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holding claims were precluded because they complained of "essentially the same misconduct" alleged in the prior actions and sought "essentially the same relief"
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DOCKET NO. A-5350-13T2
03-01-2016
THOMAS I. GAGE, Plaintiff-Appellant, v. WELLS FARGO BANK, N.A. AS TRUSTEE FOR THE POOLING AND SERVICING AGREEMENT DATED AS OF JULY 1, 2006 SECURITIZED ASSET BACKED RECEIVABLES LLC TRUST 2006-FR3 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-FR3, and MR. LUKE ANDERSEN and MRS. HELENA ANDERSEN, Defendants-Respondents.
Thomas I. Gage, appellant pro se. Houser & Allison, attorneys for respondent Wells Fargo Bank, N.A. as Trustee For The Pooling and Servicing Agreement dated as of July 1, 2006 Securitized Asset Backed Receivables LLC Trust 2006-FR3 Mortgage Pass-Through Certificates, Series 2006-FR3 improperly named as Wells Fargo Bank N.A. (Anna N. Carley, of counsel and on the brief). Rajan Patel, attorney for respondents Luke Andersen and Helena Andersen.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Gilson. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-0353-14. Thomas I. Gage, appellant pro se. Houser & Allison, attorneys for respondent Wells Fargo Bank, N.A. as Trustee For The Pooling and Servicing Agreement dated as of July 1, 2006 Securitized Asset Backed Receivables LLC Trust 2006-FR3 Mortgage Pass-Through Certificates, Series 2006-FR3 improperly named as Wells Fargo Bank N.A. (Anna N. Carley, of counsel and on the brief). Rajan Patel, attorney for respondents Luke Andersen and Helena Andersen. PER CURIAM
Plaintiff Thomas I. Gage defaulted on his mortgage and a final judgment of foreclosure was entered against him in 2010. Thereafter, plaintiff, representing himself, filed numerous complaints in federal court seeking to undo the foreclosure and asserting various claims of fraud, conversion and obstruction of justice. All the federal actions have been dismissed with prejudice. Plaintiff then brought this action pro se in the Law Division naming three defendants he had named in the federal actions, and seeking essentially the same relief. In a July 9, 2014 order, the Law Division dismissed plaintiff's complaint with prejudice reasoning that all his claims were barred by the entire controversy doctrine, R. 4:30A, as well as by principles of res judicata and collateral estoppel. Plaintiff now appeals the July 9, 2014 order. We affirm.
I.
Plaintiff previously resided at 51 Hillcrest Boulevard, Warren, New Jersey (the property). In 2008, plaintiff defaulted on his mortgage, and Wells Fargo Bank, as the assignee of the mortgage, filed a foreclosure action in the Chancery Division. Plaintiff failed to respond or contest the foreclosure action and a final judgment of foreclosure was entered on April 13, 2010. Thereafter, Wells Fargo purchased the property at the foreclosure sale. Plaintiff refused to leave the property, and he and his family were evicted by the Somerset County Sheriff. In October 2011, the property was sold to Luke and Helena Andersen.
Defendant Wells Fargo Bank's full name is Wells Fargo Bank, N.A. as Trustee For The Pooling and Servicing Agreement dated as of July 1, 2006 Securitized Asset Backed Receivables LLC Trust 2006-FR3 Mortgage Pass-Through Certificates, Series 2006-FR3 (Wells Fargo).
On February 14, 2011, plaintiff filed his first complaint in federal court seeking to overturn the judgment of foreclosure (first federal action). Plaintiff asserted claims against Wells Fargo and Somerset County Sheriff Frank J. Provenzano, claiming that Wells Fargo never owned the mortgage to the property and that Wells Fargo and Provenzano had committed criminal acts during the foreclosure process. The district court dismissed the claims against Wells Fargo pursuant to the Rooker-Feldman doctrine, which provides that lower federal courts lack subject matter jurisdiction to engage in appellate review of state court determinations. Gage v. Wells Fargo Bank, N.A., No. 11-862 (D.N.J. Sept. 9, 2011). That dismissal was affirmed on appeal. Gage v. Wells Fargo Bank, N.A., 521 F. App'x 49, 50-51 (3d Cir. 2013).
Rooker v. Fid. Trust Co., 263 U.S. 413, 44 S. Ct. 149, 68 L. Ed. 362 (1923); D.C. Ct. of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983).
On February 9, 2012, plaintiff filed his second complaint in federal court repeating the same allegations from his first federal action and adding allegations that Wells Fargo had engaged in fraud, conversion and various crimes (second federal action). Plaintiff also named the Andersens as defendants; alleging that they had participated in the conversion of the property, had stolen his personal property, and had obstructed justice. The district court dismissed the second federal action and the Third Circuit affirmed, reasoning that plaintiff's claims were barred by res judicata and remained barred by the Rooker-Feldman doctrine. Gage v. Wells Fargo Bank, N.A., 555 Fed. App'x 148, 151-52 (3d Cir. 2014).
While plaintiff's second federal action was still pending, he filed a third complaint in federal court (third federal action). He again named Wells Fargo and Provenzano as defendants and accused them of essentially the same misconduct that he alleged in his prior federal actions. He also named as defendants (1) Judge Mary C. Jacobson, who entered the judgment of foreclosure, and (2) the law firm and individual attorneys who represented Wells Fargo in the state foreclosure proceedings and in the prior federal actions. Plaintiff asserted claims under various federal criminal statutes and the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.A. § 1962(c). The district court dismissed all those claims and the Third Circuit affirmed. Gage v. Frank J. Provenzano, 571 Fed. App'x 111, 113-14 (3d Cir. 2014).
