NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4199-18
VINCENT ROGGIO and CALLIE ROGGIO,
Plaintiffs-Appellants,
v.
JPMORGAN CHASE BANK, N.A., GARY CHROPUVKA, and JOANNE MCKENNA,
Defendants-Respondents,
and
LEONARD ZUCKER, ZUCKER GOLDBERG & ACKERMAN, LLC,
Defendants.
Argued September 23, 2021 – Decided October 18, 2021
Before Judges Alvarez and Mawla.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1586-16.
Vincent Roggio, appellant, argued the cause pro se. Owen Lipnick argued the cause for respondent JPMorgan Chase Bank, N.A. (Bertone Piccini, LLP, attorneys; Owen Lipnick, on the brief).
Daniel L. Finestein argued the cause for respondents Gary Chropuvka and Joanne McKenna (Finestein & Malloy, LLC, attorneys; Daniel L. Finestein and Russell M. Finestein, on the brief).
PER CURIAM
In June 2006, Washington Mutual Bank (WaMu) filed an action against
plaintiff Vincent Roggio seeking to foreclose on his real property in Red Bank
due to his near-immediate default on a $3 million loan. Washington Mut. v.
Roggio, No. A-3170-10 (App. Div. Aug. 23, 2012) (slip op. at 2). Roggio
claimed he withheld payments because the bank "damaged his credit rating by
filing an excessive number of credit inquiries." Ibid. Since then, Roggio and
his wife, Callie Roggio, also a plaintiff in this proceeding, have been named
defendants in a mortgage foreclosure action regarding their marital property in
Rumson. The total value of their outstanding loans exceeded $6 million. Both
properties have long since been sold at sheriff's sales.1
1 Defendants Gary Chropuvka and Joanne McKenna participated in the appeal for the sole purpose of protecting title to the Red Bank property, which they now own. A-4199-18 2 Under Rule 4:6-2(e), Judge Katie A. Gummer dismissed with prejudice
plaintiffs' amended complaint against Chase, except a negligence count. She
denied plaintiffs' cross-motion for summary judgment. Thereafter, Judge
Lourdes Lucas denied plaintiffs' motion for reconsideration seeking
reinstatement of the amended complaint and dismissed the remaining count of
the complaint with prejudice. We affirm.
By way of background, WaMu entered a Federal Deposit Insurance
Corporation (FDIC) receivership on September 25, 2008. Defendant JPMorgan
Chase assumed WaMu's assets, including plaintiffs' loans. In the foreclosure
proceedings and on appeal, plaintiffs have argued Chase lacks standing because
Chase never properly acquired the mortgages, since they were placed in a trust
after WaMu's collapse. Plaintiffs also maintain Chase committed fraud by
claiming a right to the loans.
Plaintiffs contend New Jersey's courts lacked jurisdiction over the
foreclosures: because of the federal receivership and because they sued for
damages allegedly caused by WaMu in the United States District Court for the
District of Columbia pursuant to the Financial Institutions Reform, Recovery ,
and Enforcement Act of 1989 (FIRREA), 12 U.S.C. § 1821. Plaintiffs assert
that lawsuit stripped New Jersey courts of the authority to act.
A-4199-18 3 Plaintiffs consented to stay the federal court action for years after
unsuccessfully seeking to enjoin the foreclosures. Ultimately, they reactivated
the federal court proceeding. Plaintiffs have vigorously pursued motion practice
in both the state and federal forums.
When on July 8, 2016, plaintiffs filed the first amended complaint, they
averred they had received new information confirming that the loan was sold to
a trust before Chase acquired it. The complaint sought: (1) a declaratory
judgment voiding the final foreclosure judgment on the Red Bank property due
to Chase's failure to substitute itself for WaMu as the plaintiff, and due to the
Chancery Division's lack of jurisdiction; (2) fraud damages based on the notion
that Chase had no right to the loans because they were sold to a securitized trust;
(3) recission of the deed transferring the Red Bank property to Chropuvka and
McKenna and an order "compelling Chase to deed the [Red Bank] [p]roperty to"
plaintiffs; (4) punitive, treble, and compensatory damages under the Consumer
Fraud Act (CFA), N.J.S.A. 56:8-1 to -224; (5) common law fraud damages
because WaMu "assigned" the Red Bank property to Chase after acquiring it at
the sheriff's sale; (6) CFA damages because "Chase defrauded the IRS"; (7)
common law fraud damages for reducing the value recovered at the sheriff's
sale; (8) negligence damages for failure "to mitigate the losses associated with
A-4199-18 4 the foreclosure and the [s]heriff’s [s]ale"; and (9) damages for breach of the
implied covenant of good faith and fair dealing.
