MARVIN HOWARD VS. WELLS FARGO BANK, N.A. (L-7937-19, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4023-19
MARVIN HOWARD,
Plaintiff-Appellant,
v.
WELLS FARGO BANK, N.A.,
Defendant-Respondent.
__________________________
Submitted April 19, 2021 – Decided September 8, 2021
Before Judges Suter and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-7937-19.
Marvin Howard, appellant pro se.
Reed Smith, LLP, attorneys for respondent (Henry F.
Reichner, of counsel and on the brief; Greyson K. Van
Dyke, on the brief).
PER CURIAM
Plaintiff Marvin Howard appeals from a February 28, 2020 order granting
defendant Wells Fargo Bank, N.A.'s motion to vacate entry of a default and
dismissing plaintiff's Law Division complaint with prejudice, and from an April
21, 2020 order denying his motion for reconsideration. For reasons that follow,
we affirm the trial court's orders.
I.
This case involves a residential foreclosure that has been the subject of a
previous appeal. Wells Fargo Bank, N.A. v. Howard (Howard I), No. A-0658-
19 (App. Div. Jan. 21, 2021). We glean the following facts from our earlier
opinion.1 Id. (slip op. at 1-2).
On August 5, 2005, plaintiff executed a note from Lancaster Mortgage
Bankers, LLC, in the amount of $200,000 for a property located in Irvington.
On the same date, plaintiff signed a mortgage to secure this debt, which was
recorded on August 26, 2005. The mortgage was assigned to defendant, and the
assignment was recorded on April 25, 2017.
Plaintiff defaulted on the loan on May 1, 2017. Defendant filed a
foreclosure complaint on November 7, 2017. Plaintiff did not file a contesting
1
Howard I was issued after the parties submitted their briefs in the present
appeal.
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answer or otherwise respond to the foreclosure complaint. On April 13, 2018,
defendant requested entry of a default. A final judgment of foreclosure was
entered on September 5, 2018, in the sum of $166,431.62.
The property was sold at a sheriff's sale on July 9, 2019, for $140,000 to
a third-party purchaser. Approximately a week later, plaintiff made his first
appearance in the foreclosure action, filing a motion to vacate the sheriff's sale.
Plaintiff's motion to vacate the sale was denied by the Chancery Division judge
on September 30, 2019, and that judge ordered the sale to remain in full force
and effect. Plaintiff filed a notice of appeal in the foreclosure action.
On October 23, 2019, while the foreclosure appeal was pending, plaintiff
filed a complaint in the Law Division against defendant. The eight-count
complaint asserted causes of action for lack of standing to foreclose, fraud in
the concealment, fraud in the inducement, intentional infliction of emotional
distress, quiet title, slander of title, declaratory relief, and a violation of the
Truth-In-Lending Act, 15 U.S.C. §§ 1601 to -1667. Plaintiff's complaint
demanded compensatory damages in excess of $50,000, punitive damages,
restitution, costs, and declaratory relief. All of plaintiff's claims related to
defendant's foreclosure action by alleging defendant did not have standing to
foreclose and that the foreclosure action interfered with his title to the property.
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Plaintiff alleged that the property was not "properly assigned and transferred to
[defendant]."
When defendant did not file an answer, plaintiff obtained entry of a default
against defendant. However, when defendant learned of the default, it filed a
motion to vacate, and to dismiss the complaint with prejudice under Rule 4:6-
2(e). Plaintiff opposed defendant's motions.
Plaintiff did not appear for oral argument on February 28, 2020.
Defendant argued that every cause of action in plaintiff's complaint related to
and was germane to the underlying foreclosure action, and that plaintiff's
complaint should be dismissed based on the entire controversy doctrine,
collateral estoppel, and res judicata. Defendant also argued there was good
cause to vacate the default because the complaint was not served properly.
On February 28, 2020, the trial court vacated the default, finding service
was not properly effectuated because "it was served upon a banking employee
in South Dakota, which is hardly anywhere near . . . New Jersey . . . ." The trial
court then dismissed plaintiff's complaint with prejudice because the foreclosure
judgment had been appealed and "plaintiff's attempt to add a redo of the
foreclosure action . . . [was] entirely improper." Plaintiff's complaint was
"barred by res judicata, the entire controversy doctrine and collateral estoppel."
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Plaintiff filed for reconsideration, but this was denied on April 21, 2020.
