Does an application to reverse New Jersey District Court’s order dismissing complaint denying her motion for reconsideration in a Foreclosure Case work?

Sep 24, 2018 | New Jersey Bankruptcy, New Jersey Foreclosure Defense

Foreclosure Defenses can work at Multiple Levels of Courts in New Jersey

Individuals in foreclosure within the State of New Jersey should take special note of a recent case from the United States Court of Appeals for the Third Circuit. In Betty A. Bembry v. Township of Mullica, a Municipal Corporation of the State of New Jersey; Bertha Cappuccio; Kimberly Kirkendoll, a/k/a Kimberly Johnson, the Court heard from Appellant Betty A. Bembry an application to reverse the New Jersey District Court’s order dismissing her complaint and denying her motion for reconsideration.

Ms. Bembry owned a property in Elwood New Jersey that was foreclosed through a tax foreclosure on December 10, 2010. Bembry subsequently filed motions in the State Superior Court in July and August 2015 to vacate the in rem foreclosure judgment, alleging that the Court did not have jurisdiction over her because she was never served a complaint. The Superior Court denied the motions determining that her allegations were vague and unsupported.

Once she was unable to obtain relief in the New Jersey Superior Court that had jurisdiction over her tax foreclosure matter, she brought a Complaint to the Federal District Court in 2016. She alleged that the Municipality obtained an unlawful final judgment of foreclosure. She alleged specifically that her Fourteenth Amendment Due Process and Equal Protection Rights were violated as she was not notified of the foreclosure complaint. Upon this filing, the Defendant filed a successful motion to dismiss. The Federal Court found that New Jersey’s Entire Controversy Doctrine applied and therefore her claim was barred. What the Court essentially found was that her claims were based on the same factual allegations brought before the State Superior Court, and therefore, the matter could not be litigated in Federal Court, as they were already litigation in the Superior Court. The Appellate Division agreed with the District Court and upheld the decision.

Why is this important? It is crucial to understand what your rights are when you find out that you are in Foreclosure in New Jersey. Just because you were not physically served does not mean that the Superior Court cannot enter a final judgment of foreclosure against you. The Court may allow jurisdiction in a matter through alternative means, including mailing and publication when personal service cannot be effectuated. It is important to note that if you do believe service was improper, you must bring it up in the Superior Court and do so competently to make sure all the facts are set out for the Court to make a determination as to whether or not the Superior Court has jurisdiction.

This case shows various methods people try to win in court.  It is just as important to understand what will NOT win as what will win.  Reading the below case will give an example of a case that lost on every level of New Jersey court in both state and Federal courts.

Text of decision is below with notes in BLUE have been added to explain how to read the court’s ruling to those who do not read legal papers for a living (PDF of the ruling is available here BETTY A. BEMBRY, Appellant v. TOWNSHIP OF MULLICA   Downloaded from the 3rd Circuit) :

NOT PRECEDENTIAL – The court doesn’t feel there is enough value of this case to have it part of the official body of court opinions to be quoted for other cases.  It is basically a publication that is considered a “Non-publication.”  Legal opinions that are considered to have significant value are considered PRECEDENTIAL.  NOT PRECEDENTIAL opinions show how a court rule and can be used to understand how the court will most likely treat cases with similar facts.




No. 17-3066 – Docket number used to track the case.


BETTY A. BEMBRY, – Plaintiff(s)  – Person who brought the original case.

Appellant – In court the appellant is the person who is bringing the case up to the next level in the court system. 


TOWNSHIP OF MULLICA, a Municipal Corporation of the  State of New Jersey; BERTHA CAPPUCCIO;  KIMBERLY KIRKENDOLL, a/k/a Kimberly Johnson – Defendants  – People who have to defend the case. In this case, they are also considered the Respondents as they are the ones responding to the appeal. 


On Appeal from the United States District Court for the District of New Jersey – Where the case started.  There was also an underlying state action for this case. 

(D.C. Civil Action No. 1:16-cv-05734)  – Index / Docket number of the lower case.

District Judge:  Honorable Jerome B. Simandle – Judge from the lower case.


Submitted Pursuant to Third Circuit LAR 34.1(a)

February 14, 2018 – Date submitted to the court

Before:  GREENAWAY, JR., BIBAS and ROTH, Circuit Judges – Judges ruling on the case at the higher court level.

(Opinion filed: September 20, 2018) –  Date court rulled




PER CURIAM –Fancy way of saying the ruling by the court.

Pro se (Not represented by an attoreny)  appellant Betty A. Bembry appeals the District Court’s orders dismissing her complaint and denying her motion for reconsideration.  We will affirm the District. (The first line of the ruling translates into that the appelatte court aggreed with the lower court.) 

