Preview
GLO-L-001121-16 01/02/2018 2:24:43 PM Pg 1 of 6 Trans ID: LCV20185681
Scott B. Brenner, Esq. (#120002014)
Joseph M. DeFazio, Esq. (#006932011)
Akerman LLP
666 Fifth Avenue, 20th Floor
New York, NY 10103
(212) 259-6437
Attorneys for Defendant CitiMortgage, Inc.
EDWIN P. ean SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
Plaintiff, GLOUCESTER COUNTY
DOCKET NO.: L-001121-16
-against-
CIVIL ACTION
CITIMORTGAGE, INC., ef al.,
Defendants.
CITIMORTGAGE, INC.'S MEMORANDUM OF LAW IN FURTHER SUPPORT OF ITS
MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT
Defendant CitiMortgage, Inc. (CMI) submits the following memorandum of law further
supporting its motion to dismiss plaintiff's amended complaint.!
I. INTRODUCTION
Mr. Gant's opposition to CMI's motion to dismiss his amended complaint (Opposition)
illustrates his misunderstanding of the law. Mr. Gant (1) challenges CMI’s standing to
commence the foreclosure action, (2) argues his claims are not barred by the doctrine of res
judicata, and (3) again highlights purported instances of Judge Morgan's bias and misconduct.
Mr. Gant's amended complaint still fails to allege a cause of action against CMI, and any causes
| Defined terms used herein have the same meaning as referenced in the Memorandum of Law Supporting CMI's
Motion to Dismiss Plaintiff's Amended Complaint dated November 17, 2017, unless otherwise noted.
2 Mr, Gant notes Judge Morgan dismissed Mr. Gant's complaint without prejudice for lack of prosecution on
December 22, 2017. (See Opposition at pg. 1, Ex. PMD-1.) CMI agrees with Mr. Gant that the amended complaint
should not have been dismissed for lack of prosecution at this time because Mr. Gant served the amended complaint
upon counsel for CMI, and CMI timely filed the present motion to dismiss. CMI consents to the court vacating its
December 22, 2017 order dismissing Mr. Gant's amended complaint.
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of action are barred by the doctrines of res judicata and collateral estoppel. It should be
dismissed with prejudice.
I. ARGUMENT
A MR. GANT'S CLAIMS ARE BARRED BY RES JUDICATA AND
COLLATERAL ESTOPPEL
Mr. Gant argues his claims are not barred by res judicata because "[CMI] was not even
involved in the [previous] case on June 10, 2016 and July 22, 2016," and "Judge McDonnel [sic]
never ruled on the merits of the standing issue as pertaining to [CMI]." (See Opposition, page 4.)
The contention CMI was not involved in the previous action when the underlying rulings
were made is incorrect. CMI filed a foreclosure complaint against Mr. Gant under docket
number F-034705-14 on August 21, 2014. (See CMI memorandum of law supporting its motion
to dismiss plaintiff's amended complaint (CMI MOL), § IL.5, Ex. E.) U.S. Bank substituted as
the new plaintiff on July 31, 2015. (Id. § 11.6, Ex. F.) Mr. Gant answered and pled affirmative
defenses, a counterclaim, and a third-party complaint against numerous defendants, including
CMI, (id., § 11.7, Ex. H.) Judge Anne McDonnell issued multiple decisions on the record in the
previous action on April 15, 2016, June 3, 2016, June 10, 2016, and July 22, 2016 (/d., § II.9, Ex.
J.) The caption in each hearing transcripts specifically shows CMI was a named defendant and
clearly involved in the previous action. (Jd.). It is undisputed that CMI was involved in the
previous action in June and July 2016.
Mr, Gant's second allegation—that Judge McDonnell never ruled on the merits of
standing as pertaining to CMI—fares no better. Mr. Gant already sued CMI for the same causes
of action in Gloucester County Superior Court case number F-034705-14 (dd. § 11.7, Ex. H), and
a decision on the merits was rendered for U.S. Bank (/d., § 11.9, Ex. J.) CMI is U.S. Bank's
predecessor-in-interest in the loan, which is sufficient to satisfy the identity of parties element of
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a res judicata or collateral estoppel bar. See Brookshire Equities, LLC v. Montaquiza, 346 N.J.
