EVE C. PASTERNAK and STEVEN PASTERNAK, Plaintiffs-Appellants,
v.
PNC BANK, N.A., PNC BANK, Defendant-Respondent, and
MATTELMAN, WEINROTH & MILLER, PC; GEORGE J WEINROTH; JOHN C. MILLER, III; MARTIN WEINBERG, Defendants.
Superior Court of New Jersey, Appellate Division.
Steven Pasternak, appellant, argued the cause pro se.
Eve C. Pasternak, appellant pro se, joined in pro se appellant's brief.
Roberto A. Rivera-Soto argued the cause for respondent (Ballard Spahr, LLP, attorneys; Mr. Rivera-Soto, of counsel and on the brief).
Before Judges Ostrer and Haas.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Plaintiffs Steven and Eve Pasternak appeal from the August 12, 2013 Law Division order granting defendant PNC Bank, N.A.'s (PNC) motion for summary judgment and dismissing plaintiff's complaint. We affirm.
We derive the following facts and procedural history from the motion record. Plaintiffs formerly held title to a residence in Livingston, New Jersey. The property was subject to two mortgages held by United Trust Bank (United). Plaintiffs defaulted on the mortgages and United commenced foreclosure proceedings. On June 15, 2005, the Chancery Division entered a final judgment of foreclosure of $222,366.58 against plaintiffs.
PNC later acquired the mortgages, but did not move to amend the judgment or seek post-judgment costs. Plaintiffs continued to live in the home. PNC paid the taxes and other carrying costs on the property. PNC sent monthly late payment notices to plaintiffs from the time it acquired the mortgages, but plaintiffs failed to pay the judgment. After PNC scheduled a sheriff's sale, plaintiff Steven Pasternak filed an unsuccessful Chapter 13 bankruptcy petition. The sheriff's sale was thereafter postponed nine additional times.
On February 29, 2008, PNC gave plaintiffs an incorrect payoff figure of $284,194.81 to satisfy the judgment. The parties soon realized that this amount was higher than the actual payoff figure. In the course of seeking another postponement of the sheriff's sale, this time based on their receipt of the incorrect payoff figure, plaintiffs advised the Chancery Division that they had received a $495,000 refinancing commitment from a bank and wished to pay the judgment and retain the property. However, they told the court that they had left the signed documentation verifying this commitment at home. The court adjourned the proceeding so that plaintiffs could go home over the lunch break, retrieve the documentation, and bring it back to court. Plaintiffs left the courthouse and never returned. The court denied plaintiffs' postponement request and the sheriff's sale was held on March 11, 2008.
Plaintiffs then filed a voluntary Chapter 7 bankruptcy petition, listing PNC's secured claim at $286,000. On April 14, 2008, the bankruptcy court dismissed plaintiffs' claim with prejudice "as a bad faith filing."
Plaintiffs refused to vacate the property. A writ of possession was issued but, two days before the writ was to be executed, plaintiffs filed a complaint in federal district court, seeking to enjoin their eviction because PNC had earlier provided them with an incorrect payoff figure. On November 13, 2008, the district court denied plaintiffs' motion for a stay of eviction and, on February 19, 2009, the court dismissed plaintiffs' complaint.
On March 9, 2010, plaintiffs filed a six-count complaint against PNC and other defendants[1] in the Law Division. Alleging that PNC provided them with an incorrect payoff figure in an attempt to wrongfully take their residence, plaintiffs sought $1.5 million in damages against PNC for intentional misrepresentation or fraud (count one); violations of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -200 (count two); violations of the Fair Debt Collection Practices Act, 15 U.S.C.A. §§ 1692 to -1692p (count three); breach of the duty of good faith and fair dealing (count four); negligence (count five); and usury (count six).
PNC removed the case to the federal district court, which dismissed count three, and returned the matter to the Law Division. On April 23, 2012, Judge Carolyn E. Wright commenced a bench trial concerning plaintiffs' remaining claims. After three days of testimony, the parties agreed to submit summary judgment motions to the court for consideration. On August 12, 2013, Judge Wright granted PNC's motion for summary judgment and dismissed plaintiffs' complaint with prejudice.
