STRANSKY v. PENNYMAC HOLDINGS, LLC et al

RESPONSE in Support

D.N.J.March 25, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY : PETR STRANSKY, : Case No. 18-CV-15929 : Plaintiff, : vs. : : PENNYMAC HOLDINGS, LLC, POWERS KIRN, LLC, MICHAEL B. MCNEIL, SARAH E. POWERS, FRANCES M. KELLEY, LAUREN E. O’DONNELL, MICHAEL P. TRAINOR AND BLANK ROME, LLP, : : : : : : Defendants. : : DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT Case 3:18-cv-15929-MAS-LHG Document 31 Filed 03/25/19 Page 1 of 21 PageID: 1131 i TABLE OF CONTENTS Page I. INTRODUCTION ........................................................................................... 1 II. ARGUMENT ................................................................................................... 3 A. Contrary to Stransky’s argument, the exception to Noerr- Pennington does not save his claims ..................................................... 3 B. Because Stransky’s claims are germane to and were actually raised in the Foreclosure, they are barred by res judicata, collateral estoppel, and the Entire Controversy Doctrine. .................... 4 C. Stransky’s fraud claim fails because he still fails to allege that he relied on alleged misrepresentations. ............................................... 5 D. Stransky’s Opposition fails to save his FDCPA claim ......................... 6 1. Stransky’s FDCPA Count is time-barred because it is based on a claim that should have been asserted by 2016 at the latest. ................................................................................. 6 2. Despite the new allegation in Stransky’s Opposition, his FDCPA claim fails against Blank Rome, O’Donnell, and Trainor, as there are no pleaded facts that they are debt collectors ..................................................................................... 8 E. Stransky’s Opposition does not cure the deficiencies raised in Moving Defendants’ Motion to Dismiss his claim for breach of the implied covenant of good faith and fair dealing ............................. 9 F. Stransky’s Opposition does not point to a single fact alleged in the Amended Complaint to show that he suffered the severe damages required to state a claim for emotional distress .................... 11 G. Stransky’s Arguments regarding the New Jersey Litigation Privilege—if accepted as true—would save only one of his claims, but that claim is also fatally flawed ........................................ 12 H. This Court should apply Rooker-Feldman, Younger, and Colorado River despite Stransky’s claims to the contrary .................. 13 Case 3:18-cv-15929-MAS-LHG Document 31 Filed 03/25/19 Page 2 of 21 PageID: 1132 ii 1. Rooker-Feldman ........................................................................ 13 2. Younger Abstention and Colorado River Doctrines ................. 14 III. CONCLUSION .............................................................................................. 15 Case 3:18-cv-15929-MAS-LHG Document 31 Filed 03/25/19 Page 3 of 21 PageID: 1133 iii TABLE OF AUTHORITIES Page(s) Cases Aly v. Garcia, 333 N.J. Super. 195 (App. Div. 200), cert. denied, 167 N.J. 87 (2001) .................................................................................................................. 11 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................ 9, 11 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ........................................................................................ 9, 11 Coleman v. Chase Home Finance, LLC, 446 Fed. Appx. 469 (3d Cir. 2011) ....................................................................... 5 Coles v. Zucker Goldberg & Ackerman, 658 Fed. Appx. 108 (3d Cir. 2016) ....................................................................... 8 Dello Russo v. Nagel, 358 N.J. Super. 254 (App. Div. 2003) ................................................................ 12 Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009) ............................................................................... 11 Frederico v. Home Depot, 507 F.3d 188 (3d Cir. 2007) ................................................................................. 8 Gennari v. Weichert Co. Realtors, 148 N.J. 582 (1997) .............................................................................................. 5 Giles v. Phelan, Hallinan & Schmieg, L.L.P., et al., No. 11–6239, 2013 WL 2444036 (D.N.J. June 4, 2013) ...................................... 4 Hua v. Mortg., No. 14-7821, 2015 WL 5722610 (D.N.J. Sept. 29, 2015) .................................... 