Chase moved to dismiss, contending counts two through five were barred
by collateral estoppel because they were based on plaintiffs' argument that Chase
"lacked standing to prosecute the foreclosure actions because they no longer
owned the mortgage note." Chase also argued the recission claim was time-
barred under laches, as the sheriff's sale was conducted two years prior.
Concerning the common law fraud and CFA allegations, Chase asserted
plaintiffs provided no evidence of material misrepresentations. Furthermore,
the cause of action for breach of the covenant of good faith and fair dealing
should have been filed in the foreclosure actions and was thus barred by the
entire controversy doctrine. Plaintiffs cross-moved for summary judgment,
asserting the court lacked jurisdiction under FIRREA, and that res judicata and
collateral estoppel did not apply because their fraud claims were based on new
evidence.
Judge Gummer found counts two, three, four, five, and nine were barred
by collateral estoppel because they implicated the standing issue upon which the
Appellate Division previously ruled. The court dismissed count six because
plaintiffs "failed to identify a legal basis that would give them the authority to
A-4199-18 5 pursue claims of defrauding the IRS," and count seven because it spoke to
negligence, not fraud, and rested in part on the standing issue we previously
decided. However, the court denied Chase's motion to dismiss count eight as
"plaintiffs ha[d] at least articulated a basis by which Chase could potentially be
held responsible" for negligence.
Plaintiffs, now pro se, then moved for reconsideration, 2 which the court
addressed on March 31, 2017. Plaintiffs stated the court's decision was palpably
incorrect because it never mentioned fraud, and that the court "completely
overlooked the fact that it had no [subject matter] jurisdiction to decide this
case." Judge Lourdes denied that motion since plaintiffs did not meet the
palpably incorrect standard and the court's earlier determination "clearly
addressed the arguments that were raised before it . . . ."
Plaintiffs then filed a Rule 4:50-1 motion alleging lack of jurisdiction and
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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-4199-18
VINCENT ROGGIO and CALLIE ROGGIO,
Plaintiffs-Appellants,
v.
JPMORGAN CHASE BANK, N.A., GARY CHROPUVKA, and JOANNE MCKENNA,
Defendants-Respondents,
and
LEONARD ZUCKER, ZUCKER GOLDBERG & ACKERMAN, LLC,
Defendants.
Argued September 23, 2021 – Decided October 18, 2021
Before Judges Alvarez and Mawla.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1586-16.
Vincent Roggio, appellant, argued the cause pro se. Owen Lipnick argued the cause for respondent JPMorgan Chase Bank, N.A. (Bertone Piccini, LLP, attorneys; Owen Lipnick, on the brief).
Daniel L. Finestein argued the cause for respondents Gary Chropuvka and Joanne McKenna (Finestein & Malloy, LLC, attorneys; Daniel L. Finestein and Russell M. Finestein, on the brief).
PER CURIAM
In June 2006, Washington Mutual Bank (WaMu) filed an action against
plaintiff Vincent Roggio seeking to foreclose on his real property in Red Bank
due to his near-immediate default on a $3 million loan. Washington Mut. v.
Roggio, No. A-3170-10 (App. Div. Aug. 23, 2012) (slip op. at 2). Roggio
claimed he withheld payments because the bank "damaged his credit rating by
filing an excessive number of credit inquiries." Ibid. Since then, Roggio and
his wife, Callie Roggio, also a plaintiff in this proceeding, have been named
defendants in a mortgage foreclosure action regarding their marital property in
Rumson. The total value of their outstanding loans exceeded $6 million. Both
properties have long since been sold at sheriff's sales.1
1 Defendants Gary Chropuvka and Joanne McKenna participated in the appeal for the sole purpose of protecting title to the Red Bank property, which they now own. A-4199-18 2 Under Rule 4:6-2(e), Judge Katie A. Gummer dismissed with prejudice
plaintiffs' amended complaint against Chase, except a negligence count. She
denied plaintiffs' cross-motion for summary judgment. Thereafter, Judge
Lourdes Lucas denied plaintiffs' motion for reconsideration seeking
reinstatement of the amended complaint and dismissed the remaining count of
the complaint with prejudice. We affirm.
