# HARRIS v. FEIN, SUCH, KAHN & SHEPARD

> District Court, D. New Jersey · January 21, 2021

URL: https://www.frixlaw.com/law-library/cases/10269976

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** January 21, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10269976

## How later opinions describe it (automated extraction)

- applying the Entire Controversy Doctrine together with Res Judicata

## Opinion text

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RHONDA HARRIS, Civil Action No.: 2:20-cv-01574
Plaintiff,
v.
OPINION
FEIN, SUCH, KAHN & SHEPARD, MTGLQ
INVESTORS, L.P.,
SHELLPOINT MORTGAGE SERVICING,
J.P. MORGAN CHASE,
SN SERVICING CORPORATION,
FITZGERALD AND CROUCH, et al.,
Defendants.
CECCHI, District Judge.
This matter comes before the Court on five separate Motions to Dismiss pro se Plaintiff
Rhonda Harris’s (“Plaintiff” or “Harris”) Complaint (ECF No. 1, “Compl.”) filed by Defendants
(1) Fitzgerald and Crouch pursuant to Fed. R. Civ. P. 12(b)(6); (2) Fein, Such, Kahn & Shepard
(“Fein, Such”) pursuant to Fed. R. Civ. P. 12(b)(1) and (6); (3) SN Servicing Corporation (“SN
Servicing”) pursuant to Fed. R. Civ. P. 12(b)(1) and (6); (4) J.P. Morgan Chase, National
Association(“Chase”)pursuant to Fed. R. Civ. P. 12(b)(1), (5), and (6);and(5)MTGLQ Investors,
L.P. (“MTGLQ”) and Shellpoint Mortgage Servicing (“Shellpoint”) pursuant to Fed. R. Civ. P.
12(b)(1), (5), and (6), together, the “Defendants.” ECF Nos. 4, 5, 7, 9, 12. Plaintiff filed an
opposition to thesemotions (ECF No. 16),1to which all Defendants exceptFitzgerald and Crouch

1The Court ordered that Plaintiff file her opposition within thirty days of October 26, 2020.
ECF No. 15. Plaintiff filed her opposition two weeks late on December 10, 2020. ECF No. 16.
Nevertheless, because Plaintiff appears pro se, her arguments are to be construed liberally and the
Court will consider her opposition. Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244–45
(2013).
replied. ECF Nos. 17, 18, 19, 20. The Court decides this matter without oral argument pursuant
to Fed. R. Civ. P. 78(b). For the reasons set forth below, all motions to dismiss are GRANTED.
I. BACKGROUND
a. Factual Background2
On November 28, 2000, Harris executed a promissory note in favor of Summit Bank

memorializing a loan for $111,500.00. ECF No. 5-2, at 1 (“Fein, Such br.”). That same day, to
secure the loan, Harris executed a mortgage (the “mortgage”) in favor of Summit Bank, in which
Plaintiff encumbered her real property located at 260 Randolph Avenue, Jersey City, New Jersey
(the “property”). ECF No. 12-11, at 2 (“MTGLQ and Shellpoint br.”). The mortgage was later
assigned to Chase on July 16, 2013. Id.
Subsequently, Chase retained Fein, Such as counsel and on February 13, 2015 filed a
foreclosure complaint (the “foreclosure action”) against Harris in the Superior Court of New
Jersey, Chancery Division, Hudson County (the “Superior Court”), captioned: Federal National
Mortgage Association v. Rhonda Harris, et al., No. F-5393-15, alleging that Harris defaulted on

her mortgage. Id. The Superior Court then substituted MTGLQ, the holder of the mortgage, as
plaintiff.3 MTGLQ and Shellpoint br. at 2; Fitzgerald and Crouch br. at 3. Thereafter, on June
12, 2017, the Superior Court entered a final judgment of foreclosure and writ of execution in favor
of MTGLQ and marked the matter as “disposed.” Id.