Super. 310, 319 (App. Div. 2002) ("Res judicata will apply if a party in the second action is in
privity with a party in the first action. An assignee of a right will be considered to be in privity
with its assignor. [The successor-in-interest] was such an assignee, and therefore the identity of
parties prong of the res judicata test was satisfied."); Parker v. Blauvelt Fire Co., 93 N.Y.2d 343,
349 (1999) ("collateral estoppel precludes a party from relitigating in a subsequent action or
proceeding an issue clearly raised in a prior action or proceeding and decided against that
party.") (internal citations omitted). Similarly, Judge McDonnell's decisions dismissing Mr.
Gant's third-party complaint against U.S. Bank, which includes allegations of standing, prevents
Mr. Gant from relitigating the same controversy with CMI, as a predecessor-in-interest to U.S.
Bank of Mr. Gant's loan.
In the prior action Mr. Gant argued CMI did not have an ownership interest at the time it
commenced the foreclosure action, as evidenced by a Notice of Sale of Ownership of Mortgage.
Judge McDonnell ruled on this issue in detail. (See CMI MOL, Ex. J, April 15, 2016 transcript
at 9-19; June 10, 2016 transcript at 4-30.) The same relief is being sought based on the same
transactions. The current action is based again on allegations that CMI eed standing to
foreclose. Mr. Gant's claims—including the issue of CMI's standing—have been decided on the
merits and should not be relitigated here. Mr. Gant's re-packaging of his claims in the amended
complaint does not prevent res judicata or collateral estoppel from applying. Harris v. City of
New York, 121 A.D.3d 852, 854 (2d Dep't 2014) ("The fact that causes of action may be stated
separately, invoke different legal theories, or seek different relief will not permit relitigation of
claims.") (internal citations omitted). Yt is clear that Mr. Gant's standing cause of action in the
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amended complaint's is the same as Mr. Gant's previous action and was already litigated, and the
doctrines of res judicata and collateral estoppel are applicable.
There is no dispute that Mr. Gant's claims are barred by res judicata and collateral
estoppel because he already sued CMI for the same causes of action—including on CMI's
standing—and a decision on the merits was rendered.
B. THE AMENDED COMPLAINT PLEADS NO CLAIM FOR RELIEF
Even if Mr. Gant's claims were not barred by the doctrines of res judicata or collateral
estoppel, his claims against CMI should be dismissed.
Mr. Gant recycles theories he previously made in arguing "[CMI] filed suit against
Gant...on August 21, 2014 without the required legal standing to do so." (See Opposition, page
3.) Instead of addressing CMI's arguments, Mr. Gant again points to the Notice of Sale of
Ownership document, upon which he bases his entire standing argument. However, these
allegations still do not constitute a cognizable theory against CMI.
First, Mr. Gant does not dispute that there is no cause of action for lack of standing, and
that the doctrine may only form a defense to certain actions.
Second, Mr. Gant does not dispute that in New Jersey, a plaintiff establishes standing to
commence a foreclosure action either as an assignee of the mortgage or as a holder of the note at
the time the complaint was filed. See Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super.
214, 222 (App. Div. 2011); Deutsche Bank Tr. Co, Americas v. Angeles, 428 N.J. Super. 315,
318 (App. Div. 2012). Nor does he dispute that CMI commenced the foreclosure action on
August 21, 2014. On that date CMI (1) possessed the original note and (2) was the assignee of
record of the mortgage, both of which confer standing. CMI possessed the note by indorsement
from Maverick, and U.S. Bank subsequently received possession of the original note on
September 25, 2014, one month after CMI commenced the foreclosure action. (See CMI MOL,
4
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§ IV.A.1.) The mortgage was assigned from MERS to CMI on February 3, 2010 (recorded on
April 20, 2010), and not assigned again until CMI assigned the mortgage to HUD on March 11,
2015 (recorded on March 19, 2015), six months after CMI commenced the foreclosure action.
(Id.). There is no dispute CMI had standing when it commenced the foreclosure action,
Additionally, Mr. Gant's recitation of purported instances of Judge Morgan's bias and
misconduct should be disregarded. He does not argue these are grounds to oppose CMI's motion
to dismiss. He also already unsuccessfully raised these arguments in (1) a motion to recuse
Judge Morgan and (2) a motion for reconsideration after Judge Morgan denied Mr. Gant's
motion for recusal.
II. CONCLUSION
The amended complaint pleads the elements of no cause of action on which this Court
could grant relief, and Mr. Gant's claims against CMI are barred by the doctrines of res judicata
and collateral estoppel. The amended complaint should be dismissed with prejudice.
Dated: January 2, 2018
New York, New York
AKERMAN LLP
by: luk Ve—
Scott B. Brenner, Esq.
Joseph M. DeFazio, Esq.
666 Fifth Avenue, 20th Floor
New York, New York 10103
Tel: (212) 880-3800
scott.b.brenner@akerman.com
joseph.defazio@akerman.com
Attorneys for Defendant CitiMortgage, Inc.
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CERTIFICATION OF SERVICE
I certify that on the 2nd day of January, 2018, I caused a true and correct copy of the
annexed memorandum of law in further support of defendant CitiMortgage, Inc.'s motion to
dismiss the amended complaint, to be served upon Edwin P. Gant, Esq., P.O. Box 483, 193
Railroad Avenue, Franklinville, New Jersey 08322, pro se plaintiff, via Overnight Mail and
regular United States Postal Service, all within the time and in the manner prescribed by the
Rules of the Court.
|, dbee ~
Scott B. Brenner, Esq.
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Preview
GLO-L-001121-16 01/02/2018 2:24:43 PM Pg 1 of 6 Trans ID: LCV20185681 Scott B. Brenner, Esq. (#120002014) Joseph M. DeFazio, Esq. (#006932011) Akerman LLP 666 Fifth Avenue, 20th Floor New York, NY 10103 (212) 259-6437 Attorneys for Defendant CitiMortgage, Inc. EDWIN P. ean SUPERIOR COURT OF NEW JERSEY LAW DIVISION Plaintiff, GLOUCESTER COUNTY DOCKET NO.: L-001121-16 -against- CIVIL ACTION CITIMORTGAGE, INC., ef al., Defendants. CITIMORTGAGE, INC.'S MEMORANDUM OF LAW IN FURTHER SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT Defendant CitiMortgage, Inc. (CMI) submits the following memorandum of law further supporting its motion to dismiss plaintiff's amended complaint.! I. INTRODUCTION Mr. Gant's opposition to CMI's motion to dismiss his amended complaint (Opposition) illustrates his misunderstanding of the law. Mr. Gant (1) challenges CMI’s standing to commence the foreclosure action, (2) argues his claims are not barred by the doctrine of res judicata, and (3) again highlights purported instances of Judge Morgan's bias and misconduct. Mr. Gant's amended complaint still fails to allege a cause of action against CMI, and any causes | Defined terms used herein have the same meaning as referenced in the Memorandum of Law Supporting CMI's Motion to Dismiss Plaintiff's Amended Complaint dated November 17, 2017, unless otherwise noted. 2 Mr, Gant notes Judge Morgan dismissed Mr. Gant's complaint without prejudice for lack of prosecution on December 22, 2017. (See Opposition at pg. 1, Ex. PMD-1.) CMI agrees with Mr. Gant that the amended complaint should not have been dismissed for lack of prosecution at this time because Mr. Gant served the amended complaint upon counsel for CMI, and CMI timely filed the present motion to dismiss. CMI consents to the court vacating its December 22, 2017 order dismissing Mr. Gant's amended complaint. 43705855;1 —~™eewRMe__ err =~! mA | ANIANT 1C.. UNA INGA INNA DOA LAT OO I 5 I ID a) ep 8 Oe GLO-L-001121-16 01/02/2018 2:24:43 PM Pg 2 of 6 Trans ID: LCV20185681 of action are barred by the doctrines of res judicata and collateral estoppel. It should be dismissed with prejudice. I. ARGUMENT A MR. GANT'S CLAIMS ARE BARRED BY RES JUDICATA AND COLLATERAL ESTOPPEL Mr. Gant argues his claims are not barred by res judicata because "[CMI] was not even involved in the [previous] case on June 10, 2016 and July 22, 2016," and "Judge McDonnel [sic] never ruled on the merits of the standing issue as pertaining to [CMI]." (See Opposition, page 4.) The contention CMI was not involved in the previous action when the underlying rulings were made is incorrect. CMI filed a foreclosure complaint against Mr. Gant under docket number F-034705-14 on August 21, 2014. (See CMI memorandum of law supporting its motion to dismiss plaintiff's amended complaint (CMI MOL), § IL.5, Ex. E.) U.S. Bank substituted as the new plaintiff on July 31, 2015. (Id. § 11.6, Ex. F.) Mr. Gant answered and pled affirmative defenses, a counterclaim, and a third-party complaint against numerous defendants, including CMI, (id., § 11.7, Ex. H.) Judge Anne McDonnell issued multiple decisions on the record in the previous action on April 15, 2016, June 3, 2016, June 10, 2016, and July 22, 2016 (/d., § II.9, Ex. J.) The caption in each hearing transcripts specifically shows CMI was a named defendant and clearly involved in the previous action. (Jd.). It is undisputed that CMI was involved in the previous action in June and July 2016. Mr, Gant's second allegation—that Judge McDonnell never ruled on the merits of standing as pertaining to CMI—fares no better. Mr. Gant already sued CMI for the same causes of action in Gloucester County Superior Court case number F-034705-14 (dd. § 11.7, Ex. H), and a decision on the merits was rendered for U.S. Bank (/d., § 11.9, Ex. J.) CMI is U.S. Bank's predecessor-in-interest in the loan, which is sufficient to satisfy the identity of parties element of 43705855;1 GLO-L-001121-16 01/02/2018 2:24:43 PM Pg 3 of 6 Trans ID: LCV20185681 a res judicata or collateral estoppel bar. See Brookshire Equities, LLC v. Montaquiza, 346 N.J. Super. 310, 319 (App. Div. 2002) ("Res judicata will apply if a party in the second action is in privity with a party in the first action. An assignee of a right will be considered to be in privity with its assignor. [The successor-in-interest] was such an assignee, and therefore the identity of parties prong of the res judicata test was satisfied."); Parker v. Blauvelt Fire Co., 93 N.Y.2d 343, 349 (1999) ("collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party.") (internal citations omitted). Similarly, Judge McDonnell's decisions dismissing Mr. Gant's third-party complaint against U.S. Bank, which includes allegations of standing, prevents Mr. Gant from relitigating the same controversy with CMI, as a predecessor-in-interest to U.S. Bank of Mr. Gant's loan. In the prior action Mr. Gant argued CMI did not have an ownership interest at the time it commenced the foreclosure action, as evidenced by a Notice of Sale of Ownership of Mortgage. Judge McDonnell ruled on this issue in detail. (See CMI MOL, Ex. J, April 15, 2016 transcript at 9-19; June 10, 2016 transcript at 4-30.) The same relief is being sought based on the same transactions. The current action is based again on allegations that CMI eed standing to foreclose. Mr. Gant's claims—including the issue of CMI's standing—have been decided on the merits and should not be relitigated here. Mr. Gant's re-packaging of his claims in the amended complaint does not prevent res judicata or collateral estoppel from applying. Harris v. City of New York, 121 A.D.3d 852, 854 (2d Dep't 2014) ("The fact that causes of action may be stated separately, invoke different legal theories, or seek different relief will not permit relitigation of claims.") (internal citations omitted). Yt is clear that Mr. Gant's standing cause of action in the 43705855;1 GLO-L-001121-16 01/02/2018 2:24:43 PM Pg 4 of 6 Trans ID: LCV20185681 amended complaint's is the same as Mr. Gant's previous action and was already litigated, and the doctrines of res judicata and collateral estoppel are applicable. There is no dispute that Mr. Gant's claims are barred by res judicata and collateral estoppel because he already sued CMI for the same causes of action—including on CMI's standing—and a decision on the merits was rendered. B. THE AMENDED COMPLAINT PLEADS NO CLAIM FOR RELIEF Even if Mr. Gant's claims were not barred by the doctrines of res judicata or collateral estoppel, his claims against CMI should be dismissed. Mr. Gant recycles theories he previously made in arguing "[CMI] filed suit against Gant...on August 21, 2014 without the required legal standing to do so." (See Opposition, page 3.) Instead of addressing CMI's arguments, Mr. Gant again points to the Notice of Sale of Ownership document, upon which he bases his entire standing argument. However, these allegations still do not constitute a cognizable theory against CMI. First, Mr. Gant does not dispute that there is no cause of action for lack of standing, and that the doctrine may only form a defense to certain actions. Second, Mr. Gant does not dispute that in New Jersey, a plaintiff establishes standing to commence a foreclosure action either as an assignee of the mortgage or as a holder of the note at the time the complaint was filed. See Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 222 (App. Div. 2011); Deutsche Bank Tr. Co, Americas v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012). Nor does he dispute that CMI commenced the foreclosure action on August 21, 2014. On that date CMI (1) possessed the original note and (2) was the assignee of record of the mortgage, both of which confer standing. CMI possessed the note by indorsement from Maverick, and U.S. Bank subsequently received possession of the original note on September 25, 2014, one month after CMI commenced the foreclosure action. (See CMI MOL, 4 43705855;1 GLO-L-001121-16 01/02/2018 2:24:43 PM Pg 5 of 6 Trans ID: LCV20185681 § IV.A.1.) The mortgage was assigned from MERS to CMI on February 3, 2010 (recorded on April 20, 2010), and not assigned again until CMI assigned the mortgage to HUD on March 11, 2015 (recorded on March 19, 2015), six months after CMI commenced the foreclosure action. (Id.). There is no dispute CMI had standing when it commenced the foreclosure action, Additionally, Mr. Gant's recitation of purported instances of Judge Morgan's bias and misconduct should be disregarded. He does not argue these are grounds to oppose CMI's motion to dismiss. He also already unsuccessfully raised these arguments in (1) a motion to recuse Judge Morgan and (2) a motion for reconsideration after Judge Morgan denied Mr. Gant's motion for recusal. II. CONCLUSION The amended complaint pleads the elements of no cause of action on which this Court could grant relief, and Mr. Gant's claims against CMI are barred by the doctrines of res judicata and collateral estoppel. The amended complaint should be dismissed with prejudice. Dated: January 2, 2018 New York, New York AKERMAN LLP by: luk Ve— Scott B. Brenner, Esq. Joseph M. DeFazio, Esq. 666 Fifth Avenue, 20th Floor New York, New York 10103 Tel: (212) 880-3800 scott.b.brenner@akerman.com joseph.defazio@akerman.com Attorneys for Defendant CitiMortgage, Inc. 43705855;1 OO FL tE AAIANYT AC NAINA IANNION DO AL.AD ABA Me Co eto OTe Re IML IEA nAI OC CO NG ww... GLO-L-001121-16 01/02/2018 2:24:43 PM Pg 6 of 6 Trans ID: LCV20185681 CERTIFICATION OF SERVICE I certify that on the 2nd day of January, 2018, I caused a true and correct copy of the annexed memorandum of law in further support of defendant CitiMortgage, Inc.'s motion to dismiss the amended complaint, to be served upon Edwin P. Gant, Esq., P.O. Box 483, 193 Railroad Avenue, Franklinville, New Jersey 08322, pro se plaintiff, via Overnight Mail and regular United States Postal Service, all within the time and in the manner prescribed by the Rules of the Court. |, dbee ~ Scott B. Brenner, Esq. 43705855;1