M&T Bank v. H. Scott Gurvey

NOT FOR PUBLICATION WITHOUT THE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-3760-23

M&T BANK s/b/m to

HUDSON CITY SAVINGS

BANK,

Plaintiff-Respondent,

v.

H. SCOTT GURVEY, MRS.

H. SCOTT GURVEY,

fictitious spouse of H. SCOTT

GURVEY, and AMY R.

GURVEY,

Defendants-Appellants,

___________________________

Argued January 6, 2026 – Decided February 26, 2026

Before Judges Gooden Brown and DeAlmeida.

On appeal from the Superior Court of New Jersey,

Chancery Division, Essex County, Docket No. F-

014035-18.

Amy R. Gurvey, appellant, argued the cause on

appellants' behalf.

Aaron M. Bender argued the cause for respondent

(Reed Smith LLP, attorneys, Aaron M. Bender, of

counsel and on the brief).

PER CURIAM

This case returns to us following our dismissal of self-represented

defendants Scott and Amy Gurvey's appeal of a residential foreclosure action as

moot. Following a dispute between the Township and the Gurveys regarding

the payment of property taxes on their home, defendants defaulted on their

mortgage. Plaintiff loan servicer M&T Bank sent defendants a notice of

intention to accelerate and foreclose, which spawned years of litigation between

the parties in both state and federal court. Ultimately, defendants voluntarily

entered into a contract for the sale of their home to a third party. After the sale,

plaintiff received full payment on the mortgage and dismissed the foreclosure

action with prejudice. Nonetheless, defendants continued submitting filings

related to the dismissed foreclosure action.

In an unpublished opinion, we ultimately determined defendants' then

pending appeal was moot because defendants voluntarily sold their property and

the foreclosure action was dismissed. M&T Bank v. Gurvey, No. A-0749-21

(App. Div. April 20, 2023) (slip op. at 9-10). Our Supreme Court denied

defendants' petition for certification. M&T Bank v. Gurvey, 256 N.J. 438

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2

(2024). Pertinent to this appeal, defendants subsequently moved in the

Chancery Division to vacate the sale of the subject property. Plaintiff opposed

the motion and cross-moved to declare defendants vexatious litigants. 1

The Chancery Division judge denied defendants' motion in a June 11,

2024 order and granted plaintiff's cross-motion, ultimately resulting in the entry

of a Rosenblum2 order on July 19, 2024, issued by the assignment judge,

declaring defendants vexatious litigants and limiting their ability to submit

filings related to the sold property.

Defendants now appeal from the June 11 and July 19, 2024 orders, raising

the following points for our consideration:

I. ASSIGNMENT JUDGE SHEILA VENABLE AND

CHANCERY JUDGE JODI LEE ALPER ABUSED

AUTHORITY, VIOLATED THE LAW OF THE

CASE, AND DEPRIVED DEFENDANT-

APPELLANTS OF THEIR CONSTITUTIONAL

RIGHTS TO DUE PROCESS, EQUAL PROTECTION

AND PREEMPTION UNDER THE SUPREMACY

CLAUSE IN ISSUING ORDERS, DENYING

DEFENDANT-APPELLANTS THE RIGHT TO FILE

A NEW COMPLAINT IN THE LAW DIVISION IN

SPITE OF TWO SEPARATE ORDERS ISSUED BY

1

The Gurveys filed a separate action in the Law Division against M&T Bank

to challenge the propriety of the dismissed foreclosure proceedings. On August

2, 2023, Judge Russell J. Passamano granted the Gurveys' motion to voluntarily

dismiss that action without prejudice.

2

Rosenblum v. Borough of Closter, 333 N.J. Super. 385 (App. Div. 2000).

A-3760-23

3

LAW DIVISION JUDGE RUSSELL J. PASSAMANO

IN 2023 IN THE GURVEYS' PARALLEL PRIORITY

LAWSUIT, ON MOTION AND AFTER BOTH ORAL

AND WRITTEN ARGUMENT, EXPLICITLY

PERMITTING APPELLANTS TO FILE A NEW

COMPLAINT TO CONFORM TO NEW LAW AND

UPDATED FACTS FOLLOWING ABHORRENT

ACTIONS . . . FORCING PETITIONERS TO

INVOLUNTARILY SELL THEIR HOME OF

TWENTY YEARS UNDER DURESS WHEN THEY

WERE NEVER IN DEFAULT.