2 Allegations in the Complaint are supplemented with information from Defendants’
Motions to Dismiss. ECF No. 4, 5, 7, 9, 12. When deciding a motion to dismiss, in addition to
considering the allegations in the Complaint, the Court may also consider matters of public record.
See Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)
Thus, this Court also takes judicial notice of the facts as set forth in the Foreclosure Complaint.
ECF No. 7 at 12 (“SN Servicing br.”).
3 Shellpoint and SN Servicing were the servicers of the mortgage. Fitzgerald and Crouch
br. at 3; SN Servicing br. at 2.
Months later,onOctober 13, 2017, MTGLQ’s counsel mailed a notice of the sheriff’s sale
to Harris by certified and regular mail. Id. Harris then filed a motion to stay the sheriff’s sale on
November 27, 2017. Id. The Superior Court thenconverted Harris’s motion to stay the sheriff’s
sale to a motion to vacate the final foreclosure judgment. Id. Ultimately, onDecember 14, 2017,
the Superior Court denied Harris’s motionto vacate the final foreclosure judgment. Id.

On December 27, 2017, Harris retained Fitzgerald and Crouch to file a Chapter 13
bankruptcy action. ECF No. 4-1, at 2 (“Fitzgerald and Crouch br.”). On December 30, 2017,
Fitzgerald and Crouch filed for Chapter 13 bankruptcy on Harris’s behalf in the United States
Bankruptcy Court for the District of New Jersey, under case number 17-36071. MTGLQ and
Shellpoint br. at 3.
On November 11, 2019, MTGLQ again mailed a notice of the sheriff’s sale to Harris by
certified and regular mail. Id. On February 13, 2020, a sheriff’s sale was held, and the property
was sold back to MTGLQ as the highest bidder. Fein, Such br.at 2.
b. Procedural Background

On February 13, 2020, Plaintiff filed the instantComplaintagainst Defendants. Compl. at
¶¶ 1–30. Plaintiff’s Complaint is difficult to decipher. It contains counts that rely on references
to unrelated legal theories with limited supporting facts or delineation as to specific Defendants.
Count One, entitled “Debt Validation Demand,” purports to bring claims under the Fair Debt
Collection Practices Act, 15 U.S.C.A § 1692 et. al, (“FDCPA”) and state-law libel and slander
claims. Id. at ¶¶ 10–13. Count Two, entitled “Conspiracy Claim,” cites to the so called “Gold
Repeal Act,” which the Court notes, as described below, is no longer in effect. Id. at ¶¶ 14–17;
see also Feldman v. Great N. Ry. Co., 428 F. Supp. 979, 983 (S.D.N.Y. 1977) (citing legislation
that repealed the Gold Repeal Act, Pub. L. 93–373, S. 2665 (1974)). At various points, the
Complaint also makes passing references to the Fair Credit Reporting Act (“FCRA”), Truth in
Lending Act (“TILA”), Securities Act of 1933 (“Securities Act”), New Jersey Consumer
Protection Act (“NJCPA”), and the Due Process Clause. Id. at ¶ 28.
On March 4, 2020, Fitzgerald and Crouch moved to dismiss Plaintiff’s Complaint. ECF
No. 4. On March 13, 2020, Fein, Such moved to dismiss Plaintiff’s Complaint. ECF No. 5. On

March 17, 2020, SN Servicing moved to dismiss Plaintiff’s Complaint. ECF No. 7. On April 6,
2020, Chase moved to dismiss Plaintiff’s Complaint. ECF No. 9. On July 24, 2020, MTGLQand
Shellpoint moved to dismiss Plaintiff’s Complaint. ECF No. 12. Plaintiff filed an opposition to
Defendants’ Motions to Dismiss on December 10, 2020 (ECF No. 16), to which all Defendants
except Fitzgerald and Crouch replied. ECF Nos. 17, 18, 19, 20.
II. LEGAL STANDARD
a. Federal Rule of Civil Procedure Rule 12(b)(1)
A court on the motion of a party or sua sponte must dismiss a claim under Rule 12(b)(1)
whereit lacks subject matter jurisdiction. In re Schering Plough Corp. Intron/Temodar Consumer

