ALEXANDRA COSTA VS. U.S. BANK NATIONAL ASSOCIATION, ETC. (L-3911-19, 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NOT FOR PUBLICATION WITHOUT THE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-5445-18T3
ALEXANDRA COSTA,
Plaintiff-Appellant,
v.
U.S. BANK NATIONAL
ASSOCIATION, NOT IN
ITS INDIVIDUAL CAPACITY
BUT SOLELY AS TRUSTEE
FOR THE RMAC TRUST,
SERIES 2016-TT,
Defendant-Respondent.
__________________________
Submitted September 29, 2020 – Decided November 25, 2020
Before Judges Hoffman and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-3911-19.
Alexandra Costa, appellant pro se.
Pluese, Becker, & Saltzman, LLC, attorneys for
respondent (Stuart H. West, on the brief).
PER CURIAM
Plaintiff Alexandra Costa appeals the trial court's August 5, 2019 order
granting defendant U.S. Bank National Association as Trustee for the RMAC
Trust, Series 016-CTT's (defendant) motion to dismiss plaintiff's Law Division
complaint under Rule 4:6-2(e). We affirm.
I.
This case involves a residential foreclosure that has been the subject of
earlier appeals. Our consolidated opinion in two of the earlier cases explained
the foreclosure proceedings.
In July 2007, defendant executed a note in the amount
of $410,000 in favor of Bank of America, N.A. (Bank
of America).
To secure payment on the note, both [plaintiff] and
Victor Costa executed a mortgage securing the debt
with the property located at 39 Fillmore Street in
Newark. The mortgage was recorded on August 1,
2007.
On February 1, 2009, [plaintiff] and Victor Costa failed
to make the requisite payment on the note. No
payments have been made on the loan since that date.
In November 2012, Bank of America assigned the
mortgage to Nationstar Mortgage, LLC (Nationstar).
The assignment was recorded on December 31, 2012.
Nationstar filed a foreclosure complaint in December
2014. Nationstar then assigned the mortgage to
[defendant]. On February 1, 2017, the court granted
leave for [defendant] to substitute for Nationstar in the
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foreclosure action. The court granted an order of
default before issuing final judgment and a writ of
execution in July 2017.
Six months later, [plaintiff] made her first appearance
in the matter, filing a motion to vacate final judgment.
The chancery court denied the motion.
[U.S. Bank National Association v. Costa, Nos. A-
4718-17 and A-0404-18 (App. Div. Aug. 13, 2019)
(slip op. at 1-2).]1
Plaintiff appealed the denial of her motion to vacate the final judgment of
foreclosure. Id. at 2.
In July 2017, the Fillmore Street property was sold to defendant for $100
at the sheriff's sale auction. Ibid. A year later, plaintiff filed a motion to set
aside the sheriff's sale. That motion was denied in September 2018 and plaintiff
filed an appeal of that order. 2
While the appeals were pending, plaintiff filed a complaint in the Law
Division in May 2019. The one-count complaint alleged a cause of action for
"[f]raud, [d]ishonesty, [d]eceit or [m]isrepresentation" arising from the
1
We cite to this unreported opinion because it involves the same parties and
issues presented in this appeal.
2
Plaintiff filed a complaint against counsel for defendant, but this was
dismissed. She filed a motion to expunge the sheriff's deed. This was dismissed
because the trial court lacked jurisdiction given the then-pending appeals.
A-5445-18T3
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foreclosure and from defendant's purchase of the property for $100 at the
sheriff's sale. Plaintiff alleged defendant had as its "sole purpose" to
"fraudulently transfer the . . . property" for less than fair market value. She
challenged defendant's standing to foreclose, alleging defendant never
established it had ownership of the mortgage through merger or acquisition. The
complaint demanded compensatory damages and treble damages under the
Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -195. She alleged actual
damages of $207,100 and requested punitive damages.
Defendant filed a motion to dismiss the complaint under Rule 4:6-2(e).
Plaintiff filed in opposition, alleging her complaint raised a claim under the CFA
and that defendant's motion was improperly supported by a hearsay certification
from its attorney.
The trial court's August 5, 2019 order dismissed the complaint. In the
memorandum opinion, the trial judge found the "core of the allegation[]" made
by plaintiff in the complaint is that defendant "lacked standing to foreclose on
the property because it did not establish valid ownership of the mortgage." The
court found this argument "is identical" to the argument plaintiff made in her
earlier motion to vacate the final foreclosure judgment, which was rejected by
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the Chancery Division, and in which defendant was found to have "standing to
foreclosure as a valid assignee of the subject mortgage."
On August 2, 2019, we issued a consolidated opinion in the pending
appeals. See Costa, slip op. at 2. In the opinion, we rejected plaintiff's claim
that defendant did not have standing to sue in this foreclosure.
Nationstar, the original plaintiff in the action, received
the mortgage via an assignment executed on November
7, 2012 and recorded the following month. Therefore,
Nationstar possessed an assignment of the mortgage at
the time it filed its complaint on December 8, 2014.