7 Lewis v. Citibank, N.A., 179 F. Supp. 3d 458 (E.D. Pa. 2016) .................................................................. 14 Case 3:18-cv-15929-MAS-LHG Document 31 Filed 03/25/19 Page 4 of 21 PageID: 1134 iv Liqui-Box v. Estate of Elkman, 238 N.J. Super. 588 (App. Div. 1990) ................................................................ 10 LoBiondo v. Schwartz, 199 N.J. 62 (2009) .............................................................................................. 13 Nolan v. Control Data Corp., 243 N.J. Super. 420 (App. Div. 1990) .................................................................. 9 NVR, Inc. v. Davern, No. 15-5059, 2016 WL 7013459, at *4 (D.N.J. Nov. 30, 2016) .............................................................................................. 12-13 Patetta v. Wells Fargo Bank, NA, No. 09-2848, 2010 WL 1931256 (D.N.J. May 13, 2010) ............................ 14, 15 Pillitteri v. First Horizon Home Loans, No. 14-03076, 2015 WL 790633 (D.N.J. Feb. 25, 2015) ................................... 15 Rickenbach v. Wells Fargo Bank, N.A., 635 F. Supp. 2d. 389 (D.N.J. 2009) .................................................................... 12 Schaffhauser v. Citibank (S.D.) N.A., 340 Fed. Appx. 128 (3d Cir. 2009) ....................................................................... 7 Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396 (1997) ............................................................................................ 10 Wilson v. Amerada Hess Corp., 168 N.J. 236 (2001) ............................................................................................ 10 Case 3:18-cv-15929-MAS-LHG Document 31 Filed 03/25/19 Page 5 of 21 PageID: 1135 1 PennyMac Holdings, LLC (“PennyMac”), Blank Rome LLP (“Blank Rome”), Lauren E. O’Donnell, Esq. (“O’Donnell”), and Michael P. Trainor, Esq. (“Trainor”) (collectively referred to as “Moving Defendants”), file this Reply in Support of their Motion to Dismiss the Amended Complaint of Plaintiff Petr Stransky (“Stransky”). I. Introduction In Stransky’s Opposition1 to PennyMac’s Motion to Dismiss, he claims that the Appellate Division found Moving Defendants wrongfully and fraudulently foreclosed on Lot 28. But Stransky fails to point to a single sentence in the Appellate Court Opinion to support his claim—because there is absolutely no support for it. To the contrary, the Appellate Division rejected those very claims, finding them so void of merit that they did not necessitate discussion. See Exhibit D to the Brodowski Cert. attached to Moving Defendants’ Motion to Dismiss (“the Brodowski Cert.”). Instead, the Appellate Division merely found: “to avoid possible confusion at the sheriff’s sale, we vacate the final foreclosure judgment and remand this matter to the trial court to resolve the [lot] discrepancy” and “[i]f plaintiff concedes the mortgage includes only Lot 29, then it would seem a proper final judgment can be entered without much difficulty.” Id. at 7-8. 1 Despite Stransky’s claims that Moving Defendants seek to delay this litigation (ECF 30 at 13), his Opposition was filed two days beyond the extended deadline that he requested. Case 3:18-cv-15929-MAS-LHG Document 31 Filed 03/25/19 Page 6 of 21 PageID: 1136 2 Further, Stransky does not even attempt to counter Moving Defendants’ argument that the metes and bounds description used throughout the Foreclosure Action and Appeal matches the metes and bounds description contained in the Mortgage. Stransky also continues to ignore that an Amended Final Judgment was entered, which does not refer to Lot 28 but which still matches the metes and bounds description contained in the Mortgage, thus resolving any possible claim upon which Stransky bases his Amended Complaint. By ignoring these facts, Stransky fails to explain how the harmless error of referring to Lot 28 in the Foreclosure could possibly give rise to the counts in the Amended Complaint. These facts show that PennyMac, through Blank Rome, O’Donnell, and Trainor, was only exercising its right to foreclose on the boundaries of the property as described in the Mortgage. Finally, Stransky does not attempt to respond to the fact that Blank Rome, Trainor, and O’Donnell never filed a single pleading contending that Lot 28 should expressly be included in any writ or judgment. Compare Amended Complaint at 30 with Exhibit C to the Brodowski Cert. Instead, they insisted that any inclusion of Lot 28 in the writ or judgment was immaterial because the metes and bounds description controls, and