Class Action, 678 F.3d 235, 243 (3d Cir. 2012). When addressing a challenge to subject matter
jurisdiction, “the court must start by determining whether [it is] dealing with a facial or factual
attack to jurisdiction.” U.S. ex rel. Atkinson v. PA. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir.
2007). A factual attack queries whether the face of the pleadings satisfy the jurisdictional
requirements. Cunningham v. Lenape Regional High Dist. Bd. of Educ., 492 F.Supp.2d 439, 447
(D.N.J. 2007). A facial attack challenges the “sufficiency of the plaintiff's pleadings on
jurisdictional grounds” where the jurisdictional facts are not in dispute. Brown v. Tucci, 960 F.
Supp. 2d 544, 561 (W.D. Pa. 2013) (citing Petruska v. Gannon University, 462 F.3d 294, 302, n.
3 (3d Cir. 2006)). For purposes of a facial attack, courts accept as true all well-pleaded factual
allegations, viewing them in the light most favorable to the party asserting jurisdiction. In re
Kaiser Group Int'l, Inc., 399 F.3d 558, 561 (3d Cir. 2005). Here, Defendants “filed the attack
before [they] filed any answer to the Complaint or otherwise presented competing facts. Their
motion[s] [are] therefore, by definition, a facial attack.” Silverberg v. City of Philadelphia, No.
19-2691, 2020 WL 108619, at *3 (E.D. Pa. Jan. 8, 2020).

b. Federal Rule of Civil Procedure Rule 12(b)(6)
To survive dismissal under Rule 12(b)(6), a complaint mustmeet the pleading requirements
of Rule 8(a)(2) and “contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). In
evaluating the sufficiency of a complaint, a court must alsodraw all reasonable inferences in favor
of the non-moving party. Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).

Ultimately, a complaint “that offers ‘labels and conclusions’ or . . . tenders ‘naked assertions’
devoid of further factual enhancement,” will not withstand dismissal under Rule 12(b)(6). Iqbal,
556 U.S. at 678 (citations omitted). However, a pro se complaint will only be dismissed if “it
appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.’” Mishra v. Fox, 197 F. App’x 167, 168 (3d Cir. 2006) (citations
omitted).
III. DISCUSSION

a. Rule 12(b)(1)4
Defendants Fein, Such, SNServicing, Chase, MTGLQ, and Shellpoint argue that
dismissal of Plaintiff’s claims is warranted because this Court lacks subject matter jurisdiction

4 Defendants also argue that Plaintiff’s Complaint should be dismissed because she has
failed to effectuate proper service upon them. Nevertheless, given that, as described below, this
over the Complaintunder the Rooker-Feldman doctrine.5 Fein, Such br. at 6; SN Servicingbr.
at 12; Chase br. at 7; MTGLQ and Shellpoint br. at 8. While Fitzgerald and Crouch did not raise
this argument, “the court can raise sua sponte subject-matter jurisdiction concerns.” Nesbit v.
Gears Unlimited, Inc., 347 F.3d 72, 77 (3d Cir. 2003). The Court agrees with Defendants that it
lacks subject matter jurisdiction over Plaintiff’s claims under the Rooker-Feldman doctrine given

that the Complaint alleges there was a “[w]rongful [f]oreclosure” action. ECF No. 16 at 3.
The Rooker-Feldmandoctrine precludes “lower federal court jurisdiction over claims that
were actually litigated or ‘inextricably intertwined’ with adjudication by a state[] court[].”
Parkview Assocs. Pshp. v. City of Leb., 225 F.3d 321, 325 (3d Cir. 2000) (citations omitted).
Specifically, theRooker-Feldman doctrine is applicable to (1) “cases brought by state-court
losers”; (2) “complaining of injuries caused by state-court judgments”; (3) “rendered before the
district court proceedings commenced”; and (4) “inviting district court review and rejection of
those judgments.” Malhan v. Sec’y United States Dep’t of State, 938 F.3d 453, 458 (3d Cir.
2019) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)).