By way of background, WaMu entered a Federal Deposit Insurance
Corporation (FDIC) receivership on September 25, 2008. Defendant JPMorgan
Chase assumed WaMu's assets, including plaintiffs' loans. In the foreclosure
proceedings and on appeal, plaintiffs have argued Chase lacks standing because
Chase never properly acquired the mortgages, since they were placed in a trust
after WaMu's collapse. Plaintiffs also maintain Chase committed fraud by
claiming a right to the loans.
Plaintiffs contend New Jersey's courts lacked jurisdiction over the
foreclosures: because of the federal receivership and because they sued for
damages allegedly caused by WaMu in the United States District Court for the
District of Columbia pursuant to the Financial Institutions Reform, Recovery ,
and Enforcement Act of 1989 (FIRREA), 12 U.S.C. § 1821. Plaintiffs assert
that lawsuit stripped New Jersey courts of the authority to act.
A-4199-18 3 Plaintiffs consented to stay the federal court action for years after
unsuccessfully seeking to enjoin the foreclosures. Ultimately, they reactivated
the federal court proceeding. Plaintiffs have vigorously pursued motion practice
in both the state and federal forums.
When on July 8, 2016, plaintiffs filed the first amended complaint, they
averred they had received new information confirming that the loan was sold to
a trust before Chase acquired it. The complaint sought: (1) a declaratory
judgment voiding the final foreclosure judgment on the Red Bank property due
to Chase's failure to substitute itself for WaMu as the plaintiff, and due to the
Chancery Division's lack of jurisdiction; (2) fraud damages based on the notion
that Chase had no right to the loans because they were sold to a securitized trust;
(3) recission of the deed transferring the Red Bank property to Chropuvka and
McKenna and an order "compelling Chase to deed the [Red Bank] [p]roperty to"
plaintiffs; (4) punitive, treble, and compensatory damages under the Consumer
Fraud Act (CFA), N.J.S.A. 56:8-1 to -224; (5) common law fraud damages
because WaMu "assigned" the Red Bank property to Chase after acquiring it at
the sheriff's sale; (6) CFA damages because "Chase defrauded the IRS"; (7)
common law fraud damages for reducing the value recovered at the sheriff's
sale; (8) negligence damages for failure "to mitigate the losses associated with
A-4199-18 4 the foreclosure and the [s]heriff’s [s]ale"; and (9) damages for breach of the
implied covenant of good faith and fair dealing.
Chase moved to dismiss, contending counts two through five were barred
by collateral estoppel because they were based on plaintiffs' argument that Chase
"lacked standing to prosecute the foreclosure actions because they no longer
owned the mortgage note." Chase also argued the recission claim was time-
barred under laches, as the sheriff's sale was conducted two years prior.
Concerning the common law fraud and CFA allegations, Chase asserted
plaintiffs provided no evidence of material misrepresentations. Furthermore,
the cause of action for breach of the covenant of good faith and fair dealing
should have been filed in the foreclosure actions and was thus barred by the
entire controversy doctrine. Plaintiffs cross-moved for summary judgment,
asserting the court lacked jurisdiction under FIRREA, and that res judicata and
collateral estoppel did not apply because their fraud claims were based on new
evidence.
Judge Gummer found counts two, three, four, five, and nine were barred
by collateral estoppel because they implicated the standing issue upon which the
Appellate Division previously ruled. The court dismissed count six because
plaintiffs "failed to identify a legal basis that would give them the authority to
A-4199-18 5 pursue claims of defrauding the IRS," and count seven because it spoke to
negligence, not fraud, and rested in part on the standing issue we previously
decided. However, the court denied Chase's motion to dismiss count eight as
"plaintiffs ha[d] at least articulated a basis by which Chase could potentially be
held responsible" for negligence.
Plaintiffs, now pro se, then moved for reconsideration, 2 which the court
addressed on March 31, 2017. Plaintiffs stated the court's decision was palpably
incorrect because it never mentioned fraud, and that the court "completely
overlooked the fact that it had no [subject matter] jurisdiction to decide this
case." Judge Lourdes denied that motion since plaintiffs did not meet the
palpably incorrect standard and the court's earlier determination "clearly
addressed the arguments that were raised before it . . . ."
Plaintiffs then filed a Rule 4:50-1 motion alleging lack of jurisdiction and
violation of due process, restating that the court had no jurisdiction under
FIRREA. Because one claim was still pending and there was no final judgment,
the court viewed plaintiffs' motion as a motion for reconsideration. Finding
2 In their reply brief on the motion, plaintiffs claimed they were instead moving to correct the court's decision under Rule 4:50-1. A-4199-18 6 plaintiffs again failed to meet the standard and merely sought a second bite of
the apple, the court denied the motion.