Court’s judgment.

(First will come the history of how the case ended up at the appeals level including what happened in the lower court, and what the plaintiff alleged in the lower court.) In September 2016, Bembry filed a complaint in the United States District Court for the District of New Jersey, alleging that defendants – the Township of Mullica (“the Township”); Bertha Cappuccio, Mullica Township Tax Collector; and Kimberly Kirkendoll, municipal clerk – unlawfully obtained a final judgment of foreclosure against her property in Elwood, New Jersey.  Specifically, Bembry alleges the following:  In December 1985, the Township obtained and then concealed tax sale certificate #85-143 in the amount of $626.11 against her property.  In 2010, the Township used that tax certificate to file a foreclosure complaint in rem against the property in the Superior Court of New Jersey.  Bembry claims that she was unaware of the existence of the back taxes until the tax collector informed Bembry in November 2010 that a tax foreclosure had been filed on her property and that she would have to pay all back taxes.  She requested time to pay the taxes, and received a follow-up letter from the Township’s attorney informing her that she would have to pay “all back taxes and costs before they could do anything.”  She received no further correspondence from the tax collector or the Township attorney.  The Superior Court entered final judgment in favor of the Township on December 10, 2010, after Bembry failed to answer the complaint.

In May and June 2015, Bembry filed motions to stay her eviction in the Superior Court, alleging notice deficiencies with respect to the foreclosure judgment and that the Township “deliberately blocked me from paying off back taxes.”  The Superior Court denied both motions.  In July and August 2015, Bembry filed motions to vacate the in rem foreclosure judgment, alleging that the Superior Court did not have jurisdiction over her because she was never served with the foreclosure complaint (Lack of service is difficult to win a case, especially in a case that is about non-payment of taxes.  She should have known she was not paying her taxes for over two years and something like this was going to happen. ), that there were no delinquent taxes during the period identified in the tax sale certificate, and that “there was fraud in the conduct of the foreclosure.” (Fraud is a possibility, but it needs to be in more detail than provided in the underlying papers that were sent tot he court.)  The Superior Court denied these motions.  The Superior Court also denied Bembry’s subsequent motion for reconsideration, determining that her allegations were “vague and unsupported,” and that “[a]lthough [Bembry] claimed that the township committed fraud in the underlying action, . . . [she] provided no factual or evidential detail in support of this allegation, other than her arguments that she was never served with the [sic] in this action, which the Court determined was not true.”  (Dkt# 7-7 at 13). (To win a cases facts are needed to win, not just statements of what happened. Detailing what happened when with proof that a judge can see and understand is always better than just saying that something happened.) The Appellate Division affirmed, and Bembry was evicted from the property on March 23, 2016.  The Superior Court denied Bembry’s subsequent motions to vacate and for reconsideration, ordering that no further reconsideration motions would be permitted. (Court basically said that they were done with the case at this time and did not want to hear anything else.)

Bembry then turned to federal court. (The defendant in the state court has now become the plaintiff in the federal court.)  She alleged that the defendants violated her rights under the Fourteenth Amendment’s Due Process and Equal Protection Clauses and the New Jersey Consumer Fraud Act by concealing the tax sale certificate and failing to notify her of the foreclosure complaint, which allowed defendants to fraudulently obtain the foreclosure judgment.  The defendants filed a motion to dismiss.  The District Court granted the motion and dismissed Bembry’s complaint, concluding that “the same facts form the basis of her claims both in this Court and in the underlying foreclosure action,” (Court basically said all of the alleged complaints were already ruled on by the lower court and nothing new was presented.) 

D.C. Op. at 7, and the federal claims were therefore barred by New Jersey’s Entire Controversy Doctrine.  Bembry sought reconsideration, which the District Court denied.  (Then she asked the judge to look at his ruling and change his mind. Asking for reconsideration is seldom a useful move. Asking the judge who just made a ruling to change his mind needs to have a really strong basis to point at something that was overlooked.  Asking for a new ruling just because you received a ruling you didn’t like is unlikely to have the results you want.)

Bembry appeals.

We have jurisdiction under 28 U.S.C. § 1291.  We exercise plenary review over the District Court’s order dismissing Bembry’s complaint.  See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).  “[W]e accept all factual allegations as true [and] construe the complaint in the light most favorable to the plaintiff.”  Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).  We review the District Court’s denial of the motion for reconsideration for an abuse of discretion.  See Max’s Seafood Café ex rel. Lou-Ann, Inc.    (The court exlains why it has the power to hear this case by quating precidental cases.)