All four factors are met here. First, the foreclosure action was instituted against Plaintiff
in state court, which resulted in a final foreclosure judgment against her. Fein, Such br. at 1;

Court dismisses the Complaint on other grounds, to the extent Plaintiff chooses to amend her
Complaint, she is instructed to cureher service defects and properly serve Defendants pursuant to
Fed. R. Civ P. 4.
5 Defendants SN Servicing and Chase also argue, in the alternative, that the Court should
abstain from hearing Plaintiff’s claims under the Colorado Riverand Youngerabstention doctrines.
SN Servicing br. at 15; Chase br. at 11, 13. Under the Colorado River and Younger abstention
doctrines, where a related state court proceeding is pending or until all appellate state remedies
have been exhausted, a district court may abstain from exercising jurisdiction over the federal case
if circumstances are exceptional and if abstention would promote judicial efficiency. Gordon v.
E. Goshen Twp., 592 F. Supp. 2d 828, 844 (E.D. Pa. 2009). However, these abstention doctrines
do not serve as a jurisdictional bar to litigation in federal court where, like here, the related state
court case proceedings have already ceased. See, e.g., Zahl v. Warhaftig, 655 F. App'x 66, 72 (3d
Cir. 2016).
Compl at ¶ 1. Second,Plaintiff complains of injuries caused by the foreclosure judgment. Her
briefs reference this judgment as a means to address “wrongful foreclosure.” See, e.g., ECF No.
16 at 3; see also Khan v. JP Morgan Chase N.A., No. 20-873, 2020 WL 5798781, at *2 (D.N.J.
Sept. 29, 2020). Specifically, Plaintiff’s claims hinge on the allegations thatDefendants failed to
“validate . . . [her] debt”and provide her with proper notice and service in the foreclosure action,

and, consequently, the Superior Court erred by issuing the judgmentagainst her. Compl. at ¶¶
10–11. Thus, because Plaintiff’s alleged injuries were caused by the foreclosure judgment
entered against her, “[t]his type of action is exactly what Rooker-Feldmanis meant to prevent.”
Khan, 2020 WL 5798781, at *2 (“Although it [may be] difficult to discern the basis for
Plaintiff’s claims, the gravamen of the complaint appears to be that Defendants [did] not have a
right to pursue [a] [f]oreclosure [a]ction and [] sheriff’s sale.”) (citations omitted). Third, the
Superior Court entered final judgment in the foreclosure action against Plaintiff on June 12,
2017, and, subsequently, on February 13, 2020,Plaintiff brought the instant Complaint before
this Court. Fein, Suchbr. at 1; Compl at ¶ 1. Finally, Plaintiff’s claims purport to“impugn the

validity of [the]mortgage and therefore [attempt to] ‘negate the foreclosure judgment.’”Dunbar
v. Nationstar Mortg., LLC, No. 16-4259, 2016 WL 6804874, at *2 (D.N.J. Nov. 16, 2016)
(quoting In re Madera, 586 F.3d 228, 232 (3d Cir. 2009)). Indeed, such claims are barred under
Rooker-Feldman “since [these allegations] are ‘inextricably intertwined’ with the foreclosure
action.” Id. Put differently,Plaintiff’s challenge to “the validity of the mortgage [and] the right
to foreclose” is tantamount to “inviting district court review and rejection of [the foreclosure
judgment].” Ezell v. JPMorgan Chase Bank Nat’l Ass’n, No. 18-1407, 2020 WL 525899, at *4
(D.N.J. Jan. 31, 2020).6
Accordingly, havingfound that this Court does not have subject matter jurisdiction over
Plaintiff’s claims and that dismissal is therefore warranted under Rule 12(b)(1), the Court
addresses the parties’ alternativearguments.

b. Rule 12(b)(6)
i. Entire Controversy Doctrine and Res Judicata
Defendants Chase and MTGLQ also assert that dismissal of Plaintiff’s claims against
them is warranted under theEntire Controversy Doctrine and Res Judicata. Chase br. at 15;
MTGLQ and Shellpoint br. at 11; see also Rycoline Prod., Inc. v. C & W Unlimited, 109 F.3d
883, 886 (3d Cir. 1997) (“[R]es judicata and the Entire Controversy Doctrine . . . [are] properly
[considered] pursuant to Fed. R. Civ. P. 12(b)(6).”). The Court agrees with Defendants Chase
and MTGLQ that dismissal is warranted on these grounds.7
The Entire Controversy Doctrine, codified under N.J. Ct. R. 430A, and Res Judicata

“both share a trio of requirements” for preclusive effect to be given to an instant claim: (1) “the