II. CHANCERY ERRED IN DENYING

PETITIONERS A MOTION TO RECONSIDER DUE

TO A MATERIAL CHANGE IN LAW THAT

WOULD HAVE CHANGED THE COURT'S

EARLIER DETERMINATIONS. CHANCERY

ERRED IN FINDING PETITIONERS TO BE

"FRIV[OLOUS] LITIGANTS" WHEN THE

STATUTORY CONDITIONS FOR SUCH FINDING

DO NOT EXIST AND PETITIONERS DO NOT

MEET THE DEFINITION BUT M&T AND ITS DEBT

COLLECTORS DO. TWO VICINAGE JUDGES

EXCEEDED STATUTORY AND

CONSTITUTIONAL AUTHORITY IN BARRING

APPELLANTS FROM FILING ADDITIONAL

MOTIONS IN ANY COURT (INCLUDING THE

APPELLATE DIVISION) AND AWARDED COSTS

AND FEES TO RESPONDENT M&T INSTEAD OF

AWARDING SANCTIONS TO APPELLANTS.

THE GURVEYS CANNOT BE

FRIVOLOUS LITIGANTS AS A

MATTER OF LAW. RESPONDENT

M&T AND ITS DEBT COLLECTOR

LAWYERS PARTICIPATED IN 8-YEAR

OBSTRUCTION OF JUSTICE WITH

STATE COURT OFFICERS

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WARRANTING DAMAGES FOR

WRONGFUL STATE ACTION,

MALICIOUS ABUSE OF PROCESS AND

PUNITIVE DAMAGES IN FAVOR OF

APPELLANTS.

JUDGE ALPER ABUSED HER

AUTHORITY BY NOT CONVENING

HEARINGS ON THE ALLEGED

INDEBTEDNESS STATEMENTS PRIOR

TO ENTRY OF DEFAULT JUDGMENT

IN 2021 AND WHEN

RECONSIDERATION WAS DENIED.

THE APPELLATE DIVISION HAD A

DUTY TO GRANT APPELLANTS AN

EMERGENCY APPEAL AS OF RIGHT

TO ABORT CONTINUING

VIOLATIONS OF THEIR

CONSTITUTIONAL RIGHTS TO SAVE

THEIR HOME.

III. CHANCERY ERRED IN FINDING THAT THE

FORECLOSURE WAS UNCONTESTED WHEN AN

ANSWER AND COUNTERCLAIM HAD BEEN

FILED, DOCKETED BY CHANCERY AND JUDGE

ALPER ADMITTED ON THE RECORD IN 2021

THAT SHE RECEIVED THE COMPLETE RECORD

FROM THE DNJ ON APRIL 24, 2019. JUDGE

ALPER DENIED APPELLANTS DUE PROCESS BY

REFUSING TO HEAR THEIR OPPOSITION TO THE

FRAUDULENT COMPLAINT IN FORECLOSURE.

JUDGES ALPER AND VENABLE

ABUSED DISCRETION BY TAKING

JUDICIAL NOTICE OF 1) EX PARTE

PROFFERS ACCEPTED FROM THE

GURVEYS' ADVERSARIES, 2)

DISPUTED ORDERS IN OTHER

A-3760-23

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COURTS, 3) SUA SPONTE ORDERS

ENTERED WITHOUT MOTIONS ON

NOTICE AND ENTRIES ON THE

ALTERED ESSEX COUNTY DOCKET

WARD v. USPS, 634 F. 3D 1274 (Fed Cir.

2011)

JUDGE ALPER CONSISTENTLY

VIOLATED PREEMPTING RESPA

REGULATIONS THAT MANDATED

DISMISSAL WITH PREJUDICE OF THE

FORECLOSURE COMPLAINT IN 2018,

AN AWARD OF CONSUMER FRAUD

DAMAGES IN FAVOR OF

APPELLANTS FOR LOSS OF A

CERTIFIED CASH BUYER'S SIGNED

CONTRACT IN 2018 12 USC §2605(e);

12 CFR 1024 AND JUDGE ALPER HAD

FULL POWER TO ADJUDICATE AND

DISPENSE WITH ALL CLAIMS IN LAW

AND EQUITY IN 2018 INCLUDING

ORDER WITHDRAWAL OF THE

FRAUDULENT CREDIT NOTICES

PLACED BY M&T IN RES[P]ONSE TO

APPELLANTS QUALIFYING WRITTEN

REQUESTS

JUDGE ALPER MUST BE ORDERED TO

RECUSE HERSELF RETROACTIVE TO

2022 AND VACATE ORDERS FOR

ENTERTAINING EX PARTE

COMMUNICAT[]IONS WITH

ADVERSE ATTORNEYS AND FAILING

TO SERVE THE GURVEYS WERE EX

PARTE PROFFERS ACCEPTED AND

CONSIDERED BY THE COURT.

We reject each argument and affirm.

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We recount the protracted history underlying the dispute as set forth in

our previous decision:

[I]n 2002, the Gurveys, a married couple, executed a

note for $561,600 in favor of Hudson City Savings

Bank (HCSB) secured by a mortgage on their Montclair

residential property. In 2015, M&T acquired HCSB in

a merger and became the record holder of the mortgage.

As a result of significant water damage from

broken pipes in the home, a property tax dispute

developed between the Gurveys and Montclair

Township, which led to the Gurveys filing a complaint

against the Township in tax court challenging the

Township's tax assessments on their home for tax years

2009, 2010, and 2011. While the tax court proceedings

and associated appeals were ongoing, in a December 7,

2016 letter, M&T notified the Gurveys about

delinquent property taxes due on their home and

requested that payment be made as required under the

terms of the mortgage agreement. The Gurveys

responded that no taxes were due because the Township

could not collect taxes without the court's approval

while the tax court litigation was ongoing.

In a January 31, 2017 letter, M&T informed the

Gurveys that in accordance with the note and mortgage

agreements, M&T had paid the outstanding tax liability

to the Township, created an escrow account for the

payment of future property taxes, and adjusted the

Gurveys' monthly payment to reflect the changes going

forward. Believing that the escrow account was

wrongfully created, the Gurveys refused to make the

adjusted payments and instead paid only principal and

interest. As a result, M&T declared the Gurveys in

default beginning May 1, 2017, and, on July 6, 2017,

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mailed them a Notice of Intention to Accelerate and

Foreclose.

In response, the Gurveys filed a complaint and

order to show cause against M&T in the Law Division

seeking restraints and asserting, among other things,

that M&T breached the mortgage agreement by

"unilaterally creating an escrow account" and

"tortiously interfered" with the Gurveys' tax litigation

against the Township. . . .

While the Law Division action was pending, on

July 5, 2018, M&T filed a foreclosure complaint

against the Gurveys in the Chancery Division. The

Gurveys removed the case to the United States District

Court and filed their answer and counterclaims in the

federal court. M&T moved to remand the matter back

to state court, which motion was granted on March 29,

2019. The Gurveys filed two separate unsuccessful

appeals of the remand order with the Third Circuit. [3]

Following the remand, on September 23, 2020,

M&T moved for entry of default on the ground that the

Gurveys had not filed a contesting answer in the

Chancery Division. Over the Gurveys' objection, the

Chancery judge granted M&T's motion and entered

default, finding there was no docketed answer on file in

the state court. In a September 2, 2021 order, the judge

also denied the Gurveys['] subsequent motion to vacate

the default pursuant to Rule 4:43-3, finding the Gurveys

failed to raise a meritorious defense.

3

The Gurveys filed two other federal lawsuits related to the foreclosure,

asserting federal constitutional and statutory claims against M&T and various

New Jersey state judges. One complaint was dismissed on abstention grounds

and the other was administratively terminated pending the conclusion of the Law

Division litigation.

