Veronica Williams v. Litton Loan Services ( 2019 )

ALD-247 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-1032
___________
VERONICA A. WILLIAMS,
Appellant
v.
LITTON LOAN SERVICES; HSBC BANK USA NA;
GOLDMAN SACHS GROUP;
FREMONT HOME LOAN TRUST 2006-C
MORTGAGE BACKED CERTIFICATES SERIES 2006-C;
OCWEN; STERN & EISENBURG PC LLC;
OCWEN FINANCIAL CORPORATION; STATE OF NEW JERSEY
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. No. 2-16-cv-05301)
District Judge: Honorable Esther Salas
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
August 1, 2019
Before: McKEE, SHWARTZ, and BIBAS, Circuit Judges
(Opinion filed: October 8, 2019)
_________
OPINION*
_________
PER CURIAM
Appellant Veronica Williams appeals from the District Court’s dismissal of her
complaint against Litton Loan Servicing (“Litton”); HSBC Bank USA, N.A. (“HSBC”);
Goldman Sachs; Fremont Home Loan Trust 2006-C Mortgage Backed Certificates Series
2006-C (“Fremont”); Ocwen Loan Servicing (“Ocwen”); Ocwen Financial Corp.; and
Stern & Eisenberg, PC, LLC. Because we find that the appeal does not present a substantial
question, we will summarily affirm. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
I.
This matter has a complicated procedural history which is familiar to all parties on
appeal, so we need not fully recite it here. In summary, Williams alleges in her complaint
that, in 2006, she refinanced a mortgage with Fremont on a New Jersey property that she
purchased in 1983. In 2009, she applied for a loan modification with Litton, which was
allegedly owned by Goldman Sachs and was then servicer of the loan.1 She claims that she
defaulted on her mortgage at the advice of Litton, and that she was promised the loan would
be modified. Litton made loan modification contingent upon Williams’s compliance with
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
The parties dispute whether Goldman Sachs or Goldman Sachs Mortgage Company is the
proper name for the defendant. Like the District Court, we will assume that the defendant
was properly named in the complaint.
2
the terms of a “Loan Workout Plan,” which required that she make three timely mortgage
payments and provide sufficient proof of income. Williams executed the plan but failed to
comply with its terms. Litton served Williams with foreclosure papers, but subsequently
agreed to delay foreclosure. Williams was offered a “Revised Loan Workout Plan” pursu-
ant to which she allegedly made arrears payments which were accepted by Litton. In De-
cember 2009, foreclosure proceedings were commenced. Litton proposed a second revised
loan workout plan in March 2010, but Williams did not execute it and stopped making loan
payments; the loan was never modified. HSBC instituted a foreclosure action against Wil-
liams; the Superior Court of Essex County, Chancery Division, granted summary judgment
to HSBC in February 2014, and final judgment was entered in October 2014.
In 2013, Williams filed a complaint in the Superior Court of New Jersey, Law
Division (“state-court action”), against the same defendants named in this action, with the
exception of Ocwen Financial Corporation. The complaint alleged four causes of action:
violation of the Federal Debt Consumer Protection Act (FDCPA), 15 U.S.C. § 1692 et seq.
(count I); violation of the New Jersey Consumer Fraud Act (NJCFA), N.J. Stat. Ann.
§ 56:8-1 et seq. (count II); breach of contract (count III); and intentional infliction of emo-
tional distress (count IV). Williams alleged that Litton breached the Loan Workout Plan
and prevented her from obtaining a loan modification, causing her significant professional
and personal losses. The Superior Court granted summary judgment in favor of defendants
on all counts, except counts II and III against Litton. Williams was granted leave to amend
the complaint against Litton; after she failed to take action, the complaint was dismissed
3
without prejudice for failure to prosecute in June 2016. No further action was taken in the
Superior Court, and the matter was closed.2
In August 2016, Williams filed the instant complaint in the District Court alleging
the same four claims set forth in her state court complaint as well as claims for deliberate
indifference and defamation. Williams also added as a defendant Ocwen Financial Corpo-
ration. The District Court determined that all of the claims were barred by res judicata
against all defendants, except counts II and III against Litton, which the Court concluded
were time barred. The complaint was dismissed with prejudice, and this appeal ensued.
II.
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a
district court’s grant of a motion to dismiss based on Federal Rule of Civil Procedure
12(b)(6). In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d
235, 243 (3d Cir. 2012).
State court decisions are given “the same preclusive effect in federal court they
would be given in the courts of the rendering state.” Del. River Port Auth. v. Fraternal
Order of Police, Penn-Jersey Lodge 30, 290 F.3d 567, 573 (3d Cir. 2002). Accordingly, we
look to the preclusion law of New Jersey—the “entire controversy doctrine”—in determin-
ing whether this federal suit is barred. Rycoline Prods., Inc. v. C & W Unlimited, 109 F.3d
883, 887 (3d Cir. 1997); see Long v. Lewis, 723 A.2d 1238, 1243 (N.J. Super. Ct. App.
2
The District Court noted that Williams sought to appeal the dismissal to the New Jersey
Superior Court, but the appeal was dismissed as procedurally deficient in March 2017.
Williams did not seek to correct the deficiency.