As a result of plaintiff filing repetitive complaints, the federal court has issued several injunctions under the All Writs Act, 28 U.S.C.A. § 1651(a), prohibiting plaintiff from filing any action in the United States District Court for the District of New Jersey related to the foreclosure and subsequent sale of the property without prior leave of the court. Despite those injunctions, plaintiff continued to file actions in federal court and those actions have also been dismissed. See Gage v. Christie's Administration, No. 15-6964 (D.N.J. Sep. 24, 2015).
In some of his more recent federal actions, plaintiff has sought to name as defendants Governor Chris Christie, Acting State Attorney General John J. Hoffman and judges, law clerks and other judicial officers including the "New Jersey Judicial Branch." --------
On December 30, 2013, plaintiff filed this action in the Law Division. Plaintiff named Wells Fargo and the Andersens as defendants, seeking monetary damages and title to the property. Plaintiff filed a motion for summary judgment and Wells Fargo filed a cross-motion to dismiss the complaint. In an order dated July 9, 2014, Judge Edward M. Coleman, denied plaintiff's motion and dismissed plaintiff's complaint with prejudice. Judge Coleman issued a written memorandum opinion reasoning that all of plaintiff's claims were barred by the entire controversy doctrine and principles of res judicata and collateral estoppel. Judge Coleman also entered a second order on July 9, 2014, stating that "[p]laintiff will not be permitted to file any new [c]omplaints involving the subject matter of the present case without first obtaining written approval by this [c]ourt."
II.
Plaintiff has appealed the July 9, 2014 order that denied his motion for summary judgment and dismissed his complaint with prejudice. On appeal, plaintiff contends that he did not default on his mortgage, Wells Fargo never had an assignment of the mortgage, and the foreclosure action and subsequent sale of the property were all fraudulent. Plaintiff also asserts that several of his constitutional rights have been violated, various crimes and frauds have been committed, and that the trial judge ignored the facts, law and rules of civil procedure in dismissing his complaint. Having examined de novo the entire record, and having considered all of plaintiff's contentions, we are satisfied that all of plaintiff's claims are barred by the entire controversy doctrine and by res judicata.
The entire controversy doctrine, codified in Rule 4:30A, provides in pertinent part:
Non-joinder of claims 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, except as otherwise provided by R. 4:64-5 (foreclosure actions) and R. 4:67-4(a) (leave required for counterclaims or cross-claims in summary actions).
Rule 4:64-5, concerning foreclosure actions, provides that germane counterclaims and cross-claims should be joined, but "non-germane claims" can only be joined by court order.
This doctrine "embodies the principle that the adjudication of a legal controversy should occur in one litigation in only one court; accordingly, all parties involved in a litigation should at the very least present in that proceeding all of their claims and defenses that are related to the underlying controversy." Highland Lakes Country Club & Cmty. Ass'n v. Nicastro, 201 N.J. 123, 125 (2009) (quoting Cogdell v. Hosp. Ctr. at Orange, 116 N.J. 7, 15 (1989)). Our Supreme Court has previously explained that the purposes of the entire controversy doctrine "are threefold: (1) the need for complete and final disposition through the avoidance of piecemeal decisions; (2) fairness to parties to the action and those with a material interest in the action; and (3) efficiency and the avoidance of waste and the reduction of delay." DiTrolio v. Antiles, 142 N.J. 253, 267 (1995) (citing Cogdell, supra, 116 N.J. at 15).
Here, plaintiff is seeking to undo and re-litigate the foreclosure action. All of plaintiff's claims against Wells Fargo were germane claims to the prior foreclosure action. Moreover, all of plaintiff's claims against the Andersens are also barred because Wells Fargo sold the property to the Andersens. Consequently, plaintiff's current claims are all barred by the entire controversy doctrine.
Res judicata, like the entire controversy doctrine, serves the purpose of providing "finality and repose; prevention of needless litigation; avoidance of duplication; reduction of unnecessary burdens of time and expenses; elimination of conflicts, confusion and uncertainty; and basic fairness." First Union Nat. Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352 (2007) (quoting Hackensack v. Winner, 82 N.J. 1, 32-33 (1980)). The principle "contemplates that when a controversy between parties is once fairly litigated and determined it is no longer open to relitigation." Lubliner v. Bd. of Alcoholic Beverage Control, 33 N.J. 428, 435 (1960). Application of res judicata "requires substantially similar or identical causes of action and issues, parties, and relief sought," as well as a final judgment. Culver v. Ins. Co. of N. Am., 115 N.J. 451, 460 (1989). Thus, "[w]here the second action is no more than a repetition of the first, the first lawsuit stands as a barrier to the second." Ibid.
Plaintiff has previously tried to undo the foreclosure action by filing multiple actions in federal court. All of those actions have been dismissed with prejudice as final judgments. In the federal actions, plaintiff named both Wells Fargo and the Andersens as defendants and sought the identical relief that he now attempts to reassert in the Law Division. Those claims are barred by res judicata.
Plaintiff's contentions concerning the denial of his motion for summary judgment and the claims he asserted in motions he filed with this court all lack merit and do not warrant a discussion in a written opinion. See R. 2:11-3(e)(1). Moreover, plaintiff made no arguments challenging the July 9, 2014 order directing him not to file a future complaint without leave of court and, thus, we deem that issue abandoned. See N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505-06 n.2 (App. Div.) (stating that issues not briefed are deemed waived), certifs. denied, 222 N.J. 17 (2015); Santiago v. N.Y. & N.J. Port Auth., 429 N.J. Super. 150, 154 n.2 (App. Div. 2012) (same), certif. denied, 214 N.J. 175 (2013).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION