NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4360-16T1
VIATCHESLAV STREKALOV,
Plaintiff-Appellant,
v.
BANK OF AMERICA, N.A., GREEN TREE SERVICING, LLC, n/k/a DITECH FINANCIAL, LLC, and FEDERAL NATIONAL MORTGAGE ASSOCIATION, a/k/a FANNIE MAE,
Defendants-Respondents. _______________________________
Submitted October 22, 2018 – Decided January 11, 2019
Before Judges Sumners and Mitterhoff.
On appeal from Superior Court of New Jersey, Chancery Division, Passaic County, Docket No. C- 000091-16.
Vitacheslav Strekalov, appellant pro se.
Winston & Strawn, LLP, attorneys for respondent Bank of America, N.A. (Heather Elizabeth Saydah, of counsel and on the brief). Blank Rome, LLP, attorneys for respondents Green Tree Servicing, LLC and Fannie Mae (Francis X. Crowley and Thomas M. Brodowski, on the brief).
PER CURIAM
Plaintiff Viatcheslav Strekalov, a signatory on a foreclosed residential
mortgage issued to Elena Evglevskaya, appeals from a June 7, 2017 Chancery
Division order granting the Rule 4:6-2(e) motion to dismiss his complaint with
prejudice for failure to state a claim by the mortgage assignees, defendants
Green Tree Servicing, LLC and Fannie Mae. We affirm.
On December 31, 2004, plaintiff and Evglevskaya executed a mortgage
on a property located in Wayne to secure a thirty-year $330,000 loan from
Coastal Capital Corp d/b/a the Mortgage Shop to Evglevskaya. A promissory
note executed that same day by Evglevskaya, as the sole borrower, evidenced
the loan.
In June 2013, Bank of America, N.A., which had been assigned the
mortgage a year earlier, assigned the mortgage to Green Tree.
In January 2015, Green Tree filed a foreclosure action because
Evglevskaya had defaulted on the loan. About seven months later, Green Tree
changed its name to Ditech Financial, LLC (Ditech) following its merger with
Ditech Mortgage Corp. and DT Holdings, LLC.
A-4360-16T1 2 In February 2016, while the foreclosure action was pending, plaintiff filed
a third-party complaint, asserting counterclaims against Green Tree (now
Ditech) and third-party claims against Bank of America and Fannie Mae.1 Four
months later, on June 8, the trial court granted Rule 4:6-2 (e) motions by Bank
of America and Fannie Mae dismissing the third-party complaint and third-party
claims with prejudice for reasons set forth on the record.
Although the foreclosure action remained pending, plaintiff filed a
complaint in September 2016, against Bank of America, Green Tree, and Fannie
Mae. On February 21, 2017, the court issued orders, for reasons set forth on the
record, granting Bank of America's Rule 4:6-2(e) motion to dismiss with
prejudice all claims against it; denying plaintiff's summary judgment motion
against Bank of America; and denying plaintiff's default judgment motion
against Green Tree and Fannie Mae. And, on June 7, 2017, the court granted
Green Tree and Fannie Mae's Rule 4:6-2(e) motions to dismiss the complaint
with prejudice for reasons set forth on the record.
Before us, plaintiff appeals only the June 7 order, arguing:
1 Also named, as a third-party defendant was Phelan Hallinan Diamond & Jones, PC, which is not a party in this appeal. The record provided does not indicate how it was dismissed from the case. A-4360-16T1 3 POINT I
PROVISION OF FALSE INFORMATION ABOUT THE ORIGIN OF THE DISPUTED LOAN AND GENERAL INFORMATION UPON THE OPENING OF THE CASE.
POINT II
ILL[EGAL] USE THE TESTIMONY OF THE WITNESS WHO DOES NOT HAVE THE AUTHORITY TO REPRESENT THE INTERESTS OF THE DEFENDANT, FANNIE MAE.
POINT III
IGNORING BY THE COURT THE PREVIOUS VERDICTS, REACHED AND ADOPTED BY THE TRIAL COURT AS WELL AS THE ARGUMENTS [O]F THE PLAINTIFF AND DOCUMENTS PRESENTED TO HIM.
We begin by noting that plaintiff's brief is woefully non-compliant with
our court rules. First, he fails to provide a copy of the June 7 order he appeals.
R. 2:6-1(a)(1)(A). Second, he fails to include a "table of citation of cases,
alphabetically arranged, of statutes and rules and of other authorities." R. 2:6-
2(b). Third, he raises several issues without the support of facts, or evidence
provided in the appendix. R. 2:6-2(a)(5); See Cherry Hill Dodge, Inc. v.
Chrysler Credit Corp., 194 N.J. Super. 282, 283 (App. Div. 1984). Fourth, he
fails to include in parenthesis what part of the record his arguments are pointed
A-4360-16T1 4 at. R. 2:6-2(a)(6). Fifth, he fails to make any coherent arguments to establish
that the June 7 order is not supported by the record and case law. See R. 2:9-9.
Hence, we agree with Green Tree and Fannie Mae that these deficiencies make
them "unable to intelligibly" respond to plaintiff's arguments on appeal. And,
these deficiencies do not allow us to conduct a meaningful appellate review of
the order denying reconsideration. See R. 2:6-9; R. 2:8-2; R. 2:9-9.
Nevertheless, for the sake of completeness, we will briefly address the merits of
the court's order.
Plaintiff alleged in his complaint that defendants are "trying to impose on
[him] and Evglevskaya responsibility for the return of a loan in the amount of
$330,000 which they never requested and [had] been issued fraudulently to third
parties as proven in the [c]ourt of law." He claimed defendants harmed his and
Evglevskaya's credit, and caused them "moral and health damages . . . at
$100,000 each."
In granting Green Tree and Fannie Mae's motions to dismiss, the court
cited numerous procedural grounds. Under res judicata,2 the court determined
2 "Under the principles of res judicata[,] claims that are actually litigated and determined before trial also are barred from being relitigated." Velasquez v. Franz, 123 N.J. 498, 506 (1991) (citing Restatement (Second) of Judgments § 27 cmt. d (1982)). The principle "contemplates that when a controversy between
A-4360-16T1 5 "plaintiff's . . . claims are nothing more than repackaged versions of the same
unsupported allegations of [his] prior [counterclaims] and third-party claims in
the foreclosure action [filed in February 2016], which were all dismissed with
prejudice" on June 8, 2016. To the extent that any of his current claims are
different from the prior counterclaims and third-party claims, the court found
they were barred under the entire controversy doctrine 3 because they should
have been raised in February 2016. Because the mortgage was executed in
December 2004, and plaintiff's complaint was filed in September 2016, the court
parties is once fairly litigated and determined it is no longer open to relitigation." Lubliner v. Bd. of Alcoholic Beverage Control, 33 N.J. 428, 435 (1960). Application of res judicata "requires substantially similar or identical causes of action and issues, parties, and relief sought[,]" as well as a final judgment. Culver v. Ins. Co. of N. Am., 115 N.J. 451, 460 (1989). "[A] motion to dismiss for failure to state a claim is an adjudication on the merits for res judicata purposes, unless the judge specifies that it is 'without prejudice.'" Velasquez, 123 N.J. at 507 (citation omitted).
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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-4360-16T1
VIATCHESLAV STREKALOV,
Plaintiff-Appellant,
v.
BANK OF AMERICA, N.A., GREEN TREE SERVICING, LLC, n/k/a DITECH FINANCIAL, LLC, and FEDERAL NATIONAL MORTGAGE ASSOCIATION, a/k/a FANNIE MAE,
Defendants-Respondents. _______________________________
Submitted October 22, 2018 – Decided January 11, 2019
Before Judges Sumners and Mitterhoff.
On appeal from Superior Court of New Jersey, Chancery Division, Passaic County, Docket No. C- 000091-16.
Vitacheslav Strekalov, appellant pro se.
Winston & Strawn, LLP, attorneys for respondent Bank of America, N.A. (Heather Elizabeth Saydah, of counsel and on the brief). Blank Rome, LLP, attorneys for respondents Green Tree Servicing, LLC and Fannie Mae (Francis X. Crowley and Thomas M. Brodowski, on the brief).
PER CURIAM
Plaintiff Viatcheslav Strekalov, a signatory on a foreclosed residential
mortgage issued to Elena Evglevskaya, appeals from a June 7, 2017 Chancery
Division order granting the Rule 4:6-2(e) motion to dismiss his complaint with
prejudice for failure to state a claim by the mortgage assignees, defendants
Green Tree Servicing, LLC and Fannie Mae. We affirm.
On December 31, 2004, plaintiff and Evglevskaya executed a mortgage
on a property located in Wayne to secure a thirty-year $330,000 loan from
Coastal Capital Corp d/b/a the Mortgage Shop to Evglevskaya. A promissory
note executed that same day by Evglevskaya, as the sole borrower, evidenced
the loan.