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Thereafter, M&T moved for final judgment while

the Gurveys filed a motion for leave to appeal the

September 2, 2021 order denying their motion to vacate

the entry of default. On November 12, 2021, we

granted the Gurveys' motion and summarily reversed

the September 2, 2021 order. We remanded the case

"to the trial court to consider whether an answer was

filed" in state court, "and if not, if there was good cause

to permit the filing of an answer once the case was

remanded from [f]ederal [c]ourt."

Following additional motion practice, on

December 7, 2021, the Chancery judge entered final

judgment of foreclosure in favor of M&T. On January

31, 2022, the Gurveys moved to vacate the final

judgment pursuant to Rule 4:50-1, and, on February 18,

2022, the Chancery judge denied the motion. The

Gurveys subsequently moved to stay a Sheriff's sale of

their property based on the home's pending sale to a

private buyer. Ultimately, a stay was granted, and the

home was sold to private buyers on July 6, 2022. After

M&T received a pay-off of the mortgage note from the

sale proceeds and discharged the debt, on M&T's

motion, an order was entered on August 5, 2022,

vacating the final judgment and dismissing the

foreclosure action with prejudice.

[M&T Bank, (first three alterations added) (slip op. at

2-5).]

We dismissed the Gurveys' appeal as moot, reasoning:

The Gurveys neither dispute the pay-off amount nor

paid it with an express reservation of their rights and

remedies. Indeed, the relief sought by the Gurveys is a

ruling vacating the final judgment of foreclosure and

dismissing the foreclosure action with prejudice.

However, that relief has already been granted and the

A-3760-23

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Gurveys are no longer liable on the note and mortgage.

Moreover, the Gurveys also have a pending complaint

against M&T in the Law Division as well as a federal

action in which the Gurveys have filed similar claims

as the ones asserted against M&T in the now-dismissed

foreclosure action. Thus, the Gurveys have a forum to

advance their underlying claims against M&T. Under

the circumstances, we are satisfied that appellate

review would be inappropriate in this case. [4]

[Id. at 8-9.]

Defendants continued submitting repetitive filings related to the

foreclosure action. On March 27, 2024, defendants moved to vacate the

voluntary sale of the subject property and dismiss plaintiff's foreclosure

complaint with prejudice retroactive to 2018. Plaintiff opposed the motion and

cross-moved to declare defendants vexatious litigants. In a June 11, 2024 order,

Chancery Division Judge Jodi Lee Alper denied defendants' motion and granted

plaintiff's cross-motion, recommending that Essex Vicinage Assignment Judge

Sheila A. Venable enter an order "declar[ing] defendants vexatious litigants"

and prohibiting defendants "from filing any further actions" relating to the

"foreclosure action without prior leave of . . . [c]ourt." The order also awarded

plaintiff attorneys' fees and costs "to be determined" in connection with the

motions.

4

We denied defendants' motion for reconsideration on May 15, 2023.

A-3760-23

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In a supporting statement of reasons, the judge recounted defendants'

extensive litigious history and detailed sanctions imposed "by courts in various

jurisdictions." The judge found that "the procedural history . . . evidence[d] a

history of vexatious and frivolous litigation by defendants," and further found

that "prior sanctions and warnings by various courts have been ineffective in

preventing . . . defendants from engaging in such conduct."

On July 19, 2024, Judge Venable declared defendants vexatious litigants

and prohibited them from submitting any further filings related to the subject

property without prior judicial approval. The order applied to filings in both the

Chancery Division and the Law Division. In the order, defendants were directed

to pay plaintiff attorneys' fees and costs totaling $5,030.00 in connection with

the motions.

In an accompanying written opinion, Judge Venable conducted a

Rosenblum analysis. In Rosenblum, 333 N.J Super. at 387, we provided a

framework "to decide whether a pro se litigant can be enjoined from filing a

complaint on the grounds that his or her prior complaints have been frivolous

and result in harassing and vexatious litigation." We held:

[A]n [a]ssignment [j]udge can prevent the filing of a

complaint, or issuance of a summons thereon, when the

plaintiff's prior litigation demonstrates a pattern of

frivolous pleadings, provided that it is also

A-3760-23

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demonstrated that traditional sanctions for frivolous

litigation have provided no deterrent to the plaintiff and

the [a]ssignment [j]udge reviews the complaint and is

satisfied that it has no merit.

[Ibid.]