the metes and bounds description in the writ and judgment matched that in the Mortgage, so PennyMac was only exercising its right to foreclose on the property described in the Mortgage. See Exhibit C to the Brodowski Cert. Case 3:18-cv-15929-MAS-LHG Document 31 Filed 03/25/19 Page 7 of 21 PageID: 1137 3 II. Argument A. Contrary to Stransky’s argument, the exception to Noerr- Pennington does not save his claims. As Stransky’s own discussion of the Noerr-Pennington “sham litigation” exception reveals, the exception does not apply here. Stransky acknowledges that the first prong of the exception requires that the lawsuit be so objectively baseless that no reasonable litigant could expect to succeed on the merits. See ECF 30 at 11. But here, the Foreclosure Action and Appeal could not have been objectively baseless because the Appellate Court affirmed both the entry of foreclosure in favor of PennyMac and the dismissal of Stransky’s claims of fraud, wrongful foreclosure, and misrepresentation, and the court on remand did not disturb that ruling. Even if this Court somehow finds the Foreclosure Action and Appeal were objectively baseless, Stansky cannot possibly satisfy the second prong of the exception, which even he recognizes requires that the lawsuit be an attempt to interfere with the business relationship of a competitor.2 See ECF 30 at 11. Stransky does not even attempt to explain how PennyMac or its counsel could be competitors to Stransky. He also fails to explain how PennyMac or its counsel could have tried to interfere with a competitor’s business. 2 Even Stransky recognizes that he must satisfy both prongs: “[o]nly if the underlying litigation is objectively meritless does the court address the second factor: the litigant’s subjective motivations.” ECF 30 at 11. Case 3:18-cv-15929-MAS-LHG Document 31 Filed 03/25/19 Page 8 of 21 PageID: 1138 4 Finally, Stransky ignores Moving Defendants reliance upon a factually similar case in which this Court applied Noerr-Pennington. See Giles v. Phelan, Hallinan & Schmieg, L.L.P., et al., No. 11–6239, 2013 WL 2444036, at *5 (D.N.J. June 4, 2013) (dismissing RICO claims against parties and their counsel arising from litigation practices in prior state foreclosure action). Giles found that the foreclosure action which gave rise to subsequent federal claims was not a sham because: the [borrowers] were in default, [the mortgage servicer and its counsel] initially used the wrong plaintiff's name in the foreclosure lawsuit, the [borrowers] sought to dismiss the foreclosure action due to . . . lack of standing, and the foreclosure court denied the [borrowers’] motion to dismiss and permitted the correction of the bank’s name. Id. at 7. As in Giles, Stransky defaulted on his mortgage and the state court entered judgment against him, so Stransky cannot now bring claims against Moving Defendants for their conduct in connection with that litigation. As a result, the Amended Complaint must be dismissed with prejudice. B. Because Stransky’s claims are germane to and were actually raised in the Foreclosure, they are barred by res judicata, collateral estoppel, and the Entire Controversy Doctrine. Contrary to Stransky’ claims, res judicata, the Entire Controversy Doctrine, and collateral estoppel apply to the present claims because not only are these claims germane to the Foreclosure Action, they were in fact raised by Stransky in that action and in his Appeal of the Foreclosure. See Exhibit B to Brodowski Cert.; see also Stransky’s Opposition to PennyMac’s Motion for Summary Judgment, attached to Case 3:18-cv-15929-MAS-LHG Document 31 Filed 03/25/19 Page 9 of 21 PageID: 1139 5 the Supplemental Brodowski Cert. as Exhibit A at, e.g., ¶ 13. Courts take a “liberal . . . approach” in determining whether issues are germane to a foreclosure action. See, e.g., Coleman v. Chase Home Finance, LLC, 446 Fed. Appx. 469, 472 (3d Cir. 2011) (affirming dismissal of plaintiff’s complaint, which like Stransky’s case, included breach of contract and fraud claims, pursuant to Entire Controversy Doctrine). Each of Stransky’s claims against PennyMac relate to whether the foreclosure properly included Lot 283 and, therefore, they were germane to the Foreclosure Action. And more importantly, Stransky’s claims in this case—that the inclusion of Lot 28 was wrongful, a misrepresentation, and fraudulent, thus damaging Stransky—are the same claims that the Appellate Division actually rejected. Thus, the Court should dismiss the Amended Complaint against Moving Defendants. C. Stransky’s fraud claim fails because he still fails to allege that he relied on alleged misrepresentations. Stransky still fails to allege that he relied on any alleged misrepresentation made by Moving Defendants or that Moving Defendants intended Stransky would rely on an alleged misrepresentation. Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997). Instead, he claims “[t]he lower Court relied upon [the] alleged 3 As Stransky’s own brief admits, one of the three prongs to determine whether issues are germane to the foreclosure is whether the issues involve the right of the mortgagee to resort to the mortgaged premises. Stransky’s appeal was undoubtedly based on whether PennyMac had the right to foreclose on his property. ECF 30 at 12. Case 3:18-cv-15929-MAS-LHG Document 31 Filed 03/25/19 Page 10 of 21 PageID: 1140 6 misrepresentations.” See ECF 30 at 15. But Stransky needs to show he, the Plaintiff in this case, relied upon the alleged misrepresentations. This is not the lower court’s fraud claim against Moving Defendants—it is Stransky’s claim. Because intent to induce reliance and reasonable reliance are two of the required elements of common law fraud, this Court should dismiss Count I against Moving Defendants.4 D. Stransky’s Opposition fails to save his FDCPA claim. 1. Stransky’s FDCPA Count is time-barred because it is based on a claim that should have been asserted by 2016 at the latest. As Stransky’s Opposition makes clear, the only facts that he alleges in support of his FDCPA claim are that Moving Defendants sought to collect a debt on Lot 28 by sending monthly statements from 2014 through 2018. Any allegation arising from the purportedly improper reference to Lot 28 thus expired in 2016 at the latest because the Writ of Execution, which included reference Lot 28, was initially filed with the Final Judgment on August 14, 2015. If the inclusion of Lot 28 is an FDCPA violation—which Moving Defendants deny—then Stransky was well aware of the violation at the time it occurred because it formed one of the bases for his appeal. 4 Further, as to Blank Rome, O’Donnell, and Trainor, there is absolutely no reference to any facts which suggest that they took any steps to proceed with an improper attempt to foreclose on Lot 28. In the Appeal, Blank Rome, through O’Donnell, argued that the metes and bounds description in the Mortgage controlled. Further, in the Remand, Blank Rome, through Trainor, submitted an Amended Final Judgment which specifically clarified that Lot 28 was not included in the property but which still contained the same metes and bounds description as the Mortgage. As a result, there are simply no facts to suggest that Blank Rome, O’Donnell, or Trainor did anything improper, let alone committed fraud. Case 3:18-cv-15929-MAS-LHG Document 31 Filed 03/25/19 Page 11 of 21 PageID: 1141 7 Because Stransky did not assert an FDCPA violation until filing his initial Complaint in this matter on October 8, 2018, his claim is time-barred. Further, unlike the cases that Stransky cites, the monthly statements in this case were not continuing violations which tolled the limitations period because they were not independent violations. See Hua v. Mortg., No. 14-7821, 2015 WL 5722610, at *4 (D.N.J. Sept. 29, 2015) (finding that new communications about old claim do not start new period of limitations, so later-dated financial statements related back to time-barred FDCPA claim) (citation omitted). To the contrary, the monthly statements are allegedly improper because they supposedly attempt to collect on a debt related to Lot 28, which relates back to the Foreclosure Final Judgment; i.e., any allegedly improper monthly statements that supposedly included Lot 28 were communications about old claims and not independent violations. Stransky’s claim that the “Amended Complaint details how the violations were independent of the foreclosure action” is not supported by any facts pled in the Amended Complaint. See generally ECF 9; ECF 30 at 7. In fact, on its face, the Amended Complaint alleges that the Foreclosure Final Judgment improperly included Lot 28, and that the monthly statements are supposedly tainted by that inclusion. As a result, any FDCPA claim is time barred and should be dismissed. See Schaffhauser v. Citibank (S.D.) N.A., 340 Fed. Appx. 128 (3d Cir. 2009). Case 3:18-cv-15929-MAS-LHG Document 31 Filed 03/25/19 Page 12 of 21 PageID: 1142 8 2. Despite the new allegation in Stransky’s Opposition, his FDCPA claim fails against Blank Rome, O’Donnell, and Trainor, as there are no pleaded facts that they are debt collectors. To