4
Div. 1999) (“The claim preclusion aspect of the entire controversy doctrine is essentially
res judicata by another name.”).
The entire controversy doctrine requires a party to bring all related claims in a single
action “against a particular adversary or be precluded from bringing a second action based
on the omitted claims against that party.” In re Mullarkey, 536 F.3d 215, 229 (3d Cir. 2008)
(quoting Melikian v. Corradetti, 791 F.2d 274, 279 (3d Cir. 1986)). The doctrine applies
when (1) the judgment in the first action is valid, final, and on the merits; (2) there is iden-
tity of the parties, or the parties in the second action are in privity with those in the first
action; and (3) the claim in the later action grows out of the same transaction or occurrence
as the claim in the first action. See Watkins v. Resorts Int’l Hotel & Casino, Inc., 591 A.2d
592, 599 (N.J. 1991). A review of Williams’s complaint makes clear that most of the claims
are barred by this doctrine.
The parties in this matter are identical to those in the state-court action, with the
exception of Ocwen Financial Group, which, as the parent of Ocwen, is in sufficient privity
with it to invoke the entire controversy doctrine. See Lubrizol Corp. v. Exxon Corp., 929
F.2d 960, 966 (3d Cir. 1991). And, as the District Court explained, the claims are substan-
tially the same, save for the added claims of deliberate indifference and defamation. We
agree with the District Court that, even assuming the claim for deliberate difference is cog-
nizable,3 it arises out of the same factual circumstances that give rise to the claim for
3
The District Court observed that, as alleged, “no such cause of action exists under either
New Jersey or federal law.” Williams v. Litton Loan Servicing, No. 2:16-cv-05301-ES-
JAD, 2018 WL 6600097, at *4 n.8 (D.N.J. Dec. 17, 2018). The District Court liberally
construed the complaint to state a claim under 42 U.S.C. § 1983. But because none of the
5
intentional infliction of emotional distress (count IV), and indeed includes almost all of the
same factual allegations. Similarly, the defamation claim could have been raised in the
state-court action, as it stems from the same conduct as count IV. Finally, with the excep-
tion of the two claims discussed below, all of the claims against all of the defendants were
finally adjudicated by the state court. Accordingly, these claims are barred by the entire
controversy doctrine and were therefore properly dismissed for failure to state a claim pur-
suant to Rule 12(b)(6).
As the District Court concluded, the NJCFA and breach of contract claims
(counts II and III) against Litton were not final for purposes of claim preclusion because
they were dismissed by the state court without prejudice. O’Loughlin v. Nat’l Cmty. Bank,
770 A.2d 1185, 1192 (N.J. Super. Ct. App. Div. 2001) (“It is elementary that a dismissal
without prejudice adjudicates nothing and does not constitute a bar to re-institution of the
action, subject to the constraint imposed by the statute of limitations.”). They are therefore
not precluded by the entire controversy doctrine. For the same reason, the claims are not
barred by collateral estoppel. See Tarus v. Borough of Pine Hill, 916 A.2d 1036, 1050 (N.J.
2007) (“Collateral estoppel . . . ‘bars relitigation of any issue which was actually deter-
mined in a prior action . . . .’” (emphasis omitted) (quoting Sacharow v. Sacharow, 826
A.2d 710, 719 (N.J. 2003))). Nevertheless, we agree with the District Court that these
claims are subject to dismissal as time barred.
defendants are alleged to have acted under color of state law, we see no basis for § 1983
liability. See West v. Atkins, 487 U.S. 42, 48 (1988).
6
Both counts II and III are governed by a six-year statute of limitations. See N.J. Stat.
Ann. § 2A:14-1; see also Custom Commc’ns Eng’g, Inc. v. E.F. Johnson Co., 636 A.2d
80, 86 (N.J. Super. Ct. App. Div. 1993). The limitations period, however, does not begin
to run until the cause of action has accrued. See Baird v. Am. Med. Optics, 713 A.2d 1019,
1025 (N.J. 1998); Lopez v. Swyer, 300 A.2d 563, 565 (N.J. 1973). Under New Jersey law,
a cause of action accrues when a plaintiff “discovers, or by an exercise of reasonable dili-
gence and intelligence should have discovered that [s]he may have a basis for an actionable
claim.” Baird, 713 A.2d at 1025 (quoting Lopez, 300 A.2d at 565). Williams’s allegations
of fraud and breach of contract against Litton relate to its actions with respect to her loan
modification application and arrears payments, which primarily occurred in 2009 and, at
the latest, in March 2010. The latest actionable loss attributable to those actions accrued in
May 2010, when Williams allegedly lost a professional contract as a result of her failure to
obtain a loan modification.4 Accordingly, the complaint, filed in August 2016, was filed
beyond the statute of limitations. These claims were therefore properly dismissed.
Based on the foregoing, we will summarily affirm the District Court’s judgment.5
4
Although Williams cites the prosecution of the foreclosure action as a breach of the con-
tract, HSBC is the sole plaintiff in the foreclosure proceeding against Williams. We note
that Ocwen acquired Litton in September 2011, and Litton stopped servicing the loan on
November 1, 2011.
5
Appellant’s “Request [for a] Jury Trial” is denied.
7