6Tothe extent that Rooker-Feldmandoes not apply to Plaintiff’s state-law libel and slander
claims, this Court nevertheless lacks subject matter jurisdiction over those claims. Specifically,
Plaintiff, not having alleged diversity jurisdiction, must rely on the Court’s exercise of
supplemental jurisdiction over her state law claims pursuant to 28 U.S.C. § 1367(a). However,
given that Plaintiff has failed to plead any actionable federal law claims, this Court declines to
extend supplemental jurisdiction over Plaintiff’s state law claims. Id. In any event, as described
below, all of Plaintiff’s claims independently warrant dismissal under the Entire Controversy
Doctrine and Res Judicataand for failure to state a claim.
7 Defendant SN Servicing also argues that dismissal of Plaintiff’s claims against them is
warranted under the Entire Controversy Doctrine and Res Judicata. SN Servicing br. at 3. The
Court disagrees, however, because SN Servicing neither appears to be a party in the foreclosure
action nor otherwise in privity with Chase or MTGLQ. Rodrigues v. Unifund CCR, LLC, 690 F.
App'x 799, 802 (3d Cir. 2017) (“[T]he parties in the action must be identical or in privity with
those in the prior action” for preclusive effect to be given).
judgment in the prior action must be valid, final, and on the merits”; (2) “the parties in the action
must be identical or in privity with those in the prior action”; and (3) “the action must grow out
of the same transaction or occurrence as the claim in the earlier one.” Rodrigues, 690 F. App'x at
802 (applying the Entire Controversy Doctrine together with Res Judicata)(citations omitted).
Both Defendants satisfied the first prong because the Superior Court issued a final default

judgment in the foreclosure actionagainst Plaintiffon the merits. ECF No. 5 at 25, Ex. 1. They
also satisfied the second prong because MTGLQ is both a party inthe instant action and the
foreclosure action and Chase is both a party in the instant action and, as a previous holder of the
mortgage, is a predecessor in interest of, and in privity with, MTGLQ in the foreclosure action.
Fein, Suchbr. at 1; D. Russo Inc. v. Chiesa, No. 12-2397, 2013 WL 2149681, at *7 (D.N.J. May
16, 2013)(“[P]rivity of interest for [preclusion]purposes . . . [is satisfied where] one . . . follows
another in ownership or control of property.”) (citations omitted). Finally, these same
Defendants satisfied the third prong because the instant action and the foreclosure action arise
out of the same transaction and occurrence—the alleged mortgage default and subsequent

foreclosure. Compl. at ¶¶ 10–11. Furthermore, insofar as Plaintiff’s instant claims deviate from
her claims asserted in the foreclosure action, that is irrelevant for preclusion purposes. Rather,
“[t]he doctrine of Res Judicata bars not only claims that were brought in a previous action, but
also claims that could have been brought.” Duhaney v. Attorney Gen. of U.S., 621 F.3d 340, 347
(3d Cir. 2010). Similarly,the Entire Controversy Doctrine bars claims that “accrued, ripened,
and become known to [Plaintiff] during the pendency of the state court foreclosure action.”
Puche v. Wells Fargo NA, 256 F. Supp. 3d 540, 548 (D.N.J. 2017). Accordingly, Res Judicata
and the Entire Controversy Doctrine preclude Plaintiff’s claims against MTGLQ and Chase.
ii. Failure to State a Claim
Even assuming, arguendo, that this Court retains subject matter jurisdiction over the
Complaint and that the Entire Controversy Doctrine and Res Judicata do not preclude Plaintiff’s
claims, Plaintiff has nevertheless failed to state any claim for relief and dismissal is therefore
warranted under Rule 12(b)(6). Fitzgerald and Crouch br. at 5; Fein, Such br. at 3; SNServicing

br. at 19; ECF No. 9-1, at 19 (“Chase br.”); MTGLQ and Shellpoint br. at 14.
1. Count One – “Debt Validation Demand”
a. FDCPA
First, the Court understands Plaintiff to allege in Count One, entitled “Debt Validation
Demand,” that Defendantsneither provided proper serviceor noticeto her in the foreclosure action
nor “validated” her debt, and thus the Superior Courterred in finding thejudgment against her, all
in violation of the FDCPA. Compl. at ¶¶ 10–11. To state a claim under the FDCPA, Plaintiff
must establish that (1) she is a “consumer” who is harmed by violations of the FDCPA; (2) the
“debt” at issue arises out of a transaction entered into primarily for personal, family, or household

purposes; (3) Defendants collecting the debt are “debt collectors”; and (4) Defendants have
violated, by act or omission, a provision of the FDCPA. Purpura v. JP Morgan Chase, No. 16-
3765, 2018 WL 1837952, at *5 (D.N.J. Apr. 18, 2018), reconsideration denied, No. 16-3765, 2018
WL 3727383 (D.N.J. Aug. 6, 2018), and aff'd sub nom, 765 F. App'x 864 (3d Cir. 2019).
As a threshold matter, Plaintiff’s FDCPA claim istime barred because she did not bring it
“within one year [after]the date on which the alleged violation occur[ed].” 15 U.S.C. § 1692k(d);
Compl. at ¶ 13 (alleging that Defendants initially “failed to validate the debt,” the purported
violation, “more than two years [ago]”). Regardless, Plaintiff’s claim is still not cognizable
because she has not pleaded that any of the Defendants are “debt collectors” within the meaning
of the FDCPA as “[t]he activity of foreclosing on the property . . . is not the collection of a debt.”
Tobing v. Parker McCay, P.A., No. 17-474, 2018 WL 2002799, at *10 (D.N.J. Apr. 30, 2018)
(citations omitted).
b. Libel and Slander
Plaintiff also asserts in Count One, named “Debt Validation Demand,” that Chase, and

Fein, Such committed “libel and slander” against her by filing the foreclosure action “in the public
record,” which allegedly contained “derogatory, incriminating, inflammatory, and wholly
inaccurate information.”8 Compl. at ¶¶ 10–11. To prevail on a libel or slander claim under New
Jersey law, Plaintiff must prove that: (1) Defendants made a defamatory statement of fact; (2)
concerning Plaintiff; (3) which was false; (4) which was communicated to persons other than the
Plaintiff; and (5) fault. Mayflower Transit, LLC v. Prince, 314 F. Supp. 2d 362, 372 (D.N.J. 2004)
(citing Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186 (3d Cir.1998)); see also
Thomasian v. New Jersey Inst. of Tech., No. 08-2218, 2009 WL 260791, at *2, n.5(D.N.J. Feb. 3,
2009)(citations omitted) (“[Plaintiff must] plead facts sufficient to identify the defamatory words,

their utterer and the fact of their publication. A vague conclusory allegation is not enough.”).
Here,Plaintiff’s action is time-barred because shedid not bring it“within 1 year [after]the
publication of the alleged libel or slander,” as the foreclosure complaint at issue was filed on
February 13, 2015,yet this Complaint was filed roughly five years later. N.J.S.A. 2A:14–3;Fein,
Suchbr. at 1. Moreover, Plaintiff has neitheradequately“plead[ed] facts sufficient to identify the
defamatory words” nor that each Defendant made a defamatory statement. Yuhasz v. Genesis
Healthcare,LLC, No. 3176-173, 2019 WL 2394689, at *8 (N.J. Super. Ct. App. Div. June 6, 2019).

8 The Court assumes that Plaintiff brings this claim against only Chase, and Fein, Such, as
Plaintiff’s claim centers around the filing of the foreclosure complaint, which was consummated
solely by these Defendants. MTGLQ and Shellpoint br. at 2.
Relatedly, Fein, Such also moves for dismissal of these claims “pursuant to the litigation
privilege.” Fein, Such br. at 8. Under New Jersey law, this privilege ensures that “statements by
attorneys, parties and their representatives made in the course of judicial or quasi-judicial
proceedings are absolutely privileged and immune from liability.” Rickenbach v. Wells Fargo
Bank, N.A., 635 F. Supp. 2d 389, 401 (D.N.J. 2009) (citations omitted). Thus, to the extent that

Plaintiff brings her libel and slander claims against Fein, Such “for their conduct [as attorneys] . .
. in the State Foreclosure Action . . . those claims are . . . barred.” Wilson v. State of New Jersey,
et al., No. 17-444, 2017 WL 2539398, at *6 (D.N.J. June 12, 2017).
2. Count Two –“Conspiracy Claim”
In Count Two, entitled “Conspiracy Claim,” Plaintiff alleges that Defendants violated
“public policy” under the so called “Gold Repeal Act.” Compl. at ¶¶ 14–16. However, this
legislation is no longer in effect, and, in any event, is not relevant to this action. In1933, President
Roosevelt issued Executive Order 6012 and Congress passed a Joint Resolution which declared
certain gold clauses to be void against public policy, otherwise known as the “Gold Repeal Act.”