support the claim that Blank Rome, O’Donnell, and Trainor are debt collectors, Stransky now cites to Blank Rome’s website, which indicates that the Firm has “extensive experience representing consumer mortgage originators, correspondent lenders, mortgage servicers, and investors.” See ECF 30 at 18. Stransky then makes the baseless leap that “[i]t is clear that Blank Rome represents these mortgage lenders and services for the purposes of collecting on debts, just as it has in this case. . . . Blank Rome has not submitted a Certification disavowing its role as a debt collector.” Id. First, these new allegations are not contained in the Amended Complaint, and Stransky cannot buttress his pleading with statements made in his Opposition. Frederico v. Home Depot, 507 F.3d 188, 202 (3d Cir. 2007). Further, Stransky does not plead a single fact to show that Blank Rome’s representations are for the purposes of collecting debts. In this Circuit, FDCPA claims against a law firm fail if a plaintiff does not provide specific factual allegations: (1) to suggest that firm collected debts as matter of course or as substantial part of its practice; (2) regarding volume of firm’s collection activities; or (3) regarding firm’s relationship with collection agencies. Coles v. Zucker Goldberg & Ackerman, 658 Fed. Appx. 108, 111 (3d Cir. 2016) Case 3:18-cv-15929-MAS-LHG Document 31 Filed 03/25/19 Page 13 of 21 PageID: 1143 9 (dismissing FDCPA claim for lack of factual specificity). Stransky does not make any factual debt collector allegations as to Blank Rome, O’Donnell, or Trainor. The cases which Stransky cites are inapposite because there were facts of record that showed the volume of the defendant’s debt collection activities— Stransky fails to plead any such facts here. It is Stransky’s burden under Iqbal/Twombly to assert well-pleaded facts in support of the elements of a cause of action; it is not Blank Rome, O’Donnell, or Trainor’s burden to submit an affidavit to disprove such baseless allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The court should, therefore, dismiss Count IV against Blank Rome, O’Donnell, and Trainor. E. Stransky’s Opposition does not cure the deficiencies raised in Moving Defendants’ Motion to Dismiss his claim for breach of the implied covenant of good faith and fair dealing. In opposition to the legal requirement that there must be a contract to prevail on a claim for breach of the implied covenant of good faith and fair dealing, Stransky merely argues that “[s]ince Pennymac claimed to be the holder of the loan and all the other Defendants acted on their behalf to wrongfully foreclose on Lot 28, all the Defendants are liable for this breach of good faith.” ECF 30 at 19. Stransky provides no citation for this claim. And this Court should not overlook well-established caselaw which requires the existence of a contract between the parties. See, e.g., Nolan v. Control Data Corp., 243 N.J. Super. 420, 429 (App. Div. 1990). Stransky Case 3:18-cv-15929-MAS-LHG Document 31 Filed 03/25/19 Page 14 of 21 PageID: 1144 10 did not have a contractual relationship with Blank Rome, O’Donnell, or Trainor, so Count II of the Amended Complaint must be dismissed as to these Defendants. With respect to PennyMac, Stransky claims that it “misrepresented [its] ability to collect on Lot 28 when [it] knew or should have known that Lot 28 was not part of the Mortgage. Plaintiff alleged this was done in bad faith and with improper motive. There is no Certification from anyone from Pennymac [sic] or any of the other Defendants to refute these allegations.” ECF 30 at 19. But Stransky fails to assert a single fact in support of its bald claim that PennyMac acted in bad faith or with improper motive. Wilson v. Amerada Hess Corp., 168 N.J. 236, 251 (2001) (“an allegation of bad faith or unfair dealing should not be permitted to be advanced in the abstract and absent improper motive. . . . Without bad motive or intention, discretionary decisions that happen to result in economic disadvantage to the other party are of no legal significance”).5 5 The metes and bounds description from the Writ, Final Judgment, and Amended Final Judgment each match the metes and bounds description from the Mortgage. Thus, even if a reference to Lot 28 was inadvertently included in the Writ and initial Final Judgment, it could not have been the result of any bad motive or intent because PennyMac was only trying to foreclose on the boundaries of a property to which it was entitled. And despite the implied covenant, a party is not required to overlook its own rights under an agreement even if it would be detrimental to the other party’s interests. Liqui-Box v. Estate of Elkman, 238 N.J. Super. 