Relying on Rosenblum, first, Judge Venable considered whether

defendants' prior applications revealed a pattern of frivolous litigation, stating:

As for the content of the Gurveys' filings, the [c]ourt

must note that the New Jersey Superior Court judicial

staff has repeatedly denied [their] motions for the same

or similar reasons. The [c]ourt has determined, on more

than one occasion, that the Gurveys[] do not have any

basis for a claim against M&T Bank, yet they continue

to attempt to persuade the [c]ourt to re[]litigate already

final decisions. The frivolity of the Gurveys' filings are

also demonstrated by their continued reassertion of the

same issues and allegations, which have repeatedly

been dismissed/denied by the [c]ourt. The [c]ourt notes

that each of the Gurveys' filings relate to the same

[Montclair] property . . . . Whether the filings relate to

their mortgage on the property held by [p]laintiff . . . ,

their July 7, 2022[] sale of the [p]roperty, or the

foreclosure action which arose from their default on

their mortgage loan, the issues raised in each of the

Gurveys' filings have been raised multiple times and are

devoid of any supporting credible evidence.

These filings have been repetitively denied by

[t]he Superior Court of New Jersey in the Chancery and

Foreclosure Actions, as well as by the Appellate

Division. Moreover, the [c]ourt notes that the New

Jersey Supreme Court has also denied the Gurveys'

petition for certification on the claims repetitively

raised and denied by this State's lower courts.

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Next, the judge considered whether sanctions were issued and failed to

serve as a deterrent, explaining:

[T]he [c]ourt finds that the Gurveys have been

sanctioned with monetary sanctions by courts in several

jurisdictions . . . . Despite facing such sanctions in

other jurisdictions, the Gurveys have continued filing

repetitive and frivolous submissions in New Jersey

courts.

With respect to the State of New Jersey, the

[c]ourt finds that the Gurveys[] were threatened by

sanction on June 11, 2021, when [Judge Alper] ordered

that she would make a recommendation to the Essex

Vicinage [a]ssignment [j]udge for the entry of an

[o]rder awarding M&T Bank with attorneys' fees and

costs in connection with having to oppose the Gurveys'

[m]otion and file the instant [motion]. While more

traditional sanctions have not yet been imposed upon

the Gurveys, the [c]ourt finds that traditional sanctions

will not deter the frivolous filings of the Gurveys,

particularly in light of the fact that traditional sanctions

imposed in other jurisdictions have not served as a

deterrent.[5]

The conduct of the Gurveys, even when viewed

in a light most favorable to them, reflects a clear plan

to abuse the judicial process. Therefore, the [c]ourt

finds that no threat of sanction, nor sanction crafted by

the [c]ourt, whether traditional or non-traditional,

would effectively deter the Gurveys from continuing

5

Judge Venable noted that although Amy Gurvey was self-represented, she was

an attorney licensed to practice law in New York who had been suspended for

six months for "pursuit of frivolous and vexatious litigation, as well as her

misrepresentations to the court." Matter of Gurvey, 102 A.D.3d 197, 200 (N.Y.

App. Div. 2012).

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their pattern of filing of repetitive and unsubstantiated

court documents.

Lastly, the judge considered the instant application and concluded

defendants' filing was "deficient in procedure and substance," and as such was

"without merit." According to the judge, procedurally, the motion at issue

"fail[ed] to comply with [Rule] 1:6-2 in that it fail[ed] to contain any proposed

form of order." Further, the motion "fail[ed] to name all necessary parties" as

"the [b]uyers" were omitted "from the action."

As to substance, the judge found:

[T]he arguments raised are without merit. The Gurveys

contend that the sale of the [p]roperty was involuntary.

However, at [o]ral [a]rgument on May 10, 2022, the

Gurveys requested that the [c]ourt stay the sale of their

home because they wanted to sell the [p]roperty.

Specifically, the Gurveys stated that they had "been

trying to sell the house for quite some time" and that

they "finally got somebody to sell the house and buy

the house." Therefore, the [c]ourt finds that the record

indicates that the Gurveys' sale of the [p]roperty must

be deemed voluntary, especially in light of their

admissions. Moreover, the [c]ourt finds that the

arguments raised by the Gurveys throughout the

[m]otion have repeatedly been litigated. In fact, the

Appellate Division has previously denied the relief

sought, and the New Jersey Supreme Court has denied

the Gurveys' petition for certification as to the

Appellate Division's decision.