In June 2013, Bank of America, N.A., which had been assigned the
mortgage a year earlier, assigned the mortgage to Green Tree.
In January 2015, Green Tree filed a foreclosure action because
Evglevskaya had defaulted on the loan. About seven months later, Green Tree
changed its name to Ditech Financial, LLC (Ditech) following its merger with
Ditech Mortgage Corp. and DT Holdings, LLC.
A-4360-16T1 2 In February 2016, while the foreclosure action was pending, plaintiff filed
a third-party complaint, asserting counterclaims against Green Tree (now
Ditech) and third-party claims against Bank of America and Fannie Mae.1 Four
months later, on June 8, the trial court granted Rule 4:6-2 (e) motions by Bank
of America and Fannie Mae dismissing the third-party complaint and third-party
claims with prejudice for reasons set forth on the record.
Although the foreclosure action remained pending, plaintiff filed a
complaint in September 2016, against Bank of America, Green Tree, and Fannie
Mae. On February 21, 2017, the court issued orders, for reasons set forth on the
record, granting Bank of America's Rule 4:6-2(e) motion to dismiss with
prejudice all claims against it; denying plaintiff's summary judgment motion
against Bank of America; and denying plaintiff's default judgment motion
against Green Tree and Fannie Mae. And, on June 7, 2017, the court granted
Green Tree and Fannie Mae's Rule 4:6-2(e) motions to dismiss the complaint
with prejudice for reasons set forth on the record.
Before us, plaintiff appeals only the June 7 order, arguing:
1 Also named, as a third-party defendant was Phelan Hallinan Diamond & Jones, PC, which is not a party in this appeal. The record provided does not indicate how it was dismissed from the case. A-4360-16T1 3 POINT I
PROVISION OF FALSE INFORMATION ABOUT THE ORIGIN OF THE DISPUTED LOAN AND GENERAL INFORMATION UPON THE OPENING OF THE CASE.
POINT II
ILL[EGAL] USE THE TESTIMONY OF THE WITNESS WHO DOES NOT HAVE THE AUTHORITY TO REPRESENT THE INTERESTS OF THE DEFENDANT, FANNIE MAE.
POINT III
IGNORING BY THE COURT THE PREVIOUS VERDICTS, REACHED AND ADOPTED BY THE TRIAL COURT AS WELL AS THE ARGUMENTS [O]F THE PLAINTIFF AND DOCUMENTS PRESENTED TO HIM.
We begin by noting that plaintiff's brief is woefully non-compliant with
our court rules. First, he fails to provide a copy of the June 7 order he appeals.
R. 2:6-1(a)(1)(A). Second, he fails to include a "table of citation of cases,
alphabetically arranged, of statutes and rules and of other authorities." R. 2:6-
2(b). Third, he raises several issues without the support of facts, or evidence
provided in the appendix. R. 2:6-2(a)(5); See Cherry Hill Dodge, Inc. v.
Chrysler Credit Corp., 194 N.J. Super. 282, 283 (App. Div. 1984). Fourth, he
fails to include in parenthesis what part of the record his arguments are pointed
A-4360-16T1 4 at. R. 2:6-2(a)(6). Fifth, he fails to make any coherent arguments to establish
that the June 7 order is not supported by the record and case law. See R. 2:9-9.
Hence, we agree with Green Tree and Fannie Mae that these deficiencies make
them "unable to intelligibly" respond to plaintiff's arguments on appeal. And,
these deficiencies do not allow us to conduct a meaningful appellate review of
the order denying reconsideration. See R. 2:6-9; R. 2:8-2; R. 2:9-9.
Nevertheless, for the sake of completeness, we will briefly address the merits of
the court's order.
Plaintiff alleged in his complaint that defendants are "trying to impose on
[him] and Evglevskaya responsibility for the return of a loan in the amount of
$330,000 which they never requested and [had] been issued fraudulently to third
parties as proven in the [c]ourt of law." He claimed defendants harmed his and
Evglevskaya's credit, and caused them "moral and health damages . . . at
$100,000 each."