H.J. Res. 192, 73rd Cong. (1933), enacted by Pub.L. No. 73–10, 48 Stat. 112–13 (1933);see also
Wilkerson v. Gozdan, No. 2:14-693, 2014 WL 4093279, at *4 (M.D. Ala. Aug. 19, 2014).
Subsequently, though, President Ford signed legislation that repealed this limitation on gold
ownership. SeeFeldman, 428 F. Supp. at 983 (citing Pub. L. 93–373, S. 2665 (1974)).
At various other points in the Complaint, Plaintiff makes passing references to the FCRA,
TILA, Securities Act, NJCPA, and Due Process Clause without alleging any supporting facts.
Compl. at ¶28. Thus, “[a]bsentany allegations substantiating [Plaintiff’s] generalized [conspiracy
claims], Plaintiff’s . . . claim[s] do not pass muster under Rule 8’s . . . pleading standards.”9
Covington v. Equifax Info. Servs., Inc., No. 21-81564, 2020 WL 1921954, at *8 (D.N.J. Apr. 20,
2020) (citing Iqbal, 556 U.S. at 678).
Accordingly, Plaintiff has failed to state any claim for relief and therefore dismissal of the
Complaint in its entirety is warranted under Rule 12(b)(6).

IV. AMENDMENT OF THE COMPLAINT
While the current Complaint suffers from numerous deficiencies identified in this Opinion,
to the extent Plaintiff can cure such deficiencies, Plaintiff may file an amended complaint within
thirty (30) days from the date of this Order. Plaintiff is instructed to adhere strictly to the Federal
Rules of Civil Procedure, namely Rule 8(a) which requires a pleading to contain a “short and plain
statement of the claim showing that the pleader is entitled to relief” and Rule 9(b) which requires
a party alleging fraud to “state with particularity the circumstances constituting fraud.”
Additionally, Plaintiff isinstructed to discuss each individual claim in its own separate section, to
identify which specific Defendants are included in each claim, and to remove plainly inapplicable

claims. See Bass v. Howard, No. 19-17077, 2020 WL 1332007, at *4 (D.N.J. Mar. 23, 2020)
(“Plaintiff failed to provide factual support for any of these additional claims in the [Complaint].
Merely listing causes of action, without also including the necessary elements, does not even rise
to the level of conclusory.”); see also White v. Smiths Detection, Inc., No. 10-4078, 2013 WL
1845072, at *19 (D.N.J. Apr. 30, 2013)(“[L]aw-of-the-case doctrine bars plaintiff from advancing

9 Moreover,to the extent that Plaintiff has attempted to raise additional claims for the first
time in her opposition (ECF No. 16 at 4 (listing a new “bank fraud” claim)), she is not permitted
because“asserting [claims]solely in an opposition brief is not a proper substitute for alleging facts
in a complaint.” Sharif v. City of Hackensack, No. 17-12410, 2018 WL 5619721, at *4 (D.N.J.
Oct. 29, 2018); see also Dongelewicz v. PNC Bank Nat’l Ass’n., 104 F. App’x 811, 819 n.4 (3d
Cir. 2004) (“[A] contention in a brief clearly may not be used to substitute for an allegation in a
complaint.”) (citations omitted).
[identical claims] in the ... Amended Complaint . . . that plaintiff pleaded previously [and that
were already dismissed].”’).
V. CONCLUSION
Thus, for the reasons set forth above, the Court GRANTS Defendants’ Motions to Dismiss
(ECF Nos. 4, 5, 7, 9, 12) and the Complaint is dismissed WITHOUT PREJUDICE. An
appropriate Order accompanies this Opinion.
DATE: January 21, 2021.

CLAIRE C. CECCHI, U.S.D.J.

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10269976. Public record. Not legal advice.