  1. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999).

(Court is about to explain the theory of law it used to come to its decision.)  The Entire Controversy Doctrine, New Jersey’s “idiosyncratic” application of res judicata principles provides that a party must bring in one action “all affirmative claims that [it] might have against another party, including counterclaims and cross-claims” and must join “all parties with a material interest in the controversy,” or “be forever barred from bringing a subsequent action involving the same underlying facts.”  Rycoline Prods., Inc. v. C & W Unlimited, 109 F.3d 883, 885-86 (3d Cir. 1997) (alteration in original) (quoting Circle Chevrolet Co. v. Giordano, Halleran & Ciesla, 662 A.2d 509, 513 (N.J. 1995)).[2]  The primary consideration in determining if successive claims are part of the same controversy is whether the claims “arise from related facts or from the same transaction or series of transactions.”  DiTrolio v. Antiles, 662 A.2d 494, 502 (N.J. 1995).  The limits of the entire controversy doctrine with regard to foreclosure actions are somewhat narrower, as N.J. Ct. R. 4:64–5 requires that only “germane” counterclaims may be joined in a foreclosure action.  See N.J. Ct. R. 4:30A; In re Mullarkey, 536 F.3d215, 229-30 (3d Cir. 2008) (“The use of the word ‘germane’ in the language of the rule undoubtedly was intended to limit counterclaims in foreclosure actions to claims arising out of the mortgage transaction which is the subject matter of the foreclosure action.” (quoting Leisure Tech.-Ne., Inc. v. Klingbeil Holding Co., 349 A.2d 96, 98 (N.J. Super. Ct. App. Div. 1975)).

(Appeals court agrees with the lower court.) We agree with the District Court that the entire controversy doctrine bars Bembry’s claims against the defendants.  Even though Bembry’s claims are now styled as constitutional or consumer fraud claims, in both the state and federal cases, Bembry has argued that the defendants were not entitled to foreclose on her property because they failed to provide proper notice and otherwise acted inappropriately with regard to tax certificate #85-143.  Bembry could have presented all of these claims and defenses in state court in the initial foreclosure action and actually did present them, multiple times and without success, in her motions to stay foreclosure, to vacate the judgment of foreclosure, and for reconsideration.  As a result, her federal claims are barred by the entire controversy doctrine.  See generally Delacruz v. Alfieri, 145 A.3d 695, 708 (N.J. Super. Ct. App. Div. 2015) (“Claims or defenses that went to the validity of the mortgage, the amount due, or the right of [mortgagee] to foreclose had to be raised in the foreclosure proceeding or they were barred.”).2

Finally, the District Court did not abuse its discretion in denying Bembry’s motion for reconsideration because she did not establish any bases for reconsideration.  See Max’s Seafood Café, 176 F.3d at 677.  (Court basically says the lower court did what it was supposed to have done because the appellant did not give the court any reason to listen to the argument. When trying to win an argument in court, you have to understand what a court is going to do and the form the argument needs to take. Asking for justice at a high-level court requires a high-level version of relating the law to the court.  Entire paragraphs can be condensed into one sentence, but if the entire paragraph of legalese is missing the court will treat what it is reading as unimportant. Asking for justice needs to be done with the proper respect and deference to the court’s rules of writing and explaining the law.  At times all an attorney does is act like an interpreter to tell the court the facts of the case and the rules and previous cases that apply. )

For the foregoing reasons, we will affirm the District Court’s judgment.  (And the court repeats that the appealant lost.) 



Cir. 2017).  However, we are bound by our contrary precedent.  See 3d Cir. I.O.P. 9.1. 2 On appeal, Bembry appears to claim that her “complaint alleged sufficient facts from which a continuing tort could reasonably be inferred,” but she did not raise this theory before the District Court, and cannot now do so for the first time on appeal.  See Birdman v. Office of the Governor, 677 F.3d 167, 173 (3d Cir. 2012).

[1] This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

[2] We note that the Ninth Circuit recently concluded that New Jersey’s entire controversy doctrine did not apply to claims being heard in a federal district court sitting in California because “New Jersey law does not require extrajurisdictional application of its entire controversy doctrine.”  Daewoo Elecs. Am. Inc. v. Opta Corp.,


Veer Patel, Esq. NJ Foreclosure Defense lawyer is both a New Jersey & New York State Licensed attorney. He focuses on saving homes from Foreclosure. He has helped many people with defending foreclosure lawsuits in both New Jersey and New York. If you would like to talk to him about your case, please call 973-200-1111 or email to set up an appointment.

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