In granting Green Tree and Fannie Mae's motions to dismiss, the court
cited numerous procedural grounds. Under res judicata,2 the court determined
2 "Under the principles of res judicata[,] claims that are actually litigated and determined before trial also are barred from being relitigated." Velasquez v. Franz, 123 N.J. 498, 506 (1991) (citing Restatement (Second) of Judgments § 27 cmt. d (1982)). The principle "contemplates that when a controversy between
A-4360-16T1 5 "plaintiff's . . . claims are nothing more than repackaged versions of the same
unsupported allegations of [his] prior [counterclaims] and third-party claims in
the foreclosure action [filed in February 2016], which were all dismissed with
prejudice" on June 8, 2016. To the extent that any of his current claims are
different from the prior counterclaims and third-party claims, the court found
they were barred under the entire controversy doctrine 3 because they should
have been raised in February 2016. Because the mortgage was executed in
December 2004, and plaintiff's complaint was filed in September 2016, the court
parties is once fairly litigated and determined it is no longer open to relitigation." Lubliner v. Bd. of Alcoholic Beverage Control, 33 N.J. 428, 435 (1960). Application of res judicata "requires substantially similar or identical causes of action and issues, parties, and relief sought[,]" as well as a final judgment. Culver v. Ins. Co. of N. Am., 115 N.J. 451, 460 (1989). "[A] motion to dismiss for failure to state a claim is an adjudication on the merits for res judicata purposes, unless the judge specifies that it is 'without prejudice.'" Velasquez, 123 N.J. at 507 (citation omitted). 3 "The entire controversy doctrine is an equitable principle and its application is left to judicial discretion." 700 Highway 33 LLC v. Pollio, 421 N.J. Super. 231, 238 (App. Div. 2011) (citing Allstate N.J. Ins. Co. v. Cherry Hill Pain & Rehab. Inst., 389 N.J. Super. 130, 141 (2006)). "This doctrine 'embodies the principle that the adjudication of a legal controversy should occur in one litigation in only one court; accordingly, all parties involved in a litigation should at the very least present in that proceeding all of their claims and defenses that are related to the underlying controversy.'" Wadeer v. N.J. Mfrs. Ins. Co., 220 N.J. 591, 605 (2015) (quoting Highland Lakes Country Club & Cmty. Ass'n v. Nicastro, 201 N.J. 123, 125 (2009)). The doctrine applies when the claims of all parties arise out of the same common string of facts or circumstances. Ibid.
A-4360-16T1 6 decided his claims were barred by the six-year statute of limitations. Moreover,
the judge determined that to the extent plaintiff is making claims on
Evglevskaya's behalf, plaintiff lacks standing to do so because she is the only
mortgagee on the mortgage.
The court further reasoned that the pleadings, which merely state
conclusions of law without the inclusion of supporting factual allegations, will
not be allowed to proceed to discovery if challenged by a motion to dismiss for
failure to state a claim. See Glass v. Suburban Restoration Co., Inc., 317 N.J.
Super. 574, 582 (App. Div. 1998).
Lastly, putting aside the procedural failings, the court also found cause to
dismiss the action by examining the substance of plaintiff's complaint. To the
extent the complaint raised common law fraud claims, the compliant was
deficient because it did not allege all the requirements of: (1) a material
misrepresentation of a presently existing or past fact; (2) knowledge or belief by
the defendants of its falsity; (3) intent that the other party relied on it; (4)
reasonable reliance by the other party; and (5) resulting damages. 4 As for the
4 The judge's oral decision did not recite the legal support for the common law definition of civil fraud. However, the standard is well-settled and it was correctly set forth. See Gennari v. Weichert Co. Realtors, 14 N.J. 582, 10 (1997). A-4360-16T1 7 allegations that his credit, or even for that matter Evglevskaya's credit, were
negatively impacted, plaintiff's claims are pre-empted by the Fair Credit
Reporting Act, 15 U.S.C. §1681 (the Act). Under Section 1681t(b)(1)(F) of the
Act, "[n]o requirement or prohibition may be imposed under the laws of any
State . . . (1) with respect to any subject matter regulated under . . . (F) section
[1681s-2 of this title], relating to . . . consumer reporting agencies . . . ."
When considering a Rule 4:6-2(e) motion to dismiss a complaint with
prejudice for failure to state a claim upon which relief can be granted, a trial
court must determine "whether a cause of action is 'suggested' by the facts."
Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). The
court must "search[] the complaint in depth and with liberality to ascertain
whether the fundament of a cause of action may be gleaned even from an obscure
statement of claim, opportunity being given to amend if necessary." Ibid.
(citation omitted). We apply a de novo standard when reviewing an order
dismissing a complaint for failure to state a claim. State ex rel. Campagna v.
Post Integrations, Inc., 451 N.J. Super. 276, 279 (App. Div. 2017). 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).
A-4360-16T1 8 Based upon our review of the record, we affirm substantially for the sound
reasons expressed by the trial court in its oral decision.
Affirmed.
A-4360-16T1 9