588, 599-600 (App. Div. 1990). PennyMac was merely exercising its right to foreclose on the metes and bounds of the Property as described in the Mortgage. See generally Sons of Thunder, Inc., 148 N.J. 396, 420 (1997) (finding that right to foreclose is explicit contractual right, enforcement of which is not breach of covenant of good faith and fair dealing). Case 3:18-cv-15929-MAS-LHG Document 31 Filed 03/25/19 Page 15 of 21 PageID: 1145 11 It is Stransky’s burden under Iqbal/Twombly to assert well-pleaded facts in support of the elements of a cause of action; it is not PennyMac’s burden to submit an affidavit to disprove such baseless allegations. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555 (holding that complaints with mere “‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do’”). Thus, this Court should dismiss Count II against PennyMac. F. Stransky’s Opposition does not point to a single fact alleged in the Amended Complaint to show that he suffered the severe damages required to state a claim for emotional distress. Stransky’s Opposition only highlights the fact that his claim for intentional infliction of emotional distress fails to satisfy Iqbal/Twombly. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Stransky reproduces the bare-bones allegations from his Amended Complaint, yet argues that he states a claim. Stransky’s attempt to state a claim for emotional distress without any well-pleaded facts is the very type of claim that mandates dismissal under Iqbal/Twombly. See Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). For example, he fails to set forth a single fact in support of the claim that he sustained an injury sufficiently severe to satisfy the damages required in a claim of intentional infliction of emotional distress. See Aly v. Garcia, 333 N.J. Super. 195, 204 (App. Div. 200), cert. denied, 167 N.J. 87 (2001). It is insufficient to allege that a party is acutely upset by reason of the incident. Id. Other than embarrassment, Case 3:18-cv-15929-MAS-LHG Document 31 Filed 03/25/19 Page 16 of 21 PageID: 1146 12 which is (at best) being acutely upset, Stransky’s filings do not detail his alleged emotional distress. Thus, this Court should dismiss Count V. G. Stransky’s Arguments regarding the New Jersey Litigation Privilege—if accepted as true—would save only one of his claims, but that claim is also fatally flawed. Even if the Court accepts Stransky’s opposition to the application of the New Jersey litigation privilege, the only claim that would survive is Count III for malicious prosecution, which must also be dismissed. As explained in Rickenbach, the very case which Stransky cites, “the only claim from which defendants expressly cannot seek protection through the litigation privilege is malicious prosecution.” Rickenbach v. Wells Fargo Bank, N.A., 635 F. Supp. 2d. 389, 401, 402 (D.N.J. 2009) (emphasis added). Although Stransky also cites to Nagel, Nagel holds only that the privilege does not apply to unethical professional conduct—which Stransky never alleges. Dello Russo v. Nagel, 358 N.J. Super. 254, 266 (App. Div. 2003). Finally, Stranksy relies on NVR, Inc., which is inapposite. In NVR, Inc., the court found that the litigation privilege did not apply because the entire litigation was a pretextual sham. According to the defendant, the plaintiff’s actions “were not designed to achieve the object of the litigation--i.e., the retrieval of confidential information and money damages--but rather, to get [the defendant] fired from Horton, sabotage [the defendant]’s relationship with Horton, and/or harm [the defendant]’s competitive Case 3:18-cv-15929-MAS-LHG Document 31 Filed 03/25/19 Page 17 of 21 PageID: 1147 13 position in the market.” NVR, Inc. v. Davern, No. 15-5059, 2016 WL 7013459, at *4 (D.N.J. Nov. 30, 2016). Here, the Foreclosure Action and Appel could not have been a pretextual sham because the state court has upheld PennyMac’s right to foreclose, which was the object of the litigation. Stranksy’s claim for malicious prosecution6 fails because he has not alleged any facts to show that Moving Defendants acted with malice; that Moving Defendants lacked probable cause to proceed with the Foreclosure Action or Appeal; or that those cases were terminated in his factor—to the contrary, those courts rejected all of Stransky’s claims regarding wrongful foreclosure, fraud, and misrepresentation. LoBiondo v. Schwartz, 199 N.J. 62, 90-91 (2009).7 H. This Court should apply Rooker-Feldman, Younger, and Colorado River despite Stransky’s claims to the contrary. 