREA does not strip state courts of jurisdiction to address mortgage

foreclosures.

                                       II.

      Plaintiffs also assert the court "violated [their] right to litigate [their]

borrower's claims." They take the position that the appellate affirmance of the

Chancery Division's June 2, 2010 decision only went to standing, not their

borrower claims or jurisdiction.


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      The trial court, however, realized plaintiffs' complaint was grounded on

their position that Chase lacked standing due to the alleged securitization , an

issue we found wanting in 2012. Plaintiffs' "borrower claims" stem from their

assertion that Chase caused them harm by improperly enforcing the loans, which

has been previously resolved against them.

                                      III.

      Plaintiffs also argue that the prior decision rested on the "false

presumption" of a "false certification." They point to a letter from a Freedom

of Information Act, 5 U.S.C. § 552, branch chief explaining that the FDIC could

not determine the owner of the loans based on the information plaintiffs

provided. That in no way demonstrates a false certification by any Chase

employee. The letter does not impact our prior decision.

                                      IV.

      Plaintiffs' final point is that the mortgage foreclosures must be reversed

because they were based on false records. That claim is so lacking in merit as

to not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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