On April 12, 2019, the court granted Chase's motion for summary
judgment on count eight, holding that "merely putting a lock on the property and
taking minimal steps to protect the lender's interest would not rise to the level
of control needed to create a duty as a mortgagee in possession." Plaintiffs
appealed. They raise the following issues:
POINT I
WHETHER ON SEPTEMBER 25, 2008 WHEN THE FDIC TOOK CONTROL OF "ALL" WASHINGTON MUTUAL BANK'S "ASSETS AND LIABILITIES" THE STATE CHANCERY COURT WAS STRIPPED OF PERSONAL AND SUBJECT MATTER JURISDICTION OVER THOSE FDIC ASSETS AND ONLY THE FDIC HAD JURISDICTION TO DECIDE THOSE ASSETS AND LIABILITIES IN FEDERAL COURT WITH ORIGINAL SUBJECT MATTER QUESTION JURISDICTION.
POINT II
WHETHER THE CHANCERY COURT'S FEBRUARY 2, 2017 FINAL DECISION VIOLATED APPELLANT'S RIGHT TO LITIGATE HIS BORROWER CLAIMS.
POINT III
WHETHER A FALSE CERTIFICATION SUBMITTED BY CHASE TO THE PANEL ON
A-4199-18 7 DIRECT APPEAL CAUSED THE PANEL TO RELY ON A FALSE PRESUMPTION.
POINT IV
WHETHER A PROPERTY FORECLOSURE BASED ON FALSE RECORDS MUST BE REVERSED.
I.
Plaintiffs' first point is that the state courts lacked jurisdiction over the
mortgages. Unfortunately, the argument entirely lacks merit. The FDIC
receivership has no direct impact on the ability of state courts to address
mortgage foreclosures, so long as the plaintiff in those proceedings owns the
debt. But in any event, this argument has been previously raised and rejected.
Collateral estoppel bars relitigation of issues decided in a prior action.
See In Re Vicinage 13 of the N.J. Super. Ct., 454 N.J. Super. 330, 341-42 (App.
Div. 2018). Here, the jurisdiction issue was settled since the final judgment in
the foreclosure proceedings, which plaintiffs fully litigated. See ibid. The
properties were eventually sold.
Plaintiffs argue state foreclosure proceedings cannot continue while a
federal action is pending. But plaintiffs' misconduct allegations against WaMu
and the FDIC are wholly unrelated to Chase's in rem claims in the foreclosure
proceedings. These are different causes of action with different remedies.
A-4199-18 8 Repeatedly asserting that the District Court maintains exclusive jurisdiction
does not make it so.
Indeed, FIRREA in no way bars mortgage foreclosure proceedings from
moving forward. Cases clarifying that FIRREA does not bar continuation of
mortgage foreclosure are legion. Once the loans were sold to Chase, that
distanced Chase in its pursuit of its remedies against the mortgagors. WaMu did
not own or have access to the loans. The mortgages were not under FDIC
control, and the New Jersey courts retained jurisdiction.
FIRREA does strip jurisdiction from state courts over other borrowers'
claims—which must be litigated in federal court after the exhaustion of the
administrative process. See Glover v. FDIC, 698 F.3d 139, 150 (3d Cir. 2012).
That may actually bar plaintiffs' complaint here. In any event, we reiterate—
FIRREA does not strip state courts of jurisdiction to address mortgage
foreclosures.
II.
Plaintiffs also assert the court "violated [their] right to litigate [their]
borrower's claims." They take the position that the appellate affirmance of the
Chancery Division's June 2, 2010 decision only went to standing, not their
borrower claims or jurisdiction.
A-4199-18 9 The trial court, however, realized plaintiffs' complaint was grounded on
their position that Chase lacked standing due to the alleged securitization , an
issue we found wanting in 2012. Plaintiffs' "borrower claims" stem from their
assertion that Chase caused them harm by improperly enforcing the loans, which
has been previously resolved against them.
III.
Plaintiffs also argue that the prior decision rested on the "false
presumption" of a "false certification." They point to a letter from a Freedom
of Information Act, 5 U.S.C. § 552, branch chief explaining that the FDIC could
not determine the owner of the loans based on the information plaintiffs
provided. That in no way demonstrates a false certification by any Chase
employee. The letter does not impact our prior decision.
IV.
Plaintiffs' final point is that the mortgage foreclosures must be reversed
because they were based on false records. That claim is so lacking in merit as
to not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-4199-18 10