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Finding that since 2017, defendants "have relentlessly attempted to

relitigate issues previously decided" in "an attempt to undermine the authority

of this [c]ourt and the State's higher courts," and "have abused the judicial

process and usurped the court's time and resources with their meritless filings, "

the judge made the temporary restraints imposed by Judge Alper permanent, and

issued a Rosenblum order enjoining defendants from future filings without prior

judicial approval. This appeal followed.

We review a court's order enjoining a litigant from further filings for abuse

of discretion. Parish v. Parish, 412 N.J. Super. 39, 51 (App. Div. 2010);

Rosenblum, 333 N.J. Super. at 392. "A court abuses its discretion when a

decision 'is "made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis."'" Terranova v. Gen.

Elec. Pension Tr., 457 N.J. Super. 404, 410 (App. Div. 2019) (quoting U.S. Bank

Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012)).

Defendants contend Judge Venable "abused [her] discretion by entering a

filing ban" in violation of their constitutional rights. We disagree.

"[T]he complete denial of the filing of a claim without judicial review of

its merits would violate the constitutional right to access of the courts." Parish,

412 N.J. Super. at 48 (quoting Rosenblum, 333 N.J. Super. at 390). Still, "courts

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have the inherent authority, if not the obligation, to control the filing of frivolous

motions and to curtail 'harassing and vexatious litigation.'" Ibid. (quoting

Rosenblum, 333 N.J. Super. at 387). Indeed, "'[w]here a pattern of frivolous

litigation can be demonstrated, the [a]ssignment [j]udge can prevent the

complaint from being filed[,]' when other available sanctions, such as monetary

penalties, proved unsuccessful as a deterrent." Id. at 49 (fourth alteration in

original) (quoting Rosenblum, 333 N.J. Super. at 391-92).

The "discretionary exercise of the extreme remedy of enjoining or

conditioning a litigant's ability to present his or her claim to the court must be

used sparingly; it is not a remedy of first or even second resort." Parish, 412

N.J. Super. at 54. Indeed, such an extreme remedy will "clearly require the

[a]ssignment [j]udge to do more than conclude [the party's] prior complaints

were frivolous." Rosenblum, 333 N.J. Super. at 396. Instead, the assignment

judge must assess the "volume and disposition of the cases" filed by the litigant,

"address the allegations in the present complaints," "give reasons for [the]

conclusion that the complaints may not be filed," "be assured that more

traditional sanctions will not protect against frivolous litigation," and "review

the new complaint to be assured that a meritorious claim is not suppressed." Id.

at 396-97; see also Parish, 412 N.J. Super. at 54 (noting an injunction can only

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be issued after a judge: (1) finds that "past pleadings were frivolous or designed

for an abusive purpose; (2) fully scrutinizes the newly filed pleadings and

determines them to be repetitive and within the scope of the proscribed vexatious

matters; and (3) has unsuccessfully attempted to abate the abuse by employing

sanctions").

Applying these principles, we are satisfied Judge Venable did not abuse

her discretion in designating defendants vexatious litigants and enjoining future

filings without prior judicial approval. We affirm substantially for the reasons

expressed in Judge Venable's comprehensive and thoughtful written decision.

As the judge aptly explained, "the Gurveys' [litigation] history with the judiciary

demonstrates a pattern of filing frivolous lawsuits" and "the Gurveys' disregard

of court orders and relentless filing of repetitive and unsubstantiated

applications necessitate a Rosenblum injunction."

We reject defendants' argument that Judge Venable's Rosenblum order

should not have included filings in the Law Division. As the assignment judge,

Judge Venable is "responsible for the supervision and efficient management of

all court matters filed in the vicinage." R. 1:33-4(c). Therefore, her order

appropriately encompassed the Gurveys' filings in both the Law Division and

the Chancery Division. To the extent we have not specifically addressed

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defendants' remaining arguments, we deem them without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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