1. Rooker-Feldman Stransky claims that Moving Defendants cannot reply upon Rooker-Feldman because they removed the case to this Court. But he does not cite any support for his claim. At least one court in this Circuit has found that defendants can reply upon Rooker-Feldman for dismissal of a suit even if those defendants had removed the 6 Malicious prosecution is a cause of action that related to criminal proceedings. Even if this Court interprets Stransky’s claim as one for malicious use of process, the claim still fails. 7 There are heightened standards a plaintiff must meet when, as in this case, he asserts a malicious use of process claim against an adversary’s attorneys. See LoBiondo, 199 N.J. at 108-117. This Court should dismiss Count III against Blank Rome, O’Donnell, and Trainor because Stransky fails to plead facts sufficient to meet that heightened standard. Case 3:18-cv-15929-MAS-LHG Document 31 Filed 03/25/19 Page 18 of 21 PageID: 1148 14 case. See Lewis v. Citibank, N.A., 179 F. Supp. 3d 458, 462 (E.D. Pa. 2016) (finding that “courts throughout the country have applied the Rooker-Feldman doctrine to cases such as this one where a plaintiff originally brought her action in state court before the defendant removed to federal court”) (internal citations omitted); but see Patetta v. Wells Fargo Bank, NA, No. 09-2848, 2010 WL 1931256 (D.N.J. May 13, 2010) (finding that if defendants removed to federal court and later claimed that Rooker-Feldman barred plaintiffs’ claims, federal courts ought to remand any such barred claims, but ultimately dismissing case under Entire Controversy Doctrine). Further, Rooker-Feldman applies despite Stransky’s claim that he is not expressly seeking to overturn the foreclosure judgment. Stransky is inviting this Court to review and reject the decisions in the Foreclosure Action and Appeal because those courts already found that Stransky’s multitude of claims of wrongdoing, misrepresentation, and fraud in connection with the foreclosure were meritless. See Exhibit D to Brodowski Cert. Therefore, if this Court were to grant the relief that Stransky requests, it would require this Court to disrupt the decision of the Appellate Court, which this Court cannot do pursuant to Rooker-Feldman. Thus, the Court should dismiss the Amended Complaint against Moving Defendants. 2. Younger Abstention and Colorado River Doctrines For the reasons set forth in Moving Defendants’ Motion to Dismiss, this case should be dismissed against PennyMac pursuant to the Younger and Colorado River Case 3:18-cv-15929-MAS-LHG Document 31 Filed 03/25/19 Page 19 of 21 PageID: 1149 15 Doctrines. Stransky’s only argument as to why Younger and Colorado River do not apply is that Moving Defendants removed the case to federal court. But he fails to support that proposition with even a single citation, and this Court has applied these doctrines to plaintiffs’ claims even when defendants have removed the case. See Patetta, 2010 WL 1931256, at *9 (analyzing plaintiffs’ claims under Younger abstention despite the fact that defendants had removed case); Pillitteri v. First Horizon Home Loans, No. 14-03076, 2015 WL 790633, at *6 n.10 (D.N.J. Feb. 25, 2015) (finding that, in case where defendants had removed to federal court, court could consider Colorado River doctrine if state foreclosure proceeding was ongoing or proceeded to judgment). III. Conclusion For the foregoing reasons, and those set forth in Moving Defendants’ Motion to Dismiss, Moving Defendants respectfully request that the Court dismiss Plaintiff’s Amended Complaint with prejudice. BLANK ROME LLP /s/ Thomas Brodowski Dated: March 25, 2019 300 Carnegie Center, Suite 200 Princeton, NJ 08540 (609) 750-2650 Attorneys For Defendants, PennyMac Holdings, LLC, Blank Rome LLP, Lauren E. O’Donnell and Michael P. Trainor Case 3:18-cv-15929-MAS-LHG Document 31 Filed 03/25/19 Page 20 of 21 PageID: 1150 CERTIFICATE OF SERVICE I hereby certify that on this 25th day of March 2019, a copy of the foregoing Reply in Support of Motion to Dismiss Plaintiff’s Amended Complaint was served via first class mail, postage pre-paid and ECF upon the following counsel of record: Rubenstein Business Law Attn: David Rubenstein, Esq. Park 80 West, Plaza II 250 Pehle Avenue, Suite 200 Saddle Brook, NJ 07663 Attorney for Plaintiff /s/ Thomas Brodowski Thomas Brodowski Case 3:18-cv-15929-MAS-LHG Document 31 Filed 03/25/19 Page 21 of 21 PageID: 1151