Thomas Gage v. Wells Fargo Bank NA AS ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 23-2320
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THOMAS I. GAGE,
Appellant
v.
WELLS FARGO BANK, NA AS;
FRANK J. PROVENZANO, Somerset County Sheriff
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3:11-cv-00862)
District Judge: Honorable Michael A. Shipp
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
on November 1, 2023
Before: BIBAS, PORTER, and MONTGOMERY-REEVES, Circuit Judges
(Opinion filed: November 2, 2023)
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OPINION *
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PER CURIAM
Pro se Appellant Thomas Gage appeals from the District Court’s order denying his
motion to set aside the District Court’s prior judgment on the basis of fraud on the court.
For the reasons that follow, we will affirm the District Court’s judgment. 1
I.
In 2011, Gage filed a pro se civil action in federal court challenging the foreclo-
sure and subsequent sale of a residential property. In brief, after Gage defaulted on his
mortgage, Wells Fargo filed a foreclosure complaint in state court. A final judgment of
foreclosure was entered by the state court in April 2010, and the property was sold pursu-
ant to a Sheriff’s sale in July 2010. In August 2011, after refusing to vacate the property,
Gage and his family were evicted pursuant to a writ of possession.
The District Court dismissed the complaint as to Wells Fargo, concluding that
Gage’s claims were barred by the Rooker-Feldman doctrine. 2 The District Court granted
summary judgment in favor of Sheriff Frank Provenzano, finding that he was entitled to
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
This appeal was considered on Appellant’s brief. In light of our disposition, Appellee
Frank Provenzano’s motion for an extension of time in which to file a responsive brief is
DENIED as unnecessary.
2
See Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); D.C. Ct. of App. v. Feldman, 460 U.S.
462 (1983). Pursuant to this doctrine, federal district courts lack subject matter jurisdic-
tion to engage in appellate review of state court determinations. See Great W. Mining &
Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010).
2
qualified immunity on Gage’s remaining claims relating to the enforcement of the fore-
closure judgment and subsequent sale of the property. We affirmed the District Court’s
judgment. See Gage v. Wells Fargo Bank, NA AS, 521 F. App’x 49 (3d Cir. 2013) (per
curiam). Since that time, Gage has filed multiple lawsuits stemming from the foreclosure
and sale of his former property.
In January 2023, pursuant to Federal Rule of Civil Procedure 60(d)(3), Gage filed a
motion to vacate the District Court’s judgment on the grounds of fraud on the court. In
support thereof, Gage asserted that the attorneys for Wells Fargo and Provenzano, as well
as Sheriff’s Sales Coordinator Thomas Pizybyiski, defrauded the District Court by fabri-
cating and filing “bogus” and “forged” documents, including a sheriff’s deed and writ of
execution, “to justif[y] their crime and to misle[a]d the court.” D.Ct. ECF No. 50 at 6.
Gage asserted that the District Court’s orders are therefore null and void, as they were
“based on an alleged state judiciary proceeding that never took place in the state court as
proved by the fabricated evidence[].” Id. at 5.
In support of his allegations of fraud and forgery, Gage asserted that the writ of
execution, see D.Ct. ECF No. 50-2 at 14, was never signed by the state court judge. As
to the sheriff’s deed, Gage stated that two such deeds existed when there should only be
one, and that a comparison of the signatures on the deeds with other known signatures of
the signatories proved that the deeds were fraudulent. The District Court denied the mo-
tion, finding Gage’s largely conclusory allegations to be insufficient to establish fraud on
the court. See D.Ct. ECF No. 52. Gage appeals.
II.
3
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of
any legal questions, and we review the District Court’s decision to deny relief for abuse
of discretion. Cf. In re Bressman, 874 F.3d 142, 148 (3d Cir. 2017) (on appeal from the
district court of a bankruptcy court decision on a motion to reopen and vacate based on
allegations of fraud on the court). We may affirm on any basis supported by the record.
See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).
In accordance with Federal Rule of Civil Procedure 60(d)(3), a district court “may
set aside a judgment based upon its finding of fraud on the court when an officer of the
court has engaged in ‘egregious misconduct,’” such as bribery or fabrication of evidence.
In re Bressman, 874 F.3d at 150 (quoting Herring v. United States, 424 F.3d 384, 390 (3d
Cir. 2005)). Such a finding “must be supported by clear, unequivocal and convincing ev-
idence” of “(1) an intentional fraud; (2) by an officer of the court; (3) which is directed at
the court itself; and (4) in fact deceives the court.” Herring, 424 F.3d at 386–87 (citation
omitted).
In support of his appeal, Gage reiterates the arguments made before the District
Court, including his contentions that the judicial foreclosure proceedings and writs of ex-
ecution and possession were fabricated. We agree with the District Court that Gage has
not met the “demanding standard” required for the relief he seeks. Id. at 390. Gage’s as-
sertion that a collection of signatures from various individuals appear to him to be notice-
ably different between documents is simply insufficient to constitute clear and convinc-
ing evidence of a forgery, much less that the alleged forgeries were specifically directed
at the District Court itself or were undertaken by the defendants or their attorneys with
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the intent to deceive the District Court.
Nor is the lack of signature by the state court judge on the writ of execution, or the
presence of an electronic or stamped signature on other documents, evidence of forgery
or fraud. The challenged writs of execution and possession contain the seal of the court
and were issued by the court clerk’s office. See D.Ct. ECF No. 50-2 at 14, 19-23. Fur-
ther, Gage’s assertion that there were two sheriff’s deeds is not supported by the record.
As noted by the District Court, the alleged second deed was merely a duplicate of the
original that was submitted to prove it was filed with the clerk’s office. To the extent that
two writs of possession were issued, Gage has not shown that this is evidence of fraud.
Finally, Gage also has not shown that the underlying state court foreclosure proceedings
never took place.
Accordingly, we will affirm.
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