The court explained:
This matter was scheduled for [o]ral [a]rgument on
[d]efendant Wells Fargo's motion to vacate default and
dismiss the [c]omplaint on February 28, 2020. Plaintiff
filed opposition to that motion, but did not appear for
oral argument and did not timely file this motion for
reconsideration. This matter is barred by res judicata,
the entire controversy doctrine and collateral estoppel
and the [f]inal [j]udgment in [f]oreclosure is currently
on appeal. Plaintiffs [c]omplaint was dismissed with
prejudice. Plaintiff argues that the [c]ourt did not
produce a [s]tatement of [r]easons; however, a
statement of reasons and conclusions of law were
placed on the record on Feb. 28, 2020.
On appeal, plaintiff argues that the trial court erred by finding he failed to
state a claim against defendant for which relief could be granted.
II.
"We review a grant of a motion to dismiss a complaint for failure to state
a cause of action de novo, applying the same standard under Rule 4:6-2(e) that
governed the motion court." Wreden v. Twp. of Lafayette, 436 N.J. Super. 117,
124 (App. Div. 2014). We "search the allegations of the pleading in depth and
with liberality to determine whether a cause of action is 'suggested ' by the
facts.'" Rezem Fam. Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103,
113 (App. Div. 2011) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp.,
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116 N.J. 739, 746 (1989)). Since our "review is plenary[,] . . . we owe no
deference to the trial judge's conclusions." State v. Cherry Hill Mitsubishi, 439
N.J. Super. 462, 467 (App. Div. 2015) (citation omitted).
Plaintiff contends the trial court improperly granted defendant's motion to
dismiss without an adequate explanation. This argument is not supported by the
record.
A court must "state clearly its factual findings and correlate them with the
relevant legal conclusions." Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting
Curtis v. Finneran, 83 N.J. 563, 570 (1980)). "The trial court does not discharge
[its] function simply by recounting the parties' conflicting assertions and then
stating a legal conclusion . . . ." Avelino-Catabran v. Catabran, 445 N.J. Super.
574, 595 (App. Div. 2016). Under Rule 1:7-4(a), for "every motion decided by
a written order that is appealable as of right," the trial court must "find the fact
and state its conclusions of law . . . ."
Here, the trial court made an adequate record of its findings and
conclusions. Catabran, 445 N.J. Super. at 594-95. It explained that the
deficiency in service of process required it to vacate the default. Then, based
on allegations in plaintiff's complaint, it found the complaint failed to state a
cause of action. All of this comported with Rule 1:7-4.
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Plaintiff argues his complaint alleges facts that support his claim that
defendant "committed numerous fraudulent, false, deceptive, and misleading
practices against [p]laintiff . . . ." He argues defendant's motion relies on
"objectionable hearsay." Plaintiff claims it was an abuse of discretion to dismiss
the complaint under Rule 4:6-2(e). We are not persuaded.
Plaintiff's complaint asserts causes of action that all relate to the
foreclosure case. On January 21, 2021, we affirmed the Chancery Division's
September 30, 2019 order that denied plaintiff's motion to vacate the sheriff's
sale and confirmed the sale as valid. This concluded the foreclosure and sheriff's
sale of this property.
Plaintiff had ample opportunity to raise the arguments he makes now in
defense to the foreclosure action. All of these claims are germane2 to the
foreclosure case and could have been raised. Having not done so, plaintiff now
is barred from asserting them. "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
2
In foreclosure, claims that are "germane" are those "arising out of the mortgage
transaction which is the subject matter of the foreclosure action." Leisure Tech.
Northeast, Inc. v. Klingbeil Holding Co., 137 N.J. Super. 353, 358 (App. Div.
1975).
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otherwise provided by [Rule] 4:64-5 (foreclosure actions) . . . . " R. 4:30A. The
foreclosure case has been previously adjudicated. There is no provision of Rule
4:64-5 which provides relief from preclusion of these claims.
In addition, we agree with the trial court that the claims are barred by res
judicata. Under this, a prior judgment acts as a bar where there is "substantially
similar or identical causes of action and issues, parties, and relief sought."
Culver v. Ins. Co. of N. Am., 115 N.J. 451, 460 (1989). This bar applies to
"matters actually determined in the previous proceedings, but also all claims that
could have been raised in the first action." Bondi v. Citigroup Inc., 423 N.J.
Super. 377, 423 (App. Div. 2011) (citing Mortgagelinq, Corp. v. Commonwealth
Title Ins. Co., 142 N.J. 336, 338 (1995)). Here, the Law Division complaint
involves the same parties, arises from the same foreclosure action and raises
issues that could have been asserted in the first action and now are foreclosed
by our affirmance of the orders approving the sale of this property. Dismissal
of this complaint was not erroneous as a matter of law.
Affirmed.
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