Aliperio v. Bank of Am., N.A.
| Decision Date | 13 December 2016 |
| Docket Number | Civ. No. 2:16-CV-01008-KM-MAH |
| Parties | CHITA ALIPERIO and EMILE HERIVEAUX, Plaintiffs, v. BANK OF AMERICA, N.A., Successor by Merger to BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS, INC.; and KEARNY BANK, formerly known as KEARNY FEDERAL SAVINGS BANK, Defendants. |
| Court | U.S. District Court — District of New Jersey |
This action follows one in New Jersey state court that defendant Kearny Bank ("Kearny") brought to foreclose on the Paramus, New Jersey, property of pro se plaintiffs Chita Aliperio and Emile Heriveaux. Plaintiffs now seek to contest the enforceability of the mortgage documents on which that foreclosure action was based. They also allege that the defendants violated the federal Racketeer Influenced and Corrupt Organizations Act (RICO) in the course of servicing and executing assignments of Plaintiffs' mortgage.
Now before the Court are two motions to dismiss the complaint: one (ECF no. 15) brought by defendant Kearny, and the other (ECF no. 16) by defendants Countrywide Home Loans, Inc. ("Countrywide") and Bank of America, N.A. ("BANA"). All three defendants argue that the complaint fails to state a claim. In addition, BANA and Countrywide argue that this court lacks jurisdiction pursuant to the Rookman-Feldman doctrine, and that the claims are barred by res judicata principles, including New Jersey's Entire Controversy Doctrine. (ECF no. 15). For the reasons explained below, Rooker-Feldman and preclusion doctrines do not bar Plaintiffs' claims. I will grant Defendants' motions to dismiss the complaint, however, primarily because it fails to allege constitutional injury-in-fact or RICO standing.
On March 12, 2007, Ms. Aliperio took out a $650,000 refinance loan from Fairmount Funding Ltd. ("Fairmount"), evidenced by a promissory note. To secure payment on the note, Aliperio and Heriveaux executed a mortgage on their property to Fairmount's nominee, Mortgage Electronic Registration System, Inc. ("MERS"). Over the next several years, the loan was serviced by an entity first known as Countrywide Home Loans Servicing LP ("Countrywide Servicing"), and later as BAC Home Loans Servicing, LP ("BAC Servicing"). Then, as the result of a merger, the servicer of the loan became BANA. (Compl. ¶¶ 11-18, 117-118, 122, 131; see Kearny Br. 4)1
In February and July of 2011, the Plaintiffs were notified that they were in default of their payment obligations by way of Notices of Intention of Foreclosure (NOIs). (The first was sent by BAC Servicing and the second by BANA). Plaintiffs cured both defaults. (Id. ¶¶ 119-120, 123) Thereafter, however, Plaintiffs stopped making payments and never again cured their defaults. Between August 19, 2011, and February 4, 2015, BANA sent Plaintiffsforty-two monthly loan statements reporting a total of $243,567.97 due. Between March 2012 and June 2013, BANA sent Plaintiffs another three NOIs. (Id. 124-127, Exs. B-3, B-4, B-5) At some point, BANA referred Plaintiffs' loan to a law firm (the "Phelan firm") for collection. (Id. ¶ 128) The Phelan firm sent Plaintiffs a letter on December 18, 2013, which sought payment of $749,446.71— a figure representing all outstanding principal, interest, and fees. (Id.; Kearny Br. 3-4.)2
On March 14, 2014, Kearny, as assignee of the note and mortgage, filed a foreclosure complaint against Plaintiffs (as I call them, though they were defendants in that action) in the Superior Court of New Jersey, Chancery Division, Bergen County (the ). On March 28, 2014, the Phelan firm recorded a notice of lis pendens on the mortgaged property. (Compl. ¶ 24, Ex. C-4) Plaintiffs appeared pro se in the State action. Their answer alleged that several of the interim assignments of the mortgage had been invalid and asserted counterclaims. (Id.)
Kearny moved to dismiss the counterclaims and Plaintiffs cross-moved for summary judgment. On July 21, 2014, the Honorable Peter E. Doyne, A.J.S.C., dismissed Plaintiffs' counterclaims with prejudice for failure to state a claim, and denied Plaintiffs' cross-motion. (Id. Ex. C (July 21, 2014 Order)) Judge Doyne also denied Plaintiffs' motion for reconsideration on October 10, 2014. 3
Those dismissed counterclaims included "two counts of theft on behalf of Kearny pursuant to N.J.S.A. 2C:20-7(a); N.J.S.A. 2C:20-7b(1); and N.J.S.A. 2C:20-1(e) and four counts of perjury premised upon the conduct of [Kearny] and [Kearny]'s attorney . . . pursuant to N.J.S.A. 2C:28-1." (Id. at 9.) Plaintiffs premised these counterclaims on theories that Kearny knowingly used invalid assignments to collect $273,714.73 through BANA. They contested the assertions of Kearny and its counsel that the invalid assignments were inadvertent and of no consequence to chain of title; indeed they characterized those assertions as perjurious. Kearny and its counsel also committed perjury, said Plaintiffs, by virtue of their inability to produce documents proving Kearny was entitled to sue as assignee of the mortgage. (Id. at 10.) Judge Doyne, in denying the motions, necessarily found that Kearny did have standing to bring a foreclosure action. (Id. at 11.)
Following discovery in the State court action, Kearny filed a motion for summary judgment and Plaintiffs again cross-filed for summary judgment. On December 22, 2014, Judge Doyne denied Plaintiffs' cross-motion and granted Kearny's motion for summary judgment. He ordered that a default be entered against Plaintiffs and remanded the case to the Foreclosure Unit for final judgment. (Compl. Ex. C-10 (Order for Summary Judgment and Default)). Judge Doyne explained that a series of invalid transfers had concededly occurred early in the life of the Plaintiffs' mortgage. In 2013, however, well before Kearny filed its foreclosure complaint, it was validly transferred toKearny pursuant to corrective assignments and recordings. (Compl. Ex. C-10 (Dec. 22, 2014 Opinion) at 3-4, 16.) Therefore, because Kearny had demonstrated a prima facie right to foreclose (having established execution of the mortgage, recording, and non-payment), and because Plaintiffs failed as a matter of law to contest the validity of the mortgage or create an issue concerning Kearny's right to foreclose, Judge Doyne held Plaintiffs' answer to be uncontesting. (Id. at 7, 21-22.)
Despite receiving a favorable summary judgment decision, upon remand to the Foreclosure Unit Kearny requested that the action be voluntarily dismissed. (Compl. Ex. C-11.) In its briefing before this court, Kearny does not explain why it pursued this strategy.4 Kearny does acknowledge, however, that final judgment was never entered in the foreclosure action. (Kearny Br. 6.) The foreclosure action closed February 4, 2015, upon voluntary dismissal without prejudice. (Id.) Thereafter, the Phelan firm recorded a discharge of notice of lis pendens in the county office. (Compl. Ex. C-13.)
On February 23, 2016, Plaintiffs filed their federal complaint in this action. It is quite lengthy, running to some 98 pages. In broad strokes, the allegations in the complaint most helpful for understanding Plaintiffs' claims are as follows:
The counts of the federal complaint allege the following:
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