Plaintiff then received the mortgage via a subsequent
assignment, and later filed a motion to substitute for
Nationstar as plaintiff. Defendant did not oppose the
motion. Thus, plaintiff had standing to proceed with
the foreclosure.
[Id. at 4.]
We also rejected plaintiff's claim that the sheriff's sale was invalid, explaining
that plaintiff
fails to identify any circumstances to justify an order
vacating the judgment, under Rule 4:50-1. The record
on appeal contains a Report of Sale and a copy of the
Sheriff's Deed to plaintiff. This proof of sale is
sufficient for us to conclude the chancery court did not
abuse its discretion.
[Ibid.]
On appeal, plaintiff raises the following argument:
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POINT I: THE APPELLATE COURT MUST
DETERMINE WHETHER THE TRIAL COURT
FAILED TO FIND WHETHER PLAINTIFF SET
FORTH A CLAIM [AGAINST] DEFENDANT UPON
WHICH RELIEF CAN BE GRANTED PURSUANT
TO R. 4:6-2 AND WHETHER DEFENDANT RELIED
UPON [AN] OBJECTIONABLE HEARSAY
CERTIFICATION TO SUPPORT ITS MOTION TO
DISMISS PLAINTIFF'S CLAIM, AS A MATTER OF
LAW.
II.
We review de novo an order from a trial court granting or denying a motion
to dismiss under Rule 4:6-2(e). Smith v. Datla, 451 N.J. Super. 82, 88 (App. Div.
2017) (citing Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super.
103, 114 (App. Div. 2011)). When a court grants a party's motion to dismiss, "[w]e
approach our review of the judgment below mindful of the test for determining the
adequacy of a pleading: whether a cause of action is 'suggested' by the facts."
Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (quoting
Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). We accord no
deference to the trial court's legal conclusions. Rezem, 423 N.J. Super. at 114.
Plaintiff's complaint raised the issue of standing by contending defendant did
not establish ownership of the mortgage. It also challenged the validity of the
sheriff's sale. We agree with the trial judge that plaintiff's complaint raised the issues
that previously were addressed and decided.
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Res judicata applies to bar this litigation. See Nolan v. First Colony Life
Ins. Co., 345 N.J. Super. 142, 153 (App. Div. 2001) (providing res judicata is a
doctrine declaring that once a matter has been fully litigated and resolved, it
cannot be relitigated). For it to apply, there must be: (1) a final judgment by a
court of competent jurisdiction, (2) identity of issues, (3) identity of parties, and
(4) identity of the cause of action. Brookshire Equities, LLC v. Montaquiza,
346 N.J. Super. 310, 318 (App. Div. 2002) (citation omitted).
All of these factors are met. Plaintiff's case was dismissed with finality
on August 5, 2019. She is raising the issue of standing to sue and the validity
of the sheriff's sale, which are the same issues raised and decided previously.
The parties are the same, as is the cause of action that is based on the foreclosure
lawsuit and sheriff's sale.
Plaintiff argues her complaint raises a consumer fraud claim because
defendant purchased the property for $100, which was below fair market value.
A sheriff's sale is not set aside on this basis alone. See G.E. Capital Mortgage
Servs. Inc. v. Marilao, 352 N.J. Super. 274, 285 (App. Div. 2002) ("Inadequacy
of price alone normally does not warrant setting aside a [s]heriff's sale."). The
fair market credit also may be an issue in a deficiency suit. See Citibank, N.A.
v. Errico, 251 N.J. Super. 236, 248 (App. Div. 1991) (providing "a debtor is not
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required to object to a foreclosure sale price as a prerequisite for claiming a fair
market value credit in a deficiency suit under N.J.S.A. 2A:50–3."). Plaintiff
cites no legal authority to support her argument that a low bid at a sheriff's sale
auction is an unconscionable commercial practice under the CFA.
Citing Rule 1:6-6, plaintiff argues the trial court improperly relied upon
"[d]efendant's certification of its counselor Stuart West, Esquire of the law
office of Pluese, Becker & Saltzman, LLC which constitutes objectionable
hearsay." However, an attorney's certification is an acceptable method to
provide the court with copies of the pleadings and attachments for the court's
reference. See Higgins v. Thurber, 413 N.J. Super. 1, 21 n.19 (App. Div. 2010)
(determining counsel's certification in support of summary judgment was
permissible "as a vehicle" to provide the court with authentic copies of earlier
pleadings and materials).
In his certification, defense counsel said he was responsible to represent
defendant in this case, that defendant was the plaintiff in the underlying
foreclosure and his firm represented that entity in the foreclosure. He certified
he reviewed the foreclosure file, attached pleadings and records from that file to
his certification, and represented these were true copies. The certification did
not contain any argument by counsel. There is nothing objectionable about this
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certification being presented in support of defendant's motion to dismiss the
complaint.
After carefully reviewing the record and the applicable legal principles,
we conclude that plaintiff's further arguments are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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