In a thorough fifteen-page written opinion, Judge Wright fully explained the reasons underlying her decision. After painstakingly reviewing the parties' arguments, the judge found that plaintiffs' claims concerning the incorrect payoff figure were barred by the common law litigation privilege, which bars claims premised on "`any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.'" Hawkins v. Harris, 141 N.J. 207, 216 (1995) (quoting Silberg v. Anderson, 50 Cal. 3d 205, 212 (1990)). The judge found that all four of these factors were met in this case and that "[e]xtensive case law demonstrates that identical claims based upon alleged improper payoff figures have regularly been dismissed."[2]
Judge Wright also found that plaintiffs' claims concerning the incorrect payoff figure were barred by res judicata. The judge noted that plaintiffs' argument that PNC deliberately falsified the payoff figure had been rejected by: (1) the Chancery Division when it permitted the sheriff's sale to proceed in March 2008; (2) the bankruptcy court when it dismissed plaintiffs' Chapter 7 petition in April 2008; and (3) the federal district court when it denied plaintiffs' motion to enjoin their eviction in November 2008. Thus, the judge found that "[t]he elements of res judicata were therefore met and [p]laintiffs' claims are barred."
Finally, the judge found that plaintiffs failed to "establish fraud against PNC because the discrepancy [in the payoff figure] was immaterial [and] there is no proof that they reasonably relied upon it." Plaintiffs represented to the Chancery Division that they had access to $495,000 to pay the judgment, which exceeded the payoff figure that PNC provided. Thus, plaintiffs could not demonstrate they sustained any damages as a result of PNC's mistake. This appeal followed.
On appeal, plaintiffs raise the following contentions:
POINT I
JUDGE WRIGHT'S RULING THAT PNC BANK MAY FABRICATE, DOUBLE-BILL, AND OVERSTATE THE AMOUNT DUE TO SETTLE A DEBT PRIOR TO A SHERIFF SALE IS CONTRARY TO RES JUDICATA, COLLATERAL ESTOPPEL, LAW OF THE CASE, AND NEW JERSEY LAW.
The R[ule] 4:46-1 Summary Judgment Standard[.]
PNC Violated . . . Rule 4:42-11[.]
PNC Violated N.J.S.A. 31:1-3[.]
PNC Violated New Jersey's Fair Foreclosure Act[.]
New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 [to -200.]
Summary Judgment Is Appropriate On The Amount of Damages[.]
POINT II
JUDGE WRIGHT'S ERRONEOUS DECISION IS CONTRARY TO RES JUDICATA, COLLATERAL ESTOPPEL, THE LAW OF THE CASE[,] AND NEW JERSEY LAW.
POINT III
JUDGE WRIGHT'S ERRONEOUS DECISION NOT ONLY LEGALIZES FRAUD, BUT COULD IMPOSE A FIDUCIARY DUTY UPON THE BANK AND ITS ATTORNEYS TO DEFRAUD THE COURTS AND NEW JERSEY RESIDENTS.
Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015). "Summary judgment must be granted if `the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show . . . there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment . . . as a matter of law.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)).
Thus, we consider, as the trial judge did, whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Ibid. (quoting Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995)). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). We accord no deference to the trial judge's conclusions on issues of law and review issues of law de novo. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
We have considered plaintiffs' contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We are satisfied that Judge Wright properly granted summary judgment to PNC, and affirm substantially for the reasons expressed in her thoughtful and comprehensive August 12, 2013 written opinion.
Affirmed.
[1] Plaintiffs' claims against the other defendants were subsequently dismissed and these defendants are not parties to this appeal.
[2] See, e.g., Rickenbach v. Wells Fargo Bank, N.A., 635 F. Supp. 2d 389, 400-01 (D.N.J. 2009) (barring claims based on incorrect payoff statements due to litigation privilege); Giles v. Phelan, Hallinan & Schmieg, LLP, 901 F. Supp. 2d 509, 524-26 (D.N.J. 2012) (litigation privilege barred Consumer Fraud Act claim in the context of payoff statements).
